Several cases of national import are noted in this edition (covering cases from October 27 through November 9, 2003) as well as an unsurprising Supreme Court reversal.More on those cases follows, but what is perhaps most notable this week is the decline in death sentences and executions recently. As the annual DoJ study on capital punishment notes: "[t]he 159 admissions to death row in 2002 marked a further decline from the 163 admissions recorded in 2001, and represented the smallest number received in a year since 44 persons were admitted in 1973. Between 1994 and 2000, in contrast, an average of 297 inmates per year were admitted."In 2003, assuming no further death warrants being set and no further stays, a total number of just 68 executions marks a drop in the recent level of executions and is the second lowest number of executions in the last 7 years.The credit for these two feats goes to the entire of the defense community who have stubbornly refused to give up in the face of adversity.

Turning to this edition's decisions, the Tennessee Supreme Court inTennessee v. Mellonreverses a plea bargain that eventually resulted in the death penalty. Holding that the defendant was not properly instructed on the consequences of cooperating with the state the trial court permitted the case to go to pernalty phase where a death verdict was retunred. The Mellon Court held that where a defendant was not adequately informed of his obligation to cooperate in a related proceeding if he wanted to avoid a capital prosecution a guilty plea is "not knowingly and voluntarily entered."

Turning to Florida the thorny question of juror voir dire arises inAult v. Florida. The Court below inAultstruck for cause a death hesitant juror who stated, after defense counsel's rehabilitiation, that despite any personally held believes on the death penalty she would follow the law. The juror's stating she could follow the law, theAultCourt holds, means she was not subject for dismissal under Witherspoon and its progeny. That the prosecutor had unused peremptories remaining held irrelevant.

In another Florida death penalty case,Armstrong v. Florida, the Florida Supreme Court emphasizes how important challenging prior conviction can be. Armstrong had previously been convicted a violent crime and these crimes were the sole basis on which death was sought. One of these crimes, a Massachusetts' conviction, was challenged and subsequently vacated. The vacateur of out of state conviction (indecent assault and battery on a child of the age of fourteen), in light of the sole aggravator being prior violent felony convictions, was hed not to be harmless beyond a reasonable doubt and resentencing was ordered.

Other cases of note include the summary reversal by the United States Supreme Court inMitchell v. Esprarzawhich held that Ohio’s failure to charge in the indictment that Esparza was a “principal” was in fact harmless beyond a reasonable doubt if error at all. The Tenth Circuit inMollet v. Mullinheld the trial court erred in not clarifying, in response to a jury question under Simmons v. South Carolina, that life in this case meant "life without parole." InDaniel v. Nevadaa long litany of errors by the trial court, including failig to make a proper record, as well as limiting defense counsel's questioning of witnesses and venireman, mandates reversal. InNorth Caolina v. Valentinethe state Supreme Court also holds the trial court improperly limited the defendant's right to cross-examine the state's penalty phase witnesses.

Elsewhere, this week's Focus section examines one of the main reasons for the decline in new death verdicts, Kevin McNally. A great piece was done by the Louisville Courier-Journal on Mr. McNally and is reposted below as a reminder of how lucky the defense bar is to have Kevin on our side.

EXECUTION INFORMATION

Executed since the last edition.

November

4 James Brown Georgia

7 Joseph Keel North Carolina

Upcoming execution dates include:

November

14 John Daniels North Carolina

20 Robert Henry Texas

December

3 Richard Duncan Texas

4 Ivan Murphy Texas

5 Robbie Lyons North Carolina

9 Billy Vickers Texas

10 Kevin Zimmerman Texas

11 Bobby Lee Hines Texas

SUPREME COURT

Mitchell v. Esprarza, 540 US --- (11/3/2003) Ohio’s failure to charge in the indictment that Esparza was a “principal” was not the functional equivalent of “dispensing with the reasonable doubt requirement." The Sixth Circuit should have used a harmless error analysis and here, the Court holds, any error harmless beyond a reasonable doubt.

HOT LIST

Tennessee v. Mellon, 2003 Tenn. LEXIS 1017 (Tenn 10/30/2003) Where the defendant was not adequately informed of his obligation to cooperate in a related proceeding if he wanted to avoid a capital prosecution, guilty plea held "not knowingly and voluntarily entered."

Specifically, the question is whether the defendant's guilty pleas were knowing and voluntary when, although he was told and understood that he was entering pleas of guilty to felony murder and especially aggravated robbery, and although he was fully cognizant that he was required to testify truthfully if called upon at the trials of his co-defendants, he was not notified of the consequences if he breached the agreement by failing to testify. We hold that the trial court erred in denying the defendant's motion to withdraw his pleas of guilty. Because the plea agreement did not adequately inform the defendant of the consequences [*11] of a breach, the pleas were not knowing and voluntary. To proceed to a capital sentencing hearing under these circumstances deprived the defendant of the due process of law guaranteed to him under both the federal and state constitutions. Accordingly, we reverse and remand to the trial court for trial on the issues of guilt and punishment, if necessary.

One of the fundamental requirements for a plea of guilty to comport with constitutional principles is that the accused enter the plea knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). If a plea is not knowing and voluntary, then due process has been denied. See McCarthy v. United States, 394 U.S. 459, 466, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969); State v. Davis, 823 S.W.2d 217, 220 (Tenn. Crim. App. 1991).

To understand what is meant by a "knowing and voluntary" plea, it helps to understand the nature of a guilty plea. A plea of guilty is certainly a confession, but it is more than that; it is itself a conviction. Boykin v. Alabama, 395 U.S. at 242. [*12] In the process of entering a guilty plea in a criminal trial, the defendant necessarily waives several constitutional rights, including the privilege against self-incrimination, the right to a trial by jury, and the right to confront his accusers. "For this waiver to be valid under the due process clause of the Fourteenth Amendment, it must be 'an intentional relinquishment or abandonment of a known right or privilege.'" State v. Mackey, 553 S.W.2d at 340 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938)). In addition, "a guilty plea 'is not deemed voluntary where the person entering it does so without understanding of the consequences of his plea.'" United States v. Stubbs, 279 F.3d 402, 411 (6th Cir. 2002) (quoting Smith v. United States, 400 F.2d 860, 862 (6th Cir. 1968)). Certainly, a plea is not "voluntary" if it results from ignorance, misunderstanding, coercion, inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).

We cannot presume that the defendant voluntarily relinquished such fundamental rights. State v. Blackmon, 984 S.W.2d 589, 591 (Tenn. 1998) [*13] (citing Boykin v. Alabama, 395 U.S. at 242 (1969)). Instead, "the record of acceptance of a defendant's plea of guilty must affirmatively demonstrate that his decision was both voluntary and knowledgeable, i.e., that he has been made aware of the significant consequences of such a plea; otherwise, it will not amount to an 'intentional abandonment of a known right.'" State v. Mackey, 553 S.W.2d at 340; see also State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). "In order to find that the plea was entered 'intelligently' or 'knowingly,' Boykin requires that the trial court 'canvass[] the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.'" Blankenship v. State, 858 S.W.2d at 904 (quoting Boykin v. Alabama, 395 U.S. at 244) (emphasis omitted).

A plea of guilty once entered cannot later be withdrawn as a matter of right. See State v. Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995) (citing State v. Anderson, 645 S.W.2d 251, 253-54 (Tenn. Crim. App. 1982)). Whether the defendant should be permitted [*14] to withdraw his plea is a question that is addressed to the sound discretion of the trial court. Henning v. State, 184 Tenn. 508, 201 S.W.2d 669, 671 (Tenn. 1947); State v. Turner, 919 S.W.2d at 355. However, when a constitutional violation is shown, the trial court's discretion is "strictly curtailed." State v. Davis, 823 S.W.2d at 220 (Tenn. Crim. App. 1991) (citing United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985)).

It has long been held that because they implicate the waiver of fundamental rights, plea agreements must be evaluated with reference to the requirements of due process. See Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). For example, a defendant may not, consonant with due process guarantees, be held to his negotiated plea of guilty when the promises upon which it was based remain unperformed by the prosecution. See Santobello v. New York, 404 U.S. 257, 262, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971); Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim. App. 1979).

Some courts, in addressing breach of plea agreements, [*15] have applied principles of contract law to construe the agreement and determine the appropriate remedy. See, e.g., United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996); United States v. Giorgi, 840 F.2d 1022, 1025 (1st Cir. 1988); United States v. Verrusio, 803 F.2d 885, 886 (7th Cir. 1986); United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981). The courts of this state have taken a similar approach. See State v. Howington, 907 S.W.2d 403, 407-08 (Tenn. 1995). The general rule has been that where an agreement is accepted and later breached, the remedy for the breach is either specific performance or restoration of the parties to the status existing immediately before the plea was entered. See Harris v. State, 875 S.W.2d 662, 666 (Tenn. 1994); State v. Turner, 713 S.W.2d 327, 329 (Tenn Crim. App. 1986); Metheny v. State, 589 S.W.2d at 945.

We note, however, that a defendant's rights relative to a plea bargain are grounded in more than contract; contract principles, while useful, do not completely define the obligations of the [*16] parties. "'Plea agreements . . . are unique contracts in which special due process concerns for fairness and the adequacy of procedural safeguards obtain.'" United States v. Ready, 82 F.3d at 558 (quoting Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992)); see also United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (the defendant's underlying "contract" right is constitutionally based and therefore reflects concerns that differ fundamentally from and run wider than those of commercial contract law).

Since Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), Tennessee courts have held that where the State breached a plea agreement, or some other infirmity occurred that was not caused by the defendant, but which invalidated the agreement, the remedy for breach was to allow the defendant to choose either specific performance or withdrawal of the plea. Goosby v. State, 917 S.W.2d 700, 707 (Tenn. Crim. App. 1995); see also Harris v. State, 875 S.W.2d at 666-67; State v. Turner, 713 S.W.2d at 329; Metheny v. State, 589 S.W.2d at 945. [*17] We have not previously had the opportunity to address the situation where it was the defendant, not the State, who breached a plea agreement. In other jurisdictions, however, it appears that the same options remain available: the State has the option either to specifically enforce the agreement or to rescind the plea agreement. See State v. Thomas, 79 Wn. App. 32, 899 P.2d 1312, 1315 (Wash. Ct. App. 1995), and the cases cited therein.

In this case, the State clearly did not want to rescind the agreement; it opposed the defendant's motion to withdraw the guilty plea. Instead, the State chose to specifically enforce the agreement. Under such circumstances, the State's rights are necessarily measured by the terms of the agreement. If the parties contemplated that the defendant would be bound by his plea if he breached the agreement, the guilty plea would stand. See, e.g., State v. Armstrong, 109 Wn. App. 458, 35 P.3d 397, 399 (Wash. Ct. App. 2001). Because the provisions of any plea agreement are largely dictated by the State, and because of the substantial constitutional interests implicated by plea agreements, the State must bear the risk for any [*18] lack of clarity in the agreement, and ambiguities should be resolved in favor of the defendant. State v. Howington, 907 S.W.2d at 410; see also Innes v. Dalsheim, 864 F.2d 974, 979 (2d Cir. 1988), cert. denied 493 U.S. 809, 107 L. Ed. 2d 19, 110 S. Ct. 50 (1989); United States v. Giorgi, 840 F.2d at 1026 ("The government must shoulder a greater degree of responsibility for lack of clarity in a plea agreement."); United States v. Harvey, 791 F.2d at 300 ("Constitutional . . . concerns require holding the Government to a greater degree of responsibility than the defendant . . . for imprecisions or ambiguities in plea agreements.").

In this case, the plea agreement does not expressly state what would happen if the defendant breached the agreement. Furthermore, there is no evidence in the record that the defendant was ever informed that if he failed to keep his part of the agreement to testify against his co-defendants that (a) the State would not keep its agreement to recommend a sentence of life with the possibility of parole; and (b) he would not be permitted to withdraw his guilty plea. It has been [*19] held that where a defendant is not clearly informed of the consequences of a breach of the plea agreement, the denial of a motion to withdraw the plea violates due process. See Innes v. Dalsheim, 864 F.2d at 979-980 (holding that where the plea agreement was ambiguous regarding the consequences of a breach, the State bore the burden for any lack of clarity in the agreement, and it could not be safely said that the defendant voluntarily, knowingly and intelligently waived his right to a jury trial and to be tried on the original charges). n2 It is the ambiguity in the plea agreement in question upon which we rest our decision in this case.

As part of the plea agreement in which the defendant pleaded guilty in exchange for the State's recommendations as to sentencing, the defendant also agreed to "testify truthfully in any other proceeding in connection with this incident." There is no dispute in this case that Mellon breached the agreement when he failed to testify against Ernest Rogers. His failure to do so constituted a material breach of the agreement. The State argues that the colloquy between Mellon and the trial court provided Mellon with sufficient notice as to the consequences of a breach of the agreement. We disagree. While the trial court did explain that sentencing would be reserved until after the defendant's testimony or the conclusion of the trials of his co-defendants, the court did not explain to the defendant that if he failed to testify, he would be subject to a full sentencing hearing with the possibility of a sentence of death. Because both the plea agreement and the trial court's discussion of the plea with the defendant failed to inform him of the consequences of a breach, we hold that his guilty pleas and waiver of rights were not voluntary and knowing as required by due process. Because the issue [*21] of the knowing and voluntary nature of the pleas is dispositive, the other numerous issues raised on appeal are pretermitted.

This is not to say that plea agreements cannot be fashioned to preclude specific enforcement. In stressing the importance of drafting plea agreements with care, the Second Circuit Court of Appeals has stated that "the government should make it absolutely clear in a plea agreement that a breach by the defendant releases the government from its obligation to recommend leniency but does not release the defendant from the plea of guilty." United States v. Rivera, 954 F.2d 122, 125 (2d Cir. 1992). We encourage the State in future agreements where the agreed sentence is conditioned on future performance (or non-performance) of a certain event to specifically articulate the possible consequences if the defendant fails to perform. In this way the State and the courts can be assured that any agreement is entered into with full knowledge of the risks the defendant faces if he or she chooses to renege on the agreement.

Ault v. Florida, 2003 Fla. LEXIS 1896 (FL 11/6/2003) Relief as to penalty phase granted as the trial court improperly removed for cause a juror who stated she opposed the death penalty but would follow the law as instructed by the trial court.

Ault claims that the trial court erroneously granted the State's challenge for cause of potential juror Joyce Reynolds. The State challenged Reynolds based on her opposition to the death penalty, arguing that Reynolds had stated that she could not [*22] make a recommendation of death even if the aggravating circumstances outweighed the mitigating circumstances. Defense counsel responded that Reynolds had stated that she would follow the court's instructions on the law in both the penalty and guilt phase and thus had been rehabilitated. The circuit court granted the State's cause challenge. Defense counsel objected and requested an opportunity to further question Reynolds in order to rehabilitate her. The circuit court denied the request, stating that there had been adequate inquiry by both sides. Defense counsel renewed the objection to Reynolds' removal for cause prior to the jury being sworn. Thus, the issue was properly preserved for review on appeal and Ault did not waive his objection to the cause challenge. See Arnold v. State, 755 So. 2d 696, 698 (Fla. 4th DCA 1999) (explaining that in order to prevent waiver of juror challenge issue, opponent must call court's attention to its earlier objection before jury is sworn).

The test for determining juror competency is whether a juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given [*23] by the court. See Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984). A juror must be excused for cause if any reasonable doubt exists as to whether the juror possesses an impartial state of mind. See Bryant v. State, 656 So. 2d 426, 428 (Fla. 1995). "In reviewing a claim of error such as this, we have recognized that the trial court has a unique vantage point in the determination of juror bias. The trial court is able to see the jurors' voir dire responses and make observations which simply cannot be discerned from an appellate record." Smith v. State, 699 So. 2d 629, 635-36 (Fla. 1997); see also Taylor v. State, 638 So. 2d 30, 32 (Fla. 1994). Thus, a trial court has great discretion when deciding whether a challenge for cause based on juror incompetency is proper. See Pentecost v. State, 545 So. 2d 861 (Fla. 1989). A trial court's determination of juror competency will not be overturned absent manifest error. See Kimbrough v. State, 700 So. 2d 634, 639 (Fla. 1997).

However, prospective jurors may not be excused for cause simply because they voice general objections to the death penalty. [*24] See Witherspoon v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968). The relevant inquiry in deciding whether prospective jurors may be excluded for cause based on their views on capital punishment is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with [the court's] instructions and [the juror's] oath.'" Gray v. Mississippi, 481 U.S. 648, 658, 95 L. Ed. 2d 622, 107 S. Ct. 2045 (1987) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985)).

While we give deference to the trial judge who sees and hears the juror and often has to make credibility findings based on information that cannot be easily discerned from an appellate record, Witt, 469 U.S. at 429, the record in the instant case directly contradicts the judge's ruling. During voir dire questioning by the State, Reynolds raised her hand to indicate her opposition to the death penalty. n4 In response to questioning by defense counsel, Reynolds expressed her belief that a juror would make a better decision when calm and deliberate rather [*25] than when upset and angry, n5 that just because she heard testimony from a witness it was not the same as proof beyond a reasonable doubt because the witness could be lying, n6 expressed some concern about how her experiences with death in her personal life might affect her ability to find guilt or innocence or impose a proper penalty, n7 stated that she could put her personal feelings aside and be fair in the penalty phase, n8 and stated that she could be fair in both the guilt and penalty phases even though she was personally opposed to the death penalty. n9 These are the only instances where Reynolds was personally questioned during voir dire. The State argued that Reynolds had indicated that she could not consider both sentences and would not impose death even if the aggravating circumstances outweighed the mitigating circumstances. The trial judge granted the challenge for cause and voiced his "agreement with the State." n10 However, the record of Reynolds' responses directly contradicts the State's recitation of her responses. Reynolds did not state that she could not consider both sentences and would not impose death even if the aggravating circumstances outweighed the mitigating. [*26] In fact, the voir dire record shows that Reynolds was not questioned about these issues at all. Thus, the trial judge's determination that it was proper to strike Reynolds for cause was premised on an erroneous recitation of her statements.

We conclude that Reynolds' responses, i.e., that she could put her personal feelings aside and be fair in the penalty phase and that she could be fair in the guilt and penalty phases even though she opposed the death penalty, satisfied the Lusk juror competency standard. Thus, the circuit court erred in granting the State's challenge for cause.

The State argues that even if Reynolds was erroneously removed for cause, the error was harmless as the State had two peremptory challenges left at the end of voir dire questioning and could have used one of these to strike Reynolds. We conclude that such error is not subject to harmless error analysis. See Gray v. Mississippi, 481 U.S. 648, 95 L. Ed. 2d 622, 107 S. Ct. 2045 (1987); Davis v. Georgia, 429 U.S. 122, 50 L. Ed. 2d 339, 97 S. Ct. 399 (1976); Farina v. State, 680 So. 2d 392, 396 (Fla. 1996). As the United States Supreme Court explained in Gray,

The unexercised peremptory argument assumes that the crucial question in the harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court's erroneous ruling. Rather, the relevant [*30] inquiry is "whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error."

481 U.S. at 664-65 (quoting Moore v. Estelle, 670 F.2d 56, 58 (5th Cir. 1982) (Goldberg, J., specially concurring)). In a capital case it is reversible error to exclude for cause a juror who can follow the instructions and oath in regard to the death penalty. "The nature of the jury selection process defies any attempt to establish that an erroneous Witherspoon-Witt exclusion of a juror is harmless." Id. at 665. However, only the death sentence--and not the conviction--must be vacated when a juror is erroneously excluded under these circumstances. See Farina, 680 So. 2d at 396 n.3; Chandler v. State, 442 So. 2d 171, 175 (Fla. 1983). Thus, we conclude that the erroneous exclusion of this "scrupled, yet eligible, venire member" from Ault's jury requires reversal of his death sentences. Gray, 481 U.S. at 667.

Armstrong v. Florida, 2003 Fla. LEXIS 1861 (FL 10/30/2003) Admission in the penalty phase of a subsequently vacated out of state conviction (indecent assault and battery on a child of the age of fourteen) held not harmless beyond a reasonable doubt.

In closing penalty-phase arguments, the State urged the jury to find the aggravating circumstance that Armstrong had "previously been convicted of a violent felony" on the basis of Armstrong's two contemporaneous convictions of attempted murder and robbery and this prior Massachusetts conviction. The jury recommended a death sentence, and the trial court based its finding of that aggravating circumstance, in part, on the Massachusetts conviction.

After Armstrong's direct appeal to this Court, he filed a motion for new trial with the Massachusetts court regarding his 1985 conviction. In 1999, that court vacated Armstrong's conviction of indecent assault and battery on a [*25] child of the age of fourteen, finding it constitutionally invalid. Therefore, Armstrong asserted in his subsequent 3.850 motion for postconviction relief that he was entitled to a new penalty-phase proceeding. The postconviction court granted an evidentiary hearing on the issue but denied relief, concluding that error under Johnson v. Mississippi, 486 U.S. 578, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988), had been shown but was harmless beyond a reasonable doubt in light of an armed robbery conviction obtained against Armstrong after his penalty phase that would be admissible upon resentencing as evidence of another valid, prior violent felony conviction to be considered in lieu of the vacated conviction.

In this appeal, Armstrong asserts, on the basis of Johnson, that the postconviction court erred in denying relief as to this issue. We agree. This Court has previously discussed the Johnson decision:

In Johnson, the petitioner's death sentence was predicated, in part, on a previous conviction which was vacated after the trial and direct appeal. 486 U.S. at 580. During the sentencing phase of the petitioner's trial, the previous conviction [*26] was argued to the jury and used to support Mississippi's prior violent felony aggravating factor. Id. at 581. The Supreme Court reversed the death sentence, holding that the consideration of a subsequently vacated conviction to support an aggravating factor violates the Eighth Amendment. Id. at 590.

In reaching this conclusion, the Court reiterated its previous holding that capital sentencing decisions cannot be based on "mere 'caprice' or on 'factors that are constitutionally impermissible or totally irrelevant to the sentencing process.'" Id. at 585 (quoting Zant v. Stephens, 462 U.S. 862, 885, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983)). The Court stated, "the error here extended beyond the mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible. Here the jury was allowed to consider evidence that has been revealed to be materially inaccurate." Id. 486 U.S. at 590.

Rivera v. Dugger, 629 So. 2d 105, 108 (Fla. 1993). In Armstrong's case, the jury considered, in support of an aggravating factor, evidence of a conviction that has since [*27] been revealed to be materially inaccurate as that conviction has been vacated. It is now clear that reliance upon that conviction to support Armstrong's sentence was erroneous under Johnson. Given the nature of the crime underlying the vacated conviction--a sexual offense upon a child--and the detailed testimony given by the young victim of that crime at Armstrong's penalty phase, we cannot say that the consideration of Armstrong's prior felony conviction of indecent assault and battery on a child of the age of fourteen constituted harmless error beyond a reasonable doubt.

CAPITAL CASES (Favorable Disposition)

Mollet v. Mullin, 2003 U.S. App. LEXIS 22738 (10th Cir 11/5/2003) The trial court erred under Simmons v. South Carolina in not clarifying for the jury, in response to a jury question, that life in this case meant "life without parole."

Daniel v. Nevada,2003 Nev. LEXIS 75 (Nev 11/3/2003) Conviction vacated as "[a] number of trial errors occurred in this case. The district court erred in meeting privately with a State witness without making a record of the meeting, in answering questions from the jury without notifying counsel and without making a record of the answers given, in allowing questioning regarding appellant's prior arrests, in limiting appellant's presentation of evidence regarding the violent character of the victims, and in not allowing questioning of a juror about possible prejudice against appellant."

North Caolina v. Valentine, 2003 N.C. LEXIS 1266 (NC 11/7/2003) The state submitted one aggravator, that “defendant had been previously convicted of a felony involving the use or threat of violence to the person.” The state put on the stand the putative victim of a prior assualt for which Valentine was convicted. The trial court limited the scope of examination of an alleged recantation made by the victim in the prior case. On appeal the state supreme court holds the trial court erred in limiting Valentine's right to cross-examine the alleged victim/witness as to the recantation.

Arizona v. Dann, 2003 Ariz. LEXIS 131 (Az 10/29/2003) Vacateur of death sentence in light of Ring v. Arizona.

CAPITAL CASES(Unfavorable Disposition)

Smith v. Mitchell, 2003 U.S. App. LEXIS 21974 (6th Cir 10/28/2003) (dissent) Relief denied chiefly on claims of whether trial counsel's investigation and preparation for mitigation via an expert were sufficient under Ake v. Oklahoma.

Brown v. Head, 2003 U.S. App. LEXIS 22702 (11th Cir 11/4/2003) Petitioner's Rule 60(b) motion and request for a stay of execution denied on a claim arising from the recanting of the testimony of a penalty phase witness.

Flores v. Dretke, 2003 U.S. App. LEXIS 21976 (5th Cir 10/28/2003) (unpublished) COA denied. Guilty plea plea held to be "knowing, intelligent, and voluntary." Trial counsel's failure to investigate and introduce evidence of neurological impairment and history of abuse held to be strategic as it could have "cuts both ways" and could have leadithe jury to be more disposed to vote for death.

Melendez v. Dretke, 2003 U.S. App. LEXIS 22111 (5th Cir 10/29/2003)(unpublished) COA denied on Brady claims relating, to whether someone impermissibly tampered with the crime scene without informing the defense.

North Carolina v. Squires, 2003 N.C. LEXIS 1265 (NC 11/7/2003) Relief denied, most notably, on sufficiency of the evidence as the aggravator, use of a "short-form" indictment that did not meet the putative requirements of notice (guilt phase) and Ring v. Arizona (penalty phase), application of the felony murder rule under state law to make the underlying murder capital, and that the jury should have been informed that he was serving 105 years on an out of state conviction.

Howell v. Mississippi, 2003 Miss. LEXIS 556 (Miss 10/23/2003) (dissent) Relief denied most notably on: (1) failure to find that the State's peremptory strikes of African-American venire members was racially discriminatory; (2) failure to allow Howell to conduct individual sequestered voir dire of jurors who indicated a predisposition in the case; and (3) allowing the State, in closing argument, to refer to Howell's failure to tell somebody about his alibi defense or give details.

Jackson v. Virginia, 2003 Va. LEXIS 101 (VA 10/31/2003) Relief denied as the court holds, most notably: (1) Jackson's confession was voluntary; (2) trial court did not err in refusing to strike certain jurors for cause or in denying Jackson's challenge to the jury panel based on Batson v. Kentucky; and (3) trial court's evidentiary rulings regarding expert testimony and negative evidence of reputation.

Echols v. Arkansas, 2003 Ark. LEXIS 567 (Ark 10/30/2003) Relief denied on claims relating to post-conviction trial court's findings, trial counsel's putative conflict of interest, and IAC. Trial counsel's performance held permissible relating to failing to develop expert testimony, not seeking change of venue, voir dire performance, failing to challenge expert witness on the occult, and the quality of the investigation into mitigation issues.

Franlin, et al, v. Maynard, 2003 S.C. LEXIS 269 (SC 11/3/2003) Numerous death sentenced and death eligible defendants sought procedures to determine what the trial and post-conviction standards for mental retardation claims should encompass. Court holds that for purposes of pre-trial defendants the relevant standards have been defined by statute and that for purposes of post-conviction, MR must be proven by a simple preponderance of the evidence.

Jones v. Texas, 2003 Tex. Crim. App. LEXIS 712 (Tex. Crim. App. 11/5/2003) (dissent) Trial court erred in admitting appellant's confessions to two additional murders at the punishment stage but held that such the admission into evidence was harmless.

Ohio v. Hutton, 2003 Ohio LEXIS 2816 (Ohio 11/5/2003) Motion to reopen direct appeal denied.

Missouri v. Kinder, 2003 Mo. App. LEXIS 1766 (Mo. App. 11/4/2003) DNA testing denied as Kinder's trial counsel had an opportunity to perform DNA tests.

Snyder v. Alabama, 2003 Ala. Crim. App. LEXIS 294 (Ala Crim App 10/31/2003)(dissent) Relief denied most notably, on exclusion of evidence another person committed the crime; bad jury instructions on weighing of life vs. death; and designation of a witness as a "court's witness" and permitting the witness to than be lead on direct by the prosecution.

Owen v. Florida, 2003 Fla. LEXIS 1778;28 Fla. L. Weekly S 790 (FL 10/23/2003) Relief denied on claims that: "(1) the trial court erred in failing to suppress Owen's confession on the basis of voluntariness; (2) the trial court erred in failing to suppress Owen's confession because Owen made an unequivocal invocation of his right to remain silent which was ignored by the law enforcement officers questioning him; (3) the trial court improperly applied the aggravating factor of heinous, atrocious, or cruel (HAC); (4) the trial court improperly applied the aggravating factor of cold, calculated, and premeditated (CCP); (5) the sentence of death is disproportionate; (6) Florida's death penalty statute is unconstitutional; and (7) the aggravating factor of murder in the course of a specified felony is unconstitutional."

OTHER CASES OF NOTE

Peltier v. Booker, 2003 U.S. App. LEXIS 22735 (10th Cir 11/4/2003) Although strongly condemning the federal government's conduct in the Peltier trial, panel concludes that denial of parole and setting the next review for 15 years will stand as the parole boards actions are deemed not to have been arbitrary and capricious.

Gauger v. Hendle, 2003 U.S. App. LEXIS 22298 (7th Cir 10/30/2003) Exonerated death row inmate permitted to sue police merely for unlawful unarrest and but damages not permitted for a subsequent sentence of death. Warning: for those with a weak stomach, Posner offers up a truly gut retching smear job.

FOCUS

As noted above, this week's section looks at a recent Louisville Courier-Journal piece on one of the deans of the capital defense bar, Kevin McNally.

Frankfort lawyer Kevin McNally has advised and counseled mass murderers, the deranged, a serial killer and a hit man — people whose misdeeds could fill an encyclopedia of evil.

There was Oklahoma City bomber Timothy McVeigh, whom he helped find a lawyer, and tried, unsuccessfully, to talk out of abandoning his appeals. There was the "Doctor of Death" — Michael Swango — a physician who may have murdered up to 35 patients from 1983 to 1997 as he moved from hospital to hospital in the United States and Africa.

And in Kentucky, there was LaFonda Fay Foster, whom he saved from execution after she was initially sentenced to death for her role in a 1986 Lexington killing rampage in which five people were shot, stabbed, run over and set on fire.

McNally — an avowed death penalty opponent — acknowledges that "going into denial" is sometimes the only way he can deal with his clients' unspeakable acts, whether alleged or proven.

"You can't think about what your client did when you talk to somebody like Tim McVeigh," he said. "It would be like a heart surgeon saying, 'I can't do this operation because there is blood everywhere.'"

Twenty-five years after McNally tried his first death penalty case as an assistant public advocate, the fiery and combative criminal defense attorney now stands at the pinnacle of that high-pressure specialty.

McNally, 54, has represented clients in 50 capital cases and, as one of three appointed members of the 11-year-old Federal Death Penalty Resource Counsel Project, has advised hundreds of lawyers and their clients in federal death penalty cases. He and the two other project members recommend qualified defense lawyers to federal judges in such cases and then advise those attorneys. McNally also has emerged as one of the leading and most vocal critics of the man who authorizes every federal capital prosecution — U.S. Attorney General John Ashcroft. He has condemned Ashcroft for seeking the death penalty disproportionately against minorities; for authorizing it in jurisdictions such as Michigan and Puerto Rico, where local law bars it; and for overruling U.S. attorneys 30 times when they sought more lenient dispositions.

McNally — now the go-to source for national news organizations — also has disclosed in interviews that federal prosecutors failed to persuade juries to impose the death penalty in 22 of the past 23 cases in which they sought it, including three cases that ended in acquittals. McNally and other critics say those results show Ashcroft has authorized capital prosecutions too often and too indiscriminately.

"If they were a corporation," McNally told The New York Times in June, "there would be an investigation."

McNally's skills as a strategist and in the courtroom earn high marks from allies and adversaries. Acclaimed litigator and law professor Michael Tigar, himself best known for persuading a jury to spare the life of McVeigh's co-defendant, Terry Nichols, said, "Nobody knows more about the federal death penalty statute than Kevin McNally." McNally has conducted training sessions on the death penalty in 30 states, Tigar said, and is considered the leading expert on jury selection in death cases.

Prestonsburg lawyer Ned Pillersdorf, who has defended more than 20 capital cases, said that while McNally can come across as arrogant and abrasive, "his advice on (the) death penalty is the most sought after in the country. He is a master strategist."

And assistant Kentucky Attorney General David Smith, who has tangled with McNally on appeals through six administrations, said: "I have never gone up against anybody tougher or craftier. He is an extremely dangerous lawyer for anybody on our side of the fence."

In Kentucky, McNally may still be best known for helping killer Todd Ice avoid the death penalty. Ice, once the youngest person on death row, was 15 in 1978 when he stabbed a 7-year-old Powell County neighbor to death and cut her mother's throat in a crime that kindled sharp emotions in Eastern Kentucky.

McNally and his wife, Gail Robinson, who is also a lawyer, won Ice a new trial, a lesser conviction for manslaughter, and ultimately, in 1993, his freedom.

In what other lawyers call his most remarkable triumph, McNally also won a new trial, and an acquittal, for an Arizona man, Bobby Cruz, who had twice been sentenced to death and had spent 14 years on death row for allegedly orchestrating the 1980 contract killing of a Phoenix print shop owner and his mother.

In Chicago, McNally is best known for a case he lost — as attorney for Harry Aleman, whom the Chicago Tribune once called "the mob's killing machine."

Aleman, who was acquitted of murder 25 years ago, became the only American retried after an acquittal when it was shown that the judge in his first trial had been paid a $10,000 bribe.

For his second trial, in 1997, Aleman hired McNally on the recommendation of Cruz, his cousin. But Aleman didn't fare as well — he was convicted of murder and was sentenced to 100 to 300 years in prison.

In an ominous postscript, Cruz disappeared after the trial and has not been seen since. In a book about the case, "Everybody Pays," Tribune reporters Maurice Possley and Rick Kogan suggest Cruz vanished because he had recommended McNally. Both McNally and Aleman insist that is ridiculous.

In a letter to The Courier-Journal from a prison in Dixon, Ill., Aleman said he still admires and respects McNally. "Lawyers on the whole are sharks," Aleman said. "Kevin is not."

McNally said he was never scared of Aleman or his associates.

"Generally speaking," McNally said, "the mob doesn't kill the lawyer who loses the case."

A trial by fire for rookie lawyers

As a fledgling public defender in 1978, McNally tried his first death penalty case before trying his first misdemeanor.

Larry Otis Bendingfield, convicted of murder and kidnapping and sentenced to death when he was represented by private counsel, was so impressed that two public advocates — McNally and his then-girlfriend Robinson — won him a new trial that he insisted they defend him at retrial, though they were practically rookies, recalled their supervisor in the Department of Public Advocacy, Vince Aprile.

Aprile drove to Louisville in October 1978 to watch McNally's closing argument.

He remembers McNally telling the jury in his summation: "You probably wonder why Mr. Bendingfield wore the same suit every day. Well, it wasn't his suit, it was my suit. He doesn't have a suit. And if you take away his life, he will have nothing."

"The jurors were crying," Aprile said. "It was wonderful."

Bendingfield was convicted again but this time got the minimum sentence of 75 years in prison.

Twenty-five years later, McNally gestures toward the closet in his Frankfort law office and says he still has that suit, although, "I just can't fit it in anymore."

McNally says his position on the death penalty is simple: He is morally opposed to it for any crime — a belief he said he came by as a boy, studying to become a priest at St. Pius Preparatory Seminary in Uniondale, N.Y.

"Going to church every day I spent a lot of time focusing on a man being executed at the altar," McNally remembered.

He changed career plans, he said, upon discovering girls and what he considers the Catholic Church's poor record on civil rights; he is no longer a practicing Catholic.

McNally said some of the clients he has counseled have been "manipulative, unattractive or plain crazy." Even so, other capital defense lawyers say he spends an extraordinary amount of time with them, which McNally says is often the key to saving their lives.

"You have to get your client to trust you enough to get them to agree to be put in a cage for their rest of their life with no hope for parole," he said. "Most of my victories are won not from juries, but in dingy meeting rooms in the bowels of prisons" — with clients who agree to plea bargains rather than taking a chance at trial, where they could be sentenced to death.

Some critics, including Aprile, say McNally and other death penalty "abolitionists" are too quick to pressure clients into taking deals that get the death penalty off the table.

McNally makes no apologies.

"I am proud to be a cop-out artist when it comes to the death penalty," he said. "It's always the client's choice, but these are people who haven't usually made the best decisions in life."

At the same time, McNally also is known as one of the first lawyers in capital cases to reach out to the families of victims, said Nancy Ruhe-Munch, executive director of the Cincinnati-based Parents of Murdered Children.

"They were initially ready to stone him," Ruhe-Munch said of her members, "but he opened a dialogue which helped reduce their trauma."

David Bruck, a lawyer from Columbia, S.C., who also serves on the Death Penalty Resource Counsel Project, said McNally's outreach sometimes has persuaded victims' families to support plea bargains that averted capital prosecutions.

At the center of federal death-penalty cases

Portraits of Nelson Mandela and Thurgood Marshall hang on the walls of McNally's office, which is also the nerve center for the defense of federal death penalty cases in the United States.

By marshaling data on the 305 cases in which the U.S. Justice Department has sought the death penalty in federal courts since the sentence was enacted in 1988, McNally has emerged as an authority on Attorney General Ashcroft's pursuit of the federal death penalty.

Justice Department critics, including former federal prosecutor Jamie Orenstein, who advised Attorney General Janet Reno on death penalty prosecutions, say the figures compiled by McNally show that Ashcroft is "swinging at the wrong pitches" — seeking the death penalty in too many cases and not deferring to local prosecutors who know their cases best.

The Justice Department declined to respond to questions about McNally, but a spokeswoman has said that the process through which Ashcroft reviews and approves death penalty prosecutions is designed to ensure "consistency and fairness."

Capital defense experts, however, say the government's recent poor track record in part reflects the success of McNally and the other two lawyers who are paid $110 an hour and work part time for the resource project, which was founded in 1992.

"They have made sure that people accused in federal death cases are represented by competent counsel — you don't have farcical trials where lawyers are drunk or asleep or totally incompetent," said Stephen Bright, a Danville, Ky., native who is director of the Atlanta-based Southern Center for Human Rights.

George Kendall, former counsel for the NAACP Legal Defense and Education Fund, said, "One of the reasons there are so few people on federal death row in this country" — there are 26 — "is because of Kevin's many skills and hard work."

Last year, representing an alleged heroin dealer accused of murdering a government informant, McNally won a ruling from a federal judge in New York throwing out the federal death penalty on the grounds that erroneous convictions have shown capital punishment is "tantamount to foreseeable, state-sponsored murder of innocent human beings." Although the ruling was reversed on appeal, death penalty opponents predict it may someday form the basis for the U.S. Supreme Court to abolish the death penalty.

Prosecutors and judges say McNally prevails by dint of intense trial preparation, rather than fire-and-brimstone courtroom oratory.

For example, retired Superior Court Judge Michael Dann of Phoenix, Ariz., cites pretrial legwork as one of the reasons for McNally's victory for Cruz in the Arizona death penalty case.

McNally still has a poster that Cruz gave him before his trial that quotes former Indiana University basketball coach Bobby Knight: "The will to win," it says, "is not nearly as important as the will to prepare to win."

Understanding defeats, regrets, big victories

McNally has lost three death penalty cases at trial, although two of those defendants, including Foster, who was convicted in the Lexington murders, later won lesser sentences.

None of his own clients have been executed, although one is on Kentucky's death row — David "Little Britches" Smith of Pike County, now 55, who was convicted in 1983 of the Pike County murders of his teenage girlfriend, her daughter, the girlfriend's mother and the girlfriend's sister. McNally calls that case his most agonizing defeat.

More on this article at http://www.courier-journal.com/localnews/2003/11/09ky/wir-front-mcnally1109-19985.html

OTHER RESOURCES

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

Doctor Recants Testimony As North Carolina Man's Execution Date Approaches

Posted: November 12, 2003

Psychiatrist Cynthia Smith, who served as a key witness in the 1990 death penalty case against John Daniels of North Carolina, has recanted her testimony because state prosecutors withheld important information from her.

Pardons Could Result From Destruction of Houston Lab DNA Evidence

Posted: November 11, 2003

Evidence from a capital murder case and seven other cases tested for DNA by the Houston Police Department's crime lab have been destroyed. The District Attorney's office said that it may have to ask for pardons in these cases if the defendants were convicted largely on the weight of DNA evidence.

North Carolina Newspaper Series Reveals Prosecutorial Misconduct in Death Penalty Cases

Posted: November 10, 2003

A Charlotte (North Carolina) News & Observer investigative series about the death penalty found that prosecutorial misconduct led to a number of North Carolina capital convictions being overturned, and that more cases are currently under review due to questions of improper behavior by the state.

Race Plays Powerful Role in Washington State Death Penalty Cases

Posted: November 8, 2003

Race plays a significant role in who receives the death penalty in the state of Washington.

House Overwhelmingly Passes DNA Bill That Includes The Innocence Protection Act

Posted: November 6, 2003

By a vote of 357-67, the U.S. House of Representatives passed legislation designating $25 million in funding over five years for DNA testing that could help prove the innocence of some death row inmates.

ARBITRARINESS: Serial Killer Receives Life Sentence While 3,500 Others Face Execution

Posted: November 6, 2003

In a plea agreement reached with Washington state prosecutors, Gary Ridgway, a Seattle-area man who admitted to 48 murders since 1982, will serve a sentence of life in prison without parole.

NEW VOICES: Justice O'Connor Stresses Importance of International Law

Posted: November 5, 2003

During a speech hosted by the Southern Center for International Studies in Atlanta, Supreme Court Justice Sandra Day O'Connor stressed the importance of international law for American courts and the need for the United States to create a more favorable impression abroad.

Jeralyn Merritt at TalkLeft.com notes:

Malvo Jury Selected

The jury has been selected in the trial of accused sniper suspectJohn Lee Malvo. Including alternates, there are eight men and eight women, four blacks one Asian and 11 whites.

Supreme Court to Hear Guantanamo Appeal

Bump and Update: Lawyers for the Guantanamo prisoners have set up this website to keep the public informed about the legal case. The Washington Post has this later article on the case and the Supreme Court decision to hear it.

Original post: 11/10/03 at 8:23 a.m.

The Supreme Court today said it will hear the case of detainees being held at Guantanamo :

The justices agreed to review a ruling that U.S. courts lack jurisdiction to consider claims by a group of detainees held without access to their families or to lawyers, and held without any charges brought against them.

The Supreme Court will hear arguments in the case next year, with a decision due by the end of June. It marked the first time the nation's highest court agreed to decide a case stemming from the Bush administration's anti-terrorism policies.

The appeals were filed in the Supreme Court by British, Australian and Kuwaiti citizens after lower courts ruled they did not have authority to hear the men's complaints.

More details of the case are available here.

DOJ Publishes Annual Captial Punishment Report

Good news on the death penalty front....from the Criminal Justice Reform Education Fund:

The DOJ Bureau of Justice Statistics published its annual Capital Punishment report for 2002. The report can be found here.

Although there was an increase in the number of executions last in 2002, the number of death sentences continued to decline. This demonstrates the increasing skepticism with capital punishement, as highlighted on page 8:

"The 159 admissions to death row in 2002 marked a further decline from the 163 admissions recorded in 2001, and represented the smallest number received in a year since 44 persons were admitted in 1973. Between 1994 and 2000, in contrast, an average of 297 inmates per year were admitted."

High Court Examines Right of Confrontation

The Supreme Court hears oral arguments today in Crawford v. Washington. The issue is whether there are exceptions to the defendant's right under the Sixth Amendment to confront and cross-examine witnesses against him. This article traces the origin of the right --back to the Walter Raleigh treason trial in England in 1603.

The defense brief argues:

"The right to confrontation is a categorical requirement that the government prove its case through live testimony that is subject to cross-examination."

We agree. Cross-examination has been said to be the greatest legal invention for ferreting out untruths in the Courtroom (We think Wigmore said that.)

The specific issue before the Court:

Is a pretrial recorded statement by the defendant's wife admissible as hearsay evidence on the grounds that it is virtually identical with the defendant's own pretrial statement?