A firestorm that goes to the heart of due process in Illinois is the Focus of this week's edition. After finding the machinery of dath is so malaligned in their state that both the Illinois Supreme Court & Governor took extraordinary steps to correct the process by creating new rules for capital cases & imposing a mortorium, respectively, the the Illinois Supreme Court has held the old process is still good enough in some cases. People v. Hickey; People v. Simpson The Court's rationale seems to hold that while the old system may be broken, the system will be fixed one day, but for those still in the old system, even those with legitimate claims of innocence, in the words of Admiral David Farragut "Damn the torpedoes, full speed ahead!"

Hot listed this week are three capital case reversals. In the northeast the Pennsylvania Supreme Court, Commonwealth v. Begley held a penalty phase jury instructions must fail under Mills v. Maryland as juror's were misled as to their role in sentencing. In the Sxith Circuit a panel has clarified the requirements of criminal discovery in capital cases, United States v. Bass, holding that where sufficient evidence existed to warrant discovery on the federal government's decision to seek the death penalty due to the possibility of racial bias. On the Left coast, the Ninth Circuit, Spears v. Stewart, has determined that even though Arizona now qualifies as an opt-in to Chapter 154 of the AEDPA, opt-in can only be applied to a case which in both the state qualifies as opt-in as a whole & where in a given case the demanding standards of Chapter 154 have been met.

Other hot items this week include Hodge & Epperson v. Kentuckywhere a remand has been ordered for an evidentiary hearing on allegations the prosecution liquored up the jury while it was sequestered, amongst other grounds of jury tampering as well as ineffective asistance of counsel. Also noted are Amendment(s) to Florida Rules of Criminal Procedure, 3.851, et al which amends the ruls for the appointment of capital post-conviction, post-conviction procedures, as well as public records production in capital cases.

Three capital case relief grants are also noted, however, only a blurb is offered, inRandall v. Mississippi the Mississppi Supreme Court, in light of evidence of innocence excluded from trial, vacates and remands. The Ilinois Supreme Court, People v. Blue, reverses due to a trial court's restriction of the cross-examination of key witnesses for the State. Finally, the Ninth Circuit in Ainsworth v. Woodford concludes that trial counsel failed to adequately investigate penalty phase issues & therefore relief must be granted.

Robert Bacon, North Carolina, has received a commutation to life. Gov. Mike Easley issued the following statement on his decision. "I am satisfied that the prosecutors and judges acted fairly and professionally in this case. However, as Governor, my review of this matter in its totality causes me to conclude that the appropriate sentence for the defendant is life without parole." The basis of Easley's decision, in addition to much hard work by NCADP, PFADP & CUADP that laid the groundwork for the connected to get involved, was thatBacon, a black man, was to be executed for the same crime that sent a white woman to life in prison.

A special "shout out" to my former officemates & good friends Randall Wheeler, Julia Pearson, & Elizabeth Shaw for their win in Hodge & Epperson.

Since the last edition there has been one domestic execution.

October3 Michael Roberts Missouri

The scheduled executions considered likely for October are:

12 David Ward North Carolina

18 Alvie Hale Jr. Oklahoma

18 Christopher Beck Virginia

22 Gerald Mitchell Texas

24 Stephen Johns Missouri

FAX IT! A new update feature is being offered. Several courts are unable to post their decisions on the net & they don't appear in Westlaw or Lexis until months well after publication & therefore they wont appear here. Your help is needed. Feel free to telefax any opinion (or even winning motion) you think may be germane to

(617)249-0219FREE

or

(617)249-0557FREE

which have been set up to turn your fax into a document file so that it can be used. A special thank you to Julia Pearson for the idea & who became the first guinea pig volunteer for the "Fax it!" drive with the Hodge & Epperson v. Kentucky decision..

HOT LIST CASES

Spears v. Stewart , 2001 U.S. App. LEXIS 20850 (09/24/01 - No. 01-99000) Although Arizona Revised Statutes 13-4041 and 13-4013, and Arizona Rule of Criminal Procedure 6.8, which provide a mechanism for appointing counsel in capital habeas cases, qualifies as an opt-in to Chapter 154 of the AEDPA, opt-in can not be applied to a case where opt-in requirements have not been met.

We have concluded that, as of July 17, 1998, Arizona, through statutes and supreme court rules, had established a system that, on its face, entitled the state to opt in to the procedures of Chapter 154. The question remains, however, whether Respondent can invoke opt-in status in this case. We decide that he cannot.

In order to receive the benefits of Chapter 154 in a particular case, a state must achieve two things. First, the state must have in place a system that meets the federal statutory criteria for the appointment of post-conviction counsel for indigent capital defendants. Second, the state must follow that system in essential particulars. We thus agree with the Fourth Circuit that Chapter 154 requires a state to provide more than just a system that meets the federal standard on paper. Tucker v. Catoe, 221 F.3d 600, 604 (4th Cir.), cert. denied, 531 U.S. 1054 (2000).

Instead, a state must appoint counsel in compliance with its own system before a federal court will enforce the Chapter 154 time line on its behalf in a particular case. See id. ("It would be an astounding proposition if a state could benefit from the capital-specific provisions of AEDPA by enacting, but not following, procedures promulgated pursuant to 28 U.S.C. § 2261.").*fn20

Here, the Supreme Court denied certiorari on November 4, 1996. Yet, post-conviction counsel was not appointed for Petitioner until July 17, 1998 -- a period of about one year and eight months. We read the Arizona system to have required the appointment of counsel, in a case of this kind, within fifteen days from the date on which the state issued the notice of post-conviction relief (which, in turn, was to issue once Arizona received notification of the denial of certiorari by the Supreme Court). Because timeliness is a requirement at the heart of the post-conviction procedure, and the state failed utterly to meet the extant requirement, we hold that Arizona is not entitled to enforce the procedures of Chapter 154 in Petitioner's case.

United States v. Bass, 2001 U.S. App. LEXIS 20888; 2001 FED App. 0340P (6th Cir 09/25/2001) Evidence of racial statistical disparities in federal death penalty cases and statements by US Attorney General stating concern about those disparities is sufficient to warrant discovery on federal government's decision to seek the death penalty.

Through the Department of Justice's Survey and other statistical evidence, Bass presented the following evidence tending to show that selective prosecution taints the death penalty protocol. First, the Survey showed a significant difference between the percentage of white and black prisoners in the general federal prison population (white: fifty-seven percent; black: thirty-eight percent) and those charged by the United States with death-eligible crimes (white: twenty percent; black: forty-eight percent). Of the seventeen defendants charged with a death-eligible crime in the Eastern District of Michigan, none were white and fourteen were black (the other three were Hispanic).

Second, the Survey showed that the United States entered into a plea bargain with forty-eight percent of the white defendants against whom it sought the death penalty, compared with twenty-five percent of similarly situated black defendants. The United States entered into plea agreements with twenty-eight percent of Hispanics, and twenty-five percent of other non-white defendants.

Third, the Survey showed that two of the three death-eligible offenses charged most frequently against whites and blacks were the same, but that the percentages by race of those charged with each crime were vastly different. Sixteen percent of death-eligible whites were charged with firearms murder, compared with thirty-two percent of death-eligible blacks. Fifteen percent of death-eligible whites were charged with racketeering murder, compared with twenty-two percent of death-eligible blacks. The Survey noted that firearms murder, racketeering murder, and continuing criminal enterprise murder (the three charges brought most frequently against death-eligible blacks) "can be charged in a wide array of circumstances, and [are] therefore more likely to be available as a charging option in a given case than more narrowly defined offenses such as kidnaping-related murder." However, death-eligible whites were most often charged with murder within a federal jurisdiction (twenty-one percent of all death-eligible whites).

Bass also introduced other statistics indicating that blacks are no more likely to commit violent federal offenses than whites. For instance, the United States Sentencing Commission's statistics for 1999 (the most recent statistics currently available) show that twenty-eight percent of people sentenced for federal murder were white, while eighteen percent were black. See 1999 Sourcebook of Federal Sentencing Statistics. In fact, there were only four federal offense categories where whites comprised twenty percent or less of the total defendants sentenced. The Commission's 1999 sentencing statistics reflect three of them: manslaughter (whites: seventeen percent; blacks: eleven percent), sexual abuse (whites: eighteen percent; blacks: seven percent), and immigration (whites: four percent; blacks: four percent). The Survey reflects the fourth: death-eligible defendants (whites: twenty percent; blacks: forty-eight percent). In contrast, the only federal offense reflected in the 1999 sentencing statistics where blacks represented forty-eight percent or more of the total defendants sentenced was robbery (blacks: forty-eight percent; whites: forty-one percent). In the few non-death-eligible offense categories in which blacks actually constituted a higher percentage of total offenders sentenced than whites, none reflected a statistical racial disparity comparable to the disparity reflected by the Survey for death-eligible charges.

In addition to the statistical evidence, Bass introduced public comments made on the Survey's release date by then-Attorney General Reno and then-Deputy Attorney General Holder who expressed concern over the significant racial disparities uncovered by the Survey. For instance, Holder commented:

I can't help but be both personally and professionally disturbed by the numbers that we discuss today. To be sure, many factors have led to the disproportionate representation of racial and ethnic minorities throughout the federal death penalty process. Nevertheless, no one reading this report can help but be disturbed, troubled, by this disparity.

In response to another question, Holder tacitly recognized that the Survey's results implicate the very concerns forming the basis of Bass's selective prosecution claim: "I'm particularly struck by the facts that African-Americans and Hispanics are over-represented in those cases presented for consideration of the death penalty, and those cases where the defendant is actually sentenced to death." (emphasis added). Reno also expressed concern over the Survey's results, even while acknowledging the various non-racial factors that could affect them: "So in some respects I'm not surprised [by the racial disparities], but I continue to be sorely troubled."*fn2 While cautioning that intentional racial bias could not fairly be inferred simply as a result of the numbers, Reno emphatically endorsed future studies to determine whether the disparities were shaped, in part, by racial animus: "More information is needed to better understand the many factors that affect how homicide cases make their way into the federal system and, once in the federal system, why they follow different paths. An even broader analysis must therefore be undertaken to determine if bias does in fact play any role in the federal death penalty system" (emphasis added). Therefore, the top Department of Justice officials have taken the position that, although the Survey's results do not conclusively show intentional racial bias, neither do they conclusively show the lack of bias. Rather, in Reno's and Holder's view, the results demonstrate a clear racial disparity and raise questions warranting further study to determine whether that disparity is caused by intentional racial discrimination.

Commonwealth v. Begley, 2001 Pa. LEXIS 2084 (Pa 9/26/2001) Penalty phase jury instructions fails under Mills v. Maryland by improperly requiring unanimity on mitigating factors.

Appellant argues that the trial court erred during the penalty phase of his trial by: (1) failing to specifically instruct the jury that an individual juror could find the existence of a mitigating circumstance [*92] even if the other jurors did not find it; and (2) suggesting to the jury that it could only find the existence of a mitigating circumstance if all of the jurors agreed that it existed. Appellant contends that the trial court's inadequate and erroneous jury instruction entitles him to a new penalty phase hearing under Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988). We agree.

In death penalty deliberations, there is no requirement of unanimity as to the jurors' findings on the particular mitigating factors presented by the defense. In Mills v. Maryland, the United States Supreme Court held that jury instructions in a death penalty case which create a "substantial probability" that jurors would erroneously believe that they must unanimously agree on the existence of a mitigating circumstance before considering it in the weighing process violate the Eighth and Fourteenth Amendments to the United States Constitution. Id. at 384. The United States Supreme Court has since clarified the standard it enunciated in Mills, holding that the proper inquiry is whether there is a "reasonable likelihood" that the jury applied the [*93] challenged jury instruction in a way that prevented it from considering constitutionally relevant mitigating evidence. Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990).

A trial court's failure to specifically instruct the jury that unanimity is not required in order for them to find that a mitigating circumstance existed does not, in and of itself, create a reasonable likelihood that jurors would erroneously infer such a requirement. Commonwealth v. Holland, 556 Pa. 175, 185, 727 A.2d 563, 568 (1997); Commonwealth v. Banks, 540 Pa. 143, 149-50, 656 A.2d 467, 470 (1995). However, where a jury has been instructed that unanimity was required when finding mitigating circumstances, a death sentence must be vacated. Commonwealth v. Billa, 521 Pa. 168, 186, 555 A.2d 835, 844 (Pa. 1989); see also Holland, 556 Pa. at 185, 727 A.2d at 568 ("where there is a high risk that instructions could be understood as requiring unanimity as to mitigating circumstances, the sentence must be vacated").

In the instant case, the trial court instructed the jury as follows:

Your verdict [*94] must be a sentence of death if you unanimously find, that is, all of you find at least one aggravating and no mitigating circumstance or if you unanimously find one or more aggravating circumstances which outweigh any mitigating circumstance.

If you do not all agree, that means you cannot reach the unanimous verdict on one or the other of these findings, then the only verdict that you may return is a sentence of life imprisonment.

N.T., 7/17/96, at 1170-71. This Court has previously reviewed this instruction and found that it, standing alone, does not violate Mills. Commonwealth v. Banks, 540 Pa. 143, 149-50, 656 A.2d 467, 470 (1995). Following the above instruction, however, the trial court discussed the verdict slip with the jury, explaining as follows:

You will remember I called upon you to weigh the aggravating versus the mitigating circumstance.

The aggravated circumstance unanimously found is, and you designate that aggravating circumstance. The mitigating circumstances found by you unanimously are or is.

Two [if], the mitigating circumstance is not outweighed by the aggravating circumstance, then you go on to provide what you found unanimously [*95] to be the mitigating circumstance or circumstances and the aggravating circumstance unanimously found.

N.T., 7/19/96, at 1174-75 (emphasis added).

We believe that the above-quoted excerpt from the trial court's jury instructions, when considered in conjunction with the fact that the trial court did not explicitly inform the jurors that any one or more of them could find the existence of a mitigating circumstance, created a reasonable likelihood that the jurors concluded that they needed to unanimously agree that a mitigating circumstance existed in order to consider that mitigating circumstance. n33 Given this uncertainty, we must vacate the judgment of sentence and remand this matter to the trial court for a new sentencing hearing.

Hodge & Epperson v. Kentucky, 2001 Ky. LEXIS 159 (Ky 9/27/2001) Remand for an evidentiary hearing on jury tampering charges and allegations of ineffective assistance of counsel during the penalty phase

Both Epperson and Hodge made the following factual allegations in their RCr 11.42 motions:

1. Jurors in this case were supplied with newspapers, access to television, visits, and alcoholic beverages during the time that they were sequestered.

2. The Commonwealth's Attorney maintained at least daily ex parte contact with the jury, either directly or through other parties.

3. Before the evidence was completed and the case was submitted to the jury for deliberation, the jury had already chosen a foreman, had deliberated the case and, further, had already decided that its verdict would be guilty and that it would recommend the death penalty for both defendants.

The trial court summarily disposed of the jury tampering issue stating:

None of the allegations as to jury misconduct are supported by the record of the trial, and there is no specific factual support asserted for them. The Movants do not indicate what evidence they rely on to show that these alleged incidents happened or what witnesses [*4] they intend to call. Because of this, the Court finds no prima facie showing of constitutional error is made ....

Findings of Fact and Conclusions of Law at 5, 85-CR-0070 (Letcher Circuit Court entered Dec. 2, 1998).

Instead of examining whether the record refuted the allegations raised, the trial court focused on whether the record supported the allegations, which is the incorrect test when addressing the question of whether an evidentiary hearing to resolve issues raised in an RCr 11.42 is required.

The initial question to be asked is whether the alleged error is such that the movant is entitled to relief under the rule. "In a petition filed under RCr 11.42 the movant must show that there has been a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack." Lay v. Commonwealth, Ky., 506 S.W.2d 507, 508 (1974). If that answer is yes, then an evidentiary hearing on a defendant's RCr 11.42 motion on that issue is only required when the motion raises "an issue of fact that cannot be determined on the face of the record." Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44 (1993), [*5] judgment affirmed, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989). In the case at bar, the allegations of juror tampering rise to the level of a potential violation of a constitutional right.

The right to an unbiased decision by an impartial jury in a criminal trial is a basic principle of due process. Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 134 (1988). Jury tampering may deprive a defendant of his right to an impartial jury so as to violate the right to due process. The U.S. Supreme Court held that jury tampering in a criminal trial is presumptively prejudicial. Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654, 655 (1954).

In Remmer, an unnamed party communicated with a juror -- who later became the foreman -- and suggested to the juror that he could profit by bringing in a verdict favorable to the defendant. Id. at 228, 74 S. Ct. at 450, 98 L. Ed. at 655. The juror related the incident to the judge who advised the prosecutor, but not defense counsel. Id., 74 S. Ct. at 450-51, 98 L. Ed. at 655. Defense counsel first learned of the contact after [*6] trial. Id. Subsequently, the defendant moved for a new trial and requested a hearing to determine the facts of the contact. Id., 74 S. Ct. at 451, 98 L. Ed. at 655. The district court denied the motion and the court of appeals affirmed. The Remmer Court reversed and remanded for the district court to hold a hearing to "determine the circumstances, the impact upon the juror, and whether or not it was prejudicial... ." Id. at 230, 74 S. Ct. at 451-52, 98 L. Ed. at 656. The jury tampering alleged in the present case is much graver than that alleged in Remmer.

Next, we conclude that the jury tampering allegations are pled with sufficient specificity. See Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998), cert. denied, 516 U.S. 854, 116 S. Ct. 154, 133 L. Ed. 2d 98 (1995) ("Conclusory allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition."). Epperson and Hodge do not simply raise a blanket allegation of jury tampering. Rather, they each allege specific incidents of tampering, [*7] e.g., daily ex parte contact by the Commonwealth's Attorney, the supplying of newspapers to the jury, and providing the jury access to television, etc. The trial judge discounted these allegations because Epperson and Hodge did not supply the underlying factual bases for these charges, i.e., the facts they intended to rely on to prove the allegation. But this is required neither by the plain language of RCr 11.42, nor by our cases interpreting the rule. While we decline to impose such a requirement here, we note that it would be prudent and economical to include the underlying factual bases for allegations contained in an RCr 11.42 motion.

Amendment to Florida Rules of Criminal Procedure, 3.851, et al., 2001 Fla. LEXIS 1911, (Fla 9/26/2001) Florida's amended rules for the appointment of capital post-conviction, post-conviction procedures, as well as public records production in capital cases.

Supreme Court

No cases noted.

Positive Capital Case Results

Randall v. Mississippi, 2001 Miss. LEXIS 243 (Miss 9/27/2001) "Trial court committed reversible error in not admitting, pursuant to Mississippi Rule of Evidence 804(B)(5), ... consistent, contemporaneous, and exculpatory statements to the police."

People v. Blue, 2001 Ill. LEXIS 1082 (Ill 9/27/ 2001) Relief granted as "the trial court unconstitutionally restricted defense counsel's cross-examination of key witnesses for the State."

Ainsworth v. Woodford, 2001 U.S. App. LEXIS 21114 (9th Cir 09/28/2001) Failure of defense counsel to investigate educational, occupational and criminal records for penalty phase of capital case constitutes ineffective assistance where defendant had history of drug abuse, child abuse and mitigating behavior in prison.

Bryant v. Commonwealth, 2001 Pa. LEXIS 2078 (PA 9/26/2001) Jurisdiction lies only in the state Supreme Court "when a Court of Common Pleas denies post-conviction relief of guilt phase issues but grants relief with respect to sentencing."

Capital Cases Relief Denied

People v. Hickey, 2001 Ill. LEXIS 1080 (Ill. 09/27/2001) Illinois's new rules of capital procedure do not apply retroactively. On not holding the rules to be retraoctive:

As noted, the new rules of this court are not of constitutional dimension in and of themselves. They function solely as devices to further protect those rights given to defendants by the federal and state constitutions, such as, for example, the right to counsel and the right to a fair trial. Our new rules were designed to help remedy some of the problems that were perceived to be the root cause of past erroneous convictions. For example, most reversals occur because of (i) ineffective assistance of trial counsel, (ii) prosecutorial misconduct which deprives a defendant of a fair trial, and (iii) trial judge error. Recognizing this, this court adopted rules designed to minimize these problems in future. These rules therefore help to avoid future reversals based on instances of constitutionally incompetent representation and improper prosecutorial conduct, among other things. Notwithstanding the promulgation of these rules, errors will occur. These errors may well require reversal-not because the rules themselves were violated-but because certain fundamental constitutional violations occurred. It is the departure from constitutional principles that make a criminal proceeding unreliable, not failure to observe rules of this court. For this reason, we do not believe that the rules can or should be viewed as constitutional such as to implicate a Teague analysis.ce obtained without the aid of the new rules is invalid. Because the defendant in the case before us was tried, convicted and sentenced without the benefit of the new rules, his conviction and sentence should therefore be vacated and the cause should be remanded to the circuit court for a new trial in conformity with our new rules....

Snow v. Mississippi, 2001 Miss. LEXIS 243 (Miss 9/27/2001) Relief denied on challenges to the government's use of peremptories, a constitutional challenge on whether the use of any peremptory challenge violates the federal constitution, failure ot grant a mistrial due to victim family member's outbursts, competency, hideousness of photos, double jeopardy due to charges of a persistent felony offender, and the great risk aggravating circumstance, among other claims.

Down v. Moore, 2001 Fla. LEXIS 1905 (Fla 9/26/2001) Relief denied on claims that "appellate counsel was ineffective for (1) failing to argue on appeal that the State improperly referred to Downs' post-arrest silence; (2) failing to argue on appeal that the trial court erred in refusing to instruct the jury that it could consider mercy during its deliberations; (3) failing to argue on appeal that the trial court erred in refusing to instruct the jury that it could consider the leniency given to the codefendants and doubt as to whether Downs was the triggerman; (4) failing to argue on appeal that the trial court improperly considered a presentence investigation report; (5) failing to argue on appeal that the trial court erred in refusing to instruct the jury on the law of principals; (6) raising the wrong argument on appeal concerning the denial of Downs' request to subpoena the State Attorney; (7) failing to argue on appeal that the trial court erred in denying Downs' request to disqualify the State Attorney's Office; (8) failing to properly brief the issue concerning the trial court's exclusion of Bobbie Jo Michael's deposition testimony; (9) failing to argue on appeal that the State improperly introduced evidence that Downs was carrying false identification at the time of his arrest; (10) failing to challenge improper comments by the prosecutor during closing argument; (11) failing to argue on appeal that the trial court improperly denied Downs' motion to disqualify the court; and (12) failing to argue on appeal that the jury instructions improperly shift the burden of proof to the defense."

People v. Simpson, 2001 Ill. LEXIS 1081 (Ill 9/27/2001) Relief denied, chiefly, on grounds relating to use of perjured testimony, Brady violations, waiver o the right to counsel , in effectiveness of standby counsel, constitutionality of Illinois death penalty statute, and applicability of new rules of death penalty procedure.

Ohio v. Biros, 2001 Ohio LEXIS 2403, 93 Ohio St. 3d 250 (Ohio 9/26/2001) "Application for reopening appeal from judgment of conviction based on claim of ineffective assistance of appellate counsel . . . denied [as] claimant fails to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal as required under App.R. 26(B)(5)."

Commonwealth v. Breakiron, 2001 Pa. LEXIS 2075 (Pa 9/26/2001) "Appellant's [second state post-conviction] petition was properly dismissed as untimely and that this Court has no jurisdiction to review the merits of his petition."

Commonwealth v. Tiley, 2001 Pa. LEXIS 2076 (Pa 9/26/2001) "Appellee is not entitled to assert a Batson/Powers claim and, therefore, that he has not shown the necessary "good cause" required for discovery related to this claim.

Delayed Publication /Amended Opinions

No cases noted.

Other Notable Cases(As reported by Findlaw , and other sources)

Hunt v. Hopkins, No. 00-2697(8th Cir. 09/26/2001) A district court order granting a habeas petitioner leave to amend his petition pending resolution of state claims is not an appealable order.

Hart v. Massanari, No. 99-56472 (9th Cir. 09/24/2001) Ninth Circuit will not change rules on unpublished opinions; Counsel not sanctioned for citation to unpublished opinions despite a show cause order.

Unlike the Anastasoff court, we are unable to find within Article III of the Constitution a requirement that all case dispositions and orders issued by appellate courts be binding authority. On the contrary, we believe that an inherent aspect of our function as Article III judges is managing precedent to develop a coherent body of circuit law to govern litigation in our court and the other courts of this circuit. We agree with Anastasoff that we--and all courts--must follow the law. But we do not think that this means we must also make binding law every time we issue a merits decision. The common law has long recognized that certain types of cases do not deserve to be authorities, and that one important aspect of the judicial function is separating the cases that should be precedent from those that should not. Without clearer guidance than that offered in Anastasoff, we see no constitutional basis for abdicating this important aspect of our judicial responsibility.

Contrary to counsel's contention, then, we conclude that Rule 36-3 is constitutional. We also find that counsel violated the rule. Nevertheless, we are aware that Anastasoff may have cast doubt on our rule's constitutional validity. Our rules are obviously not meant to punish attorneys who, in good faith, seek to test a rule's constitutionality. We therefore conclude that the violation was not willful and exercise our discretion not to impose sanctions.

McCambridge v. Hall, No. 00-1621 (1srt Cir 09/24/2001) Federal law does not require a defendant to object when the prosecutor fails to reveal exculpatory evidence in violation of Brady v. Maryland because defense counsel is entitled to rely on representations of the government regarding the existence of exculpatory evidence.

White v. Indian a Parole Bd., No. 00-2425 (09/26/2001) Because the parole board is not a court, a witness' presence after the close of evidence and during deliberations is not a violation of due process.

US v. Sera, No. 00-3415(8th Cir 09/24/2001) Failure of counsel to seek downward departure for waiver of status as a deportable alien is not ineffective assistance of counsel where there isno local authority on the effect of an alien's status on downward departures.

McCoy v. US, No. 00-16434 (11th Cir 09/25/2001) Apprendi error in failing to set forth drug quantity in the indictment is not a jurisdictional defect and thus may be waived and subject to the Teague rule against retroactive application in habeas petitions.

Hagis v. US, No. 00-16657 (11th Cir 09/28/2001)A court may use a prior state conviction to enhance a sentence even if the direct discretionary appeal of the revocation of his first-offender status has yet to expire.

US v. Tighe, No. 00-30263 (9th Cir 09/24/2001) Prior juvenile adjudications do not fall under the "prior conviction" exception to Apprendi because they do not provide for a right to jury trial.

Welch v. Newland, No. 00-15366 (9th Cir 09/24/2001) Under 28 USC 2244(d)(2) of the AEDPA, the one-year filing period tolls during the period between the filing of the initial habeas petition at the state supreme court and when that court rejected the petitioner's final challenge.

Focus

This week's Focus section examines the internecine war that appears to have broken out on the Illinois Supreme Court. The decision not to hold all cases to the new Illinois rules governing capital cases, in light of the thirteen innocent people sentenced to death in that state in recent years, set off a fire storm.

Chief Justice Harrison, dissenting in People v. Hickey:

The system for imposing capital punishment in Illinois has collapsed. Trial proceedings had become so unreliable and appellate review so haphazard that the Governor was eventually forced to step in and declare a moratorium on future executions. That moratorium, announced on January 31, 2000, remains in effect. See People v. Simms, 192 Ill. 2d 348, 432 (2000) (Harrison, C.J., dissenting).

Legislative and executive branch committees are investigating whether the failures in our death penalty law can be remedied or whether the death penalty should simply be abolished. *fn1 As we await their conclusions, our court has formed its own committee to examine the problem. Based upon the work of that committee, we have adopted a comprehensive set of new rules governing the conduct of cases in which the State is seeking the death penalty. With certain exceptions, the new rules took effect March 1, 2001.

The new rules clarify the duty of prosecuting attorneys (amended Rule 3.8 of the Rules of Professional Conduct), establish mandatory programs to improve the knowledge and skill of trial judges who may be called upon to preside over capital cases (Rule 43), extend criminal discovery rules to capital sentencing hearings (Rule 411), and impose on the State a duty to make a good-faith effort to identify material or information which tends to negate the guilt of the accused or reduce his punishment (Rule 412). The rules also create a new set of procedures that must be followed in capital cases. Among theses are rules which require the State to give prompt notice of its intention to seek or reject imposition of the death penalty, limit eligibility to serve as defense counsel to attorneys who meet stringent new minimum qualifications, authorize discovery depositions in capital cases, mandate case management conferences after the State has disclosed its intention to seek the death penalty, and obligate the State to certify before trial that it has complied with its disclosure duties (Rule 416). In addition, new pretrial disclosure rules are imposed with respect to DNA evidence (Rule 417).

As the committee comments to these rules indicate, they are designed "to ensure that capital defendants receive fair and impartial trials and to minimize the occurrence of error in capital trials." 188 Ill. 2d R. 416, Committee Comments, at lxxii. These are objectives that were clearly not being met under the old law. Indeed, in many cases under the old law, there was no longer even a pretense of fairness or accuracy. A majority of this court expressly conceded the inherent unreliability of the system. People v. Bull, 185 Ill. 2d 179, 215-18 (1998). Utter ineptitude was accepted as adequate representation. People v. Rissley, No. 82536, slip op. at 11 (March 15, 2001) (Harrison, C.J., dissenting). Appeals were illegally and summarily dismissed. People v. Kokoraleis, M.R. 15833, Official Reports Advance Sheet No. 11, at 4-7 (June 2, 1999).

The case before us today illustrates many of the system's shortcomings. Defendant is a polio victim with hearing and speech impediments whose intelligence is borderline retarded. The surviving victim's initial description of her assailant bore no similarity to defendant, and when asked to identify defendant later, she stated that she had never seen him before. People v. Hickey, 178 Ill. 2d 256, 263-64 (1997). No fingerprints, shoe impressions or fiber evidence connected defendant to the crime. The murder weapon was not linked to him. A man seen by the victims' automobile after the crime did not resemble defendant. Hickey, 178 Ill. 2d at 264-67, 273-74.

What convicted defendant was DNA evidence. The DNA evidence used against him, however, was of dubious validity. The quality assurance standards of the laboratory were questionable. Hickey, 178 Ill. 2d at 271. The initial samples were destroyed through mishandling. The discovery of additional samples raised suspicions. Virtually all of the samples had degraded or were of poor quality. Hickey, 178 Ill. 2d at 272. In addition, the State employee who performed the tests was reprimanded for sloppy and unprofessional work, was found to have been dishonest, and was disciplined for stealing state property.

Despite the weaknesses in the State's case, the jury convicted defendant and he was sentenced to death. Despite the array of problems that developed before and during defendant's trial, the majority has found a way to affirm the conviction and sentence. The formal process was honored. If the capital punishment debacle of the last few years has taught us anything, however, it is that adherence to the formal process, as it existed under the old law, can produce results that seem rational but are, in fact, completely unreliable.

In addressing the shortcomings of the past, the new supreme court rules for capital cases reflect a basic shift in this court's conception of what is necessary to provide capital defendants with a fair trial. Our tolerance for prosecutorial gamesmanship and professional incompetence has evaporated. From now on, the success of prosecutors will be gauged by how well they cooperate in the search for truth and justice, not by the number of convictions they secure. It cannot be any other way. The old priorities do not work. When convictions are prized above justice, innocent men are sentenced to die. It has happened too often in Illinois It must stop.

The evidence presented to our committee and the committee's subsequent recommendations have persuaded us that the procedures contained in the new rules are indispensable for achieving an accurate determination of innocence or guilt. Those procedures will not necessarily assure that error will be eliminated from every murder case in which the State seeks the death penalty. Without them, however, no capital proceeding can be deemed reliable.

As a general rule, changes in the law which are procedural in nature, as these rules are, apply to all cases pending on direct review without regard to whether the claims arose before or after the change in the law occurred. People v. Nitz, 173 Ill. 2d 151, 162 (1996), overruled on other grounds by People v. Mitchell, 189 Ill. 2d 312 (2000); Maiter v. Chicago Board of Education, 82 Ill. 2d 373, 390 (1980). That is unquestionably so where the new law expressly defines its temporal reach to include pending cases. See Commonwealth Edison v. Will County Collector, 196 Ill. 2d 27, 38 (2001) (where legislature has clearly indicated what the temporal reach of an amended statute should be, that expression of legislative intent must be given effect absent a constitutional prohibition).

The same is true of rules promulgated by this court. Our court has the authority to specify the particular date new rules or amendments to rules take effect. If we so specify, the effective date of the new rules "shall be as ordered." 188 Ill. 2d R. 3(g). Once the effective date has been reached, the new rules are applicable to all cases pending on direct review, even cases which commenced before the rules were enacted. That is so because, as with new procedural statutes, rules of court which are procedural in nature have retroactive application. See Jarmon v. Jinks, 165 Ill. App. 3d 855, 863 (1987).

Because rules of procedure apply retroactively, we have not hesitated to apply our new rules governing capital cases to cases coming before us on direct review. See People ex rel. Birkett v. Bakalis, No. 90114, slip op. at 2 (June 21, 2001). We should take the same approach in cases such as this one which come before us in the context of post-conviction proceedings.

A court's adoption of new rules of court governing criminal procedure is analogous to its issuance of a judicial opinion recognizing new rules of criminal procedure. Where the court issues an opinion announcing new rules of criminal procedure and the rules are of constitutional dimension, the new rules may be invoked by other defendants in other cases on collateral review where such rules implicate the fundamental fairness and accuracy of the trial. People v. Caballero, 179 Ill. 2d 205, 220-21 (1997). To qualify for application under this principle, the new rules must be aimed at improving the accuracy of trial and be of such importance that they alter our understanding of the bedrock procedural elements essential to a fair trial. Sawyer v. Smith, 497 U.S. 227, 242, 111 L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831 (1990). For the reasons previously discussed, the new rules governing capital cases plainly meet this requirement. They represent a basic and unprecedented shift in our conception of what we must do to afford defendants a fair trial in death penalty cases and to assure that the results of such trials are consistently reliable. A new, irreducible standard has been set.

Now that the new standard is in place, we cannot countenance any conviction or sentence in a capital case where the standard has not been followed. If the new rules are so essential to the fairness and accuracy of capital cases and if we are serious about our intention to improve the reliability of capital proceedings, we must disavow any presumption as to the fairness and accuracy of death penalty cases prosecuted under the old law. The only presumption to be made at this point is that any conviction and sentence obtained without the aid of the new rules is invalid. Because the defendant in the case before us was tried, convicted and sentenced without the benefit of the new rules, his conviction and sentence should therefore be vacated and the cause should be remanded to the circuit court for a new trial in conformity with our new rules.

As if to reply in the Chief Justice's damning criticism in People v. Hickey where innocent was a factor, Justice Freeman responds hard in a case where guilt is not seriously at question, People v. Simpson, specially concurring:

I agree with the court in all respects and join fully in the opinion affirming the orders of the circuit court. I write separately only to express my views on a portion of Chief Justice Harrison's dissent to which the court today does not respond.

I note that the Chief [*59] Justice takes the same position here that he did in People v. Hickey, 2001 Ill. LEXIS 1080, No. 87286 (September 27, 2001), i.e., that the new supreme court rules addressing capital litigation serve to provide relief to a defendant even if no other basis exists to reverse the case. Having set forth the legal reasoning for his position, the Chief Justice states:

"If our experience with capital cases over the past few years has taught us anything, it is that we must view everything that occurs at capital trials with heightened skepticism. When we surrender that skepticism, disaster follows. Just ask Ronald Jones, Joseph Burrows, or Anthony Porter. We found ways to uphold each of their convictions and sentences when their cases first came before us, only to discover later that they were actually innocent." Slip op. at 34 (Harrison, C.J., dissenting).

In my view, these remarks need to be addressed because they unfortunately call into question the integrity of the court.

The names listed in the dissent are some, but not all, of the men released from death row in Illinois when new evidence later was uncovered which cast doubt on the guilty verdicts rendered in each of their capital trials. I specifically [*60] take issue with the Chief Justice's comment that "we found ways" to uphold the convictions in these cases. When a fellow justice states that his court, as a body, has "found ways" to uphold convictions, that justice is saying his colleagues in these cases intentionally overlooked, got around, put to one side, ignored, or otherwise dismissed out of hand, something important that should have caused a reversal, whether that something was a legal argument or exculpatory evidence. The Chief Justice's remark, even if nothing more than rhetorical flourish, reaches well beyond mere disagreement with the legal reasoning of the other members of the court. Rather, it constitutes a serious charge of unprofessional and unethical judicial conduct. Because the Chief Justice's statement is untrue and impugns the integrity of the court, I wish to comment on the facts underlying the cases of the men noted in the dissent.

Although this court affirmed Ronald Jones' convictions and sentence on direct review, what occurred in this court after that initial appeal deserves mention. After the completion of the direct review proceedings, a vaginal swab containing DNA evidence was discovered. This evidence [*61] was not presented at defendant's initial trial and was therefore not a part of the record on direct review. During the ensuing post-conviction proceedings, Jones' attorneys unsuccessfully argued in the circuit court of Cook County that the vaginal swab containing the newly discovered DNA evidence should be tested. Jones' lawyers, however, won a victory in this court when we directed the circuit court to release the evidence to Jones' attorney for the purpose of conducting DNA testing. After the testing was completed, it was revealed that Jones could not have been the perpetrator. This court then issued the following order:

"The order of the Circuit Court of Cook County denying the petition for post-conviction relief is vacated. This cause is remanded to the circuit court with directions to allow defendant's petition for post-conviction relief, vacate defendant's conviction and grant defendant a new trial."

At the subsequent proceedings on remand, the State dismissed the charges against Jones in light of the DNA evidence. In view of these facts, it seems incredible to me that any member of this court could state that this court "found ways" to uphold the convictions in this case. [*62]

With respect to Joseph Burrows, this court affirmed his convictions and death sentence on direct review in 1992. People v. Burrows, 148 Ill. 2d 196, 170 Ill. Dec. 317, 592 N.E.2d 997 (1992). After the completion of the direct review proceedings, Burrows filed a petition for post-conviction relief in which he alleged that, subsequent to his trial, evidence had come to light that the State's two principal witnesses against him had committed perjury, and that one of those witnesses had later admitted to being the killer. The circuit court granted defendant's post-conviction petition by vacating the convictions and ordering a new trial. The State appealed directly to this court, asking that we reverse the order of the circuit court and reinstate the convictions and death sentence. We rejected the State's argument and upheld the trial court's grant of a new trial. See People v. Burrows, 172 Ill. 2d 169, 216 Ill. Dec. 762, 665 N.E.2d 1319 (1996) ( Burrows II). I note that the trial court's decision to vacate the prior convictions was based largely on this court's opinion in People v. Washington, 171 Ill. 2d 475, 216 Ill. Dec. 773, 665 N.E.2d 1330 (1996), [*63] in which we recognized that a claim of newly discovered evidence of actual innocence presents a constitutional question cognizable under the Post-Conviction Hearing Act. As in the Jones case, the evidence that exonerated Burrows was not available during the original trial. Nevertheless, this court did not hesitate to affirm the circuit court's order vacating the convictions when that evidence was brought to light.

Finally, with respect to the case of Anthony Porter, I acknowledge that this court upheld Porter's convictions and death sentence both on direct and collateral review. Indeed, the Chief Justice joined fully in the court's opinion affirming the denial of post-conviction relief. See People v. Porter, 164 Ill. 2d 400, 207 Ill. Dec. 479, 647 N.E.2d 972 (1995). This court did, however, later order Porter's execution stayed in order to review claims that Porter was mentally retarded and that, as a result, he lacked the mental capacity to be executed. During the period of the stay, new evidence came to light which was later used to exonerate him. Nothing in the opinions of the court or in the court's handling of the case supports the assertion raised by the Chief [*64] Justice that this court, he included, somehow "found ways" to uphold the Porter convictions.

The Chief Justice's deeply held position against the death penalty does not give him the license to ignore the facts. The death penalty is a highly charged, emotional area of the law that is very much in the public consciousness. Honorable people can and do disagree over whether the state should have a death penalty. However, by misrepresenting the past actions of this court, the Chief Justice does little more than fan the flames of sensationalism and denigrate this court in the eyes of the public.

Errata

From the Death Penalty Information Center reports:

North Carolina Governor Grants Clemency to Robert Bacon

Gov. Mike Easley of North Carolina commuted the death sentence of Robert Bacon to life in prison without parole on October 2. Bacon was scheduled to be executed on Friday, October 5. The governor concluded that a life sentence was more "appropriate" in this case. Bacon's case marks the first time Governor Easley has granted clemency. (News and Observer, 10/3/01) Bacon is the 4th North Carolina death row inmate, and the 46th nationwide, to receive clemency since the death penalty was reinstated. Allegations of racial bias had been raised in Bacon's appeal. See also, clemency.

Federal Grand Jury in Oklahoma to Investigate Executed Inmates' Cases

A federal grand jury has subpoenaed evidence from 10 murder cases associated with former Oklahoma City police chemist Joyce Gilchrist. In nine of the cases, the defendants - Malcolm Rent Johnson (see below), Loyd Lafevers, Mark Andrew Fowler, Billy Ray Fox, James Robedeaux, Roger Berget, William Bryson, Dion Smallwood, and Marilyn Plantz - have already been executed. Gilchrist was fired on September 25 for laboratory mismanagement and flawed casework analysis, according to police. (The Daily Oklahoman, 9/27/01) See also, Innocence.

NEW VOICES: Two Illinois Supreme Court Justices Challenge State Death Sentences

In a recent case before the Illinois Supreme Court, Chief Justice Moses Harrison II and Justice Thomas Kilbride stated that death penalty convictions handed down before new death penalty reforms went into effect should be thrown out. "[T]he procedures in capital cases prior to this court's adoption of the new rules was inherently unreliable and did not sufficiently protect a defendant's constitutional rights," said Kilbride. Harrison, who called the state's experience with capital punishment a "debacle," urged new trials, not just reduced sentences, for those sentenced to death before the system was revamped. The majority of the court rejected this view, but held that the court would review each death penalty case on its individual merits. (Chicago Tribune, 9/28/01) See also, New Voices.

Executions Decline in 2001

So far this year, the number of executions in the U.S. is down compared with last year. In 2000, 85 executions took place, but to date this year, there have been 49 executions. This projects out to about 65 executions for the year. In addition, the number of executions in the top three death penalty states is also down. In 2000, Texas, Virginia, and Florida performed 54 executions, compared with 15 this year. If this year's execution rate continues, 2001 will mark the first time since the death penalty was reinstated that executions have declined for two consecutive years. (9/28/01) See also, Number of Executions by State.

Turkish Parliament Votes to Limit Death Penalty

On September 25, the Turkish Parliament voted to limit the death penalty to only times of war or in cases involving terrorism. The Parliament's 368 to 65 vote in favor of limiting the death penalty brings Turkey closer to meeting membership requirements of the European Union. (Associated Press, 9/26/01) See also, international death penalty.

No More Juvenile Offenders on Virginia's Death Row

The Virginia Supreme Court recently overturned the death sentence of the only juvenile offender on Virginia's death row. The court ruled that Shermaine A. Johnson's death sentence should be vacated and he should receive a new sentencing trial because his jury was not told that Johnson would not be eligible for parole if sentenced to life imprisonment. The state attorney general's office acknowledged that Johnson's jury should have been told that a life sentence really meant life. (Washington Post, 9/25/01)

Last year, the only other juvenile offender on Virginia's death row, Chauncey Jackson, had his conviction overturned. The state decided not to pursue the death penalty at his re-trial. See also, juveniles and the death penalty.

U.S. Supreme Court Will Hear Virginia Case to Decide Constitutionality of Executing Inmates with Mental Retardation

The U.S. Supreme Court dismissed the case of North Carolina death row inmate Ernest McCarver, which they had taken to decide the issue of whether it is cruel and unusual to execute inmates with mental retardation. Instead, the Court will hear the case of Daryl Atkins, a Virginia death row inmate with mental retardation. After the Justices had agreed to review McCarver's case, North Carolina passed a bill prohibiting the execution of the mentally retarded, rendering McCarver's case moot. (Associated Press, 9/25/01)

In 1989, the Supreme Court held that executing persons with mental retardation was not a violation of the Eighth Amendment because a "national consensus" had not developed against executing those with mental retardation. At the time, only two states prohibited such executions. Since then, 16 more states and the federal government have enacted laws prohibiting the execution of the mentally retarded. See also, mental retardation and the death penalty.

NEW VOICES:In a recent editorial, the Charlotte Observer urged North Carolina to delay executions beyond the stay occasioned by the recent terrorist attacks:

Gov. Mike Easley has wisely postponed until Oct. 5 the execution of convicted murderer Robert Bacon, who was scheduled to be executed Friday. That's the right step, given the overwhelming tragedies of the past week and the disruptions in American life that have followed.

An even wiser course of action would be for Gov. Easley to issue an executive order - and for the General Assembly to adopt a law - postponing all executions in North Carolina until officials can demonstrate that capital punishment can be applied in a fair and equitable way in this state.

(Charlotte Observer, 9/24/01) See also Editorials and New Voices.

NEW VOICES: In a recent editorial, the Minneapolis Star Tribune cautioned against using the terrorist attacks to expand the death penalty:

The vicious attack on America eight days ago likely stirred more support for the death penalty. It is understandable to wrap the mind around vengeance after such a horrible act. What better way to punish the murderers and avenge the memories of thousands of innocents than to take the lives of the guilty? Yet before evil terrorists wounded American hearts, the United States was experiencing a welcome, significant decline in state-sponsored executions. Short of eliminating capital punishment altogether, the next best thing is to fulfill as few death sentences as possible.

(Minneapolis Star Tribune, 9/19/01) See also Editorials and New Voices.