The cases leading off this edition can best be described as what not to do in a death penalty case, two relating to prosecutors & one concerning defense counsel. InMadej v. Brileya panel of the Seventh Circuit appears to have finally had it with several Illinois state prosecutors. Issuing an order to show cause why it should not impose disciplinary sanction against an Assistant State's Attorney and blasting the quality of the legal argument presented by Illinois state authorites, the panel uses some of the harshest language temperate jurists can use to denounce not "technical gaffes" but intentional acts by state prosecutors.

The strong language of Madej, however, seems tame in light of the actions taken by the Arizona Supreme Court inIn the Matter of Kenneth Peasley. InPeasley the Arizona Supreme Court disbars a prosecutor for his actions in capital cases. Specifically, the Peasley Court found that counsel had deliberately elicited false testimony & relied upon that testimony in his opening statements.

Both cases are covered in the "Hot List" section, as isRitchie v. Indiana. Ritchie, among other issues, highlights a somewhat humorous example of how to alienate a jury (or would be humorous save for the fact Mr. Ritchie is now on death row).

In Focus this week covers Goldstein & Howe's coverage of the Supreme Court's decision inYarborough v. Alvarado. The Court's decision on Yarborough holds that the state court adjudication of the confession of the seventeen year old Alvarado was "reasonable" for purposes of the AEDPA and therefore the Ninth Circuit improperly granted habeas relief. There are some nuances in the decision regarding "unreasonable application" that habeas practitioners should closely review.

Elsewhere, David Hammer received a stay of his federal execution date so he can pursue further appeals. In Illinois, Gordon “Randy” Steidl has walked off of death row & becomes the eighteenth man to walk off of that state's row due to claims of innocence. Finally, the Philadelphia Inquirer hasreportedwhat many have known for some time, that the Defender Association of Philadelphia has the best track record in capital litigation going (indeed better than any other law firm, nonprofit or defender organization in the world) with almost 1000 successes in capital cases without a single loss at the trial level.

As always, thanks for reading. - k

This edition is archived athttp://capitaldefenseweekly.com/archives/040531.htm.

EXECUTION INFORMATION

Since the last edition there have been the following executions.

May

28 James Tucker South Carolina -- electric chair

Pending execution dates believed to be serious include:

June

8 Robert Bryan Oklahoma

8 William Zuern Ohio

14-19 Steven Oken Maryland

29 Mauro Barraza Texas----juvenile

30 David Harris Texas

August

19 Gregory Thompson Tennessee

25 Jason Busby Texas

26 James Allridge III Texas

September

22 Philip Workman Tennessee

SUPREME COURT

Yarborough v. Alvarado, 541 U.S. --- (2004) State appellate court's holding that the confession of the seventeen year old Alvarado was "reasonable" for purposes of the AEDPA and therefore the Ninth Circuit improperly granted habeas relief.

Respondent Alvarado helped Paul Soto try to steal a truck, leading to the death of the truck's owner. Alvarado was called in for an interview with Los Angeles detective Comstock. Alvarado was 17 years old at the time, and his parents brought him to the station and waited in the lobby during the interview. Comstock took Alvarado to a small room where only the two of them were present. The interview lasted about two hours, and Alvarado was not given a warning under Miranda v. Arizona, 334 U.S. 436. Although he at first denied being present at the shooting, Alvarado slowly began to change his story, finally admitting that he had helped Soto try to steal the victim's truck and to hide the gun after the murder. Comstock twice asked Alvarado if he needed a break and, when the interview was over, returned him to his parents, who drove him home. After California charged Alvarado with murder and attempted robbery, the trial court denied his motion to suppress his interview statements on Miranda grounds. In affirming Alvarado's conviction, the District Court of Appeal (hereinafter state court) ruled that a Miranda warning was not required because Alvarado had not been in custody during the interview under the test articulated in Thompson v. Keohane, 516 U.S. 99, 112, which requires a court to consider the circumstances surrounding the interrogation and then determine whether a reasonable person would have felt at liberty to leave. The Federal District Court agreed with the state court on habeas review, but the Ninth Circuit reversed, holding that the state court erred in failing to account for Alvarado's youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave the interview. Noting that this Court has considered a suspect's juvenile status in other criminal law contexts, see, e.g., Haley v. Ohio, 332 U.S. 596, 599, the Court of Appeals held that the state court's error warranted habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because it "resulted in a decision that ... involved an unreasonable application of ... clearly established Federal law, as determined by [this] Court," 28 U.S.C. §2254(d)(1).

Held:The state court considered the proper factors and reached a reasonable conclusion that Alvarado was not in custody for Miranda purposes during his police interview. Pp.7-15.

(a)AEDPA requires federal courts to consider whether the state-court decision involved an unreasonable application of clearly established law. Clearly established law "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412. The Miranda custody test is an objective test. Two discrete inquiries are essential:(1) the circumstances surrounding the interrogation, and (2) given those circumstances, whether a reasonable person would have felt free to terminate the interrogation and leave. "Once the ... players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Thompson, 516 U.S., at 112. Pp. 7-9.

(b)The state-court adjudication did not involve an unreasonable application of clearly established law when it concluded that Alvarado was not in custody. The meaning of "unreasonable" can depend in part on the specificity of the relevant legal rule. If a rule is specific, the range of reasonable judgment may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over time. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations. Cf. Wright v. West, 505 U.S. 277, 308-309. Fair-minded jurists could disagree over whether Alvarado was in custody. The custody test is general, and the state court's application of this Court's law fits within the matrix of the Court's prior decisions. Certain facts weigh against a finding that Alvarado was in custody. The police did not transport him to the station or require him to appear at a particular time, cf. Oregon v. Mathiason, 429 U.S. 492, 495; they did not threaten him or suggest he would be placed under arrest, ibid.; his parents remained in the lobby during the interview, suggesting that the interview would be brief, see Berkemer v. McCarty, 468 U.S. 420, 441-442; Comstock appealed to Alvarado's interest in telling the truth and being helpful to a police officer, cf. Mathiason, 429 U.S., at 495; Comstock twice asked Alvarado if he wanted to take a break; and, at the end of the interview, Alvarado went home, ibid. Other facts point in the opposite direction. Comstock interviewed Alvarado at the police station; the interview lasted 4 times longer than the 30-minute interview in Mathiason; Comstock did not tell Alvarado that he was free to leave; he was brought to the station by his legal guardians rather than arriving on his own accord; and his parents allegedly asked to be present at the interview but were rebuffed. Given these differing indications, the state court's application of this Court's custody standard was reasonable. Indeed, a number of the facts echo those in Mathiason, a per curiam summary reversal in which we found it clear that the suspect was not in custody. Pp.9-12.

(c)The state court's failure to consider Alvarado's age and inexperience does not provide a proper basis for finding that the state court's decision was an unreasonable application of clearly established law. The Court's opinions applying the Miranda custody test have not mentioned the suspect's age, much less mandated its consideration. The only indications in those opinions relevant to a suspect's experience with law enforcement have rejected reliance on such factors. See, e.g., Berkemer, supra, at 442, n.35, 430-432. It was therefore improper for the Court of Appeals to grant relief on the basis of the state court's failure to consider them. There is an important conceptual difference between the Miranda test and the line of cases from other contexts considering age and experience. The Miranda custody inquiry is an objective test, see Thompson, supra, at 112, that furthers "the clarity of [Miranda's] rule," Berkemer, 468 U.S., at 430, ensuring that the police need not "gues[s] as to [the circumstances] at issue before deciding how they may interrogate the suspect," id., at 431. This objective inquiry could reasonably be viewed as different from doctrinal tests that depend on the actual mindset of a particular suspect, where the Court does consider a suspect's age and experience. In concluding that such factors should also apply to the Miranda custody inquiry, the Ninth Circuit ignored the argument that that inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's individual characteristics--including his age--could be viewed as creating a subjective inquiry, cf. Mathiason, supra, at 495-496. Reliance on Alvarado's prior history with law enforcement was improper not only under §2254(d)(1)'s deferential standard, but also as a de novo matter. In most cases, the police will not know a suspect's interrogation history. See Berkemer, supra, at 430-431. Even if they do, the relationship between a suspect's experiences and the likelihood a reasonable person with that experience would feel free to leave often will be speculative. Officers should not be asked to consider these contingent psychological factors when deciding when suspects should be advised of Miranda rights. See Berkemer, supra, at 431-432. Pp. 12-15.

316 F.3d 841, reversed.

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

CAPITAL CASES (Favorable Disposition)

Sterling v. Dretke, 2004 U.S. App. LEXIS 10594 (5th Cir 5/28/2004) (unpublished) COA granted on whether counsel was ineffective for permitting admittance of a potentially biased juror.

Stroud v. Indiana, 2004 Ind. LEXIS 473 (Ind 5/25/2004) Trial court erred in leading the jury to believe that the ultimate sentencing responsibility lay elsewhere (Caldwell v. Mississippi).

Manning v. Mississippi, 2004 Miss. LEXIS 587 (Miss 5/27/2004) Conviction & sentence vacated.due to admission of testimony as to a polygraph examination. Additionally, trial court instructed to reexamine whether the State complied with its discovery obligations as to the existence of cassettes and transcripts of certain witnesses.

State ex rel Baker, Relator, v. Hon. Kendrick, 2004 Mo. LEXIS 67 (Mo 5/25/2004) Following Ring v. Arizona & State v. Whitfield, since the jury was unable to reach agreement on punishment and the verdict that was returned did not show that the jury found all facts necessary for the imposition of death the trial court should have imposed a life sentence.

Missouri v. Thompson, 2004 Mo. LEXIS 68 (Mo. 5/25/2004) Trial court's imposition of death after a jury deadlock reversed in light of Ring.

CAPITAL CASES (Unfavorable Disposition)

Martinez v. Dretke, 2004 U.S. App. LEXIS 10179 (5th Cir 5/24/2004) (unpublished) COA denied on whether counsel was ineffective 1) for failing to adequately prepare for the state's testimony that petitioner was a psychopath; 2) for failing to investigate mitigation evidence; and 3) failing to prepare & present mitigating evidence.

Henyard v. Florida, 2004 Fla. LEXIS 859 (FL 5/27/2004) Post-conviction relief denied on claims "trial counsel did not adequately investigate or present the following nonstatutory mitigating circumstances: (1) Henyard's lack of stable parental contact and supervision; (2) Henyard suffered physical abuse at the hands of his father's common law wife, Edith Ewing; (3) Henyard's pattern of seeking out younger children as companions due to his lower IQ and "mental" age and to avoid harassment from children his own age; (4) Henyard suffered sexual abuse as a child; (5) Henyard's chronic use of alcohol; (6) Henyard's mental state as characterized by his suicidal feelings." Habeas relief denied on claims of (1) appellate counsel rendered ineffective assistance for not raising on direct appeal the improper ruling on trial counsel's motion to withdraw; (2) under Apprendi v. New Jersey and Ring v. Arizona, Florida's capital sentencing statute violates the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and the corresponding provisions of the Florida Constitution; and (3) Henyard's right preventing cruel and unusual punishment will be violated as he may be incompetent at the time of his execution.

Ritchie v. Indiana, 2004 Ind. LEXIS 476 (Ind 5/25/2004) (dissent) Relief denied on claims including: 1) constitutionality of lethal injection; 2) whether application of certain modifications of the Indiana sentencing scheme violates the ex post facto clause; 3) the weighing of aggs and mits; 4) prosecutorial misconduct; 5) sufficiency of the evidence; and 6) defense counsel's comments about the jury foreperson (counsel's comments are in the Hot List section).

Indiana v. Barker, 2004 Ind. LEXIS 477 (Ind 5/25/2004) Death penalty specifications reinstated as the trial court improperly held 1) that the state's death penalty scheme should require, after Ring/Apprendi, that aggs outweigh mits beyond a reasonable doubt; 2) that the statute's "hung jury" provisions were not unconstitutional as written but notes that it could be unconstitutional as applied; 3) that the amended Indiana death penalty statute is unconstitutional because it "systematically diminishes the jury's sense of responsibility;" and 4) application of sentencing modifications to death penalty scheme violates the ex post facto clause.

Indiana v. Ben-Yisrayl f/k/a Davis, 2004 Ind. LEXIS 478 (Ind 5/25/2004) Death penalty specifications reinstated. Trial court improperly held that state's death penalty statute "is unconstitutional because it permits a sentence of death without requiring the jury to find beyond a reasonable doubt that the aggravating circumstance or circumstances outweigh any mitigating circumstances, which the trial court believed violated Apprendi v. New Jersey, and Ring v. Arizona."

Puckett v. Mississippi, 2004 Miss. LEXIS 592 (Miss 5/27/2004) Relief denied on issues including: 1) failure to sit 12 impartial jurors (juror who couldn't speak English, 2) impermissible contact with jurors by court personnel; 3) that the Daubert standard should be applied to expert testimony in capital cases; 4) admission of the testimony of the victim's children in the guilt phase; 5) comments on post-arrest silence; 6) ineffective assistance of counsel as to both phases (investigation, failure to object; failure to present a defense, failure to seek to compel discovery; not objecting to police perjury & failure to request funds); 7) Ring; & 8) failure to have access to counsel during a critical stage of the proceedings.

Branch v. Mississippi, 2004 Miss. LEXIS 586 (Miss 5/27/2004) Relief denied, most notably, on claims relating to 1) mental retardation; 2) ineffective assistance of counsel as to both phases of the proceedings (mental health evidence, investigation, advocacy, preparation of witnesses, performance at the charge conference); 3) Caldwell error; 4) victim impact evidence; 5) refusal of instructions on burden of proof & mitigation; 6) State's burden under Apprendi/Ring; 7) agg circumstance of pecuniary gain; 8) prosecutorial comments; & 9) constitutionality of the state's sentencing scheme.

Lynch v. Mississippi, 2004 Miss. LEXIS 591 (Miss 5/27/2004) "[W]e find that the trial court did not err in instructing the jury on the State's burden of proof in the guilt and sentencing phases of trial. Neither did the court err in applying Batson and its progeny during voir dire, nor when the trial court denied the motion for a directed verdict and excluded two hearsay statements. The evidence is sufficient to support the jury's guilty verdict and the verdict is not against the overwhelming weight of the evidence. There is sufficient evidence to support the finding of the aggravating circumstance of preventing a lawful arrest. The death sentence withstands constitutional scrutiny and is not cruel and unusual punishment under the circumstances, and it is not disproportional to the crime."

Missouri v. Deck, 2004 Mo. LEXIS 69 (Mo. 5/25/2004) Relief denied on claims including: 1) double hearsay testimony relating to why police began searching for Deck; 2) shackling during trial; 3) pattern jury instructions; 4) failure to issue & repeat the recess instruction; 5) certain victim-impact evidence; 6) prosecutorial argument; 7) death qualification; & 8) Ring.

Gardner v. Galteka, 2004 Utah LEXIS 109;2004 UT 42 (UT 5/28/2004) "Gardner's ineffective assistance of appellate counsel claim, premised upon his attorneys' failure to challenge the "knowingly" instruction and brought for the first time in a second post-conviction petition, is procedurally barred."

CAPITAL CASES (Other)

Madej v. Briley, 2004 U.S. App. LEXIS 10563 (7th Cir 5/28/2004) State's failure to timely hold new sentencing hearing gathers the wrath of a three judge panel, including two of the leading law & order conservatives on the federal bench.

In the Matter of Kenneth Peasley, 2004 Ariz. LEXIS 67 (Az 5/28/2004) Prosecutor disbarred for intentionally misleading judges and juries in various capital cases.

HOT LIST

Madej v. Briley, 2004 U.S. App. LEXIS 10563 (7th Cir 5/28/2004) State's failure to timely hold new sentencing hearing gathers the wrath of a three judge panel, including two of the leading law & order conservatives on the federal bench.

Our opinion criticized the state for failing to implement the district court's writ during the 20 months and counting since its issuance. We wrote:Illinois should count itself lucky that the district judge did not hold the warden (or perhaps the prosecutor) in contempt of court. The district judge ordered the state to act by November 25, 2002, yet to this day the order has not been carried out. It is irrelevant that the state believes the order ineffectual. It is for the federal judiciary, not the Attorney General of Illinois, to determine the force of such orders, and even erroneous directives must be [*3] obeyed while they are outstanding. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 439-40, 49 L. Ed. 2d 599, 96 S. Ct. 2697 (1976).Illinois asks us to delete this language, relating that it had not complied with the district court's order because Madej's lawyer requested a continuance of the resentencing and, before the time came to act, the Supreme Court of Illinois entered an order that "all judicial proceedings in the circuit courts of Illinois that may result in the resentencing of any of the defendants-respondents in People ex rel. Madigan v. Snyder ...are stayed pending disposition of the petition for writ of mandamus in People ex rel. Madigan v. Snyder". That litigation was the attempt by the Attorney General of Illinois to upset the pardons and commutations of death sentences issued by former Governor Ryan in January 2003. Madej had received a commutation (from capital punishment to natural-life imprisonment) and thus was among the defendants-respondents to whom the state court's order referred.

Reliance on this order demonstrates that the Attorney General of Illinois and the State's Attorney of Cook County either do not comprehend, [*4] or do not take seriously, their obligations under the Supremacy Clause of the Constitution. No state court can countermand an order, issued by a federal court, implementing the Constitution of the United States. Illinois is free to manage its internal affairs as it pleases. The litigation in People ex rel. Madigan v. Snyder concerned the status of the pardons and commutations as a matter of Illinois law; it was sensible not to resentence these defendants (or to execute them, either) while the validity of the Governor's acts was in question. The obligation to resentence Madej, however, did not come from the commutation or any other aspect of state law or practice. Prompt resentencing is required, the district court had held, by the Constitution of the United States.

Faced with conflicting orders--one issued by a federal court to implement the Constitution, and the other issued by a state court as a matter of state practice--the Attorney General of Illinois and the State's Attorney of Cook County preferred the latter over the former. This inverts the priority prescribed by the Constitution. In May 2003, when Madej's lawyer began to protest the state's inaction, Illinois still did [*5] nothing. It would have been easy to resolve the conflict; all the Attorney General had to do was inform the Supreme Court of Illinois that its order clashed with an outstanding writ in Madej's favor issued by a federal court. Yet lawyers representing the State of Illinois did not do this; they chose to leave the Supreme Court of Illinois in ignorance and then take shelter behind its order. This is unpardonable conduct by a member of the bar. We grant that the federal district court eventually (long after the state should have resentenced Madej) allowed the state's order to take priority, but when the state court's stay (and thus the district judge's) had expired by its own terms in January 2004, Illinois still refused to resentence Madej. That's what led to these additional proceedings. Madej has yet to enjoy the hearing that was ordered in September 2002. Contempt of court is an entirely appropriate description.

Twice in recent months we have expressed concern about shoddy performance by lawyers representing the State of Illinois and ordered them to show cause why sanctions should not be imposed. See Carroll v. Yates, 362 F.3d 984 (7th Cir. 2004); A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004). [*6] On each occasion we accepted the state's assurance that all problems were behind them and would not recur. See Carroll v. Yates, No. 01-2931 (7th Cir. Apr. 30, 2004) (unpublished order); A.M. v. Butler, 365 F.3d 571 (7th Cir. 2004). Yet the petition for rehearing in this appeal, filed less than a week after the second of these orders, shows that frivolous and unprofessional argumentation continues.

Most likely the author of the "petition for rehearing" is responsible for the precise line of argument deployed in these appellate proceedings, for casting a request to amend as a petition for rehearing, and for seeking mandamus rather than filing an appeal in the first place. We therefore direct Marie Quinlivan Czech to show cause within 21 days why we should not impose professional discipline. See Fed. R. App. P. 38, 46(b), 46(c).

Our principal concern, however, is not with technical gaffes in these papers or even the feeble arguments adduced. It is with a failure to carry out the district court's order--a decision that must have been made by senior personnel--and [*7] the persistent shortcomings in the legal work presented to this court by the State of Illinois. The warden's "petition for rehearing" bears the names of Lisa Madigan, Attorney General of Illinois; Gary Feinerman, Solicitor General of Illinois; and Richard A. Devine, State's Attorney of Cook County; in addition to Assistant State's Attorney Czech. Perhaps some of the troubles in this litigation are attributable to an informal arrangement between the state's Attorney General and the State's Attorney of Cook County under which the former handles collateral proceedings in this court and the latter handles implementation after our decisions. It is unclear whether the Attorney General and Solicitor General have seen, let alone approved, the documents recently filed in their names. State and local institutions may allocate governmental responsibilities as they please, but they may not take shelter behind allocations that leave no one fully responsible when those procedures lead to noncompliance with judicial orders and woebegone papers filed in litigation.

Systemic problems require systemic solutions. One option is to instruct the district court to open proceedings to determine who is responsible [*8] for the state's failure to comply with its order, and to impose appropriate penalties for contempt of court. Even better, however, would be the adoption of procedures within the state's legal bureaucracy to ensure that these problems do not recur. We invite the Attorney General and the State's Attorney to explain, within 21 days, what they think can be done in lieu of contempt proceedings. Given the failure of the assurances made to us in Carroll and A. M., any proposals must be concrete rather than general promises to do better next time. It should go without saying (though it seems prudent to say it anyway) that an essential step in rebuilding the state's good reputation is the swift resentencing of Gregory Madej in compliance with the writ issued in September 2002.

In the Matter of Kenneth Peasley, 2004 Ariz. LEXIS 67 (Az 5/28/2004) Prosecutor disbarred for intentionally misleading judges and juries and various capital cases.

P33 As stated above, we apply the Standards when imposing attorney discipline. Shannon, 179 Ariz. at 68, 876 P.2d at 564. Like the hearing officer and the Commission, we consider the following factors: 1) the duty violated; 2) the lawyer's mental state; 3) the actual or potential injury caused by the misconduct; and 4) the existence of aggravating and mitigating factors. Standard 3.0. In addition, we consider other similar cases in determining whether a specific sanction is proportional. In re Horwitz, 180 Ariz. 20, 28, 881 P.2d 352, 360 (1994). We address each of these considerations in turn.

A. P34 With respect to the first factor, [*23] Peasley violated his duty as a prosecutor to seek justice. "The prosecutor's interest in a criminal prosecution 'is not that it shall win a case, but that justice shall be done.'" Pool v. Superior Court, 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984) (quoting Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935)). In addition, courts generally recognize that the ethical rules impose high ethical standards on prosecutors.Recognizing a Government lawyer's role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of this power.In re Doe, 801 F. Supp. 478, 480 (D.N.M. 1992). By presenting false testimony in the prosecution of two defendants charged with capital murder, Peasley violated one [*24] of the most important duties of a lawyer.

P35 As to the second factor, the record clearly supports the finding that Peasley intentionally presented false testimony over the course of two trials. The record also supports the finding that the third factor, actual or potential harm, occurred here. Peasley sought and obtained the convictions and the death penalty against two capital murder defendants using false testimony to establish a crucial fact. Such harm is particularly egregious. See In re Wolfram, 174 Ariz. 49, 57, 847 P.2d 94, 103 (1993). We cannot conceive of a more serious injury, not just to the defendants but to the criminal justice system, than a prosecutor's presentation of false testimony in a capital murder case.

P36 The presumptive discipline for Peasley's intentional misconduct is disbarment. Standard 6.11. Thus, we must determine whether the aggravating factors, weighed against the mitigating factors, justify disbarment. We first address the aggravating factors. These factors need only be supported by reasonable evidence. In re Varbel, 182 Ariz. 451, 455 n.7, 897 P.2d 1337, 1341 n.7 (1995).

B. 1. P37 Both the hearing [*25] officer and the Commission found that substantial experience was an aggravating factor. The hearing officer did not give this factor any weight because he believed that it was offset by the corresponding mitigating factor of an unblemished disciplinary record. Prior decisions of this court support such an offset. See, e.g., Shannon, 179 Ariz. at 68, 876 P.2d at 564. But as we suggested in In re Arrick, 180 Ariz. 136, 143, 882 P.2d 943, 950 (1994), the aggravating factor of substantial experience in the practice of law deserves closer examination and should not simply be "offset" by a supposedly unblemished record. See also Shannon, 179 Ariz. at 82, 876 P.2d at 578 (Zlaket, J., dissenting) (arguing that "using the mitigating effect of . . . discipline-free years to 'offset' the 'substantial practice' aggravating factor . . . effectively accords equal weight to both").

P38 One commentator suggests that "the justifications for treating substantial experience in the practice of law as an aggravating factor are weak in many cases." Leslie C. Levin, The Emperor's Clothes and Other Tales About the Standards for Imposing Lawyer Discipline [*26] Sanctions, 48 Am. U. L. Rev. 1, 50 (1998). Further, "the bar admission standards in every state require applicants to demonstrate knowledge of professional responsibility rules and admitted lawyers are bound to abide by the rules regardless of their level of experience." Id. Thus, merely because a lawyer has substantial experience in the practice of law should not mean that this aggravating factor automatically applies.

P39 However, because "there are, obviously, problems that more experienced lawyers may be better able to avoid than less experienced lawyers," there could "be cases in which the lawyer's substantial experience should be considered relevant to the sanction imposed." Id. at 52. We conclude that when there is a nexus between a lawyer's experience and the misconduct, substantial experience should be considered a relevant aggravating factor.

P40 Peasley maintains that substantial experience should not be considered an aggravating factor in his case because dishonesty is not the type of misconduct that becomes less likely with years of experience. See In re Savoy, 181 Ariz. 368, 371, 891 P.2d 236, 239 (1995) (substantial [*27] experience "applies only when the misconduct would be less likely to occur the more experienced a lawyer becomes; but every lawyer is expected to be truthful, regardless of the length of time he has practiced"). Obviously, even the most inexperienced lawyer knows that he or she should not elicit false testimony. Nevertheless, when a lawyer's substantial experience places that lawyer in a position that would be unavailable to a less experienced lawyer, and that lawyer's experience also affords, or should afford, a greater appreciation of the advantages of eliciting false testimony, substantial experience may be considered a relevant aggravating factor.

P41 Peasley's substantial experience as a prosecutor placed him in a different position than a prosecutor with less experience. First, because of his lengthy experience, Peasley had the ability to, and did, try the most serious of cases, capital murder cases. Second, as the issuing attorney in the El Grande case, Peasley had the authority to, and did, assume responsibility for prosecuting the case himself. More importantly, because of his substantial experience, particularly in prosecuting homicide cases, Peasley understood far better [*28] than would an inexperienced prosecutor how a jury would likely react to a suggestion that Detective Godoy "fed" information about Minnitt and McCrimmon to Woods. Peasley would not have been prosecuting the El Grande murders but for his experience, and because of that experience, he recognized the significance of Godoy's testimony with respect to Woods' credibility. We therefore conclude that Peasley's substantial experience does carry weight as an aggravating factor.

2. P42 The Commission also found the additional aggravating factor of dishonest or selfish motive, which Peasley contests. We have held that dishonest or selfish motive "speaks in terms of 'motive,' not conduct." Shannon, 179 Ariz. at 69, 876 P.2d at 565; see also In re Attorney D., 57 P.3d 395, 400 (Colo. 2002) ("'The absence of a dishonest or selfish motive,' . . . refers to the lawyer's motive for his conduct, without regard to any awareness on his part whether that conduct is specifically proscribed as unethical. While not necessarily irrelevant, a respondent's awareness that his conduct will violate an ethical proscription is not itself material."). Simply because an attorney's [*29] conduct is intentional or dishonest does not by itself establish a dishonest or selfish motive. See In re Alcorn, 202 Ariz. 62, 74, P42, 41 P.3d 600, 612 (2002) (respondent violated his ethical duty of candor toward the tribunal, but selfish motive was not an aggravating factor).

P43 In the past, we have held that dishonest or selfish motive is an aggravating factor when an attorney received some financial gain or made misrepresentations to cover his or her negligence. These previous holdings of dishonest or selfish motive involved private attorneys, not public sector lawyers. See, e.g., Arrick, 180 Ariz. at 143, 882 P.2d at 950 (holding that lawyer who made deliberate misrepresentations to his client to conceal his negligence and improperly retained a fee from that client had a dishonest or selfish motive); Shannon, 179 Ariz. at 69, 876 P.2d at 565 (finding lawyer who represented clients with conflicting interests did so for "selfish reasons"). We have never addressed a situation involving a prosecutor who was alleged to have had a dishonest or selfish motive.

P44 Nevertheless, we believe there are instances in which the misconduct [*30] of a prosecutor can be prompted by a dishonest or selfish motive. Obtaining a conviction at any cost is one of them. Peasley intentionally and repeatedly presented false testimony in an effort to bolster Woods' credibility solely for the purpose of obtaining convictions and subsequent death penalties for both Minnitt and McCrimmon. In our view, such circumstances demonstrate a dishonest motive. Cf. People v. Pautler, 35 P.3d 571, 585-86 (Colo. 2001) (finding that prosecutor who misrepresented himself to a suspect as a public defender was motivated in part by gaining an advantage in subsequent legal proceedings, which supported the existence of the aggravating factor of dishonest or selfish motive). We therefore agree with the Commission that the aggravating factor of dishonest motive is present in this case.

3. P45 Peasley contests the Commission's finding of multiple offenses as an aggravating factor. This court has applied the aggravating factor of multiple offenses to a lawyer's misconduct that involved multiple clients or multiple matters. For example, we found multiple offenses when a lawyer violated duties owed to two clients, a former client, the court, [*31] and opposing parties in a one-year period. See In re Moak, 205 Ariz. 351, 356, P30, 71 P.3d 343, 348 (2003). We also found multiple offenses when a lawyer brought several frivolous claims against multiple defendants on behalf of one client. In re Levine, 174 Ariz. 146, 171, 847 P.2d 1093, 1118 (1993). But we do not think this aggravating factor is limited to such situations. Cf. In re Rome, 856 So. 2d 1167, 1169-71 (La. 2003) (upholding finding of multiple offenses when assistant district attorney kept fine payments for himself on six to eight occasions).

P46 Here, Peasley presented misleading and false testimony in two separate trials against two defendants. In each trial, he referred to Godoy's false testimony in his opening statements, elicited the false testimony on direct examination of Godoy, and exploited that false testimony in his closing arguments. Furthermore, his conduct was more egregious in the second trial than in the first -- his questions were more specific and pointed in eliciting the false testimony. We therefore agree with the Commission and conclude that Peasley committed multiple offenses, which we consider to [*32] be a very serious aggravating factor.

4. P47 Peasley claims that the Commission erred in finding, as a de facto aggravating factor, that he failed to demonstrate that recurrence was unlikely. The Commission found that Peasley's statement -- that a "sick system" made Detective Godoy testify the way he did -- suggested "the potential for future misconduct by Respondent, which places the public and criminal justice system at substantial risk." The Commission went on to state, "Given the seriousness of the misconduct and the significant injury it caused to the defendants and to the legal system, the Commission is convinced that the public and the criminal justice system will not be protected by anything less than disbarment."

P48 We do not read the Commission as having treated the possibility of recurrence as an aggravating factor, but instead it simply considered that possibility in determining the appropriate sanction. We believe that such consideration was appropriate. "This court has long held that 'the objective of disciplinary proceedings is to protect the public, the profession and the administration of justice and not to punish the offender.'" Alcorn, 202 Ariz. at 74, P41, 41 P.3d at 612 [*33] (citing In re Kastensmith, 101 Ariz. 291, 294, 419 P.2d 75, 78 (1966)); see also Scholl, 200 Ariz. at 227, P29, 25 P.3d at 715 ("The purpose of professional discipline is twofold: (1) to protect the public, the legal profession, and the justice system, and (2) to deter others from engaging in misconduct.").

C. P49 We next examine the existence of mitigating factors. As discussed above, the hearing officer and the Commission reached different findings with respect to several of the mitigating factors. Because our review is de novo, see Moak, 205 Ariz. at 352, P5, 71 P.3d at 344, we examine these factors in detail.

1. P50 Both the hearing officer and the Commission found Peasley's unblemished disciplinary record to be a mitigating factor. This court has on occasion given great weight to an unblemished disciplinary record in determining the proper sanction for lawyer misconduct. In re Murphy, 188 Ariz. 375, 380, 936 P.2d 1269, 1274 (1997) ("We are greatly influenced by the fact that in 26 years of practice, respondent has never before received a disciplinary complaint."); Levine, 174 Ariz. at 172, 847 P.2d at 1119 [*34] ("We give great weight, in particular, to respondent's previous unblemished disciplinary record as well as his professional contributions and accomplishments during his 30 years of practice.").

P51 The Commission did not give this factor much weight and the State Bar encourages us to do the same. We agree that Peasley's unblemished disciplinary record should not be given great weight here. First, "the absence of a disciplinary record is not by itself proof of good conduct." Levin, supra, at 53-54. Second, although Peasley had not previously been formally disciplined by the State Bar, at least two reported decisions discuss Peasley's misconduct in the prosecution of those cases. n15

P52 This court commented on allegations of prosecutorial misconduct by Peasley in State v. Rodriguez, 192 Ariz. 58, 64, PP31-33, 961 P.2d 1006, 1012 (1998) (Peasley violated the discovery rules, failing to ensure that the defendant received a fair trial), and State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997) (Peasley made inflammatory remarks about the defendant and made an impermissible comment on the defendant's failure to testify). n16 We acknowledge that these cases did not lead to Peasley being formally disciplined nor did Peasley's misconduct cause the convictions in those cases to be reversed. n17 Nevertheless, these cases demonstrate that his misconduct in this matter was not entirely out of character. For this reason, we decline to give the factor of unblemished disciplinary record much weight.

2. P53 Although the hearing officer found interim rehabilitation to be a mitigating factor, the Commission rejected this as a mitigating factor. Peasley argues that interim rehabilitation should be a mitigating factor because he had taken steps to reduce his workload and to prepare for trial more thoroughly. Interim rehabilitation is no longer a mitigating factor under the Standards. See Standard 9.32. But we may still consider this factor in mitigation because the purpose of attorney discipline is not to punish but rather to protect the public. See Alcorn, 202 Ariz. at 74, P41, 41 P.3d at 612. Nevertheless, the facts do not indicate that overwork caused Peasley's misconduct. Neither Peasley nor the hearing officer points to any causal connection between Peasley's workload and his intentional presentation of false evidence. Thus, a reduced workload and additional preparation would not have prevented the misconduct that occurred here. Accordingly, we do not give this factor any weight.

3. P54 The Commission also rejected the hearing officer's finding of the mitigating factor of physical disability in the 1997 Minnitt retrial. Peasley argues that [*37] the Commission applied the wrong criteria in rejecting this factor. We agree. Referring to the "[four]-pronged criteria" of Standard 9.32(i), n18 the Commission rejected the mitigating factor of physical disability in part because it concluded that Peasley "failed to demonstrate a sustained period of rehabilitation, and that a recurrence of the misconduct is unlikely." This reliance on a failure to demonstrate a sustained period of rehabilitation and the unlikelihood of recurrence was error. Such factors are only relevant when a lawyer claims mental disability or chemical dependency as a mitigating factor. See Standard 9.32(i). Peasley did not claim mental disability or chemical dependency. Instead, he contended that he suffered from a physical and medical disability "stemming from stress, overwork and ill health." See Standard 9.32(h). Nonetheless, we conclude that the evidence does not support this mitigating factor.

P55 Physical disability is a mitigating factor only if there is a direct causal connection between the physical disability and the misconduct. Standard 9.32(h) & cmt. The stronger the connection between the disability and the misconduct, the greater the weight it must be given. n19

P56 Nothing in the record supports the finding that Peasley's physical disabilities caused his misconduct in the 1997 Minnitt retrial. The hearing officer found that Peasley suffered from [*39] vision problems, pain on his left side, periodic vertigo, and had difficulty focusing and concentrating during the Minnitt retrial. Although the hearing officer found these conditions to be a mitigating factor, we do not. Peasley did not establish a causal relationship between his physical problems and his misconduct. Peasley's physical condition in 1997 does not explain his intentional misconduct in the Minnitt retrial. Thus, we reject the mitigating factor of physical impairment.

4. P57 Peasley also claims that his public and private humiliation should be considered in mitigation. Public and private humiliation is not listed as a mitigating factor in the Standards, but we previously have found humiliation to be a mitigating factor in certain circumstances. See Walker, 200 Ariz. at 161, P25, 24 P.3d at 608. Peasley relies on Walker for the proposition that because he suffered months of personal and public humiliation as a result of these proceedings, we should find mitigation.

P58 The kind of humiliation this court examined in Walker was simply not the kind of humiliation that results from having one's misconduct subject to disciplinary proceedings. [*40] To the contrary, the humiliation discussed in Walker resulted from actions that occurred before the inception of disciplinary charges, not as a result of the disciplinary charges themselves. Specifically, Walker, after sexually harassing a client, was arrested in his office and taken to jail in handcuffs; the charges against him were made public by the local press; he was prosecuted for prostitution and sexual indecency; he entered a diversion program to avoid prosecution; and he was the subject of a malpractice suit. Id. We concluded that what happened to Walker was "sufficient deterrence to other attorneys." Id. Any humiliation that Peasley may have suffered was a result of these disciplinary proceedings, not because of other factors like those in Walker. Therefore, we decline to find the mitigating factor of public and personal humiliation in this case.

5. P59 Peasley contends that we should recognize the delay in disciplinary proceedings as a mitigating factor. See Standard 9.32(j). We agree significant delay occurred in this case. n20 It took almost two years for the State Bar to issue a probable cause order from the time the initial complaint was filed [*41] with the State Bar. The formal complaint was filed a year after the probable cause order was issued -- although during that time the parties had engaged in negotiations. The hearing officer then issued his decision more than two years after the formal complaint was filed. Although not all of the delay was the State Bar's fault, that delay negatively impacted Peasley. n21 Therefore, we consider the delay in this case to be a mitigating factor.

6. P60 Finally, with respect to the other mitigating factors, we agree with the hearing officer and the Commission that the evidence supports the mitigating factors of full and free disclosure to the disciplinary board or cooperative attitude toward the proceeding, see Standard 9.32(e), and good character and reputation, see Standard 9.32(g).

D. P61 The last step in determining if a particular sanction is appropriate is to assess whether the discipline is proportional to the discipline imposed in similar cases. Alcorn, 202 Ariz. at 76, P49, 41 P.3d at 614; see also In re Wines, 135 Ariz. 203, 207, 660 P.2d 454, 458 (1983) (finding that while proportionality is appropriate, discipline is tailored to each individual case). We found no cases in Arizona or any other jurisdiction with a similar fact pattern. But in Arizona and other jurisdictions, disbarment or a lengthy suspension are proper only in the most serious of circumstances. For example, this court disbarred a lawyer for making false statements to clients about filing a lawsuit, preparing a false, backdated letter for the State Bar during its investigation, submitting a [*43] false affidavit to the bar, and lying under oath during the disciplinary proceedings. In re Fresquez, 162 Ariz. 328, 329-31, 335, 783 P.2d 774, 775-77, 781 (1989). We also ordered disbarment when a lawyer, among other things, failed to diligently and competently represent several clients in civil matters, made factual misrepresentations to the court, failed to communicate with his clients, and failed to cooperate with the State Bar's investigation. In re Elowitz, 177 Ariz. 240, 241, 243, 866 P.2d 1326, 1327, 1329 (1994). Finally, this court mandated a three-year suspension when a lawyer manufactured evidence, committed perjury, and suborned perjury during a State Bar investigation. In re Fioramonti, 176 Ariz. 182, 187-89, 859 P.2d 1315, 1320-22 (1993). n22

P62 The Supreme Judicial Court of Maine upheld disbarment as the appropriate sanction when a defense attorney allowed his client to testify falsely at his criminal trial. Board of Overseers v. Dineen, 481 A.2d 499, 501 (Me. 1984). The court declared that "there is no more egregious violation of a lawyer's duty as an officer of the court, and no clearer ethical breach" than deliberately eliciting false testimony from his client. Id. at 504.

P63 The above cases indicate that disbarment in this case would be proportional to the discipline imposed in other cases involving serious misconduct.

Ritchie v. Indiana, 2004 Ind. LEXIS 476 (Ind 5/25/2004) (dissent) Relief denied on claims including: defense counsel's comments about the jury foreperson. As an example of what not to do, find the comments about the jury fore person below.

After the verdict, but before the jury retired to deliberate on the death penalty, a juror sent a note to the trial judge stating that she wanted to file a complaint against one of Ritchie’s attorneys because of his reference to her during his closing argument. Specifically, the juror complained of two statements. First, the defense attorney said: “The foreman will write their name, or should I say forewoman, because we all know who that is.” The juror thought it was improper for Ritchie’s counsel to identify the foreperson in that manner. Second, Ritchie’s counsel mentioned a song in closing argument and noted “[t]his one goes so far back none of you remember it, but [the foreperson] . . . .” The foreperson was offended by what she saw as counsel’s singling her out and identifying her by name in front of the entire courtroom. She equated this to a moral wrong. In response, the trial judge inquired as to whether the attorney’s comments affected the juror’s deliberations. She replied that it did not and added her view that it did not affect the other jurors’ deliberations. Ritchie provides no support for the view that the mere fact that the juror was upset with Ritchie’s attorney warrants a new trial. Rather, he complains of a reference by his own counsel, but he asserts no claim of ineffective assistance. Joyner v. State, 736 N.E.2d 232, 237 (Ind. 1999) (“A defendant may not invite error and then complain on review.”)

OTHER NOTABLE CASES

None noted, other than the Yarborough decision.

FOCUS

This week's Focus is the SCOTUS Blog's coverage of Yarborough v. Alvarado. For those unfamiliar with Goldstein & Howe's SCOTUS Blogis one of the web's starting points for Supreme Court coverage:

Michael Alvarado, who at the time was seventeen going on eighteen, agreed to help his friend, Paul Soto, steal a truck. When the truck’s driver refused Soto’s request for money and the keys, Soto shot and killed him, and Alvarado helped to hide the gun.

About a month after the shooting, Alvarado’s parents brought him to a police station at the request of a detective working on the case. According to Alvarado, their request to be present while Alvarado met with police was rejected, and they remained in the lobby while Alvarado was interviewed for approximately two hours. During the interview, Alvarado initially denied any involvement in the shooting, but – after being told that witnesses had placed him at the scene – eventually changed his story and admitted his involvement. At trial, Alvarado sought to suppress his statements on Miranda grounds, but the trial court ruled that no Miranda warning was required because the interview was noncustodial. Alvarado was subsequently convicted of first-degree murder, although his sentence was later reduced to second-degree murder.

Alvarado’s efforts to rely on Miranda to overturn his conviction were similarly unsuccessful on direct appeal and in the U.S. District Court for the Central District of California, which denied his petition for a writ of habeas corpus. The district court explained that not only was Alvarado not in custody, but “[a]t a minimum,” AEDPA’s deferential standard of review – which permits federal courts to grant a state prisoner's habeas petition only if the state court’s decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law” – would foreclose relief.

Alvarez found a more sympathetic audience in the Ninth Circuit, which reversed. That court held that in light of previous non-Miranda Supreme Court precedent considering a suspect’s juvenile status, the state court should have considered Alvarado’s youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave.

The Supreme Court granted certiorari. Today, by a vote of five to four, it reversed. In an opinion by Justice Kennedy, the majority concluded that the state court’s application of clearly established Supreme Court precedent was reasonable because “fair-minded jurists could disagree over whether Alvarado was in custody.” The Court highlighted a series of facts that “weigh against a finding that Alvarado was in custody”: he was not brought to the station by the police and was not required to appear at any particular time; he was not threatened or told that he would be placed under arrest; he was told that the interview would be brief; and the focus of the interview was on the crimes of Alvarado’s co-defendant and an appeal to be helpful to the police. The majority acknowledged that other facts pointed toward a finding that Alvarado was in custody, including that Alvarado had been brought to the station by his parents; that he had not been told that he was free to leave; and that his parents’ request to be present at the interview was rejected. The Court emphasized that although in some cases, what constitutes a “reasonable judgment” can be relatively narrow because the Court has established a specific legal rule, here the state courts are accorded more leeway because the legal rule at issue – whether Alvarado was in custody – is a more general test.

The Court rejected the Ninth Circuit’s emphasis on Alvarado’s age and inexperience with law enforcement, explaining that it had not stated that such factors were “relevant to the Miranda custody analysis.” The Court left open the possibility that in other, unspecified situations, a principle could be sufficiently “fundamental” that its application to “new factual permutations” “will be beyond doubt” and thus constitute “clearly established law” for AEDPA purposes, but it also made clear that Alvarado’s was “not such a case.” The Miranda test, the Court continued, is “an objective rule designed to give clear guidance to the police, while consideration of a suspect’s individual characteristics * * * could be viewed as creating a subjective inquiry.”

In a one-paragraph concurrence, Justice O’Connor emphasized that while “[t]here may be cases in which a suspect’s age will be relevant to the Miranda ‘custody’ inquiry,” here the state court’s failure to mention Alvarado’s age cannot be deemed unreasonable when Alvarado was in fact nearly eighteen, as “17-½-year olds vary widely in their reactions to police questioning, and many can be expected to behave as adults.”

In contrast to the majority’s conclusion that reasonable jurists could differ regarding whether Alvarado was in custody, the dissent – written by Justice Breyer and joined by Justices Stevens, Souter, and Ginsburg – found that the “obvious answer” to the question whether “a ‘reasonable person’ in Alvarado’s ‘position’” would have felt “he was ‘at liberty to terminate the interrogation and leave’” was “no.” The dissent notes in particular that Alvarado’s youth in fact played a role in whether he felt he was at liberty to leave, in the sense that he was brought to the station at the request of the police by his parents, who were not permitted to remain with him for the interview.

Further, the dissent posited that “the precise legal definition of ‘reasonable person’ may, depending on legal context, appropriately account for certain personal characteristics” – including a suspect’s youth. The dissent rejected the contention that taking a suspect’s youth into account was somehow inconsistent with Miranda’s “objective” inquiry; it explained that the focus of such an inquiry is “objective circumstances” – such as Alvarado’s age – that are known to both the officer and the suspect and that are likely relevant to the way a person would understand his situation.” Finally, the dissent dismissed the majority’s reference to the Ninth Circuit’s reliance on Alvarado’s “history [or lack thereof] with law enforcement” as “a bright red herring” – yes, we find that interesting too – in the present context where Alvarado’s youth * * * simply helps to show * * * that his appearance at the police station was not voluntary."

FROM AROUND THE WEB

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

Gallup Poll Finds Decreased Support for Death Penalty When Compared with Life Sentence

A May 2004 Gallup Poll found that a growing number of Americans support a sentence of life without parole rather than the death penalty for those convicted of murder. Gallup found that 46% of respondents favor life imprisonment over the death penalty, up from 44% in May 2003. During that same time frame, support for capital punishment as an alternative fell from 53% to 50%. The poll also revealed a growing skepticism that the death penalty deters crime, with 62% of those polled saying that it is not a deterrent. These percentages are a dramatic shift from the responses given to this same question in 1991, when 51% of Americans believed the death penalty deterred crime and only 41% believed it did not. Only 55% of those polled responded that they believed the death penalty is implemented fairly, down from 60% in 2003. When not offered an alternative sentence, 71% supported the death penalty and 26% opposed. The overall support is about the same as that reported in 2002, but down from the 80% support in 1994.(Gallup Poll News Service, June 2, 2004) See Public Opinion. See also Life Without Parole.

NEW RESOURCE: “Death Penalty – Beyond Abolition”

“Death Penalty – Beyond Abolition” details the path to abolition of the death penalty in Europe, the only region in the world where capital punishment has been almost completely eradicated. The book also examines how this development has impacted other nations around the world. With articles focusing on issues such as working with murder victims’ families and finding appropriate alternatives to the death penalty, the book examines the pioneering role that the Council of Europe has played in eliminating the death penalty through a series of enacted protocols for all member nations. These same protocols have impacted countries with Council observer status, such as the United States and Japan. Robert Badinter, Hugo Bedau, Peter Hodgkinson, Roger Hood, Anne Ferrazzini, Michel Forst, Eric Prokosch, H.C. Kruger, Anatoli Pristavkine, C. Ravaud, Sir Nigel Rodley, Renate Wohlwend, and Yoshihiro Yasuda are among the capital punishment experts whose writings are featured in the book. (Council of Europe Publishing, 2004) See Resources.

Good Quality Representation Makes All the Difference in Death Penalty Cases

In the 11 years since the Defender Association of Philadelphia began to represent clients facing murder charges, it has compiled an enviable record: Not one of its 994 clients has been sent to death row. (During the same time, scores of defendants in Philadelphia represented by appointed private attorneys have been sentenced to death.) “It stands out as something that is not matched anywhere else,” said David J. Carroll of the National Legal Aid and Defender Service. The Defender Association of Philadelphia, a non-profit corporation financed by the city, has a homicide unit comprised of 11 attorneys who represent a fifth of the city's indigent murder defendants using an annual budget of $2 million. Each capital defendant is assigned two attorneys, one to handle the guilt phase of the trial and one to handle the sentencing phase should the defendant be found guilty. Investigators, social workers, and mitigating experts are all part of the Association’s staff, and capital defense attorneys have the ability to hire knowledgeable outside experts. “What they’ve done is develop a model for capital defense, which really should be done across the country,” said attorney David Rudovsky, who sits on the Defender Association’s Board of Directors and believes the Philadelphia team’s all-encompassing approach should be implemented in all 38 death penalty states. Common Pleas Court Judge Benjamin Lerner, the Association’s chief defender from 1975-1990, said, “Their representation, including not only the quality of their lawyers, but the totality of services they offer – is at least as good as the best private representation that money can buy.” (Philadelphia Inquirer, May 25, 2005) See Representation.

Texas Juvenile Pardoned After Faulty Lab Work Exposed

Texas Governor Rick Perry has issued a pardon on the basis of innocence to Josiah Sutton, a juvenile offender who had served four years of a 25-year prison term before new DNA tests proved his innocence. The faulty DNA results used to convict Sutton in 1998 were processed by the now thoroughly discredited Houston Police Department crime lab, the same facility that processed DNA and other forensic evidence used in cases that have resulted in death sentences. The lab was shut down in 2003 after questions about the quality and accuracy of its analysis surfaced. Sutton’s case is one of almost 400 cases being revisited by private labs to check the Houston crime labs’ work. “Based on the DNA testing, court determination and unanimous decision of the (Texas Pardons and Paroles) board, it was the appropriate – and only – decision,” said Perry spokeswoman Kathy Walt. (Houston Chronicle, May 14, 2004) See Innocence.

DEATH PENALTY CRISIS CONTINUES AS ANOTHER INMATE ABOUT TO BE FREED

Gordon “Randy” Steidl is scheduled to be freed from an Illinois prison today (May 28th), 17 years after he was wrongly convicted and sentenced to die for the 1986 murders of Dyke and Karen Rhoads. He will be the nation’s 114th death row inmate to be exonerated and the 18th freed in Illinois. The case against Steidl has long drawn criticism from journalists such as Eric Zorn of the Chicago Tribune, and investigators familiar with the facts of the crime. An Illinois State Police investigation in 2000 found that local police had botched their investigation so badly that innocent men, Steidl and his co-defendant Herbert Whitlock, had been wrongly convicted. Steidl won a new sentencing hearing in 1999 because of the poor representation he had received at trial. At the conclusion of his re-sentencing hearing, he was given a sentence of life in prison. In 2003, a federal judge ordered a new trial for Steidl, stating that if all the evidence that should have been investigated had been presented at trial, it was “reasonably probable" that a jury would have acquitted Steidl. Following the federal ruling, the state reinvestigated the case, including tests on DNA evidence, and found no link to Steidl. Based on the results of the investigation, State Attorney General Lisa Madigan decided not to appeal the federal ruling and Edgar County prosecutors plan to announce today (May 28) that they will not retry the case. Steidl has maintained his innocence since his arrest. (Chicago Tribune, May 27, 2004) See Innocence. Gov. George Ryan of Illinois had pardoned 4 death row inmates based on their innocence in January 2003, while commuting from death to life the sentences of 167 other inmates. Thirteen other death row inmates had been freed earlier in Illinois, leading to the moratorium on executions that remains in place today. See Illinois Developments.

TRUE MURDERER GETS LIFE 11 YEARS AFTER DEATH ROW INMATE IS FREED

Maryland prosecutors used the same DNA evidence that freed Kirk Bloodsworth (pictured) from Maryland’s death row to secure a life-in-prison sentence for Kimberly Shay Ruffner, the man who has now confessed to the 1984 murder of Dawn Hamilton. Bloodsworth spent years on death row for the rape and murder of Hamilton before DNA evidence conclusively showed that he could not have committed the crime. In 1993, he became the first death row inmate in the country to be freed on the basis of DNA testing. Despite the fact that Ruffner was a known sexual offender with an interest in young girls who lived near the scene of the Hamilton murder, police failed to link him to the crime and instead focused on Bloodsworth. It was not until a decade after Bloodsworth's release, in August 2003, that prosecutors tested the DNA from the crime scene against samples taken from offenders within their system. They discovered that it matched Ruffner, who was in prison serving a 45-year sentence for a similar attack that occurred just three weeks after Bloodsworth’s arrest for the Hamilton murder. Following the discovery of this match, prosecutors apologized to Bloodsworth for wrongly convicting him of the crime and for not disputing claims that he was guilty of the crime despite his exoneration from death row. Prosecutors formally charged Ruffner shortly after the DNA match came to light and in late May 2004 successfully won a life sentence conviction, which Ruffner will begin to serve after his current sentence is completed. (The Baltimore Sun, May 22, 2004) See Innocence.

Insistence on the Death Penalty May Interfere with Trial for Saddam Hussein

Great Britain may refuse to hand over evidence of Saddam Hussein’s crimes to Iraqi prosecutors or permit government staff to testify against the former dictator because of the nation’s opposition to the death penalty. Despite human rights objections from British officials who helped establish the special tribunal that will try Hussein and other senior members of his regime, Iraqis have insisted that capital punishment remain a sentencing option for some crimes. Coalition forces have suspended the death penalty during their occupation of Iraq, but it is anticipated that capital punishment will be reinstated following the return of power to the Iraqi people at the end of June, which is prior to Hussein’s tribunal. “The U.K. government has made it clear that it opposes the use of the death penalty. It will be up to the new Iraqi government to determine whether this punishment will be reinstated following the transfer of authority. After the transfer of power to the new Iraqi government, we will continue to lobby against the death penalty,” said British Foreign Office minister Bill Rammell (pictured). (Scotsman.com News, May 23, 2004) See International Death Penalty.

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