Leading off this week is a case with a familiar name Harris v. Alabama. After the Supreme Court upheld the "advisory" jury system in Alabama in her case Ms. Harris filed for post-conviction relief asserting, among other claims, that her trial counsel failed to adequately investigate. In a somewhat stunning opinion, the Alabama Court of Criminal Appeals lays out one of the best step-by-step analysis of failure to investigate mitigation, solid language on mental retardation, and a good discussion of battered woman syndrome a mitigating factor. It should be noted that in Harris counsel chose to go with "residual doubt" as its penalty phase theory of the defense.

Elsewhere, in addition to the recent political developments, the news from Washington is that the Chief Justice has fallen seriously so Focus this week looks at whatWhat The Supreme Court Might Look Like Without Himin an essay by Marci Hamilton. What the election results will mean for the next few years of federal criminal practice will be addressed in a coming edition.

As always, thanks for reading. - k

Archived on the internet athttp://capitaldefenseweekly.com/archives/041101.htm

EXECUTION INFORMATION

Since the last edition there have been the following executions in the United States:

November

2 Lorenzo Morris Texas

4 Robert Morrow Texas

Pending execution dates believed to be serious include:

November

9 Demarco McCullum Texas

10 Frederick McWilliam Texas

12 Frank Chandler North Carolina

16 Donnie E. Johnson Tennessee

17 Anthony Fuentes Texas

18 Troy Kunkle Texas

December

1 Frances Newton Texas----female

2 George Banks Pennsylvania

3 Charles Walker North Carolina

SUPREME COURT

The Court this week heardoral argument in Florida v. Nixonon questions relating to the application of United States v. Cronic to issues relating to the concession of a client's guilt.

CAPITAL CASES (Favorable)

Harris v. Alabama, 2004 WL 2418073, 2004 Ala. Crim. App. LEXIS 203 (Ala.Crim.App. 10/29/2004) (dissent) Counsel failed to adequately investigate, and therefore present, readily found mitigation evidence.

O’Kelley v. Georgia,2004 WL 2378428 (Ga 10/25/2004) Defendant asserted his Sixth Amendment right to counsel at initial appearance hearing, therefore subsequent interrogation of defendant, without counsel present was inadmissible

CAPITAL CASES (Other Than Favorable)

Ryan v. Clarke, 2004 WL 2414167, 2004 U.S. App. LEXIS 22520 (8th Cir 10/29/2004) State court's finding that petitioner was competent to stand trial and that improper ex parte meetings between the trial court and the victims' families did not deprive petitioner of a fair sentencing were not objectively unreasonable. Ryan held competent to proceed in post-conviction proceedings.

California v. Turner, 2004 WL 2422597 (CA 11/1/2004) Relief denied in a very procedurally complex case. Turner's original death sentence had been vacated. The trial court then negotiated a plea over the prosecutor's objection to impose a sentence of life without parole. The People appealed and the intermediate appellate court reversed and remanded. At the new retrial death was imposed. On direct appeal relief denied on claims that (1) the trial court's negotiate with Turner were proper and therefore LWOP should be imposed; (2) whether substantial evidence supported jury's finding that defendant was competent to stand trial; (3) whether trial counsel was effective during competency "trial"; (4) prosecutorial misconduct during the competency hearing; and (5) whether a delay of over 20 years between convictions and his execution constitutes cruel and unusual punishment.

Ex parte Green, 2004 WL 2413313 & 2399713 (Tex.Crim.App. 10/26/2004) Successive state petition denied on claims relating to evidence produced by the scandal plagued Houston crime lab & that during deliberations at applicant's trial, at least one juror considered the effects of parole on their sentencing decision.

Miller v. Alabama, 2004 WL 2418086, 2004 Ala. Crim. App. LEXIS 239 (Ala.Crim.App. 10/29/2004) (on return from remand) Relief denied chiefly on whether the amended sentencing order contained the necessary specific findings of fact regarding the existence of the aggravating circumstance that this offense was especially heinous, atrocious, or cruel when compared to other capital offenses and whether the order denying Miller's motion for a new trial making specific written findings of fact regarding each of the claims raised during the hearing on Miller's motion for a new trial.

Crain v. Florida, 2004 WL 24004057 (FL 10/28/2004) Relief denied on claims including (1) the felony murder kidnapping instruction, (2) sufficiency of the evidence, and (3) Ring/Apprendi.

Riley v. Georgia, 2004 WL 2378096 (Ga. 10/25/2004) Relief denied on claims including sufficiency, voluntariness of confession, failure to permit a defense psychologist to testify about false confession theory, search of remains of defendant's trailer that was burnt to ground, scope of voir dire, photographs of victim's bodies at crime scene, admission of evidence regarding defendant's financial difficulties, marital problems, and relationship with children, and failure to instruct on involuntary manslaughter or reckless conduct as lesser-included offenses of arson.

Porter v. Idaho, 2004 WL 2416229 (Id 10/28/2004) Grant of relief reversed as Ring v. Arizona is not retroactive

South Carolina v. Downs,2004 WL 2378317 (S.C. 10/25/2004) Relief deniedon claims as to whether defendant's plea of guilt was conditional; right to jury trial on sentencing; and failure to allege aggravating circumstances in indictment.

OTHER NOTABLE CASES

Carpenter v. Edwards, 2004 U.S. App. LEXIS 22951 (6th Cir 10/28/2004) An otherwise mundane unpublished opinion notes this little gem in concurrence by Judge Merritt:

In this case, Justices Breyer and Stevens concurred in the result reached by the majority of the Court but pointed out that "the complexity of this Court's habeas corpus jurisprudence" means that "few lawyers, let alone unrepresented state prisoners, will readily understand it." Edwards v. Carpenter, 529 US. 446, 454, 146 L. Ed. 2d 518, 120 S. Ct. 1587 (2000). They were referring to the forfeiture or "door-closing" rules erected by Congress and the Court. Those rules have become so complex that, as in the present case, it often takes years of litigation and long days of research, writing and argumentation by lawyers and judges before a case concludes. Once we cut through the layers of forfeiture rules (exhaustion of remedies, procedural default, cause [*20] and prejudice, ineffective assistance of counsel, adequate state ground, etc.), the case on the merits of the constitutional question usually becomes fairly simple. That is the case here. The bottom line is that the prisoner entered a guilty plea in order to avoid the death penalty, and the state prosecutor himself rather than sworn witnesses stated a factual basis for the entry of the plea. There is no federal constitutional prohibition forbidding a state trial court from establishing a factual basis in this way. This case would have been over years ago if we could have simply gotten to this question in the beginning. As Justices Breyer and Stevens observed, the forfeiture rules are no longer "comprehensible" but rather have become "difficult puzzles," id. at 458, that foreclose a rational and efficient procedure for deciding habeas cases. Time-wise and justice-wise, we would be much better off if we could just get to the merits, as in the days of Fay v. Noia, 372 U.S. 391 at 438, and Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963).

HOT LIST

Harris v. Alabama, 2004 WL 2418073, 2004 Ala. Crim. App. LEXIS 203 (Ala.Crim.App. 10/29/2004) (dissent) Counsel failed to adequately investigate, and therefore present, readily found mitigation evidence.

Harris's counsel decided to rely on residual doubt during the penalty phase. That is, counsel decided to maintain during the penalty phase that Harris was innocent. Here, as in Wiggins v. Smith, 539 U.S. 510, , 156 L. Ed. 2d 471, 123 S. Ct. 2527 (2003), counsel portrayed the decision to forgo the investigation and the presentation of mitigating evidence as a strategic decision [*97] protected from a hindsight review. Harris's case is very similar to Wiggins. In Wiggins the United States Court of Appeals for the Fourth Circuit ruled that counsel knew enough about Wiggins's background from available records to make a "reasonable strategic decision to focus on [Wiggins's] direct responsibility" for the killing during the penalty phase of the trial. Wiggins, 539 U.S. at 519. In rejecting the reasoning of the Fourth Circuit Court of Appeals, the United States Supreme Court held:

"Counsel were not in a position to make a reasonable strategic choice as to whether to focus on Wiggins' direct responsibility, the sordid details of his life history, or both, because the investigation supporting their choice was unreasonable."Wiggins, 539 U.S. at 536. In Wiggins, the United States Supreme Court held that counsel was ineffective because counsel had failed to adequately investigate the petitioner's life and had failed to call expert witnesses to testify regarding Wiggins's background even though counsel possessed information that should have prompted them to do so.

Thus, a strategic decision that is based [*98] on an incomplete investigation may not be strategic or reasonable.

"'Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'"Wiggins, 539 U.S. 510, 521-22, 156 L. Ed. 2d 471, 123 S. Ct. 2527 (quoting Strickland v. Washington, 466 U.S. at 690-91 (emphasis added))."The United States Court of Appeals for the Eleventh Circuit has held that trial counsel's failure to investigate the possibility of mitigating evidence is, per se, deficient performance. See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) ('our [*99] case law rejects the notion that a "strategic" decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them'), cert. denied, 503 U.S. 952, 112 S. Ct. 1516, 117 L. Ed. 2d 652 (1992); see, also, Jackson v. Herring, 42 F.3d 1350, 1366-68 (11th Cir.) ('Although counsel need not "investigate every evidentiary lead," he must gather enough knowledge of the potential mitigation evidence to arrive at an "informed judgment" in making [the decision not to present such evidence]. ... [A] legal decision to forgo a mitigation presentation cannot be reasonable if it is unsupported by sufficient investigation.') (emphasis added; citations omitted), cert. dismissed, 515 U.S. 1189, 116 S. Ct. 38, 132 L. Ed. 2d 919 (1995). Furthermore, trial counsel may be found ineffective for failing to present evidence of adjustment to incarceration, evidence of mental-health problems ... See Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (holding that a capital defendant must be permitted at the penalty phase of his trial to introduce evidence [*100] of adjustment and good behavior while incarcerated); Horton v. Zant, supra (counsel found ineffective for not presenting evidence of adjustment to incarceration); Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991), cert. denied, 504 U.S. 943, 112 S. Ct. 2282, 119 L. Ed. 2d 207 (1992) (counsel found ineffective for failing to introduce evidence that defendant had mental-health problems and a very low IQ and had suffered from various bouts of paranoia and depression); ...."Ex parte Land, 775 So. 2d 847, 853-54 (Ala. 2000)(emphasis on "must" in original; other emphasis added). As reflected above, counsel decided to rely on only residual doubt and the character evidence presented during the guilt phase of the trial, without conducting a meaningful investigation into the existence of possible mitigating evidence. Because counsel's investigation was inadequate, counsel was unaware of the significant available mitigating evidence that could have been presented on behalf of Harris during the penalty phase of the trial.

Moreover, in addition to the information obtained from Harris and that contained in counsel's [*101] case files, the following evidence, which was presented at the Rule 32 hearing through the testimony of family, friends, and mental-health experts, was readily discoverable and available to be presented at the penalty phase as evidence mitigating a death sentence.

Willie J. McPherson, Harris's younger brother, testified at the hearing. He testified that because Harris was older than he, Harris had taken care of him when he was a child while their mother worked. She cooked and cleaned for the entire family, which included eight children. He testified that when Harris was 16 she married John Wesley Robinson ("Buddy"). Willie said that during Harris's four-year marriage to Robinson, she lived about one mile down the road from Willie and that Willie was often at Harris's house. Willie said that Robinson drank and that he hit Harris with his fist and hand and that on one occasion he had also hit Willie. Willie testified that fighting between Harris and Robinson was common and that Harris "got scars like black eyes and her lips and stuff swole up" from Robinson's hitting her. He gave similar testimony regarding Jesse Lee Hall, Harris's common-law husband of approximately 10 years. The circuit [*102] court allowed testimony that Hall had killed the woman he lived with after he and Harris has separated -- "chopped her up with an axe or something." (Volume 15 of Rule 32 hearing at p. 157.)

Willie testified that he also spent a good deal of time with Harris and Isaiah Harris, her third husband and the victim in this case. He recounted that Isaiah Harris drank and that he hit Harris. He said that Harris once summoned him for help at 2:00 a.m. because Isaiah Harris was beating her. On that occasion Isaiah Harris pulled his gun out in front of Harris and Harris's children. On that occasion, not being sure of Isaiah's intentions, everyone ran out of the house and went to Willie's house to spend the night. On another occasion Harris arrived at Willie's house with "her lips ... swole up, and she had bruises on her forehead and everything." (Volume 15 of Rule 32 hearing at p. 159.) Harris told Willie that Isaiah had hit her with a frying pan.

Willie McPherson never talked to an investigator for the defense. He said no lawyer for Harris had ever contacted him. He said he tried to talk to the attorneys once when he took his mother to their office but they "ignored" him, like "what [he] [*103] had to say just wasn't important." (Volume 15 of Rule 32 hearing at pp. 163, 168-69.) He stated that he attended Harris's trial and would have testified as he did in at the Rule 32 hearing had he been asked to do so.

George McPherson, another of Harris's younger brothers, testified at the hearing on Harris's Rule 32 petition. He testified that Harris took care of the family after their older sister died. Harris washed, cooked, and ironed. The family did not have a washing machine so clothes were washed by hand in a washtub. There was no running water. Water was carried from a well located at their cousin's house a "good ways" away from their house. (Volume 15 of Rule 32 hearing at p. 193.) He testified that he saw John Wesley Robinson ("Buddy") "jumping on [Harris], beating her, stuff like that." (Volume 15 of Rule 32 hearing at p. 193.) He also testified that after he was grown, Harris bought his children Christmas presents when he did not have any money. He was not contacted by Harris's attorneys or an investigator, but he said he would have testified at trial if he had been asked to do so.

Barbara McPherson is Harris's younger sister. Harris took care of Barbara when they were [*104] growing up. She, too, testified that there was no running water or gas where they grew up. She said that when their daddy was shot, Harris and Jesse Lee Hall found his body. Barbara testified that when she was sick and could not take care of her four children, she and her children stayed with Harris. Harris also kept Barbara's children for two months when Barbara's baby was in the hospital. She also brought Barbara meals in the hospital in addition to taking care of the children and continuing to do her own job.

Barbara McPherson described Jesse Lee Hall as someone who drank, was "violent" and was a "woman-beater." (Volume 16 of Rule 32 hearing at p. 214.) She testified that she saw Hall beat Harris. Once she saw him pick up a posthole digger and swing it around with the intent to hit Harris on her head but Harris's father saw it in time and intervened. Once, after Harris had left Hall, Hall began begging her to return to him. She refused and he "jumped on her" and had to be pulled off by others present. (Volume 16 of Rule 32 hearing at p. 215.) Barbara McPherson also knew Isaiah Harris. She described his attitude as "I enforce the law, but I ain't got to abide by the law." (Volume [*105] 16 of Rule 32 hearing at p. 216.) She testified that she had heard him say that very thing. Barbara stated that once Isaiah was drinking and driving in excess of the speed limit. Barbara said that she told him not to speed but he said "I'm the law. If they stop me, what they going to do?" (Volume 16 of Rule 32 hearing at p. 216.) Barbara said Isaiah was a different person when he drank.

Barbara McPherson never heard from defense counsel or an investigator, but she attended Harris's trial and would have testified at Harris's trial if she had been asked to do so.

Carolyn Rhodes is Harris's daughter. She was 19 years old at the time of the trial. She lived with her mother and Isaiah Harris. She testified that Harris and Isaiah Harris fought "a lot," usually about twice a week. (Volume 15 of Rule 32 hearing at p. 200.) She characterized the fights as "screaming, hitting on her, mostly he start on her and I also try to keep him from hitting her when she try to get out." (Volume 15 of Rule 32 hearing at p. 200.) She testified that Harris left Isaiah Harris once when he drew his gun on Harris and hit Harris on the head with a frying pan. Rhodes's uncle had to come and get them on that [*106] occasion. However, Harris went back to Isaiah Harris after that incident. Rhodes said her mother tried to move out a second time but Isaiah "laid in front of the car, then he went and laid behind the car" so she could not drive away. (Volume 16 of Rule 32 hearing at p. 201.) She said Isaiah Harris "drank every day." (Volume 16 of Rule 32 hearing at p. 201.)

Rhodes testified that there was a family meeting with Harris's lawyers one time but that the purpose of the meeting was to pay them. She never heard from them again or from an investigator. Rhodes stated that she attended the trial and that she would have testified at trial as she did at the Rule 32 hearing had she been asked to do so.

Jesse L. Robinson is Harris's son. He was 15 years old when she was arrested. He lived with Harris and Isaiah during their marriage. He testified that Harris and Isaiah fought "a lot." (Volume 16 of Rule 32 hearing at p. 222.) Once he saw Isaiah "pull a gun out and he shot in the floor." (Volume 16 of Rule 32 hearing at p. 222.) Once his uncle was taking Robinson home and when they arrived, everybody was outside the house because Isaiah had a gun out. Isaiah began waving it at Robinson and his [*107] brother so they had to leave with their uncle. Robinson said that one time Isaiah hit Harris with a frying pan and she had to go to the emergency room. (Volume 16 of Rule 32 hearing at p. 225.) Isaiah drank "anywhere from a twelve pack a day, maybe eighteen. And on special occasions, probably liquor, vodka, something like that." (Volume 16 of Rule 32 hearing at p. 223.) Robinson stated that when he was about 12 years old he ran away from home because he "tired of the fighting" between Harris and Isaiah and "there was nothing I could do about it." (Volume 16 of Rule 32 hearing at p. 223.)

Robinson described his mother as loving and caring but "also strict." (Volume 16 of Rule 32 hearing at p. 223.) She encouraged her children to "be the best at what you do." (Volume 16 of Rule 32 hearing at page 223.) She also attended Robinson's football and basketball games when he was young. Robinson was never contacted by an attorney or an investigator. He attended Harris's trial and he would have testified at Harris's trial if he had been asked to do so.

Stanley T. Robinson is Harris's son. He lived with Harris and Isaiah during their marriage. He testified that there was a lot of fighting between [*108] Harris and Isaiah. Robinson said he saw Isaiah "hit her, you know, cursing at her, getting real violent towards her." (Volume 16 of Rule 32 hearing at p. 231.) He remembers that one time Isaiah Harris pulled a gun on her. During these incidents, he heard Isaiah Harris say things to Harris such as "motherfucker" and say that he was going to "do things" to her and say to her "You're no good." (Volume 16 of Rule 32 hearing at p. 232.) These incidents happened "a number of times." (Volume 16 of Rule 32 hearing at p. 232.) Robinson testified that once Harris said she was going to leave and Isaiah "had a gun on her saying what he was going to do to her" if she did. (Volume 16 of Rule 32 hearing at p. 232.) One time Harris telephoned the police about Isaiah Harris's abuse but they "didn't do nothing" when they got to the house. (Volume 16 of Rule 32 hearing at p. 233.) Robinson guessed that Isaiah drank a 12 pack of beer every two days. He recalled one time that he was with Isaiah when he was drinking and driving too fast. He got stopped for speeding, but the officer let him go when Isaiah showed him his badge.

Robinson also knew Lorenzo McCarter, Harris's co-defendant. They worked together [*109] at one time. Robinson said that McCarter drank "a lot." (Volume 16 of Rule 32 hearing at p. 234.) McCarter drank at work beginning early in the morning. Robinson stated that McCarter was "a relaxed person" until he began drinking. When McCarter drank "he became kind of vicious-like, got an attitude, real snappy." (Volume 16 of Rule 32 hearing at p. 235.) Robinson described his mother as "a loving caring person ... that would give you her life if she had it to give." (Volume 16 of Rule 32 hearing at p. 235.) Robinson recalled talking to a lawyer as a part of a family group, but not individually and he was not asked to testify at trial. He recalled being asked whether he knew "anybody that wanted to come or anything is all they ever asked me." (Volume 16 of Rule 32 hearing at p. 235.) Robinson did not talk to an investigator. He attended his mother's trial and would have testified if he had been asked to do so.

Helen Green is Harris's friend and has known Harris all her life. They grew up together. She remembered when Harris's older sister, Elizabeth, died. Harris had been close to her sister, and she grieved a lot when Elizabeth died. When Elizabeth died Harris became the oldest child [*110] and had to take care of the children because her parents worked. She also remembered when Louise's brother, James, died. Harris was present when they pulled his body from the water after he had drowned.

Green described Harris as a "dependable, reliable, a good friend. She's a person with a spirit to help anyone. You know, if she can help you, she will." (Volume 16 of Rule 32 hearing at p. 228.) Green testified that once when Green was down on her luck and having a hard time, Harris fed Green and her children. Green did testify at Harris's trial as a character witness stating that Harris had a good reputation in the community for truth and honesty. (Volume 4 of record on direct appeal at p. 701). Other than when someone telephoned her who said they wanted her to testify, she said that she spent "maybe five, ten minutes" with a lawyer before trial. Green was never asked about Harris's background or personality. No one asked Green to testify at sentencing but she said she would have if she had been asked.

Adrienne K. Ivey was food-services director for the First Baptist Church in Montgomery at the time of Isaiah Harris's murder. Harris was her employee for four years at the church [*111] and was in charge of the kitchen. n11 Ivey testified that there were "so many people at First Baptist Church that love [Harris] so." (Volume 15 of Rule 32 hearing at p. 172.) Ivey stated that Harris was a "very, very, hard worker"; "I was able to confide in [Harris]"; Harris got along with co-workers "great" because "they all respected [Harris] a lot because she knew her job." (Volume 15 of Rule 32 hearing at p. 173.) According to Ivey, Harris had "empathy for other people." Specifically Ivey recounted a young alcoholic whom Harris helped so he would not lose his job in the kitchen and how Harris helped Ivey when Ivey's mother died. Ivey stated that Harris "loved her children"; "was strict on her children"; and was "very protective of her children." (Volume 15 of Rule 32 hearing at p. 177.) She said that Harris was "very definitely" a good mother, "very much so." (Volume 15 of Rule 32 hearing at p. 177.)

Ivey said that [*112] some attorney telephoned her early one morning and asked her a couple of questions and said he would call her back but he never did. Ivey said that she was not contacted by an investigator. She stated that she did not attend Harris's trial but that she would have testified on Harris's behalf if she had been asked to do so and that "any of the girls in the [church] kitchen would have been happy to testify for [Harris]." (Volume 15 of Rule 32 hearing at p. 179.) Ivey went on to say:

"And I'm going to say again, I'm going to reiterate one more time about the fact that our staff, all of them, thought so much of Louise. I cannot emphasize that enough. Because she had been so good to all of them and been such a personable friend to so many people in the church. Any of them would have probably testified if they had been asked."(Volume 15 of Rule 32 hearing at p. 179.)

Brenda Law was employed by the Elmore County Sheriff's Department as the administrator of the jail at the time Harris was incarcerated there. Upon her arrest, Harris was taken to the Elmore County jail. Law testified that she noticed bruises on Harris's legs at that time. According to Law, Harris became [*113] "a kitchen trusty and helped cook and stuff there." (Volume 16 of Rule 32 hearing at p. 208.) Harris was a "wonderful cook" and "everybody loved her food." (Volume 16 of Rule 32 hearing at p. 208.) She got along well with the other inmates; there were no problems "ever out of [Harris.]" (Volume 16 of Rule 32 hearing at p. 208.) Law testified: "Sometimes we had to watch other women, they were all on the same cell block like on a suicide block, or be kind of upset, sometimes we would put Louise in there to sort of help and just calm them down." (Volume 16 of Rule 32 hearing at p. 208.) Law said it was her opinion that Harris was "a very sweet lady, very dedicated to whatever she was doing." (Volume 16 of Rule 32 hearing at p. 208.) However, Law said that Harris was "withdrawn" and "didn't talk a lot about her personal life" "other than her kids." (Volume 16 of Rule 32 hearing at pp. 209, 212.) It was also Law's opinion "judging from other people that have been in the jail" that Harris "had been battered and assaulted." (Volume 16 of Rule 32 hearing at p. 209.) Law was not contacted by counsel or by an investigator, but she indicated that she would have testified at Harris's trial if [*114] she had been asked to do so.

In addition to the above testimony from family and friends, expert testimony was also presented at the Rule 32 hearing concerning Harris's family and life history.

Dr. Martha T. Loring is a clinical social worker specializing in battered woman's syndrome n12 and post-traumatic stress disorder ("PTSD"), n13 and is director of the Center for Mental Health and Human Development in Atlanta, Georgia. Dr. Loring is a "Board Certified Expert in Traumatic Stress with a Diplomate in the American Academy of Experts in Traumatic Stress." (Rule 32 hearing, vol. 16, p. 240.) She spent 30 hours examining Harris. She also personally interviewed numerous individuals, including Harris's family and friends and reviewed various written documents concerning Harris. Dr. Loring concluded after this lengthy evaluation that Harris suffered from PTSD and battered women's syndrome at the time of the murder.

Dr. Loring observed several symptoms of PTSD in Harris. She testified that one symptom of PTSD that Harris displayed was the characteristic of avoidance: Harris tried to avoid traumatic memories and found it difficult to talk about them and about her feelings about them. She suffered from dissociation; she had difficulty thinking and experienced a sense of panic. She suffered "flashbacks, intrusive thoughts and numbing, where sometimes her feelings aren't available to her, because they are so painful and she tries to avoid them." (Rule 32 hearing, vol. 16, p. 257.) According to Dr. Loring, as symptoms of battered woman syndrome, Harris tried to appease the men who abused her and she exhibited learned helplessness. She displayed an ongoing fear, which caused her to shake and occasionally [*116] cry as she discussed incidents, and Harris tried to minimize the traumatic events she had gone through. When pushed hard to remember incidents, Harris would "flail about and try to protect herself ... [with] movements of [her] hands or arms [as if] trying to protect herself of being choked or being shot, or being hit." (Rule 32 hearing, vol. 16, p. 264.)

Dr. Robert D. Shaffer, an expert clinical psychologist, performed a dissociative experiences survey ("DES") n14 on Harris and found that her score of between 30-40 was within "a range typical of most individuals who have [DES]." (Rule 32 Record vol. 16, p. 328.) Shaffer explained that the "general population obtains a score around five." (Rule 32 Record vol. 16, p. 328.) Dr. Shaffer continued that "this score was in a range typically higher than that obtained by most individuals with Post-Traumatic Stress Disorder, and revealed a more severe level of dissociation typical of people with Post-Traumatic Stress Disorder." (Rule 32 Record vol. 16, p. 328.) Dr. Shaffer stated that DES "is what [he] would consider to be an extension of Post-Traumatic Stress Disorder, or an exacerbated condition of Post-Traumatic Stress Disorder, [*117] where over the years, a person splits off from their awareness of reality in order to cope." (Rule 32 Record vol. 16, pp. 335-36.)

Dr. Shaffer also performed a "Structured Interview of Reported Symptoms," which is a test designed to detect "faking and malingering of symptoms." (Rule 32 Record vol. 16, p. 331.) According to Shaffer, known malingerers score on average 80. The average honest population scores 25. Harris scored 11, indicating "that she was much less likely to endorse symptoms, much less likely to report difficulties in problems than the average honest responder." (Rule 32 Record vol. 16, p. 332.) Moreover, according to Dr. Shaffer the test revealed that Harris "tends to deny or minimize [*118] everyday problems. She tends to look at the world with a sunny side up, so to speak, and present herself as composed and competent and capable, rather than having any problems." (Rule 32 Record vol. 16, pp. 332-33.)

Dr. Shaffer also conducted an intelligence quotient ("IQ") test on Harris and found her full scale IQ to be 79, "which is in the borderline range [between normal and retarded] of IQ." (Rule 32 Record vol. 16, p. 333.)

Dr. Karl Kirkland, a witness called by the State, is an expert in forensic psychology. He spent three to four hours with Harris and reviewed documents relevant to her and reviewed literature on battered-woman syndrome in preparation for his testimony. He determined through tests that Harris read at a fifth-grade level. As a result of his evaluation, Kirkland disagreed with the conclusions of Dr. Loring and Dr. Shaffer regarding their respective diagnoses that Harris suffered from battered-woman syndrome, DES and PTSD. However, Dr. Kirkland stated: "Certainly, Ms. Harris meets plenty of diagnostic criteria to be called a battered woman. She has had a very difficult, horrendous life. There's no question about that. She has been in numerous battering relationships. [*119] In that sense, she meets the criteria to be called a battered woman." (Rule 32 Record, vol. 17, p. 401. Emphasis added.) It was Dr. Kirkland's opinion that Harris's "personality strengths" or "strength as an individual" prevented her from developing battered woman syndrome, DES, or PTSD. Dr. Kirkland noted that "[Harris] is clearly a very well-liked person" and commented that the prison warden and several guards dropped by just to speak with her during his interview. (Rule 32 Record, vol. 17, p. 406.)

"'"An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence."'" Wood v. State, [Ms. CR-01-0700, January 6, 2004] So. 2d , , 2004 Ala. Crim. App. LEXIS 1 (Ala. Crim. App. 2004)(opinion on return to remand), (quoting Daniels v. State, 650 So. 2d 544, 568-70 (Ala. Crim. App. 1994), quoting in turn Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988)). Here a reasonable investigation would have disclosed substantial evidence that could have been presented in mitigation. However, because counsel did not investigate the existence of mitigating [*120] evidence, their decision to rely only on residual doubt, character evidence presented during the trial, and the pre-sentence report was not reasonable. Because counsel failed to investigate, there was essentially nothing for the trial court to weigh in mitigation against the one aggravating circumstance that tipped the scales in favor of imposing a death sentence.

"Our principal concern in deciding whether [counsel] exercised 'reasonable professional judgment,' [Strickland, 466 U.S. at 691], is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [defendant's] background was itself reasonable. Ibid. Cf. Williams v. Taylor, [529 U.S. 362, 146 L. Ed. 2d 389] at 415, 120 S. Ct. 1495, [(2000)] (O'Connor, J., concurring) (noting counsel's duty to conduct the 'requisite, diligent' investigation into his client's background). In assessing counsel's investigation, we must conduct an objective review of their performance, measured for 'reasonableness under prevailing professional norms,' Strickland, 466 U.S., at 688, [*121] which includes a context-dependent consideration of the challenged conduct as seen 'from counsel's perspective at the time,' id., at 689 ('Every effort [must] be made to eliminate the distorting effects of hindsight')."Wiggins, 539 U.S. at 522-23 (some emphasis original; some emphasis added).

As the United States Supreme Court explained in Wiggins, the value of counsel's "strategic" decision depends on "the adequacy of the investigations supporting [that] judgment[]." Wiggins, 539 U.S. at 521."Counsel's conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)--standards to which we long have referred as 'guides to determining what is reasonable.' Strickland, supra, at 688; Williams v. Taylor, supra, at 396. The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' ABA Guidelines for the Appointment and Performance of Counsel [*122] in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences) (emphasis added); 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 ('The lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing ... Investigation is essential to fulfillment of these functions')."Wiggins, 539 U.S. at 524-25.

Here, the record reveals that before the penalty phase of the trial counsel had before them documents, notations, information from family and friends that, if pursued, would have led to the discovery of statutory and nonstatutory mitigating evidence. In summary, it was disclosed [*123] at the hearing on the Rule 32, Ala. R. Crim. P., petition that the following facts were readily discoverable for presentation as mitigating evidence:1. Harris's childhood was spent in extreme poverty as the oldest (following the death of her older sibling) of eight children.

2. At age 10 or 11 Harris was raped. (Volume 15 of Rule 32 hearing at p. 110.)

3. When Harris was 14 years old, her older sister suffered a seizure and died in Harris's arms.

4. When Harris was 14 years old, her house burned down two days after Christmas. (Volume 15 of Rule 32 hearing at p. 106.)

5. When Harris was approximately 14 years old, her younger brother drowned and she witnessed authorities pull his body from the water.

6. Harris married at age 16, and between the ages of 16 and 19 she was abused by husband, John Wesley "Buddy" Robinson--even during Harris's pregnancies.

7. Between the ages of 19-27, Harris was abused by her boyfriend, Jesse Lee "Kingsize" Hall. (In 1984 Jesse Lee Hall was incarcerated for the beating death of his then wife, Annie Bledsoe. (Rule 32 Record vol. 18, p. 75.))

8. At approximately age 21, Harris discovered the body of her murdered [*124] father and harbors concern that he was murdered by Jesse Lee "Kingsize" Hall.

9. At ages 31-34, Harris was physically abused by her second husband, Deputy Sheriff Isaiah Harris (the victim) who suggested to her that she could do nothing to stop him from abusing her because he was a deputy sheriff.

10. At age 34, Harris was physically abused by her lover, Lorenzo "Bobo" McCarter, who is also a co-defendant in the instant case.

11. In spite of her own hardships, Harris was a good person and helped others in need.

12. Harris may suffer from battered-woman syndrome and PTSD, but at the very least, has suffered harsh experiences throughout her life that contribute to these conditions.

13. Harris's IQ is 79, which is in the borderline range between normal and retarded.

14. Harris had successfully acclimated herself to prison life.

Here, counsel had before them many clues suggesting that Harris's troubled past, yet they declined to investigate those clues for possible use in the penalty phase. Instead, counsel relied on only the sparse testimony of character witnesses, n15 who, while adequately painting a picture of Harris as an affable, hard working, Christian [*125] woman, completely failed to offer any insight into Harris's psyche or the very difficult life Harris had experienced and particularly in her relationship with Isaiah Harris. As the Federal District Court found in Wiggins, "any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner's background." Wiggins, 539 U.S. at 525 (citing Wiggins v. Corcoran, 164 F. Supp. 2d 538, 559 (D.Md. 2001)). By their course of action, counsel hoped to promote the jury's "residual doubt" as to Harris's guilt. Counsel argues that their strategy was effective because the jury recommended by a vote of 7-5 a sentence of life imprisonment without parole. Counsel's alleged strategy overlooked the trial court's opportunity during the second part of the penalty phase to override the jury's recommendation.

Moreover, despite their initial success in the penalty phase before the jury, counsel's strategy was flawed from its conception.....

Harris has affirmatively shown, through testimony and documents presented at her Rule 32 hearing, that there was a wealth of mitigating evidence readily available to counsel that counsel should have investigated before it can be said that counsel's strategy for the penalty phase was a reasonable strategic choice. In other words, counsel made their decision while uninformed as to "the overall character" of potential witnesses testimony. See Blake v. Kemp, 758 F.2d 523, 535 (11th Cir. 1985). Thus, counsel's alleged defense strategy for the penalty phase -- to not investigate for evidence in mitigation but to rely on "residual doubt" as to guilt -- was from its conception, deficient performance.

Because we find counsel's performance to be deficient, we must determine whether the deficient performance caused Harris to suffer prejudice.

Prejudice to Harris

"'"In a challenge to the imposition of a death sentence, the prejudice prong of the Strickland inquiry focuses on whether 'the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."'" [*128] Wood v. State, [Ms. CR-01-0700, January 6, 2004] So. 2d , , 2004 Ala. Crim. App. LEXIS 1 (Ala. Crim. App. 2003)(opinion on return to remand) (quoting Daniels v. State, 650 So. 2d 544, 568-70 (Ala. Crim. App. 1994), quoting in turn Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir. 1992)).

The only aggravating factor in this case was that the murder was committed for pecuniary gain. § 13A-5-49(6), Ala. Code 1975. The only statutory mitigating factor presented to the jury was that Harris did not have a criminal record. § 13A-5-51(1), Ala. Code 1975. The only nonstatutory mitigating evidence presented to the jury during the penalty phase was the adoption of the character evidence presented during the guilt phase -- that Harris attended church, that she worked hard, and that she had a reputation for good character among those who knew her. See § 13A-5-52, Ala. Code 1975. The only mitigating evidence presented to the trial judge during the penalty phase was the testimony and presentence report of Probation Officer Edward G. Fawbush, who recommended Harris be sentenced to life imprisonment without parole. However, the State [*129] elicited testimony from Fawbush that questioned the soundness of his recommendation. n16

During the penalty phase the State portrayed Harris as a calculating, devious woman who suffered from no emotional distress and who was not a battered woman. (Direct Appeal Record vol. 6, pp. 1002, 1004, 1033). Specifically, during the penalty phase in front of the jury the prosecutor argued: "Did [Harris] act under duress or domination of another? No. She was living safe at home with a lawman at her side protecting her." (Volume 15 of Rule 32 hearing at p. 133, quoting volume 6 p. 1004 of direct appeal.) During the penalty phase in front of the jury the prosecutor argued: "What evidence is there of this mental or emotional distress or disturbance? Absolutely none." (Direct [*130] Appeal Record vol. 6, p. 1003). During the penalty phase before the trial judge, the prosecutor argued: "There is no duress or domination... Also, this is a premeditated crime, unlike a battered woman responding that evening ...." (Direct Appeal Record vol. 6, p. 1033). Those comments went unchallenged.

The trial court found the following in its sentencing order:

"'In weighing the aggravating and mitigating circumstances, the Court is aware of the nature of the process as defined in Section 13A-5-48. It is not a matter the Court takes lightly. After carefully considering the matter, the Court is convinced that the one statutory aggravating circumstance found and considered far outweighs all of the non-statutory mitigating circumstances, and that the sentence ought to be death.'"Harris v. State, 632 So. 2d at 542 (emphasis added).

Harris's IQ of 79 is considered to be on the borderline between normal and retarded. Also, according to Dr. Kirkland, a State witness, Harris's mental condition met "plenty" of the criteria for her to be classified as a battered woman. (Rule 32 Record, vol. 17, p. 401.) Additionally, there was evidence from family and friends [*131] supporting what Dr. Kirkland termed as Harris's "very difficult, horrendous life." (Rule 32 Record, vol. 17, p. 401.) Both the jury and the trial court could have found this evidence to be mitigating had it been presented during the penalty phase. Thus, in order to establish the nature of Harris's difficult and horrendous life, as well as the nature of her mental condition before the judge and jury, evidence of her lifelong hardships and abuse was particularly important as mitigating evidence that should have been presented at the penalty phase. This is especially true given the trial judge's history for overriding jury verdicts where less than eight jurors voted for life imprisonment without parole.

Had the mitigating evidence discussed in this opinion been presented, it is possible that the trial court could have found two additional statutory mitigating factors: that "the capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance," § 13A-5-51(2), Ala. Code 1975 and that "the defendant acted under extreme duress or under the substantial domination of another person," § 13A-5-51(5), Ala. Code 1975 [*132] . It is possible that the trial court could have found as non-statutory mitigating factors that Harris that had a traumatic childhood and that she adjusted well to prison life.

In Baxter v. Thomas, 45 F.3d 1501, 1515 (11th Cir. 1995), the United States Court of Appeals for the Eleventh Circuit stated:

"While deficient performance in investigating psychiatric mitigating evidence will not always prejudice the defense, the factors suggesting prejudice in this case are strong. First, only one aggravating circumstance was present: that the crime was committed for the purpose of monetary gain. It is therefore likely that testimony of Baxter's mental retardation and psychiatric history as mitigating evidence would have caused the jury to impose a life sentence in lieu of the death penalty."

In Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985), defense counsel "made no preparations whatsoever for the penalty phase" thinking that Blake would be found not guilty. Here, as in Blake, defense counsel's"failure to seek out and prepare any witnesses to testify as to mitigating circumstances ... deprived him of ... an opportunity [to put on [*133] mitigating evidence]. This was not simply the result of a tactical decision not to utilize mitigation witnesses once counsel was aware of the overall character of their testimony. Instead, it was the result of a complete failure--albeit prompted by a good faith expectation of a favorable verdict--to prepare for perhaps the most critical stage of the proceedings. We thus believe that the probability that Blake would have received a lesser sentence but for his counsel's error is sufficient to undermine our confidence in the outcome."Blake v. Kemp, 758 F.2d at 535.

Here, counsel obtained from the jury seven votes for life imprisonment without parole without presenting any significant mitigating evidence. "Defense counsel's use of mitigation evidence to complete, deepen, or contextualize the picture of the defendant presented by the prosecution can be crucial to persuading jurors that the life of a capital defendant is worth saving." Allen v. Woodford, 366 F.3d 823, 844 (9th Cir. 2004). As in Baxter v. Thomas, supra, the only aggravating circumstance in Harris's case was that the crime was committed for the purpose of monetary [*134] gain. The Baxter Court found counsel's failure to investigate Baxter's mental retardation and psychiatric history as mitigating evidence to be deficient performance and prejudicial. The Baxter Court found that it was "likely that testimony of Baxter's mental retardation and psychiatric history as mitigating evidence would have caused the jury to impose a life sentence in lieu of the death penalty." Baxter v. Thomas, 45 F.3d at 1515. In Harris's case, had the jury been afforded the opportunity to consider evidence of Harris's low IQ and strength of character, together with evidence of her "horrendous" life and her successful acclimation to prison life as mitigating evidence, it is probable that additional jurors would have voted for life imprisonment without parole and that Judge Thomas would not have overridden the jury's a recommendation of life imprisonment without the possibility of parole. Counsel's failed memories concerning discussions about evidence to be presented at the penalty phase suggests that no alternatives where considered before counsel adopted the defense chosen for the penalty phase. No investigation was conducted into possible mitigating [*135] evidence because of counsel's ill-advised decision to rely on residual doubt during the penalty phase.

Thus, there is a reasonable probability that had counsel conducted a reasonable investigation into possible mitigating evidence, the balance between the aggravating circumstance and the mitigating circumstances would have tipped further in favor of a sentence of life imprisonment without the possibility of parole. Thus, the outcome of Harris's penalty phase would have been different, but for trial counsel's performance. Therefore, Harris's counsel were ineffective at the penalty phase of the trial.

We reverse the circuit court's order as to sentencing and remand this cause to the circuit court for a new penalty-phase hearing before a jury and then an additional hearing before the trial judge.

Our resolution of this issue obviates the need to discuss the other issues raised by Harris asserting error during the penalty phase or concerning electrocution as punishment. n17

FOCUS

The Chief Justice has fallen seriously ill and talk persists that this will be his last term. Some ideas of what What The Supreme Court Might Look Like Without Himare addressed by Marci Hamilton at Writthis week.

The Supreme Court Without Rehnquist?

The Difference He Has Made, and What the Court Might Look Like Without Him

By MARCI HAMILTON

----

Thursday, Nov. 04, 2004

Recently, the Supreme Court made a saddening announcement: Chief Justice William Rehnquist is battling thyroid cancer. The news came as a surprise in the midst of an intense presidential campaign.

Rehnquist plans to get back to work as soon as he can, but this very serious illness underlines the chance that he - and/or other Justices - may leave the Court over the next four years, with President Bush nominating a successor, or successors. That is a tremendous responsibility.

It will be hard to fill the Chief's shoes. It is standard classroom fare, among liberal law professors, to claim that Rehnquist is an ideologue -- or worse, in their eyes, a "conservative ideologue.

"In fact, as I will argue in this column, the truth is that Rehnquist has been an outstanding Chief Justice.

Rehnquist's History: More Than Three Decades on the Court

William Rehnquist joined the Court, as an Associate Justice, in 1971 - nominated by President Nixon. In 1986, President Reagan elevated Rehnquist to be Chief Justice.

For a number of years, Rehnquist was an outlier on the Court on many issues--especially federalism and the free exercise of religion. He proved himself to be tenacious, smart, and extremely well-educated -- with the kind of tough-minded common sense they breed in the West.

Rehnquist held true to his positions, despite public pressure to alter them, and undeserved condescension from the academy - which confused principled consistency with partisan ideology when it came to evaluating Rehnquist. Finally, when elevated to the Chief Justice position, he had the opportunity to lead a majority that recognized these positions as the best reading of the Constitution.

Rehnquist's Key Issue: Federalism and The Limits of Congressional Power

On issues of federalism, Rehnquist saw, from the beginning of his tenure, that Congress had usurped power - believing its powers, specifically enumerated in the Constitution, were somehow unlimited and unquestionable. Many law school professors, unfortunately, abetted the view that Congress's power was limitless.

But Rehnquist exhibited a steadfast devotion to the notion that there must be some limit on Congressional power, else there would be no province for the States at all. He expressed this view, first, in dissent after dissent - and finally, during the 90s, his dissentiing views became majority views.

This was a welcome evolution of federalism doctrine. Now, Congress at least asks itself what the constitutional source of its authority is - if any -- before it legislates.

This doctrinal evolution, as I explain ina previous column, was no revolution: It merely returned constitutional doctrine to its authentic origins. Congress is a body of enumerated, not plenary, power: The Constitution says as much, but until Rehnquist came to power, and other Justices like Justices Sandra Day O'Connor and Antonin Scalia joined the Court, the Court had simply ignored what the Constitution had to say on this central topic.

Another Key Rehnquist Issue: The Free Exercise of Religion

I admire most, though, Rehnquist's position on the free exercise of religion. I used to believe religious groups should win virtually any Free Exercise claim - as did, and do, the vast majority of legal academics and religious organizations. Accordingly, I used to support the Court's cases imposing strict scrutiny on laws affecting Free Exercise. But no longer: I have come around to Rehnquist's point of view, which is more closely in accord with the Constitution, its history, and Supreme Court precedent.

Rehnquist argues cogently that if Free Exercise rights are virtually absolute, then religious entities are relieved of having to abide by civil and criminal laws: those crucial laws that protect individuals and society from harm. He has convincingly urged that just because an action is religiously motivated, does not make it consequence-free for society, and should not make it consequence-free, under society's laws.

Rehnquist joinedEmployment Div. v. Smith, which vindicated the principle he had been stating for years that religious motivation was no defense to a generally applicable, neutral law. Smith was the watershed case that held that Native American Church members who used peyote during their religious services could be fired by a state drug treatment facility and denied unemployment compensation. The ruling echoed the principle clear from a century of cases, but articulated it more clearly than ever: while religious belief is absolutely protected, religious conduct is as subject to the rule of law as any other conduct. Whatever the reason, conduct is conduct, and illegal conduct crosses the line drawn by the legislature. Therefore, the Constitution provides no right to avoid the law.

Rehnquist has applied the cardinal principle for conservatives in the free exercise context: the law is to be made by the legislature and "activist" judges are not equipped to decide the law by themselves. The rule in Smith, despite is unpopularity among some conservative religious organizations, reflects that principle precisely. Legislatures decide whether religious entities should receive exemptions from the law--because they are the branch most equipped to determine whether the exemption is consistent with the public good. The alternative is to have federal judges decide unilaterally when and to whom the law will apply, which in turn, almost always turns the decision away from the larger public good and, worse, away from the crucial issue of who will be hurt by the exemption. The result is an unbalanced discussion of what the religious entity needs, regardless of others. That is a subversion of this republican form of democracy, and Rehnquist saw this long before many others did.

Last Term, inLocke v. Davey, Rehnquist wrote for the Court in another important Free Exercise case. There, the issue was whether a state had to fund scholarships for a student studying to be clergy, if it was funding scholarships for all other majors.

Writing for the Court, Rehnquist held that Establishment Clause values in the states permitted some "play in the joints" -- so that they could refuse to fund ministerial education. The opinion not only offered a wise resolution to the issue before it, but also provided an adept summary - and clarification -- of Free Exercise jurisprudence over the decades.

Rehnquist has a special ability to pack a great deal of content into relatively short opinions. In Locke, he is at his finest - providing a concise, yet comprehensive theory of theFree Exercise Clause. Here it is, in a nutshell: First, individual rights must sometimes give way to Establishment Clause concerns. Second, all conduct is subject to generally applicable, neutral laws, even if those laws use religion as a category. Third, and finally, only laws that evidence hostility or animus toward religious conduct ought to be treated as "presumptively unconstitutional" - that is, subjected to strict scrutiny, and virtually always struck down.

Importantly, it is Rehnquist's wise leadership on the Free Exercise Clause that has given clergy abuse victims a shot at justice and redress in the thousands of lawsuits now pending. Because of his cogent and persistent reasoning, churches will not be able to resist general laws with which all others must comply - such as the laws permitting broad civil discovery, requiring the reporting of child abuse, providing damages for tortuous actions, organizing bankruptcies, and punishing actions that amount to obstruction of justice, or aiding and abetting.

Corruption at a church that allowed children to be abused can, on Rehnquist's theory, be punished just as the same kind of corruption at a secular day care center can be. And that is - legally and morally - the right answer.

Rehnquist An "Ideologue"? "Moderate" Is a More Accurate Term

The press and the liberal legal academy have endlessly caricatured Rehnquist's views - painting him as extremely conservative. In truth, he has often been a force from the middle as he has led the Supreme Court as Chief Justice. No longer the young upstart at the Court, he quickly stepped up to being a Chief that looked for ways to bring the members together.

Rehnquist's record puts the lie to the claim that he votes as a knee-jerk conservative. Recently, he wrote the opinion inNevada Dept. of Human Resources v. Hibbs, which upheld the constitutionality of the Family Medical Leave Act - despite what some, but not the Chief, thought was Congressional overreaching. Even more recently, he joined his more liberal colleagues in the majority in several of last Term's headline cases.

InHamdi v. Rumsfield, Rehnquist joined the other majority Justices in holding the United States could not hold an "enemy combatant" without affording him due process before a neutral decisionmaker. And inCheney v. U.S. Dist. Ct for Dist. Columbia, Rehnquist joined the other majority Justices in holding that the federal courts must tread carefully in mandamus actions involving the issuance of subpoenas for materials encroaching on the Executive Branch, in a case involving a request for the records of the National Energy Policy Development Group, chaired by Vice President Cheney.

Rehnquist's Personality: Conducive to Adept Leadership

In addition to acting as a moderating force in his Chief Justice role, Rehnquist has been probably the most successful Chief in history, in terms of running the work of the Court with efficiency and dispatch.

The loss to the Court if Rehnquist must step down will also be a tremendous personal loss. He is one of the nicest men you will ever meet - with a love of history, a great sense of humor, and a love of tennis, which serve to humanize his imposing presence.

The Chief has had a tradition of taking each of the other Justices' clerks to lunch during their clerkship. In 1990, as a law clerk for Justice Sandra Day O'Connor I had the good fortune to be able to attend such a lunch. It was a thoroughly enjoyable time, with a man who is not only tremendously smart but just plain nice.

In sum, the Rehnquist-bashers need to think twice before they try to argue he is not a model to follow. I think he is.

President Bush will face a difficult task in replacing Chief Justice Rehnquist, if and when he must. There may be a temptation within the Republican Party, with its power in the White House and both Houses of Congress, to go with a nominee who is a "true conservative." One can only hope that means a Justice like Rehnquist.

FROM AROUND THE WEB

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

RELIGIOUS VIEWS: Catholic Bishops Oppose Expansion of Federal Death Penalty for Terrorism

Cardinal Theodore E. McCarrick, the Catholic Archbishop of Washington and acting as Chairman of the Domestic Policy Committee of the United States Conference of Catholic Bishops, has urged House and Senate conferees working on anti-terrorism legislation to report out a final bill that would not expand the federal death penalty for terrorists. McCarrick wrote a letter to House and Senate leaders crafting their final version of the National Intelligence Reform Act (S. 2845). The House version of that bill contains provisions to expand the federal death penalty, but the Senate version does not. McCarrick wrote:

"The cowardly acts of September 11 and their tragic human costs still haunt our nation. There can be no diminishing the horror of terrorism or the responsibility of those who employ wanton violence on the innocent. As you know, the bishops of the United States oppose the use of the death penalty in any instance. Catholic teaching on capital punishment is clear: If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person (Catechism of the Catholic Church). Congress need not go any further. Secondly, we feel strongly that terrorists are not going to be deterred by the death penalty. In fact, many terrorists believe that if they die committing an act of terrorism they will become martyrs. At the very least, it would seem that executing terrorists could make them heroes in the minds of other like-minded advocates of terror. As pastors, we believe that the use of the death penalty under any circumstances diminishes us as human beings. As we said in Confronting a Culture of Violence: 'We cannot teach that killing is wrong by killing,'"

(October 25, 2004, Statement from the United States Conference of Catholic Bishops) See New Voices and Federal Death Penalty.

Texas Execution Proceeds Despite Widespread Concerns About Houston Lab's Role

Dominique Green was executed in Texas on October 26 despite calls for a stay from a federal judge, Nobel Peace Prize winner Desmond Tutu, and the victim's family. A U.S. District Court judge in Houston had postponed the execution until the city's police department could complete cataloging 280 boxes of recently discovered evidence that could impact thousands of criminal cases. That stay was overturned by the U.S. Court of Appeals for the Fifth Circuit.

Green had admitted that he was present during the robbery that resulted in Andrew Lastrapes, Jr.'s death, but he had always maintained that he was not the triggerman. In the week leading up to the execution, the victim's son, Andre Lastrapes, and his family issued a statement calling for clemency in the case. After the execution, Andre noted, "I felt it was dirty. They (officials and judges) had their chance. They'll have to face a higher authority, which is God. I pray he (Green) goes to heaven." Before being put to death, Green said, "Tell Andre and them that I didn't get a chance to reach my full potential, but you can help them reach theirs." Eleven more Texas inmates, including six from Harris County, are scheduled to be executed by early March. (Houston Chronicle, October 27, 2004) See DPIC's Report on Texas.

LEGISLATION: Innocence Protection Act Signed Into Law

President Bush signed into law the Justice for All Act (H.R.5107) that includes a version of the Innocence Protection Act. The bill was co-sponsored by Senators Patrick Leahy (D-Vt.) and Orrin Hatch (R.-Ut.). It will create a post-conviction testing process to protect innocent defendants and provide training funds for the defense and prosecution in death penalty cases. (Salt Lake Tribune, Nov. 2, 2004). See the Justice Project for more details on the law.

INTERNATIONAL: Iran Poised to End Juvenile Death Penalty

According to an Iranian justice department spokesperson, the Iranian Parliament is expected to approve legislation that would end the death penalty for offenders under the age of 18. The measure would also prohibit lashings for those under 18. Under pressure from the European Union to reform its human rights record, Iran has had no recorded stonings since late 2002, and the parliament has enacted laws banning torture and the upholding of citizens' rights. (AFP, October 26, 2004). The U.S. Supreme Court recently heard the case of Roper v. Simmons that will determine the constitutionality of executing juvenile offenders in the U.S. See Juvenile Death Penalty.

Poll Finds Tepid Support for Death Penalty as State Sets Execution Date

As Maryland Circuit Court Judge Steven I. Platt signed a death warrant scheduling the execution of Heath W. Burch for the week of December 6, a Potomac Inc. poll of state residents revealed that only 53% support capital punishment. Burch has been on death row since 1996 and would be the first person since 1953 to be executed for a crime committed in Prince George's County. Experts predict that his execution would be met with resistance from county residents, 50% of whom oppose capital punishment according to the Potomac Inc. poll. Judge Platt also granted Burch a 30-day stay of execution to provide his attorneys with time to file an appeal that they state will be based on a University of Maryland study that showed death sentences are imposed more often when the victims are white. Burch, a black man, was convicted of murdering an elderly white couple. Earlier in 2004, Maryland carried out the execution of Steven Oken, the first person to be executed by the state since 1998. (The Washington Post, October 22, 2004) See Public Opinion and Race.

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