This edition looks at two recent cases addressing indigent defense, one capital,State v. Matafrom Nebraska, and the other noncapital,Simmons v. State Public Defenderfrom the Iowa Supreme Court.

John Wesley Hall, Jr., peggedSimmonswhen he noted it “is a remarkable opinion worthy of being a brief law review article itself considering the NLADA and ABA standards, cases considering 'takings' of counsel’s time, counsel's standing, and systemic ineffective assistance from a fee cap creating a disincentive for defense counsel to adequately perform in indigent criminal appeals.”Simmonshas exceptionally good dicta, as well as a well thought analysis on fee caps & IAC, as well as the burden of proof in allegations regarding systemic failures in representing classes of people.

InMatathe Nebraska Supreme Court examines pro se litigation and capital postconviction cases.Nebraska does not appoint postconviction counsel automatically, even in capital cases. Mr. Mata was sentenced to death and lost on direct appeal. Subsequently, he cobbled together a skeletal postconviction petition, a request for counsel and a request for an evidentiary hearing.Rather than appointing counsel or even having Mr. Mata brought to the court house to argue the request for counsel the trial court “held a preliminary hearing to determine whether to grant the request for counsel and whether to grant an evidentiary hearing” in which “Mata participated telephonically.“The trial court denied all relief.Mr. Mata was then appointed counsel on appeal.That counsel argued to the Nebraska Supreme Court “that Mata has viable ineffective assistance of counsel and other claims and that if he is not allowed to amend his motion, he will be procedurally barred from ever bringing those claims before being put to death.” Remanding, the Nebraska Supreme Court agreed with appointed counsel that Mr. Mata should have been appointed counsel and the trial court was ordered to permit Mr. Mata's new counsel to amend his motion for postconviction relief.Left out of the opinion, and palpably so, was whether, or more likely when and where, Nebraska will adopt a rule for the automatic appointment of counsel for persons sentenced to death.

As if trying to purposefully tie in with this week's theme, the Los Angeles Times provides coverage of the indigent defense crisis as it impacts death penalty appeals in California in"Lack of funding builds death row logjam,Terry Lenamonhas more. TheCongressional Quarterlyrecently published a2010 Death Penalty Review.Retired Justice John Paul Stevens, as reported byAdam Liptak in the New York Times, has vigorously admitted that capital punishment jurisprudence has failed. Thelegislatures in Connecticut and Illinois are expected to have floor votes on the repeal of the death penalty in coming months with theJudiciary Committee of the Illinois State House having a hearing Tuesday on a bill to end the death penalty – SB 3539; Mr Lenamon also has this piece onthe Illinois Capital Punishment Reform Study Committee. In thiseffective piece, DPIC examine the current status of lethal injection developments around the country.After an international outrage,the UK has decided to bar exportto the US of the lethal injection drug sodium thiopental. TheTennessee Supreme Court,in an order/opinion that is currently unavailable,has blocked the wayfor the execution of Stephen West and several others due to the changes in the state lethal injection regs.

Pending Executions

November

30 Steven Michael West* (appears to be stayed)

December

7 Billy Irick* (Tenn) (appears to be stayed)

16 John David Duty* (Okla)

Stays & Commutations

November

16 Sidney Cornwell* (Ohio) (commuted)

19 James Robertson* (S.C.)

December

1 Steven Staley* (Tex) (forcible medication &Ford)

Executions

November

4 Phillip Halford* (Ala)

*"serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [ via DPIC]

SCOTUS

• Richard Cameron Gamache v. California, No.10–5196 (11/29/2010) Four justices commenting on the denial of cert where they assert the court should have applied theChapmanstandard in regards to wrongfully admitted evidence (jury was "accidentally" given evidence during deliberations that the trial court excluded)

Week ofNovember 22, 2010: In Favor of the Accused or Condemned

• Kent A Simmons v. State Public Defender, 2010 Iowa Sup. LEXIS 119 (Iowa 11/24/2010) “[I]n order to ensure effective assistance of counsel for indigent defendants, the state has an affirmative obligation to establish a system of indigent defense that is reasonably likely to provide for zealous advocacy on behalf of the criminal defendant. A claim that a state’s method of providing counsel to indigent defendants does not adequately ensure effective assistance of counsel is often referred to as a systemic or structural challenge.” “In cases involving systemic or structural challenges, the state’s weighty interest in the finality of a specific criminal judgment is not involved. As a result, a showing of “actual prejudice” in a particular case is arguably not applicable; instead, what is required is a showing that the structural feature being challenged threatens or is likely to impair realization of the right to effective assistance of counsel.” “No one can dispute that competent appellate representation requires thorough mastery of the underlying facts, communications with the client, research into applicable legal issues, consideration of which issues to present on appeal, and then careful writing and rewriting. A hard-fee cap of $ 1500 simply cannot provide adequate compensation in many cases, including the two cases at issue here.” “The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. Low compensation pits a lawyer’s economic interest (recall Lincoln’s metaphor that a lawyer’s time is his stock in trade) against the interest of the client in effective representation.” [Gamsoalso has weighed in]
• James Lambert v. Beard, 2010 U.S. App. LEXIS 24051 (3rd Cir 11/23/2010) (mem.op.) Summary reversal of death sentence based onMills v. Maryland.Panel hints a more formal opinion to follow.Commissioner ordered to immediately move Mr. Lambert to genpop.

Week ofNovember 22, 2010:In Favor of the Prosecution or Warden

• William Jay Gollehon v. Mahoney,2010 U.S. App. LEXIS 23944 (9th Cir. 11/22/2010) ” The petitioner was convicted and sentenced to death in a Montana prison murder. He was convicted of “deliberate homicide by accountability,” as a way of the jury convicting him and a co-defendant without having to find who struck the victim with baseball bats. The issue was whether the statute lacked the fair notice that essentially aiding and abetting could subject the defendant to the death penalty. The 9th found that the Montana statute did not state a separate offense, with the catch-all penalty of 10 years, but rather was a form of accountability, referencing the substantive offense of first-degree murder. The 9th used canons of statutory construction and the trend toward model penal codes to so hold.” [via Ninth Circuit Blog]
• Fair v. State & Jolly v. State, 2010 Ga. LEXIS 893 (Ga 11/22/2010) “The legislative intent behind omitting a knowledge requirement from [the statute] was to protect peace officers by providing as a sentencing option the severest form of punishment for anyone who murders a peace officer or other designated official while in the performance of his official duties.” “The trial court did not err in holding that the…statutory aggravating circumstance does not violate equal protection.”Trial court correctly found that a defendant may claim immunity, “if and only if, he is responding to an ‘unlawful’ force.” Majority reverses, however,that “portion of the trial court‟s order stating that if the jury returned a death sentence, members would be asked a question related to the defendant‟s knowledge of the victim‟s status as a peace officer. And because Fair was absent from a hearing in which the trial court heard evidence regarding an alleged conflict of interest in allowing the Georgia Capital Defender‟s Office to represent both defendants, the high court has vacated the trial court‟s order on that issue. It is sending the case back to the trial court to conduct a new hearing on the matter or obtain a waiver from Fair.” [via GA Supreme Court's Clerk Office]
• State v. Brett Hartman, 2010 Ohio 5734 (Ohio 9th App 11/24/2010) “[T]rial court lacked jurisdiction to consider Hartman’s untimely, second petition for postconviction relief, this Court reverses the trial court’s judgment and remands to the trial court for the trial court to dismiss the petition”

Week ofNovember 15, 2010:In Favor of the Accused or Condemned

• State v. Raymond Mata, 280 Neb. 849 (Neb 11/19/2010) Proceeding without counsel in the state trial court Mr. Mata “attempted to explain the circumstances which necessitated leave to amend” his postconviction application.["N]o prejudice to the State was established [below] which would justify the denial of leave to amend. Counsel appointed for purposes of this appeal argues that Mata has viable ineffective assistance of counsel and other claims and that if he is not allowed to amend his motion, he will be procedurally barred from ever bringing those claims before being put to death.. . . We agree that under the circumstances of this case, it was an abuse of discretion for the district court to deny Mata leave to amend his motion for postconviction relief. We therefore reverse the judgment of the district court and remand the cause with directions to appoint counsel for Mata and grant him leave to amend."
• Ex parte Roderick Dashad Newton,NO. AP-76,456 (Tex. Crim. App. 11/17/2010) (unpublished) Remand asState concedesBradyerror.
• Ex parte Arthur Lee Williams,NO. AP-76,455 (Tex. Crim. App. 11/17/2010) (unpublished) Remand ordered on multiple IAC in-court performance issues, as well as statutory challenge as to whether the Texas statute “requires a mandatory death sentence if the jury answers the special issues in the affirmative even if the jury believed that applicant did not deserve to die.”
• Kenneth Clair v. Ayers, 2010 U.S. App. LEXIS 23693 (9th Cir 11/17/2010) (unpublished) Trial court erred in not appointing counsel in this capital habeas matter. “Because Clair has been appointed new counsel on appeal, and because the district judge has retired, the most reasonable solution to the conundrum of how to correct on remand the district court’s abuse of discretion is to treat Clair’s current counsel as if he were the counsel who might have been appointed had the district court properly exercised its discretion in response to Clair’s request for new counsel.In that role, counsel shall consult with Clair and determine what actions and submissions to the district court, if any, would be appropriate before the district court rules anew on Clair’s habeas petition, and then proceed accordingly. The district court shall, in turn, consider any such submissions, including any requests from counsel to amend the petition to add claims based on or related to the alleged new physical evidence, as if they had been made prior to the ruling on the writ that we have vacated and shall make all further determinations that may be required in accordance with applicable law.”
• William Wiley v. Epps, No. 09-070037 (5th Cir 11/17/2010) District Court did not err in finding Wiley mentally retarded, judgment affirmed.

Week ofNovember 15, 2010:In Favor of the Prosecution or Warden

• James Henderson v. Thaler, No. 08-70018, (5th Cir 11/16/2010) “Although the inmate argued that irrespective of any procedural bar, the court should have reached the merits of his Atkins claim because he was actually innocent of the death penalty, there was no actual innocence exception that served as a gateway through the AEDPA statute of limitations to the merits of a petitioner’s claims.” [via LexisOne]
• John Lezel Balentine v. Thaler,2010 U.S. App. LEXIS 23699 (5th Cir. 11/17/2010) Mr Balentine “appeals the district court’s denial of his Rule 60(b) motion to set aside that court’s 2009 judgment. We initially held his arguments to be valid. On rehearing, we conclude that a ruling by the Texas Court of Criminal Appeals should not be presumed to have reached the merits of his claims. The claims are procedurally defaulted and cannot be considered.”
• Felix Rocha v. Thaler, 2010 U.S. App. LEXIS 23696 (5th Cir. 11/17/2010) “Texas court did not decide a prisoner’s ineffective assistance of sentencing counsel claim on the merits when it found that the prisoner was not actually innocent of the death penalty and was not entitled to review of a successive habeas application under Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a)(3); federal review was procedurally barred.” [via LexisOne]
• People v. Richard Don Foster, 2010 Cal. LEXIS 11680 (Cal 11/18/2010) “Conviction of defendant for first degree murder, second degree burglary, and second degree robbery and a sentence of death are affirmed in its entirety over challenges to: 1) the use of physical restraints on defendant at trial; 2) trial court’s voir dire of prospective jurors; 3) admission of evidence of prior crimes; 4) cross-examination of defendant regarding is prior crimes; 5) third-party contacts with jurors; 6) the trial court’s refusal to instruct the jury on the court’s own motion with respect to trespass as a lesser included offense of burglary; 7) jury instructions concerning prior crimes; 8) sufficiency of the evidence; 9) asserted prosecutorial misconduct; 10) cumulative error; 11) preinstruction of jurors in the penalty phase; 12) instruction concerning victim-impact evidence; and 13) California’s death penalty scheme.” [via FindLaw]
• People v. Timothy Russell, 2010 Cal. LEXIS 11346 (Cal 11/15/2010) “Conviction of defendant for the murders of two county sheriff’s deputies and a sentence of death are affirmed over claims of: 1) alleged instructional error on lying in wait as theory of murder; 2) allegedly erroneous denial of guilt and penalty phase motions to have jury view scene of shooting; 3) allegedly erroneous interference with jury’s deliberations and improper coercion of guilt verdicts; 4) alleged instructional error on consciousness of guilt consistent with CALJIC No. 2.03; 5) alleged instructional error that jury need not agree whether defendant committed a premeditated murder or lying-in-wait murder; 6) allegedly erroneous denial of defendant’s motion to admit his recorded statements to police; 7) allegedly erroneous excusal of prospective jurors; 8) allegedly improper introduction of victim impact evidence and alleged instructional error regarding use of victim impact evidence; 9) alleged instructional error regarding uncharged acts as aggravating factors; 10) alleged instructional error regarding lack of prior felony convictions; 11) alleged instructional error regarding double-counting special circumstances as aggravating factors; 12) alleged instructional error regarding jury’s consideration of circumstances of crime as aggravating evidence under section 190.3(b); 13) penalty phase instructional challenges; 14) alleged instructional error regarding scope of jury’s sentencing discretion and nature of deliberative process; 14) alleged instructional error regarding section 190.3; 15) lack of intercase proportionality review; 15) cumulative error; and 16) alleged violation of international law, and of the Eighth and Fourteenth Amendments to the U.S. Constitution.” [via FindLaw]
• Dean Kilgore v. State, 2010 Fla. LEXIS 1976 (FL 11/18/2010) “Trial court’s denial of defendant’s motion for postconviction relief from his capital murder conviction and sentence of death is affirmed and defendant’s petition for writ of habeas corpus is denied where: 1) defendant’s various ineffective assistance of counsel claims are rejected; 2) defendant has failed to prove prejudice was generated by the alleged Brady violation, and because he has failed to establish any evidence that was withheld, he fails under both the second and third prongs of Brady; 3) defendant’s challenge to the postconviction court’s determination that he is not mentally retarded is rejected; 4) defendant’s constitutional challenge to the rule 3.203, which requires mental retardation challenges for defendants sentenced to death prior to the United States Supreme Court’s decision in Atkins to be raised in a motion pursuant to rule 3.850 or 3.851, is rejected; 5) defendant’s claim that he was denied a fair trial because of improper prosecutorial comments made at trial and trial counsel’s failure to object to those comments is without merit; 6) defendant’s claim that his constitutional rights were violated by the rule that prohibits counsel from interviewing jurors to determine if constitutional error was present is procedurally barred; 7) defendant’s challenge to the method of execution is rejected; and 8) defendant’s claims of ineffective assistance of appellate counsel are rejected.” [via FindLaw]
• Seattle Times Company et al. v. Hon. Serko, 2010 Wash. LEXIS 1019 (Wash 11/18/2010) For purposes of State open records act, information relating to ongoing capital litigation need not be produced by law enforcement while such litigation is pending.

This edition was compiled & edited by Karl Keys, who lives and practices law along the Delaware River. If you have problem with this edition it is available for your review in html format at http://capitaldefenseweekly.com/archives/101129.htm & in Adobe's pdf format http://capitaldefenseweekly.com/archives/101129.pdf. Almost all cases can be found by going toLexisone.comand typing in the appropriate lexis cite OR going toGoogle Scholarand typing in the name of the condemned. We'd simply ask that before printing consider our environment and saving our trees. If you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. To get a more thoughtful analysis of developing case law we've been selecting out takes of local bloggers and lawyers, where available, on certain breaking case law developments. As always, thanks for reading, and a special thanks go to Steve Hall whoseStand Downwebsite is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named.

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