This edition covers opinions from October 30 until November 13, 2006. During that period four wins and a SCOTUS opinion are noted.

Asone commentator noteson the SCOTUS's ruling inAyers v. Belmontes"California's special "catchall" instruction to juries in death penalty cases provides enough opportunity for jurors to consider all favorable evidence for the accused. The instruction, Justice Anthony M. Kennedy wrote for themajority, goes far enough to assure that the jury will not only consider favorable evidence about the crime itself, but about evidence that the individual would not be dangerous in the future if his life were spared." "Kennedy'sopinionreversing the Circuit Court was joined by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. Justices Scalia and Thomas filed aconcurring opinion. Justice John Paul Stevensdissented, in an opinion joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter."

The Sixth Circuit grants relief ina kidnapping & homicide habeas corpus appeal,Richard Joseph v. Coyle.The panel concludes there existed insufficient evidence to conclude Joseph was the actual killer rather than merely the perpetrator of the kidnapping that was also at issue. Compounding the error was that he jury instructions repeatedly and incorrectly stated that the capital specification required proof that Joseph was the principal offender in the commission of the "kidnapping" and not the actual homicide.

The Eighth Circuit inHerbert Smulls v. Ropergranted relief on a Batson challenge. "Both the trial court and the Missouri Supreme Court failed to analyze these factual disputes on the record"." [T]he trial court failed to make any factual findings to support the prosecutor's claim Sidney 'glared' at him or acted 'irritated' by the questioning." "The trial court's initial failure to afford defense counsel an opportunity to respond to the prosecutor's racially-neutral reasons, the complete lack of findings, and the trial court's refusal to consider the race of prospective jurors absent "direct evidence," combine to demonstrate the court was from the outset antagonistic towards the Batson challenge and unwilling to engage in the sensitive inquiry into circumstantial and direct evidence as required." A remand is ordered to permit further examination of the issue.

The Tennessee Court of Criminal Appeals inState v. Franklin Fitchgrants relief on what amounts to a sufficiency of the evidence relating to an aggravating circumstance. The central question here revolves around the use of the prior violent felony conviction aggravator, a prior conviction for "reckless endangerment." The state conceded error but argued the error harmless. In a rather lengthy examination the Court looks at how the State repeatedly relied on the improper aggravator to get a death sentence.

The Ninth Circuit grants relief inHenry Lankford v. Araveon what ultimately boils down to an all too common problem, inexperienced counsel. Trial "counsel requested critical jury instructions that were correct under federal law but clearly in error under Idaho law." Counsel’s requested a jury instruction that it could convict on the basis of the co-defendant's testimony alone but under Idaho law there needed to be corroboration. "Counsel’s request that the jury be instructed that it could convict on the basis of [co-defendant's] testimony alone was plainly prejudicial."

In the news,Texasnew death sentencesthis yeardropped to just 14 new death sentences from about 40 a year at the turn of the century. Anthony Nealy was stayed by the Texas Court of Criminal Appeals, in light of claims of innocence & prosecutorial misconduct , meaning Texas has also had its last execution for the year.The hunger strike on Texas's death row has built up steam andpress coverage.

Several recent articles, posted either on SSRN or published in traditional law reviews, are noted.John Blume & Co. have and unusually quick and persuasive read thatEvery Juror Wants a Story, Story: Narrative Relevance, Third Party Guilt and the Right to Present a Defense[suggested citation: Blume, John H., Johnson, Sheri Lynn and Paavola, Emily C., "Every Juror Wants a Story, Story: Narrative Relevance, Third Party Guild and the Right to Present a Defense" (November 1, 2006). Cornell Legal Studies Research Paper No. 06-042 Available at SSRN:http://ssrn.com/abstract=942653].Jeremy Blumenthal also has an interesting read for those in the trial courts,Perceptions of Crime: A Multidimensional Analysis with Implications for Law and Psychology. [suggested citation:Blumenthal, Jeremy A., "Perceptions of Crime: A Multidimensional Analysis with Implications for Law and Psychology" (October 2006). Available at SSRN:http://ssrn.com/abstract=942311].Carolyn Ramsey has “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006). David Kaye hasQuestioning a Courtroom Proof of the Uniqueness of Fingerprints. [suggested citation: Kaye, David H., "Questioning a Courtroom Proof of the Uniqueness of Fingerprints." International Statistical Review, Vol. 71, No. 3, pp. 521-533, 2003 Available at SSRN:http://ssrn.com/abstract=944365].Kaye also offersRevisiting 'Dreyfus': A More Complete Account of a Trial by Mathematics[suggested citation: Kaye, David H., "Revisiting 'Dreyfus': A More Complete Account of a Trial by Mathematics." Minnesota Law Review, January 2007http://ssrn.com/abstract=944244]. "Revisiting Dreyfus" attempts to debunk some of the legal issues and historical misrepresentations covering those cases, a slightly dry read, but should be read in conjunction with Kaye's fingerprint article. Finally, Yale Kamissar hasOn the Fortieth Anniversary of Miranda: Why We Needed It, How We Got It - and What Happened to It [suggested citation:Kamisar, Yale, "On the Fortieth Anniversary of Miranda: Why We Needed It, How We Got It - and What Happened to It" . Ohio State Journal of Criminal Law, 2007 Available at SSRN:http://ssrn.com/abstract=944546].

For the second election cycle in a row criminal justice reformers have done extraordinarily well. In 2005 it was Governor races in Virginia & New Jersey, this time it was criminal justice reformers / abolitionists includingPatrick(Gov. - Mass),Sanders(Senator - VT),Brown(Senator - Ohio),O'Malley(Gov. - Md), andDoyle(Gov. - Wis). One interesting note, aas noted inthis AP report, in the race for Ohio attorney genera Marc Dann won an upset victory and,according to press reports, has called for a study of Ohio's death penalty system. Nationally, a Democratic Congress likely means the end to efforts to radically expand the federal death penalty and to gut habeas. Thebloghas more on the election news.

"The U.S. Department of Justice's Office of Justice Programs' Bureau of Justice Assistance [has announced] that it is seeking applications for funding under the Capital Case Litigation Initiative. This program furthers the Departments mission by providing capital litigation training to improve the quality of representation and reliability of verdicts in state court capital cases." Read the announcementhere. Note that "[a]pplicants are limited to state, local, and tribal agencies and to state-based non-governmental organizations that serve defense counsel, prosecutors, or judges and are located in states that have the death penalty."

Looking ahead, the Texas Court of Criminal Appeals inEx Parte Jose Ernesto Medellinholds that President Bush was powerless to force the Texas judiciary to disregard its rules of procedural default to consider on the merits a Mexican national's Article 36 Vienna Convention claim. Two important capital cases out of Nevada are notedJohn Bejarano v. State&Michael Rippo v State, holding, respectively, that the state's so-calledMcConnell rule("that it is unconstitutional to base an aggravating circumstance on the same felony upon which a felony murder is predicated") is retroactively applicable to all cases and subject to harmless-error analysis.

Full edition is available athttp://www.capitaldefenseweekly.com/archives/061113.htm.

Executions

November

8 Willie Shannon (Texas)

9 John Schmitt (Virginia)

Scheduled Executions

December

1 Guy LeGrande (North Carolina)

5 Jerome Henderson (Ohio)

8 Percy Walton (Virginia)

More Execution information

SCOTUS

Ayers v. Belmontes, 2006 U.S. LEXIS 8522 (11/13/2006) The California catch all jury instruction on these facts did not require reversal.

In Favor of Life or Liberty

from the week of October 30 to November 3, 2006

Herbert Smulls v. Roper, 2006 U.S. App. LEXIS 27051 (8th Cir 11/1/2006) Remand granted on a Batson challenge.

State v. Franklin Fitch, 2006 Tenn. Crim. App. LEXIS 862 (Tenn. Crim. App. 11/2/2006) "[T]he evidence does not support application of the (i)(2) statutory aggravating circumstance. As we are unable to conclude that this error is harmless, this matter is remanded for a new sentencing hearing."

from the week of November 6 to November 10, 2006

Richard Joseph v. Coyle, 2006 U.S. App. LEXIS 27697 (6th Cir 11/9/2006) Relief granted as there lacked sufficient evidence that Joseph was the actual killer as required by precedent and the jury instructions repeatedly and incorrectly stated (either explicitly or by reference to earlier misstatements) that the capital specification required proof that Joseph was the principal offender in the commission of the kidnapping" and not the actual homicide.

Henry Lankford v. Arave, 2006 U.S. App. LEXIS 27466 (9th Cir 11/7/2006) Trial "counsel requested critical jury instructions that were correct under federal law but clearly in error under Idaho law." Counsel requested a jury instruction that it could convict on the basis of the co-defendant's testimony alone, however, under Idaho law there needed to be corroboration. "We agree with the district court that [counsel's] requested jury instructions were simply wrong under Idaho law. The [erroneous] instruction was not corrected by other instructions. Although the question is close, we disagree with the district court as to the prejudicial effect of the error. Counsel’s request that the jury be instructed that it could convict on the basis of [co-defendant's] testimony alone was plainly prejudicial."

Favoring Death

from the week of October 30 to November 3, 2006

James Slaughter v. Parker, 2006 U.S. App. LEXIS 27050 (6th Cir. 11/1/2006) 7-7 split upholding death on a very unusual fact pattern and a tough dispute on how much prejudice a petitioner must show under Strickland v. Washington.

David Lynch v. Polk,2006 U.S. App. LEXIS 27193 (4th Cir 11/2/2006) (unpublished) Relief denied on claims Lynch's rights were violated "(1) when the prosecutor made inflammatory comments during closing argument in the guilt phase of his trial and (2) when the jury foreperson read from the Bible during the penalty phase."

Newton Anderson v. Quarterman, 2006 U.S. App. LEXIS 27135 (5th Cir 11/1/2006) (unpublished) Habeas relief denied on a panoply of claims including: (1) IAC in the penalty phase presentation of evidence; (2) admission of fairly gruesome crime scene photos; (3) improper arguments by prosecutors; (4) vagueness of the language used in the special questions; (5) lack of non-unanimity instruction; (6) failure to include aggs in the indictment; (7) appellate ineffectiveness; (8) unfettered discretion in seeking death in Texas; (9) failure to grant mistrial after improper evidence was presented to jury; and (10) cumulative error.

Jack Alderman v. Terry, 2006 U.S. App. LEXIS 26968 (11th Cir 10/30/2006) After 30+ years on death row, including several reversals, "we granted his application for a certificate of appealability as to one issue: whether Alderman's trial attorneys denied him the effective assistance of counsel in the penalty phase of his sentencing proceedings by failing to investigate and present to the jury his social-history background." Relief denied.

Meryl McDonald v. Florida, 2006 Fla. LEXIS 2589 (FL 11/2/2006) Post-conviction Relief denied on issues including: "(1) trial counsel was ineffective with regard to the jury selection; (2) there was no waiver of defendant’s rights under Miranda v. Arizona; (3) trial counsel was ineffective for failing to challenge the hair evidence; (4) trial counsel was ineffective for failing to challenge the carpet fiber evidence; (5) the State’s cashmere fiber testimony was false and trial counsel was ineffective for not challenging it; (6) trial counsel was ineffective with regard to the bloodstain evidence; (7) trial counsel was ineffective by failing to raise an argument concerning the contamination of the sweatshirt; (8) trial counsel was ineffective by failing to challenge the shoe print and tennis shoes evidence; (9) trial counsel was ineffective for failing to keep Susan Shore from testifying; (10) State witnesses lied about identification issues; (11) trial counsel was ineffective for not pursuing a severed trial; (12) trial counsel was ineffective for failing to investigate and present an alibi defense; (13) trial counsel was ineffective for failing to object to an improper closing argument by the prosecutor; (14) trial counsel was ineffective for failing to file a motion for a speedy trial; (15) the trial court lacked jurisdiction because the autopsy failed to establish the cause of death; and (16) when the claims are examined collectively, trial counsel provided ineffective assistance of counsel."

Daniel Burns v. Florida, 2006 Fla. LEXIS 2593 (FL 11/2/2006) Relief denied on "the following four issues on appeal: (1) whether resentencing counsel was ineffective for failing to present available mitigation evidence; (2) whether resentencing counsel was ineffective for failing to present the nonstatutory mitigating circumstance that the initial traffic stop of Burns was pretextual; (3) whether the resentencing court committed fundamental error in filing an improper sentencing order and counsel was ineffective for not filing a motion to correct the order; and (4) whether jury instructions shifted the burden to Burns to prove that the death sentence was inappropriate."

Shelton Jackson v. State, 2006 Okla. Crim. App. LEXIS 48 (Okla Crim App 11/2/2006) Direct appeal denial. Relief denied on claims relating to: (1) the district court erred by denying his repeated motions for mistrial and to quash the venire for juror misconduct; (2) motion to suppress and admitting his statements to the police; (3) "trial court erred when it refused his requested instruction on the lesser-included offense of second-degree depraved mind murder;" (4) "trial court erred when it instructed the jury that it could consider the evidence concerning Jackson’s injury to the child to show motive, intent, preparation, plan, absence of mistake, or accident;" (5) "trial court erred in refusing his request to alter the definitional instruction of 'malice aforethought';” (6) "jury should have been instructed on the limitations of the Pardon and Parole Board with regard to a sentence of life without the possibility of parole;" (7) "trial court’s failure to instruct the jury that the death penalty could not be imposed unless it found that the aggravating circumstances outweighed the mitigating circumstances “beyond a reasonable doubt';” (9) "trial court erred by refusing to instruct the jury on the 'heinous, atrocious, or cruel' aggravating circumstance by using the instruction requested by his counsel;" (10) sufficiency of “knowingly created a great risk of death to more than one person;” (11) sufficiency to "prove beyond a reasonable doubt that he murdered Decator to avoid arrest or prosecution;" (12) erroneous evidentiary rulings by the trial court; (13) "mitigation outweighed the evidence in aggravation;" (14) "victim impact evidence in his case was unfairly prejudicial because it focused almost exclusively on the emotional impact of Decator’s murder on her family;" (15) "the three aggravating circumstances found by the jury are unconstitutionally vague, that the limitations placed on these aggravators by this Court are not consistently applied and that his jury was not fully and accurately informed of these limitations;" (16) "cumulative error;" and (17) mandatory sentencing review.

from the week of November 6 to November 10, 2006

Jack Sliney v. State, 2006 Fla. LEXIS 2608 (FL 11/9/2006) Post-conviction relief denied on claims relating to "ineffective assistance of counsel at trial because (A) his guilt phase counsel operated under a conflict of interest that adversely affected his performance; and (B) both his guilt and penalty-phase counsel failed to thoroughly investigate and present mitigation evidence." Habeas relief denied on appellate IAC including: "(A) the State’s repeated introduction of collateral crime evidence at trial; (B) the State’s introduction of irrelevant and prejudicial hearsay testimony at trial; and (C) the prosecutor’s fundamental misstatements of law and fact to the jury."

Henry Garcia v. State, 2006 Fla. LEXIS 2614 (FL 11/9/2006) Post-conviction relief denied on "A) whether he validly waived his penalty phase claims, (B) whether his postconviction counsel had a conflict of interest, and (C) whether he was improperly denied access to public records. We then analyze (D) the claims on which the circuit court granted an evidentiary hearing and (E) other claims that the circuit court summarily denied. Finally, we review (F) his cumulative error claim."

State v. Johnny Johnson, 2006 Mo. LEXIS 132 (Mo. 11/7/2006) Relief denied on claims relating to: (1) Batson v. Kentucky; (2) limitations on life qualification; (3) evidence of uncharged crimes of "stalking" children in the days preceding the murder; (4) voluntary intoxication; (5) motion to suppress statements he made to the detective while awaiting booking on reliability grounds; (6) "outrageously or wantonly vile" aggravating factor; (7) instructions on how to weigh the mitigating and aggravating factors presented; (8) information / indictment failure to include statutory aggravators; (9) prosecution's closing; (10) overruling of Johnson's motion for a new trial and in sentencing him to death.

Avetis Archanian v. State, 2006 Nev. LEXIS 118 (Nev 11/9/2006) "[O]ne of the two aggravating circumstances found to support Archanian's death sentence must be stricken pursuant to our decision inMcConnell v. State. After reweighing the remaining aggravating and mitigating evidence, we conclude beyond a reasonable doubt that the jury would have imposed death absent the erroneous aggravating circumstance. "

State v. Christian Longo, 2006 Ore. LEXIS 1179 (Ore 11/9/2006) Relief denied on claims in the guilt phase relating to whether: (1) Defendant's rights under the Vienna Convention, as well as other international law related issues, should prevent his execution; (2) failure to suppress statements; (3) Batson v. Kentucky; (4) discovery violation relating to a witness's testimony; and whether hearsay statements qualified as an excited utterance. As to the penalty phase on claims concerning: (1) need for an uniform statewide standards for imposition of death; (2) standards of proof for the penalty phase special questions; and (3) whether the manner of extradition should have been permitted to be used a mitigating factor.

State v. Karnell Evans,2006 S.C. LEXIS 352 (SC 11/6/2006) Relief denied on whether "the trial judge failed tosua spontecharge the jury on a statutory mitigating circumstance?"

Looking Ahead

Us

Jerome Brown v. Papa, 2006 U.S. App. LEXIS 28148 (9th Cir 11/13/2006) (noncapital) (unpublished) Successful Batson claim.

Them

Lionell Rodriguez v. Quarterman, 2006 U.S. App. LEXIS 28253 (5th Cir 11/15/2006) Relief denied on all claims, including the sole issue which a COA was granted "whether Rodriguez's death sentence violated his constitutional rights because he received ineffective assistance of counsel ("IAC") in the punishment phase of his trial."

Gregory Wright v. Quarterman, 2006 U.S. App. LEXIS 28509 (5th Cir 11/17/2006) Relief denied / COA denied on "whether: 1) his Confrontation Clause claim is procedurally barred; 2) he received ineffective assistance of counsel at trial; and 3) the state suppressed evidence in violation of the Fourteenth Amendment and Brady v. Maryland"

Ex Parte Jose Medellin, 2006 Tex. Crim. App. LEXIS 2236 (Tex Crim App 11/15/2006) Relief denied on international law claims.

Jesus Delgado v. State, 2006 Fla. LEXIS 2687 (FL 11/16/2006) Direct appeal denied on "(1) whether retrying him for first-degree premeditated murder violated his right to be free from double jeopardy based on this Court’s holding in Delgado I; (2) whether the trial court erred in denying a mistrial based on the prosecutor’s comments to the jury and at sidebar during closing argument; (3) whether the trial court abused its discretion in allowing the pen register tape to be admitted into evidence without a foundation laid by a technical expert and the officer who employed the pen register device; (4) whether the trial court committed reversible error when it repeated the jury instructions concerning the definition and elements of first-degree murder; (5) whether the trial court committed reversible error by instructing the jury panels during voir dire that they “will” rather than “may” hear mitigation evidence if they returned a guilty verdict even though there was no contemporaneous objection; (6) whether Florida’s capital sentencing scheme violates Delgado’s Sixth Amendment right under Apprendi v. New Jersey and Ring v. Arizona by authorizing imposition of the death sentence without a unanimous jury verdict; (7) whether the trial court committed reversible error when it sustained the State’s objection to defense counsel’s comments during closing argument regarding the State’s failure to present DNA evidence; and (8) whether there is a reasonable probability that the cumulative errors at trial contributed to the jury’s verdict regardless of whether evidence of guilt was otherwise substantial."

Gary Simmons v. State, 2006 Miss. LEXIS 652 (Miss 11/16/2006) Relief denied holding that "the successive petition bar in Miss. Code Ann. § 99-39-27(9) prevents Simmons from raising this motion for post-conviction relief."

Xavier Brown v. State, 2006 Miss. LEXIS 635 (Miss 11/16/2006) Post-conviction relief denied on nine claims.

John Bejarano v. State, 2006 Nev. LEXIS 122 (Nev 11/16/2006) The Nevada Supreme Court's so-calledMcConnell rule("that it is unconstitutional to base an aggravating circumstance on the same felony upon which a felony murder is predicated") is retroactively applicable to all cases. Here, however, other aggravating factors remain applicable and upon reweighing the death sentence remains intact.

Michael Rippo v State, 2006 Nev. LEXIS 123 (Nev 11/16/2006) The Nevada Supreme Court's so-calledMcConnell rule("that it is unconstitutional to base an aggravating circumstance on the same felony upon which a felony murder is predicated.") is subject to harmless-error analysis. Here the errors were harmless beyond a reasonable doubt.

Bigler Stouffer v. State, 2006 Okla. Crim. App. LEXIS 49 (Okla Crim App 11/14/2006) Relief denied on direct appeals.

State v. Thomas Keenan,2006 Ohio App. LEXIS 5982 (Ohio 8th App 11/16/2006) Claims of factual innocence held not to overcome procedural default.

Selected Excerpts from, & Commentary on, this Edition's Cases

Ayers v. Belmontes, 2006 U.S. LEXIS 8522 (11/13/2006) The California catch all jury instruction on these facts did not require reversal.

Our interpretation of factor (k) is the one most consistent with the evidence presented to the jury, the parties' closing arguments, and the other instructions provided by the trial court. Each of these will be discussed in turn.

As the Court of [*18] Appeals recognized, future-conduct evidence was central to the mitigation case presented by the defense. See 414 F.3d at 1134. Indeed, although the defense also adduced evidence of a troubled upbringing, respondent testified that he could not use his difficult life "as a crutch to say I am in a situation right now, I'm here now because of that." App. 40. Given this assertion, and considering the extensive forward-looking evidence presented at sentencing -- evidence including testimony from two prison chaplains, respondent's church sponsors, and respondent himself -- the jurors could have disregarded respondent's future potential only if they drew the unlikely inference that "the court's instructions transformed all of this 'favorable testimony into a virtual charade,'" Boyde, supra, at 383, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (quoting Brown, 479 U.S., at 542, 107 S. Ct. 837, 93 L. Ed. 2d 934). It is improbable the jurors believed that the parties were engaging in an exercise in futility when respondent presented (and both counsel later discussed) his mitigating evidence in open court.

Arguments by the prosecution and the defense assumed the evidence was relevant. The prosecutor initially discussed the [*19] various factors that were to guide the jury. He referred to factor (k) as "a catchall." App. 153. He then discussed respondent's religious experience in some detail. With respect to whether this experience fit within factor (k), he indicated: "I'm not sure it really fits in there. I'm not sure it really fits in any of them. But I think it appears to be a proper subject of consideration." Id., at 154. These seemingly contradictory statements are explained by the prosecutor's following comments.

The prosecutor suggested (quite understandably on the record) that respondent's religious evidence was weak. He stated: "You know, first of all, it's no secret that the evidence upon which the defendant's religious experience rests is somewhat shaky." Ibid. He also opined that the experience had to be taken "with a grain of salt." Id., at 155. The jury would have realized that, when the prosecutor suggested respondent's religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury's ability to consider it. After all, he thought religion was "a proper subject of consideration." Id., at 154.

The prosecutor then discussed [*20] how the jury should weigh respondent's "religious awakening":

"I suppose you can say it would be appropriate because -- in this fashion: The defendant may be of value to the community later. You recall the people talking about how he would have the opportunity to work with other prisoners in prison. And I think that value to the community is something that you have to weigh in. There's something to that.

"On the other hand, the fact that someone has religion as opposed to someone doesn't should be no grounds for either giving or withholding life. I mean let's turn it around and look at the other side of the coin. Suppose someone said he didn't belong to a church and didn't talk to a minister. Would that man deserve to die merely because of that? So if he says he has religion, does he deserve the other penalty, life? I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right." Id., at 155.

These remarks confirmed to the jury that it should analyze respondent's future potential, his future "value to the community." Ibid. This is what respondent himself wanted it to do. And [*21] while the prosecutor commented that the law did not contemplate jury consideration of respondent's religious conversion, respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, respondent wanted to use this religious evidence to demonstrate his future "value to the community," not to illustrate his past religious awakening. Nothing the prosecutor said would have convinced the jury that it was forbidden from even considering respondent's religious conversion, though surely the jury could discount it; and nothing the prosecutor said would have led the jury to think it could not consider respondent's future potential, especially since he indicated that this is exactly what the jury had "to weigh" in its deliberation. Ibid.

After the prosecutor concluded his arguments, the trial judge allowed respondent to speak on his own behalf. Respondent, while not showing any remorse, suggested that life imprisonment offered "an opportunity to achieve goals and try to better yourself." Id., at 163. He also stated: "I myself would really like to have my life and try to improve myself." Id., [*22] at 164. Respondent's personal pleas were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose.

Defense counsel's closing arguments confirm this analysis. To be sure, commenting on the mitigating evidence, he initially indicated: "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in." Id., at 166. Read in context defense counsel's remarks did not imply the jury should ignore the mitigating evidence. Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cf. Cal. Penal Code Ann. § 190.3(k) ("any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime").

That defense counsel did, in fact, want the jury to take into account respondent's future potential became manifest near the end of his argument. He suggested that the "people who came in here [and] told you about [respondent]" provided the jury with "a game plan" for what respondent could do with [*23] his life. App. 170. He continued: "We're just suggesting the tip of the iceberg because who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system, as he learns to set his goals, to contribute something in whatever way he can." Ibid. This would have left the jury believing it could and should contemplate respondent's potential.

Other instructions from the trial court make it quite implausible that the jury would deem itself foreclosed from considering respondent's full case in mitigation. Before enumerating specific factors for consideration -- factors including the circumstances of the crime, the defendant's age, and "the presence or absence of any prior felony conviction," id., at 184, as well as the factor (k) catchall -- the judge told the jury: "In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed." Id., at 183. After listing the factors, he indicated:

"After having heard all of the evidence and after having heard and considered the arguments of counsel, you shall consider, [*24] take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.

"If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." Id., at 185.

The judge then gave a supplemental instruction regarding aggravating and mitigating factors:

"I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case.

"However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not [*25] to impose a death penalty or a death sentence upon Mr. Belmontes. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case." Id., at 185-186.

Given the evidence and arguments presented to the jury, these instructions eliminate any reasonable likelihood that a juror would consider respondent's future prospects to be beyond the bounds of proper consideration. The judge told the jury to consider "all of the evidence," and "all of the evidence" included respondent's forward-looking mitigation case. While the judge did end his broad command to appraise all the evidence with the qualifier "except as you may be hereafter instructed," id., at 183, he did not later instruct the jury that it should disregard respondent's future potential in prison. The jury could not fairly read the limitation in the instruction to apply to respondent's central mitigation theory. By contrast, in response to a juror's question, the trial judge specifically instructed the jury not to consider whether respondent could receive psychiatric treatment while in prison.

The sharp contrast between [*26] the court's instruction on aggravation (that only enumerated factors could be considered) and its instruction on mitigation (that listed factors were "merely . . . examples," id., at 186) made it clear that the jury was to take a broad view of mitigating evidence. Coming back to back, the instructions conveyed the message that the jury should weigh the finite aggravators against the potentially infinite mitigators. That the trial judge told the jury to "pay careful attention" to the listed mitigating factors, ibid., moreover, did not compel the jury to give them sole consideration. For this to be the case, the jury would have had to fail to take the judge at his word. The judge did not advise the jury to pay exclusive attention to the listed mitigating circumstances, and he had told the jury that these circumstances were simply examples.

It is implausible that the jury supposed that past deeds pointing to a constructive future could not "extenuate the gravity of the crime," as required by factor (k), much less that such evidence could not be considered at all. Boyde concludes that in jury deliberations "commonsense understanding of the instructions in the light of all [*27] that has taken place at the trial [is] likely to prevail over technical hairsplitting." 494 U.S., at 381, 110 S. Ct. 1190, 108 L. Ed. 2d 316. Here, far from encouraging the jury to ignore the defense's central evidence, the instructions supported giving it due weight.

In concluding otherwise, the Court of Appeals cited queries from some of the jurors as evidence of confusion. Although the jury's initial question is not in the record, it appeared to ask the judge about the consequences of failing to reach a unanimous verdict. Cf. 414 F.3d at 1135. In response, the judge reread portions of the instructions and stated that "all 12 jurors must agree, if you can." App. 190. Before the judge sent the jury back for further deliberation, the following exchange took place:

"JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing?

"THE COURT: That was the listing, yes, ma'am.

"JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet?

"THE COURT: That is right. It is a balancing process. Mr. Meyer?

"JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot [*28] the other?

"THE COURT: No. It is not that.

"JUROR MEYER: It is an either/or situation?

"THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you.

"JUROR HAILSTONE: Could I ask a question? I don't know if it is permissible. Is it possible that he could have psychiatric treatment during this time?

"THE COURT: That is something you cannot consider in making your decision." Id., at 191.

The Court of Appeals decided Juror Hern's questions indicated she thought (incorrectly) that only listed mitigating factors were on the table -- an error, in the Court of Appeals' view, that should have prompted a clarifying instruction confirming that all the mitigating evidence was relevant. 414 F.3d at 1136. The Court of Appeals further supposed the response to Juror Hailstone's question compounded the problem, since psychiatric treatment presumably would be necessary only in aid of future rehabilitation. Id., at 1137.

The Court of Appeals' analysis is flawed. To begin with, attributing to Juror Hern a dilemma over the scope of mitigation is only one way to interpret her questions, and, as the California Supreme [*29] Court observed on direct review, it is not necessarily the correct one, see Belmontes, 45 Cal. 3d, at 804, 755 P. 2d, at 344. It is at least as likely that the juror was simply asking for clarification about California's overall balancing process, which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating. As Juror Hern surmised (but sought to clarify), the jury itself must determine the side of the balance on which each listed factor falls. See Cal. Penal Code Ann. § 190.3 (providing that, "in determining the penalty, the trier of fact shall take into account" any relevant listed factors); see generally Tuilaepa v. California, 512 U.S. 967, 978-979, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994) (noting that the § 190.3 sentencing factors "do not instruct the sentencer how to weigh any of the facts it finds in deciding upon the ultimate sentence").

Even assuming the Court of Appeals correctly interpreted Juror Hern's questions, the court's conclusion that this juror likely ignored forward-looking evidence presupposes what it purports to establish, namely, that forward-looking evidence [*30] could not fall within factor (k). As discussed earlier, nothing barred the jury from viewing respondent's future prospects as "extenuating the gravity of the crime," so nothing barred it from considering such evidence under the rubric of the "listing." As for Juror Hailstone's psychiatric-care question, this inquiry shows that, if anything, the jurors were considering respondent's potential. The trial court's response, far from implying a broad prohibition on forward-looking inferences, was readily explicable by the absence of any evidence in the record regarding psychiatric care.

In view of our analysis and disposition in this case it is unnecessary to address an argument for reversing the Court of Appeals based on the Court's holding in Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993), a subject raised by Judge O'Scannlain in his separate opinion in the Court of Appeals. See 414 F.3d at 1141-42 (opinion concurring in part and dissenting in part).

In this case, as in Boyde and as in Payton, the jury heard mitigating evidence, the trial court directed the jury to consider all the evidence presented, and the parties addressed the mitigating evidence [*31] in their closing arguments. This Court's cases establish, as a general rule, that a jury in such circumstances is not reasonably likely to believe itself barred from considering the defense's evidence as a factor "extenuating the gravity of the crime." The factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings.

Herbert Smulls v. Roper, 2006 U.S. App. LEXIS 27051 (8th Cir 11/1/2006) Remand granted on a Batson challenge

Smulls argues the prosecutor's stated reasons were pretextual because they were contrary to or unsupported by the record. For example, Smulls claims the prosecutor's characterization of Sidney as a "mail sorter" or "mail carrier" was erroneous because the record shows Sidney was a member of management at Monsanto, and, among other duties, supervised employees responsible for sorting and distributing mail. Additionally, Smulls argues the prosecutor's claim that a previous jury had been hung by a postal employee is factually inaccurate.

Both the trial court and the Missouri Supreme Court failed to analyze these factual disputes on the record. The district court took note of them but concluded, based on its review of the record, the prosecutor was aware of Sidney's actual job description and, even though he was mistaken about his earlier trial, the prosecutor believed a postal worker voted against conviction. Therefore, the district court concluded the Missouri courts' application of federal law was not unreasonable.

Smulls also argues the district court's rejection of his Batson challenge was erroneous because the trial court failed to make any factual findings to support the prosecutor's claim Sidney "glared" at him or acted "irritated" by the questioning. According to Smulls, defense counsel disputed the prosecutor's alleged observations and the trial court should have resolved the dispute on the record. Smulls also argues the side-by-side comparison of Sidney and venireperson Dillard was improper because Dillard knew the victim and was, therefore, not similarly situated.

Once again, neither the trial court or the Missouri Supreme Court chose to address these arguments on the record. The district court noted the lack of findings but rejected the arguments because defense counsel's disagreement "neither confirms nor denies that Ms. Sidney had a poor demeanor." Further, the district court concluded the lack of findings did not make the trial court's decision unreasonable. Instead, it concluded the trial court's rejection of the Batson challenge, and the Missouri Supreme Court's reliance upon the trial court, were reasonable based on the record.

We are concerned with the perfunctory manner in which the trial court handled Smulls's Batson challenge. We have previously emphasized the need to "make[ ] detailed findings on the record in support of a ruling on a peremptory challenge under Batson." Moran v. Clarke, 443 F.3d 646, 653 (8th Cir. 2006) (citing U.S. Xpress Enter., Inc., v. J.B. Hunt Transp., Inc., 320 F3d 809, 814 (8th Cir. 2003)). Such a view is entirely consistent with clearly established Supreme Court precedent stressing the importance for trial courts to carefully consider all evidence bearing on the issue. See Batson, 476 U.S. at 96 ("In deciding whether the defendant has made the requisite [prima facie] showing, the trial court should consider all relevant circumstances."). As to the issue of discriminatory intent – the third step in a Batson challenge, "Batson . . . requires the judge to assess the plausibility of [the prosecutor's] reason in light of all evidence with a bearing on it." Miller-El v. Dretke, 125 S.Ct. 2317, 2331-32 (2005) (citation omitted). "In deciding if the defendant has carried his burden of persuasion, a court must undertake a 'sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'" Batson, 476 U.S. at 93 (quoting Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977)).

The record before us offers little to suggest the trial court engaged in the evaluative process anticipated by Batson and its progeny. Notably, the court initially denied the challenge without ever affording defense counsel an opportunity to rebut the racially-neutral reasons offered by the prosecutor. Despite these concerns, however, our decision today is not based solely upon what the trial court failed to say on the record. But see Hardcastle v. Horn, 368 F.3d 246, 259 (3d Cir. 2004) ('[S]ome engagement with the evidence considered is necessary as part of step three of the Batson inquiry,' and requires 'more than a terse, abrupt comment that the prosecutor has satisfied Batson.') (quoting Riley v. Taylor, 277 F.3d 262, 290-91 (3d Cir. 2001) (en banc)); Barnes v. Anderson, 202 F.3d 150, 156 (2d Cir. 1999) (ordering a new trial where the trial court denied a Batson challenge "without explicit adjudication of the credibility of the non-movant's race-neutral explanations for the challenged strikes."); and United States v. Hill, 146 F.3d 337, 342 (6th Cir. 1998) (remanding where "the record . . . indicates nothing about the district court's thought processes . . . apart from its abrupt conclusion . . . that the prosecutor's asserted justification outweighed [the defendant's] showing under the totality of the circumstances."). Rather, we reverse because trial court refused to recognize and assess all relevant circumstances as required by clearly established federal law.

When defense counsel attempted to establish for the record that Sidney was the only black juror remaining in the jury pool, the trial court inexplicably refused to acknowledge or consider the racial composition of the jury pool. "I don't know what constitutes black. And I never, in this Court, no matter what any appellate court may say, I never take judicial notice that anyone is black or that only one person or four persons or eight persons are black." Instead of considering the composition of the jury pool, as mandated by Supreme Court precedent, the trial court imposed upon the defendant an unprecedented, if not impossible, burden:

That to me is something that I don't think this Court is wise enough or any other appellate court is wise enough unless there is direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And I believe that's counsel's responsibility to prove who is black and who isn't or who is a minority and who isn't.

Appellant's App. at 27.

We fail to comprehend how a trial court, faced with a Batson challenge, can purport to fulfill its obligation to properly evaluate the merits of such a claim without taking the race of prospective jurors into account. Further, we do not believe a trial court may simply avoid Batson by demanding the proponent of the challenge meet a burden of proof which finds no support in Supreme Court precedent.

We are aware the parties focus their arguments only on Sidney and there is no contention other jurors were improperly struck from the jury pool. Thus, it could be argued the trial court's refusal to consider the race of other prospective jurors is irrelevant to this discussion. We believe, however, under the unusual circumstances of this case, the trial court's actions and comments are indicative of a deeper problem. The trial court's initial failure to afford defense counsel an opportunity to respond to the prosecutor's racially-neutral reasons, the complete lack of findings, and the trial court's refusal to consider the race of prospective jurors absent "direct evidence," combine to demonstrate the court was from the outset antagonistic towards the Batson challenge and unwilling to engage in the sensitive inquiry into circumstantial and direct evidence as required. See U.S. Xpress Enter., Inc., 320 F.3d at 814 n.4 (noting that under certain circumstances the "lack of specificity in a trial court record to demonstrate compliance with the Batson analysis may require remand for further findings."). Thus, we are not bound by the normal presumption of correctness in favor of the trial court's findings or the Missouri Supreme Court's affirmance of those findings. Any other conclusion would render illusory the already tenuous protections afforded under Batson.

We do not hold that, had the trial court accepted and applied controlling Supreme Court precedent, Smulls's Batson challenge would necessarily have been successful. Instead, we conclude the trial court's apparent finding of no purposeful discrimination cannot be accorded the normal presumption of correctness because of its refusal to consider all relevant circumstances as required by clearly established federal law. Moreover, the Missouri Supreme Court's conclusion that the trial court acted properly was an unreasonable application of clearly established federal precedent. Accordingly, we reverse that portion of the district court's judgment denying Smulls's habeas petition based on a violation of Batson, and remand with instructions to, in the district court's discretion, reconstruct the circumstances surrounding Smulls's Batson challenge to determine whether the prosecutor's strike of venireperson Sidney was racially motivated. We recognize the passage of time and other circumstances, e.g., the disqualification of the trial court from post-conviction proceedings, may make such a task impossible or unsatisfactory. If that proves true, we direct the district court to grant the writ. See Batson, 476 U.S. at 100 (remanding for further analysis of the Batson claim); Brinson v. Vaughn, 398 F.3d 225, 235 (3d Cir. 2005) (same); Hardcastle, 368 F.3d at 261-62 (same); and Garlarza v. Keane, 252 F.3d 630, 640-41 (2d Cir. 2001) (same).

State v. Franklin Fitch, 2006 Tenn. Crim. App. LEXIS 862 (Tenn. Crim. App. 11/2/2006) "[T]he evidence does not support application of the (i)(2) statutory aggravating circumstance. As we are unable to conclude that this error is harmless, this matter is remanded for a new sentencing hearing."

The defendant maintains that the evidence was insufficient to establish the (i)(2) aggravating circumstance, that he had been previously convicted of a crime whose statutory elements involved violence to the person. In support of his argument, the defendant maintains that “[r]eckless endangerment is not an offense whose elements involve violence to the person.” While the state asserts that the offense of reckless endangerment may constitute an offense whose statutory elements involve the use of violence to a person, see Cole, 155 S.W.3d at 885, the state concedes that the proof in the present case is insufficient evidence from which the trial court could make that determination.

Prior to the penalty phase, a hearing was held to determine whether the defendant’s conviction for reckless endangerment qualified as a “prior violent felony.” In this regard, the trial court made the following statements:

And in looking at the charge reckless endangerment, which I believe is what Mr. Fitch pled guilty to, the elements of reckless endangerment are that the defendant engaged in conduct which placed or might have placed another person in imminent danger of death or serious bodily injury and that the defendant acted recklessly and that the offense was committed with a deadly weapon.

In light of this case the court would find that reckless endangerment with a deadly weapon does not necessarily, on its face, involve the use of violence. And the procedure, as I understand it from the case of State v. Sims, is that out of the presence of the jury the court is to determine based upon proof presented by the district attorneys’ office as to the underlying facts of the particular case. At that point, then the court would be charged with determining whether or not reckless endangerment with a deadly weapon based upon those facts would constitute a crime involving use of violence to the person. And that I’m to make that determination prior to any presentation to the jury.

So the first thing I think we need to do was accomplish that. . . . But I think first we would need to establish for the record the underlining facts so that I can make a determination as to the -- in compliance with State v. Sims as to whether or not that particular statute would be considered as a crime involving use of violence.

The prosecution then announced that “the state would propose to present proof of that crime by a certified copy of the affidavit of complaint that was sworn out by the victim in this offense of Charlene Warner at the time that she was assaulted by the defendant and a certified copy of the judgment indicating Mr. Fitch was convicted of that offense of reckless endangerment, sentenced to two years confinement in the Shelby County Correctional Center.” The prosecution stated that the victim of the prior offense died on July 4, 1995. The affidavit of complaint, pertaining to the defendant’s prior conviction which is at issue here, states as follows:

On Wednesday, 4/3/91, [at] approximately 3:15 p.m., while the affiant was standing at the bus stop in the 1400 block of Faxon she was approached by her ex-boyfriend, FRANKLIN FITCH, who struck her in the face with his hand. FITCH then picked up a 2X4 board and struck the affiant in the head, right side, approximately 10 times. The affiant also was struck on the left arm several times with the 2X4 board. The affiant did receive a broken wrist and several large lacerations to the head from the beating. The affiant was taken to the MED by Fire Department Ambulance where she was treated and released. FITCH became angry with the affiant after she had put him out of her house the previous day. THIS INCIDENT OCCURRED IN MEMPHIS, SHELBY COUNTY, TENNESSEE.

In April 2001, our supreme court filed its opinion in State v. Sims, 45 S.W.3d 1 (Tenn. 2001). In Sims, regarding the use of the “prior violent felony” aggravating circumstance found in Tennessee Code Annotated section 39-13-204(i)(2), (the (i)(2) factor), the trial court, during a hearing outside the jury’s presence, used an affidavit of complaint to review the facts of the defendant’s two prior aggravated assault convictions, in order to determine that the defendant had two prior felony convictions involving the use of violence to the person. Sims, 45 S.W.3d at 11. The trial court then allowed the state to present proof of the defendant’s two prior convictions for aggravated assault as felonies involving violence to the person. The trial court instructed the jury that those two convictions were for felonies involving violence to the person. Id. Of course, the circumstances in Sims are identical to the circumstances in the case sub judice: the prior conviction was for a criminal offense which does not necessarily involve the use of violence to another person. In its holding on this issue, our supreme court clearly put the stamp of approval upon the trial court’s use of an affidavit of complaint to determine the underlying facts of a prior felony conviction in order to determine whether it is a conviction involving the use of violence to another person. The court stated “[t]he approach to this issue taken by the trial judge was carefully contemplated and achieved a fair result. The evidence was sufficient to support the jury’s finding of the prior violent felony aggravator. We therefore find no error in its application in this case.” Id. at 12.

In the case sub judice, the trial judge specifically relied on Sims when it determined, out of the jury’s presence and prior to the sentencing hearing, that the state could use the affidavit of complaint to establish that the defendant’s prior conviction for reckless endangerment with a deadly weapon involved the use of violence to another person. Therefore, the trial court relied upon what appeared to be settled law when it used the facts contained in the affidavit of complaint during the sentencing hearing in September 2004.

However, subsequent to the sentencing hearing in the case sub judice, the United States Supreme Court clarified what can constitutionally be relied upon by a trial court to examine the facts underlying a prior conviction in order to enhance a sentence. Shepard v. United States, 544 U.S. 13 (2005). The Supreme Court affirmed the District Court’s refusal to enhance a defendant’s sentence by using police reports to establish that a prior conviction was for a “violent felony.” The Supreme Court held that a trial court may find “the fact of a prior conviction,” but the trial court is limited to “examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. 544 U.S. at 16.

Later, in State v. Ivy, 188 S.W.3d 132 (Tenn. 2006), our supreme court held that the limitations in Shepard also must apply to the trial court’s determinations under the procedure set forth in Sims. Ivy, at 151. Accordingly, the supreme court held that “. . . an affidavit of complaint, like a police report, is not a judicial record of the kind approved in Shepard. . . . As a result, the trial court should not have considered the affidavit of complaint under Shepard.” Ivy, at 152.

On appeal, the state concedes that under Ivy, there was no evidence to determine that the defendant’s prior felony conviction involved the use of violence to another person, that the trial court erred in its instruction to the jury, and that it was error for the jury to consider the (i)(2) aggravating circumstance.

Nevertheless, the state argues that the error was harmless beyond a reasonable doubt. In support of this argument, the state asserts that there was overwhelming proof of the sole remaining aggravating circumstance, the (i)(3) factor. This factor requires proof that the defendant knowingly created a great risk of death to two or more individuals, other than the victim, during the first degree murder for which the defendant was being sentenced. The state also asserts that the defendant’s mitigation evidence was weak, further supporting a conclusion that use of the (i)(2) aggravating circumstance is harmless error beyond a reasonable doubt.

In reaching the determination of whether use of an invalid aggravating circumstance is harmless error beyond a reasonable doubt, our supreme court has concluded that,

In order to guarantee the precision that individualized sentencing considerations demand and provide a principled explanation for our conclusion in each case, it is important, when conducting harmless error review, to completely examine the record for the presence of factors which potentially influence the sentence ultimately imposed. These include, but are not limited to, the number and strength of remaining valid aggravating circumstances, the prosecutor’s argument at sentencing, the evidence admitted to establish the invalid aggravator, and the nature, quality and strength of mitigating evidence.

State v. Howell, 868 S.W.2d 238, 260-61 (Tenn. 1993).

Reviewing the four non-exclusive factors referenced in Howell, we conclude that the number (one) of remaining valid aggravating circumstances does not weigh in favor of harmless error. However, the strength of this factor does weigh in favor of harmless error. The nature, quality and strength of the mitigation evidence is neutral on the issue of harmlessness of the error.

However, the two remaining factors, in the particular circumstances of this case, weigh heavily toward the conclusion that the error was not harmless beyond a reasonable doubt. In particular, the prosecution placed much emphasis on the invalid (i)(2) aggravator in its closing argument.

Excerpts from the state’s closing argument during the penalty phase was as follows:

We have also proven to you that the defendant has one prior felony conviction involving violence to a person other than the case in which you found him guilty. You know that on April 3rd, 1991 Mr. Franklin Fitch followed Charlene Warner to a bus stop. You have that affidavit of complaint. That’s proof before you. That she had broken up with Mr. Fitch the previous day, had put him out of her house and he became angry. And he followed her to a bus stop and picked up a two by four. After he slapped and struck this woman in her face, picked up a two by four and hit Charlene Warner in the head at least ten times. And that he hit her on her arm several times and that he caused severe lacerations to the head of Charlene Warner requiring her to be hospitalized. Broke her wrist as a result of beating another woman and pummeling another woman with a two by four because she had broken up with him and she had put him out of her house. And the judge has told you and he will tell you again that you can use the facts of that conviction to determine how much weight you should give that aggravating circumstance that the defendant has previously been convicted of a felony involving violence to a person. And I would suggest to you that you should give that aggravating circumstance tremendous weight. Can you think of anything more horrific? Can you think of any past more horrific? Can you think of anybody that is more deserving of the death penalty based on a prior conviction of violence? These two separate women, about 12 years apart, that has tried to get away from the defendant; put him out of their house; told him “I don’t want you anymore, Franklin Fitch.” He took a two by four to one and busted her head open, broke her arm.

When you look at the statutory aggravating circumstances, we’re going to ask you to find beyond a reasonable doubt that he has previously been convicted of a felony involving violence to a person. Specifically a felony reckless endangerment with a deadly weapon. You’ve seen the affidavit of complaint on that. You’ll have that in the jury room if you want to. That’s something that really can’t legitimately be contested. That is his conviction. That is his history. That is what he has done. And the court will tell you that you can consider the underlying facts to decide how much weight you want to give that aggravating circumstance. And the underlying facts are absolutely unconscionably brutal. And to graduate from beating a woman in the head with a two by four ten times, striking her on her arm several times, beating her in her face, putting a woman in the hospital who has rejected him, to get convicted of that felony offense and to graduate from that to taking a gun. Beating isn’t enough. It’s not enough for you to take a board and bust somebody’s head open. It’s not enough for me to take a two by four and maim somebody and put them in the hospital. Let’s graduate to just blowing somebody away. Let’s take a gun and start killing in public places, work places.

Has the State of Tennessee proved to you one or more statutory aggravating circumstances beyond a reasonable doubt? Yes, we have. We proved two. And both of them are absolutely horrendous. Both of them are egregious. Can you think of anything more outrageous, more offensive, more ridiculous than folks in our community who can’t take care of themselves, being subjected to the terror and the threat of death, the great risk of death that this defendant created on February 28th, 2002 when he went into Spring Gate Nursing Home and shot up that place? Folks that go to work shouldn’t have to deal with that. Family members that go visit loved ones who are ill, terminally ill shouldn’t have to be exposed to having to duck bullets in this community. Patients who can’t take care of themselves should not have to live through the terror and the horror of hearing bullets running through slamming through windows and through walls and not knowing what in the world is going on. Can you think of anything more egregious than what he did on February 28th, 2002? Can you think of a worse felony involving violence to a person than what he did to Charlene Warner on April 3rd, 1991? If you break up with somebody and that person comes to your house and attacks you and bludgeons you with a two by four, can you think of any two worse aggravating circumstances than what you have before you when you’re making the decision as to whether or not the State has carried its burden of proof.

The following excerpts are from the state’s closing argument which pertained to rebutting the defendant’s mitigation evidence:

He was not under the influence of extreme mental or emotional disturbance. This was a cold, calculated, brutal execution. This is a person that has a history, has a pattern of when someone tells him I don’t want you anymore, go away, he gets mad and he exacts revenge by shooting or beating women.

The third [mitigating circumstance] says that he lacked the capacity to appreciate that his conduct was wrong because he had a mental disease or he was intoxicated. You have already rejected his idea that he was intoxicated. You know he was not intoxicated when he killed Angela Carroll. Based on his history you know that’s what he does. He was not intoxicated when he killed Angela Carroll. He was not intoxicated when he beat, pummeled, battered Charlene Warner. That’s what he does when he is rejected. This is not a question of whether or not he was intoxicated. It’s not a question of whether or not based on his intoxication he didn’t appreciate what he was doing. He knew exactly what he was doing.

But listen to what they didn’t tell you. Franklin Fitch grew up in a bad background. A lot of folks grew up in bad backgrounds. I would submit that probably some of the folks on the jury probably grew up in less than ideal backgrounds. But it doesn’t give you the right to go out and kill and batter and maim folks because your background was less than pristine. Mr. Bouie told you that they have five other brothers and sisters. And yeah, they may have some problems with alcohol and drugs, but no, Mr. Coffee, we don’t go out and kill people. We don’t take two by fours to folks and break heads and break arms. We don’t do that. So don’t let his less than ideal background think that that’s justification for him behaving the way that he has behaved. Hold him responsible for what he has done. These are choices that this defendant has made. He has made these choices. His background didn’t force this man, did not turn this man into a killer. His background did not turn him into an abuser. His background did not turn him into a batterer. His background did not make him grow up to be a person who engages in domestic violence and in a continuing theme of escalating domestic violence towards women.

The affidavit of complaint, the very substance of the proof to establish the prior felony conviction as one that involved use of violence against another person, was made an exhibit at the sentencing hearing and published to the jury. The state repeatedly emphasized the underlying facts of the prior conviction, as erroneously established by the affidavit of complaint, during its closing argument. The state argued that the jury should not only use the prior convictions to find an aggravating circumstance beyond a reasonable doubt, but also to rebut the existence, and not just the weight, of mitigating factors.

After reviewing the entire record in the light of Shepard, Ivy, and Howell, we can reach no conclusion other than the error of charging and allowing the jury to consider the (i)(2) aggravating circumstance was not harmless error beyond a reasonable doubt. Accordingly, we conclude that while the conviction of first degree murder should be affirmed, the death sentence must be reversed and the case remanded for a new sentencing hearing. Of course, the state is not precluded from attempting to prove the (i)(2) aggravator at the new hearing as long as the evidence complies with the limitations set forth in Shepard and Ivy.

James Slaughter v. Parker, 2006 U.S. App. LEXIS 27050 (6th Cir. 11/1/2006) 7-7 split upholding death on a very unusual fact pattern and a tough dispute on how much prejudice a petitioner must show under Strickland v. Washington.

A. Penalty-Phase Transgressions: Brain-Damage Evidence and Self-Serving Testimony

Disagreements about whether counsel’s ineffectiveness prejudiced a capital defendant are commonplace; the majority’s holding on this point, however, creates two particular conflicts that should have been resolved by the en banc Court.

First, it conflicts with cases concluding prejudice occurred where, although some mitigating evidence was presented, evidence of severe childhood abuse and diminished mental capacity was not. See Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). This conflict is particularly stark where the absent evidence includes, as here, possible brain damage to the defendant. See Harries v. Bell, 417 F.3d 631 (6th Cir. 2005) (granting relief where defendant “suffered damage to the frontal lobe of his brain, . . . [damage which] can result from head injuries and can interfere with a person’s judgment and decrease a person’s ability to control impulses”); Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003) (granting relief where jury did not hear of defendant’s brain damage from severe blow to the head during childhood); Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir. 1996) (granting relief where jury did not hear of defendant’s brain damage). Slaughter will be executed in violation of this clear law. Second, the holding presumes a defendant’s self-serving testimony—even when he testifies to spare his own life—has the same impact regardless of whether other witnesses corroborate it.

That conflicts with the Supreme Court’s recognition in Skipper v. South Carolina, 476 U.S. 1, 8 (1976), that a defendant’s testimony is inherently suspect and a jury will naturally discount it. See also Clinkscale v. Carter, 375 F.3d 430, 445 (6th Cir. 2004) (noting that defendant’s testimony would appear “much more credible” had even one other witness testified similarly). The image presented to the jury was a man so loathed that nobody—not even his family—would corroborate his testimony or plead for his life. In reality, his family—including the younger siblings he protected as a child—would have testified in this way, but they never knew he was on trial. This Court nonetheless approves his execution.

B. The Waiver Problem

The majority also held that Slaughter failed to raise adequately to the state supreme court his federal claim that he was denied due process and an impartial sentencing jury when the trial court allowed a juror to question him. Slaughter’s brief to the state court on this issue stated that “[b]ased on this denial of due process and a fair trial by an impartial jury, appellant is entitled to a new trial.” The brief then cited to the “14th and 6th Amendments.”

Relying on Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005), the majority properly explained that one way a petitioner may fairly present a federal claim is by “phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right.” Despite Slaughter’s explicit reference to the appropriate constitutional amendments, however, the majority ruled Slaughter did not properly raise his claim because he did not reference federal cases. That ruling conflicts with Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003), in which this Court held that “[t]here is no requirement that the petitioner cite to cases that employ federal constitutional analysis where he has phrased his claim in terms of a denial of a specific constitutional right.” The majority’s decision thus effectively overrules—without discussion—Newton and similar decisions. Without en banc review, we are left with authority that stands for an absurdity: A petitioner fails to present a federal claim for relief when citing to the precise constitutional text that is the genesis of the claim itself.

It is no surprise that the jury sentencing “James Earl Slaughter”—an apparent menace with no redeeming qualities and not even a single family member to suggest his life should be spared—felt compelled to sentence him to death. Although we cannot be absolutely certain that a single juror sentencing Jeffrey Leonard—a likely brain-damaged man whose family would corroborate his testimony and plead for his life—would come to a different conclusion, this Court’s decision leaves one aspect of this case indisputable: We will never know. I respectfully dissent.

Richard Joseph v. Coyle, 2006 U.S. App. LEXIS 27697 (6th Cir 11/9/2006) Relief granted as their lacked suffiicient evidence that Joseph was the actual killer as required by precedent and :the jury instructions repeatedly and incorrectly stated (either explicitly or by reference to earlier misstatements) that the capital specification required proof that Joseph was the principal offender in the commission of the kidnapping" and not the actual homicide.

It is immediately apparent, however, that none of this evidence shows that Joseph personally inflicted either stab wound. This fact does not present an obstacle to conviction in a case where the defendant was the only person either present when the victim was murdered or otherwise involved in the crime, the logic being that he is [*34] the only person who could have actually committed the murder. But when the defendant and a coconspirator are present at the time and place of the murder, there must be evidence showing that the defendant struck the fatal blow(s). See State v. Cunningham, 105 Ohio St. 3d 197, 2004 Ohio 7007, 824 N.E.2d 504, 512, 531 (Ohio 2004), cert. denied, U.S. , 126 S. Ct. 110, 163 L. Ed. 2d 122 (2005); Taylor, 612 N.E.2d at 325.

All indications are that Joseph was neither alone with Young on the night of the murder nor the only person involved in the crime; Bulerin was both present and involved in other ways. Indeed, the very evidence cited by the Ohio Supreme Court to implicate Joseph also implicates Bulerin. The evidence that placed Joseph at the scene (witnesses saw Forest's car in front of Wireman's home) also put Bulerin at the scene, as the two men were driving around together in Forest's car the night of Young's disappearance and murder. n9 Joseph II, 653 N.E.2d at 289. The fact that Young's body was wrapped in Visqueen implicates Bulerin as well as Joseph, as both had access to the material. Id. at 289. And the fact that Young's body was discovered on Joseph's grandparents' property also implicates Bulerin as well as Joseph, as two days after the murder, both men talked to a coworker about hauling trash to that property. Id. at 290. There was other evidence of Bulerin's involvement, too: both Joseph and Bulerin often borrowed Forest's car and kept items in it, id. at 288, 289, and Bulerin changed the tires of Forest's car the day after Young's disappearance even though they were new, id.

There was also evidence that Joseph and Bulerin, who shared a residence, id. at 288, were close. As Chief Justice Moyer demonstrated in dissent, their relationship supplied Bulerin with ample motive to kill Young:

[T]estimony was presented [*36] that the co-defendant Bulerin . . . was highly involved with martial arts, and protective of "his kid" (Joseph). Forest confirmed that Bulerin had indicated that he would "either snap your neck or put a bullet through your head and throw you out alongside the road" if you ever "screwed with or messed with" him or Joseph. Joseph's mother testified that, on one occasion when her son was ill, Bulerin told her not to "waste [her] time" in attempting to take Joseph home with her because she "wasn't going to get [her] son." She testified that Bulerin had threatened to break into her home and take something, or kill her dogs. At Joseph's mitigation hearing, Bulerin's ex-wife testified that, while she could not believe Joseph actually killed Young, she could believe that behavior of Bulerin.

Id. at 301 (Moyer, C.J., dissenting) (second and third alterations in original). n10 In light of all this evidence connecting both Joseph and Bulerin to the murder, it is not surprising that the two men were jointly indicted. Id. at 290. Indeed, the state's entire theory of the case was that the two acted together.

Of course, the evidence of Bulerin's presence at the scene and other involvement does not rule out the possibility that Joseph was the actual killer. It means, however, that actual killing cannot be attributed to Joseph simply because he was involved and present at the scene. See Cunningham, 824 N.E.2d at 512, 531; Taylor, 612 N.E.2d at 325. Because either of the two knife wounds in Young may have been fatal, the state had to prove that Joseph personally inflicted at least one of the wounds, but it offered no evidence of this whatsoever. In fact, the state conceded this very point during its closing argument: "The State of Ohio can't tell you. I wish I could. I wish I could tell you exactly what happened. I don't know who struck the death blow." 11 J.A. at 3907 (Trial Tr. at 1976). Thus, the evidence showed at most that Joseph "ha[d] hands-on involvement in a homicide," Skatzes, 104 Ohio St. 3d 195, 2004 Ohio 6391, 819 N.E.2d 215, 240-41, which is insufficient to prove that he was the actual killer.

In light of the clear line of precedent requiring proof that Joseph was the actual killer, the equally clear precedent that the actual-killer [*38] element requires proof that the defendant personally inflicted the death blows in a situation where (as here) the defendant and a coconspirator are both present at the scene, and the total absence of such proof (accompanied by the state's concession that it could not offer such proof, to boot), we conclude that the Ohio Supreme Court's decision was an unreasonable application of the due-process standard of Jackson v. Virginia. n11

Henry Lankford v. Arave, 2006 U.S. App. LEXIS 27466 (9th Cir 11/7/2006) Trial "counsel requested critical jury instructions that were correct under federal law but clearly in error under Idaho law." Counsel’s requested a jury instruction that it could convict on the basis of the co-defendant's testimony alone. Under Idaho law there needed to be corroboration. "We agree with the district court that [counsel's] requested jury instructions were simply wrong under Idaho law. The [erroneous] instruction was not corrected by other instructions. Although the question is close, we disagree with the district court as to the prejudicial effect of the error. Counsel’s request that the jury be instructed that it could convict on the basis of [co-defendant's] testimony alone was plainly prejudicial."

As we review FitzMaurice's performance, we must refrain from second-guessing his strategies and acknowledge the "wide range of reasonable professional assistance." Id. at 689. Nevertheless, we must hold FitzMaurice to his "duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Id. at 688. Even considering "conduct from counsel's perspective at the time," in at least one respect, FitzMaurice's representation falls below the standard of "reasonable professional [*14] assistance." Id. at 689. We agree with the district court that there was no reasonable tactical advantage in requiring an erroneous jury instruction that would allow the jury to give greater weight to Bryan's testimony. n2 In this case, "[c]ounsel's errors with the jury instructions were not a strategic decision to forego one defense in favor of another. They were the result of a misunderstanding of the law." United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996).

The error in the instructions requested by FitzMaurice is obvious. Instruction 15 left out a critical element of Idaho law controlling the use of accomplice testimony: the requirement of corroboration. Idaho law provides:

A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.

IDAHO CODE § 19-2117(2005) (emphasis added). As the Idaho Supreme Court has explained, "'[the] statute . . . absolutely prohibits a conviction in a criminal case upon the uncorroborated testimony of an accomplice, even although [sic] the jury may believe such testimony to be entirely true, and that it establishes the defendant's guilt beyond a reasonable doubt.'" State v. Emmons, 94 Idaho 605, 495 P.2d 11, 15 (Idaho 1972) (quoting State v. Carr, 28 Ore. 389, 42 P. 215, 216 (Or. 1895) (evaluating a statute that the Emmons [*16] court deemed "essentially the same as I.C. § 19-2117")).

The Idaho statute reflects the state's unwillingness to hand down convictions based solely on accomplice testimony. As the court in Emmons observed:

[T]he criminal law has shown the sources of such testimony to be generally so corrupt as to render it unworthy of belief, and that it is therefore better as a matter of public policy to forbid a conviction on the uncorroborated testimony of an accomplice, although the guilty may thereby sometimes escape punishment, than to leave it possible for the conviction of an innocent person on such testimony.

Id. (quoting Carr, 42 P. at 216); see id. ("We concur with the reasoning of the Oregon Supreme Court . . . ."). The Idaho Court of Appeals has explained that "[t]his statutory corroboration requirement is intended to protect against the danger that an accomplice may wholly fabricate testimony, incriminating an innocent defendant in order to win more favorable treatment for the accomplice." Matthews v. State, 136 Idaho 46, 28 P.3d 387, 390 (Idaho Ct. App. 2001).

FitzMaurice explained that he [*17] performed his research at the library of the University of Idaho Law School, that there were no model instructions for Idaho at the time, and it seems that he took the instruction from a collection of federal instructions. In this, FitzMaurice was dutiful, conscientious--and quite in error. Federal law permits bare accomplice testimony, while Idaho expressly forbids it. Compare Emmons, 495 P.2d at 15, and State v. Gillum, 39 Idaho 457, 228 P. 334, 334 (Idaho 1924), with Darden v. United States, 405 F.2d 1054, 1056 (9th Cir. 1969) (noting that "a conviction in federal court may be based on the uncorroborated testimony of an accomplice"). FitzMaurice simply overlooked important differences between Idaho law and federal law. It was a young lawyer's mistake, akin to failing to check the pocket part, but it was a mistake, plainly enough. As the district court noted, "[s]imply reviewing the three instructions would have revealed that two instructions . . . conformed with Idaho's law regarding accomplice testimony, while [the third] was substantially different, as well as not being in conformance with Idaho law."

FitzMaurice's error [*18] is perhaps understandable, given his limited experience and resources, n3 but it is constitutionally inexcusable. By inviting a jury instruction that misstated state law and made it easier for the jury to convict his client, counsel unwittingly undermined the very "adversarial testing process" he was supposed to protect. Strickland, 466 U.S. at 688. We agree with the district court that in this regard his performance fell below the "range of reasonable professional assistance." Id. at 689.

Whether the erroneous instruction [*19] rendered the ultimate verdict in this case unreliable is a harder question. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. To reverse we must find a "reasonable probability that . . . the result of the proceeding would have been different" had the erroneous instruction not been given. Id. at 694; see also Span, 75 F.3d at 1390. And we must consider the instructions "as a whole" in evaluating the magnitude of the error. Middleton v. McNeil, 541 U.S. 433, 437, 124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004)."[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Boyde v. California, 494 U.S. 370, 378, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (internal quotation marks omitted); see also Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). Accordingly, Mark need not establish error for certain."[A] defendant need not establish that the jury was more likely than not to have been impermissibly [influenced] by the instruction." Boyde, 494 U.S. at 380. [*20] "If the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in [an impermissible] way . . . ." Middleton, 541 U.S. at 437 (internal quotation marks omitted) (emphasis added).

The government argues that any error was cured because there were additional, proper instructions (instructions 18 and 19) that arguably contradicted instruction 15. Instruction 18 stated that "a defendant cannot be found guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence which tends to connect such defendant with the commission of the offense." (emphasis added). Instruction 19 defined "corroboration" and instructed the jury to "assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the offense."

When instructions 15 and 18 are read together they can be reconciled, but not in a way that is helpful to the state. Instruction 18 plainly states that "a defendant cannot be found guilty based upon the testimony [*21] of an accomplice unless such testimony is corroborated by other evidence." That, of course, contradicts instruction 15 which states that an accomplice's testimony "may be received in evidence and considered by the jury, even though not corroborated by other evidence." The two statements seem to be bridged by the last sentence of instruction 15: "You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that unsupported testimony beyond a reasonable doubt." This line appears to create an exception to instruction 18's warning not to credit uncorroborated testimony: The testimony can be credited if the jury believes it beyond a reasonable doubt. To the trained legal eye, the "beyond a reasonable doubt" adds nothing to instruction 15 because a criminal jury generally must find proof beyond a reasonable doubt to return a guilty verdict. See Cool v. United States, 409 U.S. 100, 104, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972); In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Nevertheless, a conscientious jury might read instructions 15 and 18 together to state a general rule and its exception: A defendant [*22] cannot be found guilty based upon the testimony of an accomplice unless either (a) such testimony is corroborated by other evidence, or (b) the jury believes the unsupported testimony beyond a reasonable doubt. The instructions, thus reconciled, remain contrary to Idaho law. Accordingly, the jury could have convicted Lankford either because they found Bryan's testimony to be adequately supported, n4 or because they believed his uncorroborated testimony beyond a reasonable doubt. "[W]hen a case is submitted to the jury on alternative theories the [impermissible legal error in] any of the theories requires that the conviction be set aside."Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); see also United States v. Griffin, 502 U.S. 46, 59, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991) ("[T]he term 'legal error' means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.").

It is hard to imagine a case in which such an instructional error could have caused more damage. Erroneous instruction 15 went to the heart of the case. Although there is overwhelming evidence that one or both of the Lankford brothers killed the Bravences, only Bryan's testimony singled out Mark as the killer. There were no witnesses to the murder, and no murder weapon was admitted into evidence. There was no forensic or circumstantial evidence suggesting that Mark, rather than Bryan, beat the victims to death. Bryan's testimony was vital to the prosecution, and instruction 15 allowed the jury to convict Mark on Bryan's word alone, in obvious violation of Idaho law. Moreover, Bryan had every incentive to lie: If Mark did not kill the Bravences, then Bryan must have done the deed. Additionally, Bryan thought he had a deal to avoid the death penalty in exchange for his testimony against his brother. See Lankford v. Idaho, 500 U.S. 110, 120-121, 111 S. Ct. 1723, 114 L. Ed. 2d 173 (1991); State v. Lankford, 127 Idaho 608, 903 P.2d 1305, 1309 (Idaho 1995). This is precisely the declared purpose for Idaho's corroboration requirement: "to offset the danger that an accomplice [*24] may wholly fabricate testimony, inculpating an innocent person, in order to purchase immunity from prosecution, or lenient treatment, for his own complicity in the crime." State v. Pierce, 107 Idaho 96, 685 P.2d 837, 842 (Idaho Ct. App. 1984) (citations omitted).

Considering the instruction "in the context of the instructions as a whole and the trial record" does not inspire confidence in the reliability of Mark's verdict. Estelle, 502 U.S. at 72. The state nonetheless attempts to salvage Mark's conviction by relying on Idaho law, which provides that "[a]n error in failing to give [a corroboration] instruction may be harmless if ample corroborative evidence was presented." State v. Hill, 140 Idaho 625, 97 P.3d 1014, 1019 (Idaho Ct. App. 2004). The state contends that the prosecution presented corroboration adequate to meet the requirements of Idaho Code § 19-2117.

The Idaho Supreme Court has explained in general terms what corroborating evidence is required by § 19-2117:

The statute permits convictions upon the testimony of an accomplice with the limitation that the accomplice shall be corroborated [*25] by such other evidence as tends to connect the defendant with the commission of the crime, and hence the corroborative evidence must be independent of the testimony of the accomplice and connector tend to connect the defendant with the commission of the crime charged. Corroboration of an accomplice need only connect the accused with the crime, it may be slight, and need only go to one material fact. It may be entirely circumstantial. The jurors are the judges of the weight and credibility of the testimony under proper instructions.

State v. Garcia, 102 Idaho 378, 630 P.2d 665, 672 (Idaho 1981) (quoting State v. Bassett, 86 Idaho 277, 385 P.2d 246, 248 (Idaho 1963)) (citations omitted). Idaho courts have also explained that:

No general rule can be stated with respect to the quantum of evidence corroborating an accomplice's testimony which is necessary to warrant a conviction; each case must be governed by its own circumstances, keeping in view the nature of the crime, the character of the accomplice's testimony, and the general requirements with respect to corroboration.

Gillum, 228 P. at 336. We note that most [*26] of the Idaho cases addressing the statute arose as claims disputing the sufficiency of the evidence, not in the context of an erroneous instruction, and in sufficiency cases "[the c]ourt will construe all of the evidence in favor of upholding the verdict." Hill, 97 P.3d at 1018. In such cases, the court must uphold the jurors' verdict if there is any basis for a finding of corroboration because they are "the judges of the weight and credibility of the testimony under proper instructions." Garcia, 630 P.2d at 672 (emphasis added) (quoting Bassett, 385 P.2d at 248); see also State v. Gonzales, 92 Idaho 152, 438 P.2d 897, 901 (Idaho 1968).

The error here is a more fundamental one. The jury was instructed to overlook the question of corroboration, and we must ask whether, given proper instructions, there is a "reasonable probability" that the jury would have found Bryan's testimony unsupported. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The Idaho cases suggest that, where the trial court has refused a corroboration [*27] instruction under § 19-2117, the Idaho Supreme Court has demanded substantial evidence of corroboration before it will find the error harmless. In State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (Idaho 1985), the Idaho Supreme Court found that the trial court committed harmless error when it omitted the corroboration instruction in a felony murder conviction where Scroggins "admitted that he assisted [the accomplice] in taking the victim to the creek, that he, Scroggins, had handcuffed the victim, that [the accomplice] had used Scroggins' knife, that he, Scroggins, had attempted to rape the victim and that he had been in the vicinity when [the accomplice] had, in fact, raped and murdered the victim." Id. at 1158. The Court concluded that "although Scroggins' testimony did not corroborate [the accomplice's] version of the facts, it was sufficient to permit a finding that Scroggins was connected with the commission of the offense." Id. In Matthews v. State, 136 Idaho 46, 28 P.3d 387 (Idaho Ct. App. 2001), Matthews sought post-conviction relief from his conviction for first degree murder. Id. at 389-90. Matthews argued that his [*28] counsel was ineffective because he failed to request a jury instruction on corroboration of accomplice testimony. The court concluded that the jury should have been instructed, but it found the error was harmless. Matthews had admitted that he joined four other juveniles in beating the victim; testimony from other witnesses also corroborated the testimony from Matthews's accomplices. In this case, "the outcome of the trial would [not] have been different had Matthews's counsel requested a jury instruction regarding the corroboration of accomplice testimony. Id. at 391-92.

These cases, in which there was substantial corroborating evidence, contrast with the Idaho Supreme Court's decision in State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (Idaho 1968). In that case, the Idaho Supreme Court held that failure to give the corroborating evidence instruction was not harmless even though the evidence included witnesses who saw the defendant fight with the victim before the murder and who recognized the defendant's car at the subsequent drive-by shooting. Id. at 899, 901. Investigators found a spent cartridge at the defendant's house and a rifle at his mother's apartment. [*29] Id. at 900. The defendant allegedly asked police at his booking, "How is the fellow I shot, is he ded [sic] or what?" Id. at 899. Even with all of this evidence, the Court reversed the conviction because the testimony of an accomplice (a passenger in the car) was not properly limited with a corroboration instruction. "[T]he [trial] court had a duty to instruct the jury on all matters of law necessary for their information," the Court explained, "and the defendant was entitled to have his theory of the case submitted to the jury upon proper instructions." Id. at 901.

The nature of the evidence sufficient to corroborate is further explained in State v. Campbell, 114 Idaho 367, 757 P.2d 230 (Idaho Ct. App. 1988). In that case, Campbell was accused of kidnaping and murder. Id. at 231. He argued that there was insufficient evidence to corroborate the testimony of his two accomplices, who testified that Campbell had repeatedly kicked the victim. The state introduced a pathologist who testified that the victims injuries were consistent with the testimony of the accomplices. The Idaho Court of Appeals held that this was not sufficient:

Without [*30] any question, the autopsy corroborated the accomplices' testimony describing the infliction of severe injuries on Atwood. However, under I.C. § 19-2117, evidence that is merely corroborative of the "commission of the offense, or the circumstances thereof" is not enough. Instead, the evidence necessary to serve as corroboration of the accomplice's testimony must tend "to connect the defendant with the commission of the offense."

Id. at 232-33. Although the pathologist's report was not sufficient corroboration, the court found sufficient corroboration in other evidence, including statements that Campbell made to others. Id. at 233-34.

The corroborative evidence the state points to in this case--including, principally, the testimony of the state's pathologist, Dr. Robert Cihak--implicates the Lankfords generally, not Mark specifically. There is no evidence that uniquely points to Mark as the perpetrator. All of the state's evidence equally implicates Bryan. The only physical evidence presented at trial was circumstantial, and all of that evidence also linked Bryan to the murders. The only evidence tending to show that Mark was the killer was [*31] his brother's word. We conclude there is a "reasonable probability" that, with proper instructions on the question of corroboration, the jury would not have convicted Mark of first degree murder. Strickland, 466 U.S. at 694.

We find FitzMaurice's error in drafting jury instructions an adequate grounds for reversal. Although we do not reach the other grounds on which Mark contends that FitzMaurice rendered ineffective assistance of counsel, the evidence Mark has presented in support of those claims reinforces our judgment that Mark was prejudiced in this case. At the federal evidentiary hearing, Mark presented experts who questioned the reasonableness of FitzMaurice's failure to hire an independent forensics expert to investigate Mark's claim that Bryan beat the Bravences with a large river rock. The testimony of Dr. Todd Grey, forensic pathologist and chief medical examiner for the state of Utah, strongly suggests that an independent forensic investigation would have revealed serious flaws in Bryan's story that Mark beat the Bravences with a stick. He pointed out that the "extensive fragmentation" of the victim's skulls suggests the couple were bludgeoned with a larger [*32] object, such as the river rock Mark described. He described Cheryl Bravence's skull as "a pile of bones" before it was reconstructed by forensics experts, and explained that her skull showed multiple linear and branching fractures. In at least one area, parts of the bone were missing where bone had been broken off and driven downwards into her brain. Robert Bravence's skull also required reconstruction, and it had to be reinforced with clay where sections of bone were missing. Because the Bravences' skulls showed "extensive fracturing," "depression of bone," and "fragmentation" on virtually all sides, Dr. Grey concluded that their injuries were "much more consistent with the scenario in which these individuals were struck with the large rock." To cause this level of destruction with a twelve-inch stick, the expert testified, "would take a tremendous amount of force," "an horrendous amount of force." "I am not saying it is impossible," Dr. Grey explained, "but it would certainly take a lot of effort." Although Bryan claimed Mark dealt Robert a "hard blow" that necessarily dislodged portions of his skull, Bryan testified at his own trial that there were no sounds "such as bones breaking" [*33] and that there was no blood. The single skull-crushing strike that killed Cheryl was apparently also silent and bloodless. Bryan certainly did not describe a clubbing that used "an horrendous amount of force."

Dr. Grey's testimony not only cast doubt on the identity of the murder weapon and the amount of force employed, it clearly showed that the victims must have endured multiple blows. Bryan's description of a quick, three-strike attack did not fit the physical evidence. It was more likely that the victims were struck several times than that they were each hit once or twice (as Bryan maintained), because skulls were not only severely fractured and fragmented, but sustained damage on nearly every side, suggesting blows from various angles. Cheryl Bravence's skull showed fractures on the top and back of the skull, breaks near the right ear, and fractures in the left temple-hardly the work of a single silent strike to the neck. Her husband's skull sustained fractures at the back and top of the head, was missing parts of bone from the left side, and suffered breaks in the left eye socket, right brow, and left jaw. A fracture also separated his alveolar plate--a portion of bone that [*34] supports the upper teeth. "To inflict the extent of damage that I see in this skull with three blows is pretty far beyond the pale of what I would expect to be able to see," Dr. Grey explained. "I can't see how that pattern would be produced by a stick with that scenario [of three blows] that you described, even with as much force as you could possibly muster, I don't see how you could get that pattern." On cross examination, Dr. Grey admitted that the injuries he observed could have been caused by as few as three blows to Cheryl and four to Robert--making seven strikes altogether--but more blows would likely be needed. In addition, he explained that Bryan's description of the location of the blows did not match the physical evidence. The extensive injuries on both sides of the skulls could not have been produced during the attack Bryan described, where an assailant struck the victims only "in the back of the neck . . . . Not in the head."

Had Dr. Grey been asked to serve as an advisor in a trial that presented this sort of forensic evidence, he would have advised the attorney cross examining Bryan to "get [a] detailed . . . description of how the blows were inflicted, the number [*35] of blows, what kind of a swing was used, what the implement, the stick, was like, [and whether] it appear[ed] to be weighted or unweighted" so that the testimony could be tested against the pattern of injury. Dr. Grey affirmed that his type of questioning, together with detailed questioning of an expert pathologist, was "the sort of thing you customarily do when you are retained to work a case." Dr. Grey did not disagree with Dr. Cihak's testimony at trial that the injury was the result of blunt trauma that could have been caused by a pipe, nightstick, rock, or a gun. The problem was that Dr. Cihak was never "really pinned down on what [wa]s more likely given the pattern of injury." "He never was asked to say among those choices what, seeing this pattern of injury, what seems more likely . . . ." By testifying to injuries caused by blunt trauma, Dr. Cihak merely affirmed "[a] myriad of possibilities" as to the murder weapon.

The forensic evidence, considered in light of Idaho's corroborative requirement, underscores the inconsistencies in Bryan's story. Bryan wavered in his physical description of the weapon and its origin. He described the murder weapon in ambiguous terms [*36] as a "sort of nightstick" made of wood, "a little limb deal" and a "little club" twelve inches long. In an interview with the sheriff, he had trouble remembering specifics about the stick. It "could have been" a piece of pipe, but Bryan did not know "for sure." When asked whether the weapon was a foot long, he said "umm, probably about, yeah, probably about a foot and a half, maybe." His descriptions changed over the course of the investigation. In another of his initial statements, given to police, he claimed that the weapon was "a stick like a night stick that a policeman wears but only about a foot long." He told an FBI investigator that it was "a 'night stick' like a policeman uses. [Mark] had the 'night stick' for a long time and carried it in his car." On direct examination at his own trial, Bryan said the weapon was "a thing about a foot long, which is a little club that he has had for a long time." He claimed he "d[id]n't know where [Mark] got it from. . . . Probably bought it somewhere." Later, at Mark's trial, Bryan remembered the weapon's appearance and history clearly. It was "a sort of a night stick, in a way . . . . It's about a foot long, reddish brown wood. I [*37] think it, I believe it came from me. I believe my wife--my ex-wife gave it to me, and I gave it to Mark a long time ago."

At his trial, Bryan claimed that he did not know Mark was carrying the club when the two entered the Bravences' camp. "I never saw the club," he claimed, explaining that it was so small it could "[v]ery easily" have been concealed in a pocket. He also said he had not seen the little club since the killings. It could have been at the Bravences' camp site, he explained, or it could be at the spot where the bodies were unloaded or the place they were ultimately hidden. "I'm sure it would be in one of the three places," he told the court. Mark did in fact carry a nightstick, and it was recovered. Police described it as a wooden nightstick, dark brown or black in color, about eighteen inches long. The stick was not found at the murder site, on the road, or at the Bravences' grave site. It was found in Mark's abandoned car. The nightstick the police found in Mark's car would, of course, have been powerful corroboration of Bryan's testimony, but the state--to its credit--declined to introduce it into evidence because it could not be linked to the killings. n5

In sum, Bryan's testimony about the murder weapon, the number of blows, and the force of those blows was vague, contradictory, and--when considered in light of the Bravences' fragmented skulls--not persuasive. It is this precise scenario--an accomplice who must implicate the defendant in order to hide his own culpability--that Idaho's corroboration requirement addresses. We agree with the district court that FitzMaurice's requested jury instructions were simply wrong under Idaho law. The corrupted instruction was not corrected by other instructions. Although the question is close, we disagree with the district court as to the prejudicial effect of the error. There was ample evidence that either one or both of the Lankfords killed the Bravences, but there was no evidence that Mark attacked and killed the Bravences other than Bryan's testimony, and there was strong evidence raised at the habeas proceedings suggesting that Bryan's testimony is inconsistent with the forensic evidence. Counsel's request that the jury be instructed that it could convict on the basis of Bryan's testimony alone was plainly prejudicial.