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Capital Defense Weekly, May 9, 2005

By Capital Defense Newsletter
May 8, 2005

United States v. Allenfrom the Eighth Circuit leads off the edition. On remand from the Supreme Court following Ring,Allenholds the Fifth Amendment (grand jury clause) requires at least a statutory aggravating factor and requisite mens rea to be charged in an indictment. Unfortunately for Allen, the error here held harmless because any rational grand jury would have found the existence of the requisite mental state and one or more statutory aggravating factors based on the actual evidence which was presented to the grand jury in the case -- that defendant created a grave risk of death to others while committing the bank robbery and in fleeing apprehension and that he acted with the required mental state when he intentionally shot and killed a bank guard.

A new Texas Defender Service study, "Minimizing Risk: A Blueprint for Death Penalty Reform in Texas," concludes that "Texas does not comply with 80% of the safeguards of the criminal justice system" recommended by the Illinois Commission on Capital Punishment and notes an urgent need for "death penalty reform in nine specific areas to reduce the risk of wrongful convictions and arbitrary death sentences." Stephen Bright and Virginia Sloan of theSouthern Center for Human Rights, make the case that Congress should grant death row inmates thesame degree of judicial reviewextended to Terry Schiavo. Michael Ross has been executed in Connecticut marking the first execution in New England (more next week) in over four decades; like every other execution north of the Mason-Dixon line in the northeast in the modern era, this execution was a "volunteer."

Eight years agothis week the site that would eventually become Capital Defense Weekly was launched. It was ugly, brutish and -- thankfully -- quickly evolved. The first "email" edition of the weekly would be launched a few months after the launch. I guess, this is my way of saying thanks as always for reading.

Please note that I continue to be out to trial in a felony matter and hope to have be back to the normal pace in two weeks.

Full editionarchived at http://capitaldefenseweekly.com/archives/050509.htm

Recently Executed

May
12 George Miller (Oklahoma)
13 Michael Ross (Connecticut----volunteer)

Serious X- Dates

May
18 Bryan Wolfe (Texas)
19 Richard Cartwright (Texas)
19 Garry Allen (Oklahoma)
June
2 Jerry Paul Henderson (Alabama)
7 Alexander Martinez (Texas----volunteer)
9 Robert McConnell (Nevada----volunteer)
22 Michael Lambert (Indiana)

Leading Cases

United States v. Allen, 2005 WL 1005101 (8th Cir 5/2/2005) "In sum, we conclude that although the Fifth Amendment requires that at least one statutory aggravating factor and the requisite mental state be found by the grand jury and charged in the indictment in FDPA prosecutions, the failure to do so in this pre-Ring case was harmless beyond a reasonable doubt; and we conclude that Ring did not render the FDPA unconstitutional."

Decisions Reversing, Remanding or Otherwise Holding Death in Check

United States v. Basciano ,2005 WL 1048846(S.D.N.Y 5/5/2005) Housing in SHU pretrial unduly impairs the right to prep for trial. In order to house in SHU pretrial government must make a showing that segregation is necessary to achieve termination of criminal activity.
Jury Service Resource Center v. Carson, 2005 WL 845512 (Ore App 4/13/2005) "[T]o protect the values guaranteed by the First Amendment right of access to the jury selection process, that process must be open from the first step. We therefore conclude that the source lists, master lists, and jury term lists used in criminal trials are presumptively open to the public. Because Oregon does not use different lists for criminal and civil juries, all the lists are presumptively open."

Decisions Favoring Death

State v. Anderson,2005 WL 1027175 (Az. 5/4/2004) Relief denied on numerous (34) issues including the details of the operation of the new Arizona post-Ring jury sentencing scheme, as well as issues arising from application of the new statute to a case where the guilt-innocence phase was completed prior to Ring and the sentencing (with a new jury) after the state's quick fix statute was passed.
Bible v. State, 2005 WL 1027486 (Tex.Crim.App. 5/4/2005)Relief denied on claims relating to: (1) non-standard Miranda warnings; (2) whether interrogationsthat started within hours of each other were not the functional equivalent of one session for Miranda purposes; (3) trial court's failing to instruct jury on voluntariness of confession; (4) sufficiency of evidence of future dangerousness; (5) applicability of corpus delicti doctrine to extraneous offenses offered in the penalty phase; (6) prosecutor's penalty phase closing that Anderson deserved to die; and (8) prosecutor's attempts to shift the burden in the penalty phase opening.
Conner v. Polk, 2005 WL 1020953 (4th Cir 5/3/2005)(dissent) As set forth by the dissent (Luttig, J.) relief denied on claim "that juror Knight engaged in confidential conversations about his case with investigators and a key trial witness, and that these conversations included victim-impact evidence highly relevant to the sentencing trial in which Knight sat as a juror. These allegations raise the obvious possibility that Knight relied on such extraneous evidence (and other yet undisclosed communications) in her deliberation about whether to sentence Conner to death. Such would constitute a quintessential instance of actual juror bias."
State v. Barker,2005 WL 1027908(Ind. 5/4/2005) Statute permittingadeath sentenceto be imposed by a judge alone in cases where the jury cannot reach a sentencing decision upheld.

Notable Noncapital Cases

State v. Figueroa, 2005 WL 1048723 (NJ App. 5/6/2005) A "trial court must conduct separate inquiries concerning waiver of counsel before both the guilt and penalty phases in the event defendant seeks to appear pro se in both phases. The court should adjust its questions and analyses to meet the circumstances and exigencies in each instance. Its inquiry before the penalty phase may warrant questions beyond those posed before the guilt phase."

Excerpts from Leading Cases

United States v. Allen, 2005 WL 1005101 (8th Cir 5/2/2005) "In sum, we conclude that although the Fifth Amendment requires that at least one statutory aggravating factor and the requisite mental state be found by the grand jury and charged in the indictment in FDPA prosecutions, the failure to do so in this pre-Ring case was harmless beyond a reasonable doubt; and we conclude that Ring did not render the FDPA unconstitutional.

Ring was a case about a defendant's Sixth Amendment right to have capital aggravating factors proven to the petit jury beyond a reasonable doubt because they are facts that increase the penalty for his crime beyond the otherwise applicable statutory maximum. In Allen's case, the petit jury made the findings that Ring expressly requires. Ring did not address whether the Fifth Amendment also requires capital aggravating factors to be found by the grand jury and included in the indictment. Nonetheless, we think that Ring necessarily implies such a Fifth Amendment requirement.
Ring did not address the indictment issue because it involved a state prosecution, and the Fifth Amendment's grand jury requirement has not been construed to apply to the states. The same is true of the predecessor to Ring, Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We therefore look to the predecessor to Apprendi, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which did involve a federal prosecution. There, we find the rule that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6; see also Apprendi, 530 U.S. at 476 (same (quoting Jones )).
[1] In other words, the same facts that the Sixth Amendment requires to be proven to the petit jury beyond a reasonable doubt in state and federal prosecutions must also be found by the grand jury and charged in the indictment in federal prosecutions. We therefore conclude that the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment. See United States v. Robinson, 367 F.3d 278, 284 (5th Cir.), cert. denied, --- U.S. ----, 125 S.Ct. 623, 160 L.Ed.2d 466 (2004); United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003), cert. denied, --- U.S. ----, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004); United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002), cert. denied, 540 U.S. 1051, 124 S.Ct. 807, 157 L.Ed.2d 702 (2003). The indictment must include at least one statutory aggravating factor to satisfy the Fifth Amendment because that is what is required to elevate the available statutory maximum sentence from life imprisonment to death. In turn, at least one of the statutory aggravating factors found by the petit jury in imposing the death sentence must have been one of the statutory aggravating factors charged by the grand jury in the indictment. See Higgs, 353 F.3d at 299 n. 7. The same is true of the mens rea requirement.
Having reached this conclusion, it is clear that Allen's indictment suffers a Fifth Amendment defect. The petit jury found two statutory aggravating factors in sentencing him to death: that Allen "in the commission of the offense, or in escaping apprehension ..., knowingly create[d] a grave risk of death to one or more persons in addition to Richard Heflin," and that he "commit[ted] the offense in the expectation of the receipt of anything of pecuniary value." The petit jury also found the requisite mental state in sentencing Allen to death: that he "intentionally inflicted serious bodily injury which resulted in the death of Richard Heflin." The government had included these factors and the mens rea requirement in its notice of intent to seek the death penalty, but they were not charged in the indictment because Allen's prosecution preceded Ring by years. Allen presciently raised a Jones-type objection before the district court, preserving this error for our review. Hence, this is not a plain-error case. We next consider whether the failure to charge at least one statutory aggravating factor and the mens rea requirement in the indictment was structural error
3 [2] Allen rightly directs our attention to the strongest case in his favor, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Stirone was charged by indictment with unlawfully interfering with the movement of sand in interstate commerce for use in mixing concrete. Over his objections, the district court allowed the government to present at trial evidence that Stirone also interfered with the movement of steel in interstate commerce, and the district court instructed the jury that Stirone was guilty if he interfered with either sand or steel that moved in interstate commerce. See id. at 213-14. The Supreme Court found a violation of Stirone's Fifth Amendment right to indictment by a grand jury, concluding that "[d]eprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error." See id. at 215-17. Concluding that "neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel," and that "it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned," the Supreme Court overturned his conviction. See id. at 217-19. Stirone quoted Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 30 L.Ed. 849 (1887), for the proposition that it is beyond "the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes." See Stirone, 361 U.S. at 216.
Allen urges that Stirone and Bain show that the defect in his indictment must be treated as a structural error requiring automatic reversal without a showing of prejudice to the defendant. We cannot agree. At the time of Stirone and Bain, the Supreme Court had not yet grappled with the question whether constitutional error can be harmless. The Court did so expressly for the first time in Chapman v. California, 386 U.S. 18, 20, 23- 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), when it rejected the view that all constitutional errors automatically call for reversal and held that-with a few exceptions-federal courts may not grant relief when a constitutional error is shown to be harmless beyond a reasonable doubt. Next, in Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Court "emphasized ... that while there are some errors to which Chapman does not apply, they are the exception and not the rule." "Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Id. at 579
Then, in Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme Court surveyed its precedent to identify exactly which constitutional errors constitute "structural defects ... which defy analysis by 'harmless-error' standards." The Court identified five such errors: the total deprivation of the right to counsel, the denial of the right to an impartial judge, unlawful discrimination in the grand-jury selection process, the denial of the right to self-representation at trial, and the denial of the right to a public trial. See id. at 309-10. Notably absent from this list of structural defects is the type of defective indictment at issue in Stirone and Bain.
4 Most recently, in Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the Supreme Court again listed the limited class of cases in which it had found an error to be structural: the five types of error listed in Fulminante, plus the giving of a defective instruction on reasonable doubt (a type of error recognized as structural for the first time in 1993, and hence not included in Fulminante 's 1991 list). Again, the Court made no reference to the type of defective indictment at issue in Stirone and Bain.
We tend to think that the Supreme Court meant for its lists of structural errors in Fulminante and Neder to be exhaustive. But even if we are wrong on that count, we believe that the holding of Neder has particular significance to the case at bar, because Neder is in some ways the mirror image of Allen. Neder was charged by indictment with tax fraud, which has as an element that the false statements made by the taxpayer be material. Over Neder's objection, the district court instructed the petit jury not to consider the materiality of any false statements he made because materiality was an issue of law for the district court to decide. See id. at 6. Although the Supreme Court agreed that this deprived Neder of his Sixth Amendment right to have every element of the charged offense be proven to the petit jury beyond a reasonable doubt, the Court concluded that the error was not structural and should be analyzed for harmless error. See id. at 8-15. The Court found the error harmless beyond a reasonable doubt by "conduct[ing] a thorough examination of the record" of the evidence presented at trial and concluding that "no jury could reasonably find" that Neder's false statements were not material because the record did not "contain[ ] evidence that could rationally lead to a contrary finding with respect to the omitted element" of materiality. See id. at 16-20
We find Neder instructive because, just as Neder was deprived of his Sixth Amendment right to have the petit jury determine an essential element of his offense, Allen was deprived of his Fifth Amendment right to have the grand jury decide whether to charge the statutory aggravating factors and the mens rea requirement that are the functional equivalent of elements of his offense. Given that the Supreme Court concluded that the Sixth Amendment error was not structural and should be analyzed for harmless error, we are persuaded that we should approach the Fifth Amendment error the same way. We therefore conclude that the defect in Allen's indictment was not structural error. See Robinson, 367 F.3d at 285-86; Higgs, 353 F.3d at 304-06; accord United States v. Moss, 252 F.3d 993, 1000-01 & n. 8 (8th Cir.2001) (Apprendi indictment error is not structural), cert. denied, 534 U.S. 1097, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002). Thus, we proceed to inquire whether the defect in Allen's indictment was harmless beyond a reasonable doubt.

Focus

Focus this week is the Executive Summary ofMinimizing Risk: A Blueprint for Death Penalty Reform in Texas, A Texas Defender Service Report:

Executive Summary
There is palpable risk that innocent people are being sent to death row in Texas because the criminal justice system evades sufficient scrutiny, lacks meaningful judicial review, and is rife with sweeping inadequacies in the rules and procedures relating to capital trials. Identifying these problems is not enough. Other states have implemented reforms, including improving counsel standards, recording in-custody interrogations, and improving eyewitness and photo spread identification procedures, which have proven effective in minimizing risk of wrongful conviction.
In an encouraging move, in March 2005, Texas Governor Rick Perry established a nine-member Criminal Justice Advisory Council with an array of powers to review issues in the criminal justice system. The Council is charged with advising the Governor on procedures that are needed to meet advances in technology, methods of ensuring that law enforcement investigation procedures are accurate, processes to provide for public safety and confidence in convictions, and changes in law necessary to improve the criminal justice system. The Council will make recommendations regarding necessary reforms to be delivered to the Governor and Texas Legislature prior to the 2007 Legislative Session.
This report analyzes the Illinois Commission’s 85 recommendations in the context of Texas’ criminal justice system, and provides a framework for meaningful review, particularly as it applies to the capital punishment system. It should be considered by the Council as it undertakes its assigned and serious mission. This report reveals critical needs and identifies viable solutions. Like Illinois, Texas can take steps to make these reforms a reality.
The study — a comprehensive comparison of the “best practices” recommended by the Illinois Commission on Capital Punishment to existing procedures in Texas — found that Texas does not comply with 80% of the safeguards of the criminal justice system embodied in these model practices that are applicable to Texas. Our findings reveal an urgent need for death penalty reform in nine specific areas to reduce the risk of wrongful convictions and arbitrary death sentences.
Texas has executed 340 people in the modern death penalty era, 28 times the number executed by Illinois, yet its nine exonerations lag far behind those of Illinois. Texas is at unacceptable risk for wrongful conviction and execution, an especially troubling fact given its status as the undisputed leader in executions among the 38 states with the death penalty. There is both unnecessary risk and compelling evidence that innocence cases in Texas are not being discovered and that innocent persons are incarcerated even on death row.
Illinois’ experience with capital punishment — and its sobering failures — has been attributed to procedural inadequacies that have come to light as a result of the Illinois Commission’s Report. Texas utilizes a death penalty system that is substantially similar to that of Illinois, with important exceptions that render our system far less reliable than that of Illinois. Notable failures in the Texas system include:
  • The absence of uniform police and prosecutorial investigative procedures including eyewitness identification procedures, videotaping of interrogations, and use of jailhouse informants
  • Deficiencies in accessibility and reliability of forensic evidence
  • Excessive prosecutorial discretion in charging decisions resulting in racial and geographic disparity
  • Excessive number of death penalty eligibility factors and over-reliance on the murder during the course of a felony eligibility factor
  • The prevalence of under-qualified or resource-starved defense attorneys
  • The absence of a statewide public defender’s office
  • Scant allocation of resources and lack of competent counsel in state postconviction proceedings
  • An unreliable capital sentencing scheme, which does not weigh aggravating and mitigating factors but instead hinges on the speculative “future dangerousness” inquiry
  • The absence of a life-without-parole sentencing option

In 2000, prompted by serious questions about the accuracy of the capital punishment system and a string of wrongful convictions, the Governor of Illinois imposed a moratorium on capital punishment in Illinois. Shortly after doing so, he appointed a Commission on Capital Punishment, consisting of legal experts on all sides of the issue, including state and federal prosecutors, defense attorneys, former judges, and civil lawyers, to study the problems in the state’s administration of the ultimate punishment.
After two years of intensive study and comprehensive consideration of a broad range of materials and cases, the Illinois Commission released a comprehensive report covering every stage of the death penalty process and proposing 85 specific recommendations for reform designed to increase the reliability and fairness of every stage of the process.
Since the publication of the Illinois Commission’s Report, the Illinois Legislature has adopted approximately one-third of the reforms recommended and it continues to consider the implementation of other reforms. Specifically, Illinois has improved its procedures in the following areas:
  • Recording in-custody interrogations
  • Eyewitness lineup and photo spread identification procedures
  • Access to exculpatory evidence
  • Limitations on jailhouse snitch testimony
  • Access to DNA and other forensic testing
  • Two additional mitigating circumstances
  • Certification and training of trial judges
  • Limitations on capital punishment
  • Broader authority of the Illinois Supreme Court to review death sentences

Around the Web

From the BlawgCrime & Federalism:

He's dead. And I am among those who killed him. In the dead of this morning, I feel no relief; no sense that things have been made right. I feel only betrayal. Was I tricked into believe that killing could yield justice?
Michael Ross, serial killer, human being, was strapped to a gurney and poisoned to death at 2:25 a.m. this morning. Killing Time The State of Connecticut, the vast legal fiction of which I am a member, killed him. I guess that means his blood is on my hands now.
I supported his right to choose to seek no further appeals. I supported it because I believe in the dignity and autonomy of persons. I supported it for the same reason I supported Terry Schiavo's right to die. The state, government, all the artifacts of power are mere tools we have created to serve human, and therefore, limited ends. I no more want the state telling me I must live than that I must die. Can the pot say to the potter why makest me so?
So why did I help to kill Michael Ross?
Was it because some of his victims' families wanted it? Lord, I hope that was not it. That would be the most tawdry trick of all. Take a person twisted, bent, shattered, destroyed and warped by almost unimaginable grief and put them and their sensibilities in charge of life and death decisions? That would be folly. We don't let drunks drive because their perceptions are so warped; should we put the ship of state in the hands of those blinded by sorrow and rage?
I did not want to kill him, yet I did not rush to the courthouse doors throwing sand at judges and asking them to build castles. It pained me to watch friends and colleagues enlist in this battle and arm themselves with folly: "Death row syndrome," predictions of waves of suicide, claims with no conceivable theory of standing. All these acts of ritual self-immolation by the lawyers earned them the right to agonize on film clips and in sound bytes. They enjoyed the illusion of efficacy, or at least good publicity. But all this play-acting at justice was nearly as depressing as the calls for vengeance. We set about killing a man and each of us became a caricature.
I killed Michael Ross today and in the sleepless predawn of the selfsame day I feel nothing but hollow disappointment. Nothing has changed. No one is better off. Oh, I hear the puffery of those who called Michael Ross a monster and asked what sickness yields sympathy for such a man.
Let me be clear: I have no sympathy for Michael Ross, the man I killed. No, the people I feel sorry for are we the living. We're just like Michael now. Substitute vengeance for sexual sadism and what have you? A killer. Sit back, assess, choose and then restrain the victim with lethal intent: Have I described a rape murder or an exection? I have described both.
I represented Michael Ross briefly in a civil suit over his right to receive reading material directly from publishers. He was on death row then. He was no mere cipher. He was not the sum of his worst moments. He was more than that.
Today I am less than what I was before the killing. I am less because now I have killed. Killing is not justice. Killing is the abandonment of reason, of faith and hope and all that distinguishes me from lesser animals. Killing is becoming just like Michael Ross.
Tonight I killed. Tonight Connecticut unwrapped the machinery of death and went out for a rage ride. It all happened so fast. How long before we kill again? Numb now to the horror will it be easier to kill again? Will I need to do it again because this first death delivered so much less than I had hoped? Perhaps I can get the technique right next time. Perhaps the next killing will redeem. Who is next? Others reside on death row. Let me pick one, select a man and mark him for death, set the hour, plan the means, and watch as he succumbs to my power.
Meet the new serial killler. It is me.

DPICnotes:

Independent Audit of Virginia's DNA Lab Prompts Review of 150 Cases

An independent audit of Virginia's central crime laboratory initiated by the present governor found that the lab had botched DNA tests in the death penalty case of Earl Washington (pictured). The finding prompted Gov. Mark Warner to order a review of 150 other criminal cases and the development of procedures to insulate the lab from outside political pressures.

The audit was conducted by the American Society of Crime Laboratory Directors. It found that the Virginia lab's internal review process was flawed, and it raised concerns that lab workers had felt pressured to produce quick and conclusive results in the Washington case, even when the evidence was unclear. Washington had been sentenced to death for a 1982 murder and rape. His death sentence was commuted in 1994 after DNA tests first threw doubt on his guilt. He was eventually granted an absolute pardon in 2000 and freed from prison. Tests commissioned by defense lawyers in 2004 have implicated another suspect, who is in prison in an unrelated rape case. The audit concluded that the state lab improperly excluded this suspect as the source of DNA found on the victim.

Betty Layne DesPortes, a defense attorney who heads a legal panel for the American Academy of Forensic Science, commented about the audit's findings: "You have to have doubts about the reliability of any case coming out of there. How can we be sure that this case wasn't typcial." Virginia is second only to Texas in the number of executions carried out since 1976. (N.Y. Times, May 8, 2005). See Gov. Warner's Press Release, with link to the entire report. See also Innocence.

NEW RESOURCE: Index of Death Penalty Articles for 2004

In the course of its research, DPIC collects relevant death penalty articles that have appeared in print and on media Web sites. Our collection certainly does not contain all such articles, nor do we claim that it represents the "best" articles. It is only a representative sample of the extensive coverage given to capital punishment in print in a particular year. For those interested in examining this coverage, we have prepared an index of the articles from 2004 in PDF format. For more information about this index, click here. See also, Articles.

Support for the Death Penalty Drops Sharply in Leading Execution City

Public support for the death penalty has dropped sharply in Houston, Texas according to the 2005 Houston Area Survey conducted by Rice University. For many years Texas has led the country in executions, and Harris County (Houston) has led all Texas counties in sending inmates to death row and in executions. But most Houston residents would prefer the sentence of life without parole rather than the death penalty for those who commit murder. Sixty-four percent chose life without parole, increasing from 57% who chose that option in 2003. Overall, support for the death penalty (with no alternative offered) dropped to 60% this year, down from 68% support in 1999, according to the survey. (See poll results, Houston Chronicle, May 6, 2005). See Public Opinion and Life Without Parole.

NEW VOICES: Louisiana Chief Justice Demands Fair Trials for the Poor

Chief Justice Pascal Calogero of the Louisiana Supreme Court called upon the state legislature to provide adequate funding for indigent defendants in his State of the Judiciary address. The court had earlier ruled that judges may halt prosecutions in cases where funds have not been made available for an adequate defense. The Justice concluded:

As a Supreme Court Justice, I must be an advocate of compliance with the mandates of our state and federal constitutions, and therefore, I admonish you, simply, to do the right thing. Provide for a workable and adequately funded indigent defense system, so that another victim does not have to go through the agony of an overturned conviction and repeat of grueling trial testimony, or so that an innocent person is spared the ordeal of an unjust conviction and punishment. This is just one of your many challenges, as well as your responsibility. Let us show the people that our State is more than up to that challenge.

(2005 State of the Judiciary Address to the Louisiana Legislature, Pascal F. Calogero, Jr., Chief Justice, Supreme Court of Louisiana, May 3, 2005). See also Representation and New Voices.

MAJOR STUDY Finds Arbitrary Application of the Death Penalty

In a comprehensive study covering 20 years and thousands of capital cases in Ohio, the Associated Press found that the death penalty has been applied in an uneven and often arbitrary fashion. Among the conclusions of the study that analyzed 1,936 indictments reported to the Ohio Supreme Court by counties with capital cases from October 1981 through 2002 were:

* Offenders facing a death penalty charge for killing a white person were twice as likely to go to death row than if they had killed a black victim. Death sentences were handed down in 18% of cases where the victims were white, compared with 8.5% of cases where victims were black.
* Nearly 1/2 of the 1,936 capital punishment cases ended with a plea bargain. That includes 131 cases in which the crime involved two or more victims; 25 people had killed at least 3 victims.
* In Cuyahoga County, a Democratic stronghold, just 8% of offenders charged with a capital crime received a death sentence. In conservative Hamilton County, 43% of capital offenders ended up on death row.

State Supreme Court Justice Paul Pfeifer, who co-sponsored the death penalty law in 1981 when he was a member of Ohio's Legislature, said the findings are disturbing and confirmed his fears that race would be a contributing factor: "That has to be very disconcerting and alarming to all of us," he said. (Associated Press, May 5, 2005). See Race and Studies.

Death Row Inmate's Mental Health Crumbles Even As Relief May Be Near

During 25 years on Texas' death row, Cesar Fierro's mental health has deteriorated to the extent that his attorney hardly recognizes him. Since being sentenced to death in 1980, his mother has died, his brother has died, his wife divorced him and his daughter stopped visiting him. Gradually, he refused to even speak with his lawyers.

"He wouldn't come out of his cell for months at a time unless he was forcibly extracted," says David Dow, a constitutional law professor at the University of Houston Law Center and director of its Texas Innocence Network. "He refused to shower and there were feces on his cell wall. It was very disturbing . . . ."

Dow said that when Fierro was sent to death row in 1980, he was a soft-spoken, slightly overweight man in his mid-20s who was highly respectful of his lawyers and the process, which he felt would set him free.

"When I saw him last year, he had long, stringy hair and a strong wind could have blown him over," says Dow. Even when told of some good news from the courts, Fierro raged and rambled incoherently, banging the phone against the glass partition of the visiting room.

Fierro's case is one among about 50 similar cases in which the International Court of Justice recently ruled that the convictions and death sentences of Mexican nationals should be given further review in U.S. courts. President Bush has ordered the courts in Texas and elsewhere to comply with the World Court's ruling, but Texas authorities have said Bush lacks the proper authority. The issue of the effect of the World Court's ruling is currently before the U.S. Supreme Court. (Texas Lawyer, May 2, 2005). See Foreign Nationals; also DPIC's description of Medellin v. Dretke (in U.S. Supreme Court); Mental Illness and Time on Death Row.

SCOTUSBlognotes:

Here are the principal cases we’re watching from today’s conference. Orders will be released on Monday at 10a.m., along with opinions [including]:

No. 04-1170, Kansas v. Marsh – the question is whether the Constitution permits the imposition of the death penalty when evidence of aggravating and mitigating circumstances is in equipoise, or whether the aggravators must outweigh the mitigating circumstances.

Around the blogs

Sentencing Law & PolicyNotes

More on death penalty volunteers from the Volunteer State
Seems like it was a banner week for death penalty volunteers. In addition to the two cases discussed in this post, I have heard from an always helpful reader that the Tennessee Supreme Court this past Thursday issued a major ruling concerning a death penalty volunteer who changed her mind about waiving post-conviction appeals. (Of course, as the reader reminded me, this is not why Tennessee bears the Volunteer State nickname: this "nickname originated during the War of 1812, in which the volunteer soldiers from Tennessee, serving under Gen. Andrew Jackson, displayed marked valor in the Battle of New Orleans.")
The ruling of the Tennessee Supreme Court in Pike v. State, No. E2003-00766-SC-R11-PD (Tenn. May 12, 2005) ( available here), is quite interesting and nuanced (and seems a lot sounder than the court's work in its Blakely ruling in Gomez which is discussed hereand questioned here.) Here is the court's description of its work in Pike:
This appeal presents two determinative issues: (1) whether post-conviction review of a death sentence should be mandatory and should proceed over the objection of a competent death-sentenced inmate; and if not, (2) whether, and under what circumstances, a competent death-sentenced inmate may revoke her waiver of post-conviction review. We conclude that post-conviction review is not mandatory and may be waived by a competent death-sentenced inmate. We also conclude that a competent death-sentenced inmate may revoke a waiver of post-conviction review so long as the revocation occurs within thirty days of the trial court’s order permitting the inmate to waive postconviction review. Our holding is limited to death-sentenced inmates who seek to revoke an initial waiver of post-conviction relief. Our holding does not apply to death-sentenced inmates who attempt to manipulate and to delay the judicial process by repeatedly seeking to waive and thereafter to reinstate post-conviction review.
The sagas of death penalty volunteers
The Connecticut Law Blog provides in this posta roundup of many newspaper stories in the immediate aftermath of Michael Ross's execution early Friday morning. I find especially interesting discussions, in articles hereand hereand here, concerning whether this execution will impact the state of the death penalty in Connecticut or elsewhere in the region.
Most of the post-Ross analysis properly notes that Ross's status as a "volunteer" distinguishes his case and its possible impact. However, it is important to note that the second (and third and fourth...) execution in a state always gets less attention and scrutiny than the first. When Ohio had its first few post-Furman executions in the late 1990s, I would get dozens of media calls in the weeks leading up to an execution date. Now that executions have become more common in the state, there is barely any media coverage to be found. Similarly, consider that, as detailed in this article, Oklahoma also executed a person on Friday, but that execution received barely any press attention (even though George James Miller maintained his innocence and was convicted and sentenced to die based on mostly circumstantial evidence).
In another interesting story involving a death penalty volunteer, I see from Howard Bashman herethat the Indiana Supreme Court late last week continue to hold a former death penalty volunteer to the legal choices he made before he changed his mind about pursuing appeals. This AP storyprovides basic background on this interesting rulingwhich reaffirms that the defendant's petition for post-conviction relief is now time-barred. The opinion also asserts that that finding the defendant's petition time-barred does not deny "constitutional rights to due process, to equal protection, to open access to courts, or to be free from cruel and unusual punishment."

Talk Leftwrites:

Death Row Inmates and Terry Schiavo

Stephen Bright and Virgina Sloan of theSouthern Center for Human Rights, make the case that Congress should grant death row inmates thesame degree of judicial reviewextended to Terry Schiavo.

Proponents of the law that required federal court review of the Terri Schiavo case said that all possible protections should be available when a human life is at stake. Said Senator Mel Martinez, R-Fla., "We will simply be allowing the federal judge to give one last review, one last look in a case that has so many questions, that has so many anxieties, and that will provide us the kind of assurance before the ultimate fate of this woman is decided to know that we did all we could do and that every last measure of review was given her, just like it would have been given to a death row inmate convicted and sentenced to die."

But, Martinez was wrong because since 1996 when Congress enacted the Anti-Terrorism and Effective Death Penalty Act (AEDPA), those sentenced to death have been prevented from receiving a full review in the courts. There are other obstacles as well.

In capital cases, the law prevents federal courts from considering any issue not raised and decided in state court, no matter how important the claim or why it was not presented. The most common reason is the deficient quality of lawyers appointed to defend poor people accused of capital crimes. They have been represented by lawyers who were intoxicated, slept during trial and, no matter how well meaning, lacked the knowledge, skills and resources to defend a capital case. If a lawyer fails to raise an issue in the state courts, a federal court is prevented from ruling on it, no matter how valid it may be. Every day, people are paying with their lives because of these restrictions.

Why it matters:

There is substantial risk of error in these cases. A Columbia University study found that, beforeAEDPA,federal courts identified serious constitutional violations in an astounding two-thirds of cases in which state courts had upheld death sentences. Recently, more than 250 prisoners, including more than 100 who had been condemned to death, have been exonerated. Some of the death row inmates, who had come within hours of being executed, were freed not because the courts protected them, but because journalists, law and journalism students, and others unconnected with the judicial system discovered evidence of their innocence.

What we should do:

The Schiavo law supporters appeared to agree that in life-or-death cases, there should be no obstacles to full federal court review. Senator Rick Santorum, R-Pa., compared the Schiavo bill to "a horrific death penalty case in California," and urged his colleagues "to understand that [as in that case,] there is a proper role for Federal courts to look to make sure that due process was followed."
The founders gave federal judges lifetime tenure to protect them from political pressures, so they could decide cases in good faith and according to the law, no matter what public opinion demanded. The exonerations of people in prison and on death row have taught Americans a hard lesson-that our criminal justice system is fallible, and that a state court may convict the wrong person. This is especially true in capital cases, which engender great passions and place enormous pressures on judges and juries to convict and impose a death sentence. Congress should pass legislation providing for the same full federal court review of life and death decisions in capital cases that it provided for a single person in the Schiavo law.[our emphasis]

Note: "Stephen B. Bright is the H. Lee Sarokin Director of the Southern Center for Human Rights, and teaches at Yale Law School. Virginia E. Sloan, a member of the Center's board of directors, is the president of the Constitution Project and was a lawyer with theU.S.House of Representatives Judiciary Committee from 1980 to 1995."

CrimProf Blogwrites:

May 15, 2005
Creative Defense Attorney
Gail Heriot at The Right Coastblogs about a death row inmate who wants to hurry up the process and be executed. His lawyer is trying to stop the execution by arguing that it would constitute assisted suicide in violation of the state law. [Mark Godsey]
May 13, 2005
CT Executes Serial Killer Michael Ross
The Connecticut Law Bloghas been covering the story. LA Times story here. [Jack Chin]
May 09, 2005
AP Study Finds Bias in Ohio Death Penalty
From LawLibrarian Blog(thanks to Joe Hodnicki):
"The Ohio Associated Press studied 2,543 capital indictments from October 1981, when the law reinstating the state's death penalty took effect, through 2002. The study began in January 2003 and involved numerous Ohio news organizations that helped with research.
The results of this first-ever comprehensive analysis of Ohio's death-penalty system are being released in a three-part series in leading newspapers across the state. The AP report is also receiving national attention. The Washington Post reportsthat Ohio Supreme Court Justice Paul Pfeifer, who co-sponsored the death penalty law in 1981 when he was a member of Ohio's Legislature, said the findings are disturbing.
Part One: Death penalty is applied unevenly for OhioansCleveland Plain Dealer (May 7, 2005) ; AP: Race, Pleas Affect Ohio Death PenaltyWashington Post (May 7, 2005); Death-row odds vary - Murder victim's race, use of plea bargain, community standards influence likelihoodAkron Beacon Journal (May 7, 2005).
Part Two: Reimbursement from state falls to 31 percent of lawyer feesCleveland Plain Dealer (May 8, 2005); Capital cases hard for smaller counties - Expense, manpower at issueCincinnati Enquirer (May 8, 2005); Small counties feel pinch from trialsAkron Beacon Journal (May 8, 2005).
Part Three: Two Murders; Two Paths to JusticeMount Vernon News (May 8, 2005) (Includes a timeline) ; Part Three is expected to be published in the Cleveland Plain Dealer and the Cincinnati Enquirer on Monday, May 9, 2005.
In The Associated Press began its project by reviewing 2,543 capital indictments...(May 5, 2005) the Akron Beacon Journal provided background information about the project. The Akron Beacon Journal also identifies Ohio capital punishment offenses in Ohio's conditions for seeking the death penaltyAkron Beacon Journal (May 7, 2005)."
The DPIC has a story on this study here. [Mark Godsey]

Abolish the Death Penalty

A member of Connecticut's Supreme Court issued this impassioned dissent regarding the scheduled execution of Michael Ross:x

In most ordinary litigation, civil or criminal, a party's decision to accept or to stipulate to a certain result either simplifies greatly or resolves finally the proceedings. The defendant, Michael Ross, is, however, no ordinary defendant, and this is no ordinary case.
This case illustrates, however, the sheer irrationality of the capital punishment system because this defendant's election to forgo further appeals or collateral relief, a decision that in any other context would lend some economy to the proceedings, has in fact spawned seemingly endless litigation over his fate.
I do not dispute the need for an abundance of caution given the tremendous stakes of this case; indeed, after the execution has taken place, no court will have the option of reconsideration. These proceedings have, however, been cruel and traumatic for the victims' families and a significant part of the punishment for the defendant himself, and also have come at great financial cost for all parties involved, as well as the courts. And yet, at the end of the day, the question remains: After the execution, what will the state of Connecticut have gained from all of this? The answer seems to be that, minimally, the state has secured the proverbial pound of flesh for the crimes of this one outrageously cruel man. But now, what is to be? Has our thirst for this ultimate penalty now been slaked, or do we, the people of Connecticut, continue down this increasingly lonesome road?
I opened this opinion by mentioning that my opposition to the death penalty has often been set forth in the Connecticut Reports. I close with my belief that the totality of the costs that are attendant to capital punishment vastly outweigh its marginal benefits.
Hopefully, the death penalty jurisprudence reported in those volumes soon will become nothing more than legal artifacts of interest and import not to the active bench and bar, but only to historians. Until such time, however, I respectfully dissent.

Lonely Abolitionistnotes:

George James Miller Jr. - Oklahoma

The State of Oklahoma executed George James Miller Jr. yesterday evening for the murder of Kent Dodd. Miller was convicted of killing Miller based on circumstantial evidence. He has continually claimed innocence of the crime. Nonetheless, his appeals were denied and Miller was executed for a crime with only circumstantial evidence to prove his guilt.

Seems to me that its one thing to convict a man based on circumstantial evidence (it happens all the time), and entirely another to condemn him to his own murder. Miller may very well have been guilty, but circumstantial evidence shows only that, circumstances. Even a small chance that the only thing the evidence truly shows is that Miller was in the wrong place at the wrong time, should be enough to allow him to live.

Man Executed for Killing in Okla. City

Michael Ross - Connecticut

The Ross circus is over. In the dead of night, the State of Connecticut executed Michael Ross by lethal injection. The execution was the first in New England in over forty-five years.

Michael Ross had admitted to killing eight women in both Connecticut and New York. Ross had served 21 years on death row and had waived all of his appeals. Several of his family members had filed numerous appeals on Ross' behalf (against his wishes), and the last of those appeals was denied by the United States Supreme Court late last night. Ross's relatives argued that Ross suffered from "death row syndrome" and that his mental state had degraded to the point where he felt it would be better to die.

Michael Ross got his wish. The State of Connecticut performed his suicide for him. Michael Ross waived his appeals for himself and not for his victims, but I hope that his death can now bring some sense of peace to the families of his victims. At least now, the media circus should end and the extended legal fight is over.

I admit, its hard for me to have sympathy for Michael Ross. His crimes were indeed some of the worst of the worst. That doesn't change the fact that I do not think he should have been killed. It also doesn't change the fact that I think the death penalty is flawed public policy.

For more information on Michael Ross and the fight to save his life, see the NCADP blog where David has posted a couple of commentaries, including a dissent from the CT Supreme Court.

Connecticut serial killer put to death

Connecticut Law Blog

One last major Ross Execution Roundup with a little more international flavor.

THE SMALL PRINT

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