Two cases are hot listed this week relief for grants of relief on jury instruction related issues. InShabazz (f/k/a Dean) v. Tennesseethe Tennessee Supreme Court vacated appellant's conviction for counsel's failure to object to guilt phase jury instruction as to lesser included offenses. In the other spotlighted case,Banks v. Horn, the Third Circuit granted relief on sentencing as the penalty phase jury instructions & verdict slips contained unanimity instructions that impermissibly restricted the jury's ability to return a sentence less than death.

This week's Focus section covers a new chilling federal regulation which states federal officials may monitor attorney - client communications upon a finding of "reasonable suspicion" that the communications may relate to a "terrorist or violent criminal conspiracy." The rule went into effect the first of thia month relatively unnoticed. The text of the new provision (which may well prove to be wider than the interpretation I have just offered) is available below and online at http://capitaldefenseweekly.com/ashcroft.htm.

Note that until further notice the weekly noncapital wrap will have a very limited selection run as the primary source I have been using for most of the section, FindLaw, has proven an unreliable source for case reviews due to a high inaccuracy rate.

Since the last edition there have been two domestic executions.

6 Jose High Georgia

6 Terry Clark New Mexico

The following are the remaining scheduled executions considered likely for November:

13 Fred Gilreath Georgia

14 Jeffery Tucker Texas

15 Emerson Rudd Texas

HOT LIST CASES

Shabazz (f/k/a Dean) v. Tennessee, 2001 Tenn. LEXIS 765 (Tenn 10/30/2001) Conviction vacated on counsel's failure to object to guilt phase jury instructions.

Although we have never adopted an exhaustive list of criteria for counsel to satisfy in all cases, we have cited with approval the duties and criteria set forth in the American Bar Association Standards for the Defense Function. See Burns, 6 S.W.3d at 462. The following provisions are relevant in this case:

Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. . . . This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the Government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research.

Baxter v. Rose, 523 S.W.2d at 933 (quoting United States v. DeCoster, 159 U.S. App. D.C. 326, 487 F.2d 1197, 1203-04 (D.C. Cir. 1973)) (emphasis added).

In this case, the parties agree that the trial court's [*12] instruction to the jury on the possible penalties for attempted second degree murder was made in error. See Tenn. Code Ann. § 40-35-201(b) (1997). In our view, effective counsel must be aware of the possible punishments applicable to his or her client and must be informed and attentive when the trial court's instructions to the jury embrace such an obviously critical matter. Moreover, our decision in State v. Cook, which emphasized that an erroneous range of punishment instruction similar to that given in this case constitutes reversible error, was decided four years prior to the trial in this case and an effective counsel should have been aware of it. See 816 S.W.2d 322 (Tenn. 1991).

Dean's trial counsel nevertheless failed to notice the incorrect jury instruction, failed to be aware of the appropriate ranges of punishment, failed to object to the erroneous instruction during trial, and failed to preserve the erroneous instruction for appeal by listing it in the motion for a new trial. Dean's appellate counsel likewise failed to raise the issue on direct appeal. All of these functions are basic, yet essential, for preserving [*13] and raising errors under our rules of appellate procedure. See Tenn. R. App. P. 3(e). n4 In our view, therefore, the performance of counsel was deficient under the prevailing standards in Baxter and Strickland.

Having concluded that there was a deficiency in the performance of counsel, the remaining portion of the Baxter/Strickland analysis requires us to decide whether the deficiency was prejudicial to the defense. To conclude that prejudice exists, we must determine that there is a reasonable probability [*14] that but for counsel's errors the result would have been different.

Applying this analysis, we believe that the deficiency in performance was prejudicial given the critical nature of the error that was permitted to occur without objection or appeal. At the time of this trial, Tenn. Code Ann. § 40-35-201(b) required that the jury know the range of punishment for an offense before deciding a defendant's guilt or innocence for the offense. As this Court observed in Cook:

It is widely perceived by those who observed the operations of our trial courts in previous times, when juries had the additional responsibility of setting punishment, that often they seemed to find guilt of a crime not necessarily most strongly suggested by the evidence, but one the punishment for which suited their sense of justice for the case. Apparently the Legislature desired to give those charged with crimes the option of making certain that the jury knew the punitive consequences of guilty verdicts in the cases under consideration. . . .

Cook, 816 S.W.2d at 326-27. n5 Moreover, we specified in Cook that prejudice occurs when a defendant [*15] - like Dean - receives a sentence greater than the range of punishment contemplated by the jury. See id. at 327.

In this case the jury was told by the trial judge that the applicable range of punishment for the offense of attempted second degree murder was three to ten years when in fact it was eight to thirty years. Moreover, the range applicable to Dean as a Range II multiple offender was twelve to twenty years. See Tenn. Code Ann. § 40-35-112(b)(2) (1997). The jury therefore was furnished with substantially inaccurate information that may have affected its deliberation when it considered the charged offense and lesser offenses. Indeed, the jury was told that the punishment for attempted second degree [*16] murder was identical to that for aggravated assault and nearly identical to that of attempted voluntary manslaughter. Moreover, Dean was later sentenced by the trial judge to fifteen years for the offense of attempted second-degree murder, i.e., a sentence greater than the punishment contemplated by the jury for that offense. In our view, it is reasonably probable that had counsel objected to and appealed the erroneous jury instruction, the result would have been different and the petitioner would have received a new trial on the offense of attempted second degree murder under our decision in Cook. Accordingly, we hold that the petitioner was prejudiced by the deficient performance of counsel.

Banks v. Horn,2001 U.S. App. LEXIS 23720 (3d Cir. 10/31/2001) Jury instructions & verdict slips impermissibly restricted the jury's right to grant a sentence less than death by requiring unanimity in mitigation finding.

We will examine each aspect of the Pennsylvania Supreme Court's analysis of the jury's involvement in the penalty phase -- the instructions themselves, the verdict slip, and the polling of the jury following the sentencing verdict.

i. Jury Instructions

In Banks II, the Pennsylvania Supreme Court quoted three lines of the jury instructions:

The sentence you impose will depend upon your findings concerning aggravating and mitigating circumstances. The Crime[s] Code in this Commonwealth provides that the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances. The verdict must be a sentence of life imprisonment in all other cases. 656 A.2d at 470.

The court then opined that because the instruction "mirrors the language found in the death penalty statute of our Sentencing Code [that] has previously been reviewed by this court and determined not to violate Mills " Banks's claim was "without merit." Id.*fn22 (citing Commonwealth v. Hackett, 627 A.2d 719 (1993); Commonwealth v. Marshall, 633 A.2d 1100 (1993), rearg. denied (1994); Commonwealth v. O'Shea, 567 A.2d 1023 (1989), cert. denied, 498 U.S. 881 (1990)).. . .

Proper application of Mills requires at the outset that the reviewing court examine the entire jury instructions, posing the "critical question" whether a reasonable jury could have concluded from the instruction that unanimity was required to find a mitigating circumstance. Mills, 486 U.S. at 370. Also, the Boyde standard requires that the court view the instruction in its totality, not examine in isolation a few sentences that reference the Crimes Code. Boyde, 494 U.S. at 378.

In Boyde, the Supreme Court iterated the standard of evaluating jury instructions as "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence," Id. at 380, and it reiterates the Mills principle that jury instructions must be carefully considered in their entirety. Mills, 486 U.S. at 384. "[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, 494 U.S. at 378.

In Banks II, the Pennsylvania Supreme Court never examined the jury instruction from that vantage point. Rather, it looked at one part of the instruction and found that it was acceptable because it tracked the permissible statutory provisions and did not "infer" a requirement of unanimity. 656 A.2d at 470. Its conclusion was based not on how a juror might interpret its content, but on its own previous statutory construction of the language at issue. Here, even more starkly than in Hackett, the Pennsylvania Supreme Court merely stated that the statutory language had been reviewed and "determined not to violate Mills." Banks II, 656 A.2d at 470. There was no further analysis.. . .

Banks Instructions

Members of the jury, you must now decide whether the defendant in this case is to be sentenced to death or to life imprisonment on seach of the Informations upon which you have returned a verdict of guilty of murder in the first degree.

The sentence you will impose will depend on your findings concerning aggravating and mitigating circumstances. The Crime Code in this Commonwealth provides that the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances.

Remember, under the law of this Commonwealth, your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstance, or if you unanimously find one or more aggravating circumstances which then outweigh any mitigating circumstances.

In all other cases, your verdict would be life imprisonment.

Once again, the Commonwealth has the burden of proving aggravating circumstances beyond a reasonable doubt. The defendant has the burden of proving mitigating circumstances by a preponderance of the evidence.

If, after conscientious and thorough deliberations, you are unable to agree on your findings and your verdict, you should report that to me.

. . . .

[W]e must determine whether it is reasonably likely that the jury could have understood the charge to require unanimity in consideration of mitigating evidence. We need not determine whether the jurors did, in fact, understand the charge to require unanimity in consideration of mitigating evidence -- only whether it was reasonably likely. See Boyde, 494 U.S. at 380, 110 S. Ct. at 1197-98; Mills, 486 U.S. at 384, 108 S. Ct. at 1870.

Examining the language of the jury charge, we must answer in the affirmative. First and foremost, read in its entirety, the relevant portion of the jury charge emphasizes the importance of a unanimous finding, using the phrase frequently and in close proximity to -- within seven words of -- the mitigating circumstances clause. We describe the relevant portion of the sentence: "if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance. . . ." Considering this close proximity -- the clause is, to the ear and to the mind, one sound bite -- it is quite possible that a juror would, regardless of other qualifying language, believe that mitigating circumstances had to be found unanimously.. . .

The instruction here, like the one we examined in Frey, runs afoul of Mills, and the Pennsylvania Supreme Court's assessment of the instruction involved an unreasonable application of Mills. The instructions are in themselves ambiguous, allowing for a jury to infer that the requirement of unanimity applies both to aggravating and mitigating circumstances. There is no way that a juror would understand that a mitigating circumstance could be considered by less than all jurors. Further, when the judge clarified the difference between aggravating and mitigating circumstances, he described the requirements for finding aggravating circumstances and then said:

The defendant has the burden of proving mitigating circumstances by a preponderance of the evidence. The preponderance of the evidence is a lesser burden of proof than beyond a reasonable doubt. A preponderance of the evidence exists where one side is more believable than the other or, as has been explained to you, a preponderance exists whenever the scales tip ever so slightly.

A reasonable juror could readily infer from the fact that the distinctions between the burden of proof were explained, but no mention was made of a distinction between a requirement of unanimity for a finding of aggravating circumstances and the requirement for mitigating circumstances, that the same requirement of unanimity applied. The Banks court went on to stress:

Remember, again, your verdict in each case must be unanimous. It cannot be reached by a majority vote or by any percentage. It must be the verdict of each and every one of you.

Considered as a whole, the jury instructions leave no doubt that "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde, 494 U.S. at 380.

SUPREME COURT CASES & NEWS

No cases noted

POSITIVE CAPITAL CASE RESULTS

Noted above

CAPITAL CASES - RELIEF DENIED

Ex parte Broadnax, 2001 Ala. LEXIS 407 (Ala 11/2/2001) Relief denied on certiorari to the Alabama Supreme Court on claims relating to the failure to transcribe proceedings, instructions regarding "the heinous, atrocious, or cruel aggravating circumstance, " and whether an erroneous jury instruction on mitigation (""these mitigating circumstances must be only established from the evidence only to your reasonable satisfaction") was harmless error. (net unavailable)

Brown v. Moore, 2001 Fla. LEXIS 2208 (FL 11/1/2001) Relief denied on competency to be executed claims and that Apprendi v. New Jersey requires reversal.

People v. Kipp, 2001 Cal. LEXIS 7132 (Cal. 11/01/2001) Relief denied on admission of letter to spouse admitting to the crime, sufficiency of the evidence, admission of evidence of a prior escape attempt, prosecutorial misconduct, felony murder instructions, introduction of certain evidentiary issues (including defendant's references to his Savior being Satan), systemic challenge to jury selection, & challenge to political influence on appellate review.

Looney v. State, 2001 Fla. LEXIS 2210 (Fla. 11/01/2001) Relief denied on claims that: "(1) The trial court improperly excused for cause a venire member whose opposition to the death penalty did not prevent or substantially impair her ability to perform her obligations as a juror; (2) the details of the collateral crimes in Volusia county became a feature of the trial causing prejudice that substantially outweighed the probative value of the evidence; (3) the trial court erred by admitting gruesome photographs of the bodies at the crime scene and the autopsy; (4) the trial court erred by refusing to grant a mistrial after the State's witness testified about the hearsay statement by a non-testifying co-defendant which incriminated Looney; (5) the evidence was insufficient as a matter of law to sustain the convictions; (6) the trial court erred in denying the defense motion to require a unanimous verdict; (7) the statute authorizing the admission of victim impact evidence is an unconstitutional usurpation of the Court's rulemaking authority under article V, section 2, of the Florida Constitution, making the admission of such testimony unconstitutional and reversible error; (8) four of the seven aggravating factors upon which the jury was instructed and which the trial court found are legally inapplicable and their consideration was not harmless error; and (9) the death sentence in this case is disproportionate."

Hertz v. State, 2001 Fla. LEXIS 2209 (Fla. 11/01/2001) Relief denied on claims that: "(1) The trial court improperly excused for cause a venire member whose opposition to the death penalty did not prevent or substantially impair her ability to perform her obligations; (2) Hertz was not competent to stand trial; (3) the trial court erred by admitting gruesome photographs of the bodies at the crime scene and the autopsy; (4) the details of the collateral crimes in Volusia county became a feature of the trial causing prejudice that substantially outweighed the probative value of the evidence; (5) the evidence was insufficient as a matter of law to sustain the convictions; (6) the statute authorizing the admission of victim impact evidence is an unconstitutional usurpation of the Court's rulemaking authority under article V, section 2, of the Florida Constitution, making the admission of such testimony unconstitutional and reversible error; (7) the trial court erred in denying the defense motion to require a unanimous verdict; (8) four of the seven aggravating factors upon which the jury was instructed and which the trial court found are legally inapplicable and their consideration was not harmless error; and (9) the death sentence in this case is disproportionate."

DELAYD PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

State v. Jacobs, 2001 La. LEXIS 2015; 789 So. 2d 1280 (La. 06/29/2001) Failure of trial court to strike three life hesitant jurors requires reversal.

Neither the state, nor the trial judge, inquired further or attempted to rehabilitate jurors Dyer and Dunham. Nor did anyone explain to these prospective jurors the law regarding mitigation and the possible imposition of a life sentence.

In fact, the prosecutor agreed on the record that jurors Dyer and Dunham had not demonstrated an ability to be impartial with regards to the death penalty. During the bench conference, when defense counsel challenged Mr. Dyer, Ms. Pisciotta, and Mr. Dunham, stating that all three jurors had said that the only verdict they could vote for was death, the prosecutor objected, but stated only that Ms. Pisciotta "did not say that." In fact, the prosecutor specifically argued that, "[s]he didn't say that, the other two said that, she never said that," thereby conceding that jurors Dyer and Dunham had both stated that they could only vote for the death penalty. The prosecutor argued that the jurors' responses were due to defense counsel's failure to ask them proper questions regarding the consideration of mitigating evidence and the possibility of a life sentence. The prosecutor and defense counsel continued to argue back and forth over the propriety of the questions posed to jurors Dyer and Dunham until the trial judge intervened, ruling that, "[i]t's not really clear, so I'm going to deny those challenges for cause."

Because neither the attorneys nor the trial judge attempted to question jurors Dyer and Dunham further or to explain what the law would require of them as jurors in a capital case, there is a complete absence of any evidence in the record indicating that either juror would have been able to consider mitigating evidence and the imposition of a life sentence, as required by law and their duties and oaths as jurors. Not only are we disturbed by the trial judge's clear error in denying the challenges based on jurors Dyer's and Dunham's responses to defense counsel's questioning, but as disturbing, and of particular concern to us, is the trial judge's failure to carefully supervise the death qualification portion of voir dire, highlighted in this instance by the proceedings involving jurors Dyer and Dunham.

Recently, in State v. Miller, 99-0192, p. 4 (La. 9/6/00), 776 So.2d 396, 400, we noted that:

Perhaps the most difficult tasks for the trial judge in ensuring the impartiality of a capital juror are handling the death qualification portion of the voir dire and ruling on challenges for cause to a prospective juror who has expressed his or her views toward the death penalty.

In that case, we discussed the extreme difficulty trial judges often face when presented with challenges for cause on reverse-Witherspoon grounds and required to determine whether it has been demonstrated that a prospective juror's bias in favor of the death penalty would substantially impair the juror's ability to follow the law as instructed. Id. at 405. We recognized that, because of the difficulty often involved in making that determination, many Louisiana trial judges choose to question prospective jurors themselves as to the jurors' understanding of the role mitigating evidence will play in the sentencing hearing and whether the jurors will be able to consider both a life and a death sentence. Id. at 403-04. We suggested that, through personal questioning, the trial judge is better able to ensure that the jurors comprehend the nature and order of the proceedings, as well as their legal duties as jurors, and that they will be able to impartially decide the case and impose a penalty. Id. However, in Miller, we did not find that the trial judge erred by choosing not to question the jurors himself, because there was a thorough voir dire of the challenged jurors by both defense counsel and the prosecutor, the trial judge made thoughtful rulings throughout the death qualification, and the trial judge gave detailed reasons for his denial of the defendant's challenges for cause.

Finally, the court in Miller recognized that, because the trial judge's task of "line-drawing" with respect to challenges for cause of prospective jurors who give contradictory or equivocal responses during death qualification is complicated, reviewing courts usually accord great deference to the trial judge's determination, which necessarily is based in part on the judge's personal observations of the jurors during questioning. 776 So.2d at 405-06 (citing State v. Cross, 93-1189 (La. 6/30/95), 658 So.2d 683; State v. Lucky, 96-1687 (La. 4/13/99), 755 So.2d 845). Today, we again acknowledge the broad discretion usually accorded a trial court's determination of a challenge for cause during voir dire. However, in contrast to Miller, the instant case presents us with a troubling situation, where the presiding trial judge did not make thoughtful determinations of challenges for cause, but, instead, was apparently inattentive during periods of the critical death qualification portion of voir dire and, as a result, failed to perform his constitutionally-mandated responsibility of removing prospective jurors who are not impartial. See Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992) (quoting Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981)) (discussing the trial judge's responsibility to ensure that the defendant is afforded an impartial jury by removing prospective jurors who will not be able to follow the court's instructions in the penalty phase of a capital trial). "Because the obligation to impanel an impartial jury lies in the first instance with the trial judge," Rosales-Lopez, 451 U.S. at 189, 101 S.Ct. at 1634, the trial judge has an affirmative duty to determine whether a challenged juror's views regarding the death penalty would prevent or substantially impair the performance of that juror's duties. See Witt, 469 U.S. at 424, 105 S.Ct. at 851-52.

In order to fulfill that obligation, a trial judge must carefully supervise voir dire, exercise substantial control over the jury selection process, and directly participate in the questioning of the prospective jurors when necessary. See Morgan, 504 U.S. at 729, 112 S.Ct. at 2230; Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 623-24, 111 S.Ct. 2077, 2084-85, 114 L.Ed.2d 660 (1991); Miller, 776 So.2d at 403-04.

It is the trial judge who is ultimately responsible for making certain that all prospective jurors understand the fundamental elements of a capital trial and their duties as jurors in a capital sentencing hearing. The trial judge has a constitutional obligation to ensure that a fair and impartial jury is empaneled, and that obligation can only be fulfilled if the prospective jurors are subject to a meaningful voir dire and well informed of what the law requires of them. Thus, when the trial judge in the instant case was presented with the challenges for cause as to jurors Dyer and Dunham, who unequivocally stated on the record that they could only impose the death sentence, the judge had three viable options: (1) he could have inquired of the prosecutor whether she wanted to attempt to rehabilitate the jurors; (2) he could have undertaken questioning of the jurors himself in order to clarify their position on the death penalty and whether they understood that the law would require them to consider mitigating evidence and a life sentence; or, (3) he could have excused the jurors for cause. Instead, the trial judge denied the challenges, a decision which appears to have been the consequence of some confusion with respect to the scope of the voir dire of jurors Dyer and Dunham.

While the jurors might possibly have been rehabilitated upon further questioning by the prosecutor, they were not. See State v. Sugar, 408 So.2d 1329, 1331 (La. 1982) (finding reversible error where trial court erroneously denied defendant's challenge for cause of juror who was not rehabilitated after giving prejudicial answers and defendant exhausted all peremptory challenges); State v. Cross, 93-1189, p. 8 (La. 6/30/95), 658 So.2d 683, 687 (finding that defendant's challenge for cause should have been granted, where there was no attempt to rehabilitate the juror subsequent to his remarks expressing an opinion seemingly prejudicial to the defense). Without any indication in the record of jurors Dyer's and Dunham's impartiality with respect to the penalty phase of the trial, it was error for the trial court to deny the defendant's challenges for cause. Because the defendant exhausted his peremptory challenges, the trial court's error warrants a reversal of the defendant's conviction and sentence. Robertson, 630 So.2d at 1280-81; Ross, 623 So.2d at 644; Bourque, 622 So.2d at 225; Lee, 559 So.2d at 1317; Comeaux, 514 So.2d at 93; Brown, 496 So.2d at 263-64.

Barnes v. State, 2001 Ark. LEXIS 488 (Ark. 09/27/2001) (dissents) A split court affirms on whether prosecutorial reference during opening remarks to evidence later ruled inadmissible rendered the trial fundamentally unfair.

State v. Neal,2001 La. LEXIS 2754 (La. 06/29/2001) Batson challenge for claims of "pretextual" reasons for dismissal of veniremen and specific intent jury instructions relating to the law of principals . The court "punts" the issue of Brady noting that the record is currently insufficient on the claim to make a determination but that a state post-conviction court may hold an evidentiary hearing on the matter.

OTHER NOTABLE CASES

James v. Pliler, 2001 U.S. App. LEXIS 23200 (9th Cir 10/29/01) When a district court receives a habeas petition with both exhausted and unexhausted claims it must permit the option of deleting the unexhausted claims rather than having the entire petition dismissed without prejudice.

This rule takes on a special urgency in the habeas review context. Under AEDPA, state prisoners have only one year from the date their convictions become final to file a petition for federal habeas review. 28 U.S.C. § 2244(d)(1)(A). To dismiss a petition for curable deficiencies may, therefore, preclude a petitioner from obtaining federal habeas review altogether, even where the dismissal was without prejudice. This is precisely what occurred here. In light of the severity of such a dismissal, and the preference for decisions on the merits rather than on procedural grounds, district courts must advise pro se habeas petitioners of their right to strike unexhausted claims. See, e.g., Tillema v. Long, 253 F.3d 494 (9th Cir. 2001). Therefore, the district court erred in dismissing James' petition without providing him with a meaningful opportunity to amend.

Andrade v. Attorney General, 2001 U.S. App. LEXIS 23720 (9th Cir 11/02/01) Eighth Amendment violated when two consecutive 25 years to life terms wer imposed on a defendant convicted of petty theft who had seven prior non-violent crimes under California's Three Strikes statute.

FOCUS

A rule published Oct. 31 in the Federal Register states federal officials may monitor phone calls and mail of some of those accused or convicted of "terrorism" upon a finding of "reasonable suspicion" that the communications are designed to further terrorist acts. The rule went into effect the first of the month. The text of the new provision (which may well be wider than the interpretation I have just offered) is available below and online at http://capitaldefenseweekly.com/ashcroft.htm.

28 CFR Parts 500 and 501

National Security; Prevention of Acts of Violence and Terrorism; Final

Rule

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Parts 500 and 501

[BOP-1116; AG Order No. 2529-2001]

RIN 1120-AB08

National Security; Prevention of Acts of Violence and Terrorism

AGENCY: Bureau of Prisons, Department of Justice.

ACTION: Interim rule with request for comment.

SUMMARY: The current regulations of the Bureau of Prisons on institutional management authorize the Bureau to impose special administrative measures with respect to specified inmates, based on information provided by senior intelligence or law enforcement officials, where it has been determined to be necessary to prevent the dissemination either of classified information that could endanger the national security or of other information that could lead to acts of violence and terrorism. This rule extends the period of time for which such special administrative measures may be imposed from 120 days to up to one year, and modifies the standards for approving extensions of such special administrative measures. In addition, in those cases where the Attorney General has certified that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism, this rule amends the existing regulations to provide that the Bureau is authorized to monitor mail or communications with attorneys in order to deter such acts, subject to specific procedural safeguards, to the extent permitted under the Constitution and laws of the United States. Finally, this rule provides that the head of each component of the Department of Justice that has custody of persons for whom special administrative measures are determined to be necessary may exercise the same authority to impose such measures as the Director of the Bureau of Prisons.

DATES: Effective date: October 30, 2001.

Comment date: Written comments must be submitted on or before

December 31, 2001.

ADDRESSES: Rules Unit, Office of the General Counsel, Bureau of

Prisons, HOLC Room 754, 320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of the General

Counsel, Bureau of Prisons, (202) 307-2105.

SUPPLEMENTARY INFORMATION: On June 20, 1997 (62 FR 33732), the Bureau of Prisons (``Bureau'') finalized its interim regulations on the correctional management of inmates whose contacts with other persons present the potential for disclosure of classified information that could endanger national security or of other information that could lead to acts of violence or terrorism. These rules are codified at 28 CFR 501.2 (national security) and 501.3 (violence and terrorism).

The Bureau previously had published an interim rule on preventing the disclosure of classified information in the Federal Register on October 13, 1995 (60 FR 53490). No public comment was received, and the 1997 final rule adopted the 1995 interim rule with only minor changes. In general, Sec. 501.2 authorizes the Director of the Bureau of Prisons to impose special administrative measures with respect to a particular inmate that are reasonably necessary to prevent disclosure of classified information, upon a written certification by the head of a United States intelligence agency that the unauthorized disclosure of such information would pose a threat to the national security and that there is a danger that the inmate will disclose such information. These special administrative measures ordinarily may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to prevent the disclosure of classified information.

The Bureau also had previously published a separate interim rule on preventing acts of violence and terrorism on May 17, 1996 (61 FR 25120). The Bureau's 1997 final rule responded at length to the public comments received on the 1996 interim rule. Section 501.3 authorizes the imposition of similar special administrative measures on a particular inmate based on a written determination by the Attorney General or, at the Attorney General's discretion, the head of a federal law enforcement or intelligence agency that there is a substantial risk that an inmate's communications or contacts with other persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.

In either case, the affected inmate may seek review of any special administrative measures imposed pursuant to Secs. 501.2 or 501.3 in accordance with paragraph (a) of this section through the Administrative Remedy Program, 28 CFR part 542.

Both rules limit the initial period of special administrative measures to 120 days, and provide that additional 120-day periods may be authorized based on a certification or notification that the circumstances identified in the original notification continue to exist.

Changes to Sec. 501.2 With Respect to National Security

This rule makes no change in the substantive standards for the imposition of special administrative measures, but changes the initial period of time under Sec. 501.2 from a fixed 120-day period to a period of time designated by the Director, up to one year. Where the head of an intelligence agency has certified to the Attorney General that there is a danger that the inmate will disclose classified information posing a threat to the national security, there is no logical reason to suppose that the threat to the national security will dissipate after 120 days. This rule allows the Director to designate a longer period of time, up to one year, in order to protect the national security.

The rule also allows for the Director to extend the period for the special administrative measures for additional one-year periods, based on subsequent certifications from the head of an intelligence agency. This will ensure a continuing review by the Director and the intelligence community of the need for the special administrative measures in light of the ongoing risks to the national security. Given the serious nature of the danger to the national security, as determined by the head of the intelligence agency, this approach reflects an appropriate balancing of the interests of the individual inmates and of the public interest in protecting against the disclosure of such national security information.

In addition, this rule modifies the standard for approving extensions of the special administrative measures. The existing regulation requires that the head of the intelligence agency certify that ``the circumstances identified in the original certification continue to exist.'' This standard, however, is unnecessarily static, as it might be read to suggest that the subsequent certifications are limited to a reevaluation of the original grounds. Instead, this rule provides that the subsequent certifications by the head of an intelligence agency may be based on [[Page 55063]] any information available to the intelligence agency.

Changes to Sec. 501.3 With Respect to Prevention of Acts ofViolence and Terrorism

This rule makes no change in the substantive standards for the implementation of special administrative measures under Sec. 501.3(a). The rule also retains the existing authority of the Director to extend the imposition of the special administrative measures for additional periods, based on subsequent certifications from the Attorney General or the head of a federal law enforcement or intelligence agency. By continuing to apply the existing standards under Sec. 501.3(a), this rule preserves the balance struck in the 1997 final rule and ensures that the inmate's circumstances will be subject to a continuing review.

However, this rule also recognizes that the threats of violence or terrorism posed by an inmate's communications or contacts with his or her associates, whether those other persons are within the detention facility or in the community at large, may in many cases be manifested on a continuing basis, such that the periods for special administrative measures need not be limited to 120 days. Accordingly, this rule allows the Director, with the approval of the Attorney General, to impose special administrative measures for a longer period of time, not to exceed one year, in cases involving acts of violence or terrorism. In addition, the rule provides authority for the Director under certain circumstances to provide for extensions of the period for the special administrative measures for additional periods, up to one year.

This rule also modifies the standard for approving extensions of the special administrative measures. The existing regulation requires that the Attorney General or the head of the federal law enforcement or intelligence agency determine that ``the circumstances identified in the original notification continue to exist.'' Again, that standard is unnecessarily static, as it might be read to suggest that the subsequent determinations are limited to a reevaluation of the original grounds.

Recent incidents of terrorism and violence demonstrate, without question, that some criminal conspiracies develop and are carried out over a long period--far in excess of 120 days. During that time, as the plans may change or develop, there may be changes in the level of activity directed toward that conspiracy over time by the various participants. The level of participation by a particular inmate in the planning or orchestration of a terrorist or violent criminal conspiracy may vary over time.

The existing regulation fails to recognize that an inmate still may be an integral part of an ongoing conspiracy even though his or her activity may change over time--or, indeed, possibly even be dormant for limited periods of time. Those changes in an inmate's role over time, however, would not alter the significance of the inmate's role in planning acts of terrorism or violence and do not diminish the urgent need for law enforcement authorities to curb the inmate's ability to participate in planning or facilitating those acts through communications with others within or outside the detention facility. The phraseology of the existing rule also may raise questions about the relevance of more recently acquired information. For these reasons, it would not be appropriate to require a factual determination, in effect, that ``nothing has changed'' with respect to the initial determination.

Accordingly, this rule provides that the subsequent notifications by the Attorney General, or the head of the federal law enforcement or intelligence agency should focus on the key factual determination--that is, whether the special administrative measures continue to be reasonably necessary, at the time of each determination, because there is a substantial risk that an inmate's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. Where the Attorney General, or the head of a federal law enforcement or intelligence agency, previously has made such a determination, then the determination made at each subsequent review should not require a de novo review, but only a determination that there is a continuing need for the imposition of special administrative measures in light of the circumstances.

With these changes, Sec. 501.3 will still ensure a continuing, periodic review by the Director and the law enforcement and intelligence communities of the need for the special administrative measures in light of the ongoing risks of terrorism or violent crime. Given the serious nature of the danger to the public arising from such incidents, coupled with a determination by the Attorney General or the head of a federal law enforcement or intelligence agency regarding the danger posed by each particular inmate, this approach reflects an appropriate balancing of the interests of the individual inmates and of the public interest in detecting and deterring acts of terrorism and violence.

Although this rule does not alter the substantive standards for the initial imposition of special administrative measures under Sec. 501.3, it is worth noting that the Bureau's final rule implementing this section in 1997 devoted a substantial portion of the supplementary information accompanying the rule to a discussion of the relevant legal issues. 62 FR 33730-31. As the U.S. Supreme Court noted in Pell v. Procunier, 417 U.S. 817, 822, 823 (1974), ``a prison inmate retains those First Amendment rights that are not inconsistent with his status as an inmate or with the legitimate penological objectives of the corrections system. * * * An important function of the corrections system is the deterrence of crime. * * * Finally, central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.''

This regulation, with its concern for security and protection of the public, clearly meets this test. The changes made by this rule, regarding the length of time and the standards for extension of periods of special administrative measures, do not alter the fundamental basis of the rules that were adopted in 1997. Instead, they more clearly focus the provisions for extensions--both the duration of time and the standards--on the continuing need for restrictions on a particular inmate's ability to communicate with others within or outside the detention facility in order to avoid the risks of terrorism and violence. In every case, the decisions made with respect to a particular inmate will reflect a consideration of the issues at the highest levels of the law enforcement and intelligence communities. Where the issue is prevention of acts of violence and terrorism, it is appropriate for government officials, at the highest level and acting on the basis of their available law enforcement and intelligence information, to impose restrictions on an inmate's public contacts that may cause or facilitate such acts.

Monitoring of Communications With Attorneys To Deter Acts of Terrorism

In general, the Bureau's existing regulations relating to special mail (Secs. 540.18, 540.19), visits (Sec. 540.48), and telephone calls (Sec. 540.103) contemplate that communications between an inmate and his or her attorney are not subject to the usual rules for monitoring of inmate communications. In specific instances, however, based on information from federal law [[Page 55064]] enforcement or intelligence agencies, the Bureau may have substantial reason to believe that certain inmates who have been involved in terrorist activities will pass messages through their attorneys (or the attorney's legal assistant or an interpreter) to individuals on the outside for the purpose of continuing terrorist activities.

The existing regulations, of course, recognize the existence of the attorney-client privilege and an inmate's right to counsel. However, it also is clear that not all communications between an inmate and an attorney would fall within the scope of that privilege. For example, materials provided to an attorney that do not relate to the seeking or providing of legal advice are not within the attorney-client privilege. Accordingly, such materials would not qualify as special mail under the Bureau's regulations.

The attorney-client privilege protects confidential communications regarding legal matters, but the law is clear that there is no protection for communications that are in furtherance of the client's ongoing or contemplated illegal acts. Clark v. United States, 289 U.S. 1, 15 (1933) (such a client ``will have no help from the law''); United States v. Gordon-Nikkar, 518 F. 2d 972, 975 (5th Cir. 1975) (``it is beyond dispute that the attorney-client privilege does not extend to communications regarding an intended crime''). The crime/fraud exception to the attorney-client privilege applies even if the attorney is unaware that his professional service is being sought in furtherance of an improper purpose, United States v. Soudan, 812 F.2d 920, 927 (5th Cir. 1986), and the attorney takes no action to assist the client, In re Grand Jury Proceedings, 87 F. 3d 377, 382 (9th Cir. 1996).

This rule provides specific authority for the monitoring of communications between an inmate and his or her attorneys or their agents, where there has been a specific determination that such actions are reasonably necessary in order to deter future acts of violence or terrorism, and upon a specific notification to the inmate and the attorneys involved. The rule provides for (1) protection of the inmate's right to counsel; (2) the use of a special ``privilege team'' to contemporaneously monitor an inmate's communications with counsel, pursuant to established firewall procedures, when there is a sufficient justification of need to deter future acts of violence or terrorism; (3) a procedure for federal court approval prior to the release or dissemination of information gleaned by the privilege team while monitoring the inmate's communications with counsel; and (4) an emergency procedure for immediate dissemination of information pertaining to future acts of violence or terrorism where those acts are determined to be imminent.

The Supreme Court has held that the presence of a government informant during conversations between a defendant and his or her attorney may, but need not, impair the defendant's Sixth Amendment right to effective assistance of counsel. See Weatherford v. Bursey, 429 U.S. 545, 552-54 (1977). When the government possesses a legitimate law enforcement interest in monitoring such conversations, cf. Massiah v. United States, 377 U.S. 201, 207 (1964), no Sixth Amendment violation occurs so long as privileged communications are protected from disclosure and no information recovered through monitoring is used by the government in a way that deprives the defendant of a fair trial. The procedures established in this new rule are designed to ensure that defendants' Sixth Amendment rights are scrupulously protected. The circumstances in which monitoring will be permitted are defined narrowly and in a way that reflects a very important law enforcement interest: the prevention of acts of violence or terrorism. The monitoring is not surreptitious; on the contrary, the defendant and his or her attorney are required to be given notice of the government's listening activities. The rule requires that privileged information not be retained by the government monitors and that, apart from disclosures necessary to thwart an imminent act of violence or terrorism, any disclosures to investigators or prosecutors must be approved by a federal judge.

In following these procedures, it is intended that the use of a taint team and the building of a firewall will ensure that the communications which fit under the protection of the attorney-client privilege will never be revealed to prosecutors and investigators. Procedures such as this have been approved in matters such as searches of law offices, See, e.g., National City Trading Corp. v. United States, 635 F.2d 1020, 1026-27 (2d Cir. 1980). In a similar vein, screening procedures are used in wiretap surveillance. See, e.g., United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991) (DEA agent unrelated to the case reviewed prison telephone tapes to determine whether they contained any privileged attorney-client communications; agent mistakenly reduced one such communication to memorandum form, but the assigned prosecutor stopped reading the memo once he realized it contained attorney-client conversation; the court cited the screening procedure as a factor in finding that the government's intrusion into the defense camp was unintentional, and that the intrusion had not benefitted the government). Likewise, firewalls have been built so that an entire prosecution office is not disqualified when a lawyer who formerly represented or had a connection to a defendant joins the prosecutor's office but has no involvement in his former client's prosecution. See Blair v. Armontrout, 916 F.2d 1310, 1333 (8th Cir. 1990).

This rule carefully and conscientiously balances an inmate's right to effective assistance of counsel against the government's responsibility to thwart future acts of violence or terrorism perpetrated with the participation or direction of federal inmates. In those cases where the government has substantial reason to believe that an inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism, the government has a responsibility to take reasonable and lawful precautions to safeguard the public from those acts.

Applicability to All Persons in Custody Under the Authority of the Attorney General

The existing Secs. 501.2 and 501.3 cover only inmates in the custody of the Bureau of Prisons. However, there are instances when a person is held in the custody of other officials under the authority of the Attorney General (for example, the Director of the United States Marshals Service or the Commissioner of the Immigration and Naturalization Service). To ensure consistent application of these provisions relating to special administrative measures in those circumstances where such restrictions are necessary, this rule clarifies that the appropriate officials of the Department of Justice having custody of persons for whom special administrative measures are required may exercise the same authorities as the Director of the Bureau of Prisons and the Warden.

We are also clarifying the definition of ``inmate'' to avoid any question whether these regulations apply to all persons in BOP custody.

Administrative Procedure Act, 5 U.S.C. 553

The Department's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based on the foreign affairs exception, 5 U.S.C. 553(a), and upon [[Page 55065]] findings of good cause pursuant to 5 U.S.C. 553(b)(B) and (d).

The immediate implementation of this interim rule without public comment is necessary to ensure that the Department is able to respond to current intelligence and law enforcement concerns relating to threats to the national security or risks of terrorism or violent crimes that may arise through the ability of particular inmates to communicate with other persons. Recent terrorist activities perpetrated on United States soil demonstrate the need for continuing vigilance in addressing the terrorism and security-related concerns identified by the law enforcement and intelligence communities. It is imperative that the Department have the immediate ability to impose special administrative measures, and to continue those measures over time, with respect to persons in its custody who may wrongfully disclose classified information that could pose a threat to national security or who may be planning or facilitating terrorist acts.

In view of the immediacy of the dangers to the public, the need for detecting and deterring communications from inmates that may facilitate acts of violence or terrorism, and the small portion of the inmate population likely to be affected, the Department has determined that there is good cause to publish this interim rule and to make it effective upon publication, because the delays inherent in the regular notice-and-comment process would be ``impracticable, unnecessary and contrary to the public interest.'' 5 U.S.C. 553(b)(B), (d). Application of these measures is likely to affect only a small portion of the inmate population: those inmates who have been certified by the head of a United States intelligence agency as posing a threat to the national security through the possible disclosure of classified information; or for whom the Attorney General or the head of a federal law enforcement or intelligence agency has determined that there is a substantial risk that the inmate's communications with others could lead to violence or terrorism.

Regulatory Certifications

The Department has determined that this rule is a significant regulatory action for the purpose of Executive Order 12866, and accordingly this rule has been reviewed by the Office of Management and Budget.

The Department certifies, for the purpose of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Act. Because this rule pertains to the management of offenders committed to the custody of the Department of Justice, its economic impact is limited to the use of appropriated funds.

This rule will not have substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

List of Subjects in 28 CFR Parts 500 and 501

Prisoners.

Accordingly, pursuant to the rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a), part 501 in subchapter A of 28 CFR, chapter V is amended as set forth below:

SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION

PART 500--GENERAL DEFINITIONS

1. The authority citation for 28 CFR part 500 continues to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

2. In Sec. 500.1, paragraph (c) is revised to read as follows:

Sec. 500.1 Definitions.

* * * * *

(c) Inmate means all persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities, including persons charged with or convicted of offenses against the United States; D.C. Code felony offenders; and persons held as witnesses, detainees, or otherwise.

* * * * *

PART 501--SCOPE OF RULES

3. The authority citation for 28 CFR part 501 continues to read as follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4161-4166 (Repealed as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

4. In Sec. 501.2, paragraph (c) is revised and paragraph (e) is

added, to read as follows:

Sec. 501.2 National security cases.

* * * * *

(c) Initial placement of an inmate in administrative detention and/ or any limitation of the inmate's privileges in accordance with paragraph (a) of this section may be imposed for a period of time as determined by the Director, Bureau of Prisons, up to one year. Special restrictions imposed in accordance with paragraph (a) of this section may be extended thereafter by the Director, Bureau of Prisons, in increments not to exceed one year, but only if the Attorney General receives from the head of a member agency of the United States intelligence community an additional written certification that, based on the information available to the agency, there is a danger that the inmate will disclose classified information and that the unauthorized disclosure of such information would pose a threat to the national security. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.

* * * * *

(e) Other appropriate officials of the Department of Justice having custody of persons for whom special administrative measures are required may exercise the same authorities under this section as the Director of the Bureau of Prisons and the Warden.

4. In Sec. 501.3,

a. Paragraph (c) is revised;

b. Paragraph (d) is redesignated as paragraph (e); and

c. New paragraphs (d) and (f) are added to read as follows:

Sec. 501.3 Prevention of acts of violence and terrorism.

* * * * *

(c) Initial placement of an inmate in administrative detention and/ or any limitation of the inmate's privileges in accordance with paragraph (a) of this section may be imposed for up to 120 days or, with the approval of the Attorney General, a longer period of time not to exceed one year. Special restrictions imposed in accordance with paragraph (a) of this section may be extended thereafter by the Director, Bureau of Prisons, in increments not to exceed one year, upon receipt by the Director of an additional written notification from the Attorney General, or, at the Attorney General's direction, from the head of a federal law enforcement agency or the head of a member agency of the United States intelligence community, that there [[Page 55066]] continues to be a substantial risk that the inmate's communications or contacts with other persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.

(d) In any case where the Attorney General specifically so orders, based on information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall, in addition to the special administrative measures imposed under paragraph (a) of this section, provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys' agents who are traditionally covered by the attorney-client privilege, for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.

(1) The certification by the Attorney General under this paragraph (d) shall be in addition to any findings or determinations relating to the need for the imposition of other special administrative measures as provided in paragraph (a) of this section, but may be incorporated into the same document.

(2) Except in the case of prior court authorization, the Director, Bureau of Prisons, shall provide written notice to the inmate and to the attorneys involved, prior to the initiation of any monitoring or review under this paragraph (d). The notice shall explain:

(i) That, notwithstanding the provisions of part 540 of this chapter or other rules, all communications between the inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism;

(ii) That communications between the inmate and attorneys or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.

(3) The Director, Bureau of Prisons, with the approval of the Assistant Attorney General for the Criminal Division, shall employ appropriate procedures to ensure that all attorney-client communications are reviewed for privilege claims and that any properly privileged materials (including, but not limited to, recordings of privileged communications) are not retained during the course of the monitoring. To protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a privilege team shall be designated, consisting of individuals not involved in the underlying investigation. The monitoring shall be conducted pursuant to procedures designed to minimize the intrusion into privileged material or conversations. Except in cases where the person in charge of the privilege team determines that acts of violence or terrorism are imminent, the privilege team shall not disclose any information unless and until such disclosure has been approved by a federal judge.

* * * * *

(f) Other appropriate officials of the Department of Justice having custody of persons for whom special administrative measures are required may exercise the same authorities under this section as the Director of the Bureau of Prisons and the Warden.

ERRATA

TheDeath Penalty Information Centerreports:

Yugoslavia Abolishes the Death Penalty

The Yugoslav Parliament abolished the death penalty on November 5th, when it adopted a revised penal code. The new code replaces the death penalty with a 40-year prison term. (Agence France-Presse, 11/6/01) With Yugoslavia's abolition, the total number of countries that have abolished the death penalty in law or practice is 109, and the number of retentionist countries is 86. See Amnesty International's list of abolitionist and retentionist countries. See also, international death penalty.

Executions in Georgia and New Mexico

On Nov. 6, Georgia executed an inmate suffering from severe mental illness. Jose Martinez High was executed despite the fact that his attorney described High as someone who hallucinated and heard music coming from the walls of his cell and the ongoing sound of "lawnmowers" throughout the night. "He believes he has spoken to his mother 11 years after her death." In an affidavit, Richard Price, director of forensic psychology at the Medical University of South Carolina, said he found it difficult to determine whether High "is mentally retarded or has borderline intellectual functioning." But Price said he had no question as to whether High was mentally ill. (Atlanta Journal Constitution, 11/2/01)

Also on Nov. 6, New Mexico carried out its first execution in 41 years. Death row inmate Terry Clark had waived his appeals. Ironically, if Clark had been sentenced to death a little sooner, he would have been granted clemency by Gov. Toney Anaya in 1986. Anaya commuted all of New Mexico's death sentences before leaving office. Clark had been convicted but not yet formally sentenced to death, so his sentence was not commuted. (CNN.com, 11/1/01)

NEW VOICES: Doctor Urges Discipline for Execution Involvement

Sidney Wolfe, M.D., Director of Public Citizen Health Research Group, recently wrote to John Romine, M.D., President of the New Mexico State Board of Medical Examiners urging the immediate suspension of Dr. Fred Pintz's license to practice medicine because of Pintz's involvement in the upcoming execution of Terry Clark. According to the letter, Pintz, the Chief Medical Officer of the State of New Mexico, violated ethical and legal principles governing the Board of Medical Examiners when he authorized the acquisition and provision of the drugs to be used by the New Mexico Department of Corrections in the execution of Clark. Clark is scheduled for execution on November 6th. Read Dr. Wofle's letter.

Florida Judge Overturns Death Row Inmate's Conviction

A new trial has been ordered for Florida death row inmate Rudolph Holton. Hillsborough Circuit Judge Daniel Perry stated that prosecutors inadvertently withheld police reports and other evidence favorable to Holton, and that such errors and omissions warranted a new trial. Since Holton's first trial, witnesses have admitted lying about seeing him with the victim the night she was murdered. A key state witness, a jailhouse snitch who testified that Holton confessed to him, has also recanted. In addition, a hair found on the victim, which was used at trial to link Holton to the victim, has undergone new DNA testing. The tests show that the hair does not belong to Holton.

Prosecutors may appeal Perry's decision, go forward with a new trial, or drop the charges against Holton. "If the state wants to retry this, they've got real problems," said Holton's defense lawyer Martin McClain. "I don't think the state has any evidence on which a conviction can be based." (Tampa Tribune, 11/4/01) See also, innocence.

NEW RESOURCES: "The Truth About False Confessions and Advocacy Scholarship" - This article by Richard A. Leo and Richard J. Ofshe follows up on a previous article by the same authors which offered an estimate of how much influence a confession, whether true or false, exerts on the key decision makers in the criminal justice process. The current article serves as a response to Paul Cassell's criticism of the earlier article by the authors regarding their study of 60 wrongful conviction cases in which false confessions played a role. (37 Criminal Law Bulletin 293 (2001)) See also, law review articles.

Kentucky Death Sentences Reversed; Governor Supports Ban on Executing Juveniles

In the past year, appellate courts have reversed six Kentucky death sentences, citing issues such as inadequate representation and a lack of aggravating circumstances. In the same time period, three new death sentences were imposed at trials. Such reversals are not rare: since the death penalty was reinstated in 1976, appellate courts have reversed the sentences of 43 of the 82 people sentenced to death in Kentucky.

Kevin Stanford may be added to the list of sentence reversals if the state passes a law prohibiting the execution of juvenile offenders. Kentucky Governor Paul Patton recently announced that he would support a bill to abolish the death penalty for those who commit crimes as 16- or 17-year olds, stating that he was uneasy about holding juveniles as responsible as adults for their actions. Kentuckians tend to agree with Patton. A survey last year found that 79% thought that prison, not death, was the appropriate sentence for juveniles convicted of murder. (Herald Leader (Kentucky), 10/31/01) See also, juveniles and the death penalty and recent poll findings.

Santa Clara County Calls for Death Penalty Moratorium

The Santa Clara County Board of Supervisors passed a resolution urging lawmakers to halt executions in California until its fairness and the risk of executing innocent people are studied. By a 4-1 vote, the Board passed the resolution that calls upon the Governor to impose a moratorium "unless and until discrimination on the basis of race, ethnicity, national origin or economic status is eliminated."

Santa Clara is the second California county to pass a formal resolution calling for a moratorium on executions. The city and county of San Francisco passed a similar resolution, as have the cities of Oakland, Berkeley and Santa Cruz. (Associated Press, 10/31/01 and Californians for a Moratorium on Executions, Press Release, 10/30/01). For a list of groups that have passed moratorium resolutions, see http://www.quixote.org/ej/.

NEW VOICES: New Mexico Governor Says Eliminating Capital Punishment May Be "Better Public Policy"

New Mexico Governor Gary Johnson recently sent a letter to the hundreds of people who wrote to him about the upcoming execution of Terry Clark. In the letter, Johnson, who campaigned as a supporter of the death penalty, said his mind was "not closed on the subject" of capital punishment, adding:

I am of the opinion that swift and sure punishment deters crime. Currently, I do not believe that New Mexico's death penalty serves as an effective preventative measure because it is neither swift nor sure. The time period currently allowed for appeals under the process is too long and yet I have come to believe that innocent people might be put to death if these safeguards are not in place.

Opponents allude to an array of alarming national statistics, which suggest that the death penalty is discriminatory in its application. Those opposed to the death penalty point out the disparities that exist with regard to individuals receiving the death-penalty sentence. They argue persuasively that these disparities are a result of several factors including prosecutorial discretion as well as racial and economic discrimination.

Although I do not intend on declaring a moratorium on executions in New Mexico, eliminating the death penalty in the future may prove to be better public policy given the reality of the sentence today. Accordingly, within these parameters, I am open to a debate on this topic.

(Santa Fe New Mexican 10/28/01). Terry Clark is scheduled to be executed on November 6, 2001. It will be the first execution in New Mexico in over 40 years. See also, New Voices.

Latest Uniform Crime Report Shows Highest Murder Rate Again in the South

The latest FBI Uniform Crime Report shows that in 2000, the national murder rate decreased 3.1% from 1999, with the smallest decline in the South. The South remains the region with the highest murder rate, 6.8 victims per 100,000, compared to 5.1 in the West and Midwest, and 4.0 in the Northeast. (Crime in the U.S. 2000, FBI Uniform Crime Reports, October 2001) Read the report.

Since the death penalty was reinstated, over 80% of all executions have occurred in the South, the region with the highest murder rate. The Northeast, the region with the lowest murder rate, has accounted for less than 1% of the executions.

The FBI report also showed that in 2000, 49% of murder victims were white and 48.5% are black. Although blacks and whites are victims of murder in about equal numbers, over 80% of the victims in death penalty cases resulting in execution since 1976 have been white. See also, executions by region, and race and the death penalty.

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

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DISCUSSION LIST FOR LEGAL PROFESSIONALS:A discussion list for legal professionals invoved with capital litigation has been formed. The list is private & limited to just legal professionals at this time due to the natue of the conversations. With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. The hope of the list is to get some cross-pollination of ideas, as often what is winning in one stae has yet to be heard of in another. Subscribe:capitaldefense-subscribe@onelist.com

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