Two cases of note are had this edition. In the first opinion in which Chief Justice Roberts participated,Dye v. Hofbauer"too vague and general in form." Although the opinion appears to cover no new ground, it is remarkable that this particular issue was chosen to be the first of the Roberts Court.

In Texas the Court of Criminal Appeals granted relief inState v. Penry As the Court of Criminal Appeals rightly notes the trial court had an awful dilemna, the Supreme Court decided Atkins v. Virginia during the middle of Penry's trial and the trial court was forced to craft a remedy on the spot. It didn't do a bad job crafting a remedy, however, in light of the remedy it created "there is a reasonable likelihood that the jury believed that it was not permitted to consider mental impairment outside of determining whether the appellant is mentally retarded. As a result, the instructions in this case fell short of the constitutional requirement that the jury be provided a vehicle to give effect to its reasoned moral response to the appellant's mitigating circumstances."

Two less than favorable cases are also noted. InIn re United States (United States v. Green)after the opinion there is a very realistic chance no person of color would serve on this jury where the federal government is basically seeking to go after street crime in a county where the African-American population is one in five. Please forgive any ranting that occurred on the daily blog over these cases.

In the news,Clarence David Hill A coalition of folks are using the coming 1000th execution in the modern era as a rallying point both at a new web site,www.1000executions.organda new blog. The Supreme Court, as expected, has turned down Stanley "Tookie" Williams cert petition and as a practical matter an execution date will likely be set soon for him.

On a more personal front, two deaths are noted in Pennsylvania.William Nieves, the third man exonerated from Pennsylvania's death row in the modern era, died Saturday purportedly from complications relating to an ailment that was untreated during his six years on death row (information on the fund to help defray his family's costs is available here). Stefan Presser, former Pa. ACLU legal director & long time lecturer at Temple Law's death-penalty clinic, died last Friday of brain cancer in Philadelphia.

Finally, formatting changes are happening to the weekly email edition. Rather than sending large emails to the list that contain disproportionately large amount of materials from other people's sites, I will link to those materials more often over at the blog page. There was a point when I could fairly assume that the materials were not being as generally disetributed as I thought may be appropriat. With the rise of the listservs, blogs & RSS that concern has been alleviated. The intro section, however, will be expanded to cover more news.

Full edition archived athttp://capitaldefenseweekly.com/archives/051010.htm

As always, thanks for reading. - k

Pending Executions

October

20 Luis Ramirez (Texas)

25 William Williams Jr. (Ohio)

25 Pedro Sosa (Texas)

26 Marlin Gray (Missouri)

SCOTUS

Dye v. Hofbauer, No. 04-8384 (S. Ct. Oct. 11, 2005) Sixth Circuit grossly misunderstood the exhaustion doctrine's requirements, as well as those of the Federal Rules of Civil Procedure, when it held that Dye's presentation of his claims were"too vague and general in form." [ More here]

In Favorem Vitae et Libertatis

State v. Penry,2005 Tex. Crim. App. LEXIS 1622 (Tex. Crim App 10/5/2005) Relief granted holding "there is a reasonable likelihood that the jury believed that it was not permitted to consider mental impairment outside of determining whether the appellant is mentally retarded. As a result, the instructions in this case fell short of the constitutional requirement that the jury be provided a vehicle to give effect to its reasoned moral response to the appellant's mitigating circumstances."

Woodard v. Mitchell, 2005 U.S. Dist. LEXIS 22109 (E.D. Oh 9/30/2005) Habeas relief granted on trial counsel's penalty phase performance. The Court relied heavily on the ABA's standards to find "trial counsel acted unreasonably in investigating and preparing for the mitigation phase of trial, and that this conduct prejudiced the outcome of the sentencing proceeding." [This is the same Woodard from Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).]

Matthews v. Parker, 2005 U.S. Dist. LEXIS 23070 (W.D. Ky 10/7/2005)District court grants an evidentiary hearing on ineffective assistance of counsel claims.

Scott v. Schriro, 2005 U.S. Dist. LEXIS 22927 (D. Az 10/3/2005) COA granted on: "[w]hether the exhausted portion of Claim 1, alleging a Sixth Amendment violation based on trial counsel's failure to argue as mitigation the victim's father's recommendation for leniency, was wrongly decided on the merits."

Favoring Death

In re United States (United States v. Green), 2005 U.S. App. LEXIS 21707 (1st Cir 10/7/2005) The district court's remedy that meant that there was at least realistic chance a person of color would serve on the jury was inappropriate racial gerrymandering of the jury pool. [My rant on this case here]

Callahan v. Campbell, 2005 U.S. App. LEXIS 21603 (11th Cir 10/5/2005) Reverse of a grant of relief. The district court had granted penalty phase relief as "(1) Knight failed to call Callahan's mother as a witness; (2) 'there was no evidence that any substantial mitigation investigation or strategy was discussed or implemented by defense counsel'; and (3) 'equally crucial was the failure of [Callahan's] counsel to present any psychological evidence'." Conducting its own reweighing, the panel concludes that the state's conclusion was not "unreasonable."

Moore v. Parker, 2005 U.S. App. LEXIS 21439 (6th Cir 10/4/2005) (dissent) The opinion holds (despite apparent circuit precedent) that cumulative error is not cognizable on habeas review. The decision goes on to set forth (apparently misreading Wiggins & Rompilla) on the definition of how little counsel can do to still fall in the realm of permissible conduct. Former Chief Judge Merritt's opinion delivers an unusually sharp dissent.

Clark v. Mitchell, 2005 U.S. App. LEXIS 21438 (6th Cir 10/4/2005) Relief denied on trial counsel's failure to argue, as the dissent notes, that "Clark suffered from brain damage, his trial counsel failed to have him examined by an expert with training in neuropsychology and failed to present any evidence of this congenital brain defect to the sentencing jury."

Chandler v. Crosby, 2005 Fla. App. LEXIS 15991 (FL 10/6/2005) Crawford v. Washington does not apply retroactively. In light of the disposition of the Crawford claim in Chandler relief also denied on the same issue in Breedlove v. Crosby, 2005 Fla. LEXIS 1984 (FL 10/6/2005) and Zack v. Crosby, 2005 Fla. LEXIS 1984 (FL 10/6/2005).

Duckett v. State, 2005 Fla. LEXIS 1986 (FL 10/6/2005) Relief denied on claims including "(1) he was denied an adversarial testing because certain exculpatory evidence was not presented;" (2) "he was denied effective assistance of counsel for failure to investigate, develop, and present mitigation evidence and failure to obtain and present psychological testing;" (3) "prosecutorial misconduct rendered Duckett's conviction and sentence fundamentally unfair; and (4) "his counsel's failure to obtain an adequate mental health evaluation and to provide necessary background information to a mental health consultant denied Duckett a fair trial."

Baker v. State, 2005 Md. LEXIS 586 (Md 10/3/2005) Relief denied in a challenge that principally relied on a statistical study, "commissioned by Governor Parris N. Glendening in September 2000, conducted by Professor Raymond Paternoster of the University of Maryland, and published formally in the Spring of 2004, Baker argued that his death sentence was imposed in a racially-biased . . . and geographically-biased . . . manner."

State v. Foust, 2005 Ohio 5331; 2005 Ohio App. LEXIS 4854 (Ohio App 10/6/2005) Relief denied on claims "that the trial court erred in dismissing his petition for postconviction relief, that Ohio's postconviction procedures do not comply with the due process and equal protection requirements as set forth in the Fourteenth Amendment, and that the cumulative errors set forth in his substantive grounds for relief merit."

Sorto v. State, 2005 Tex. Crim. App. LEXIS 1622 (Tex. Crim. App. 10/5/2005), Relief denied on a grab bag of issues including sufficiency as this aid in facilitating murder and Vienna convention concerns

Murray v. Schriro, 2005 U.S. Dist. LEXIS 22296 (Az 9/29/2005), Schurz v. Schriro, 2005 U.S. Dist. LEXIS 22326 (Az 9/29/2005) and Doerr v. Schirro, 2005 U.S. Dist. LEXIS 22304 (Az 9/26/2005) District court filed orders denying discovery and evidentiary hearings.

Landrigan v. Schriro, 2005 U.S. Dist. LEXIS 22928 (Az 10/3/2005) Contact visit denied for medical experts for issues found unrelated to habeas petition.

Outtakes

Dye v. Hofbauer, No. 04-8384 (S. Ct. Oct. 11, 2005) Sixth Circuit grossly misunderstood the exhaustion doctrine's requirements when it held that Dye's presentation of his claims were"too vague and general in form." [ More here]

Contrary to the holding of the Court of Appeals, the District Court record contains the brief petitioner filed in state court, and the brief sets out the federal claim. The fourth argument heading in his brief before the Michigan Court of Appeals states: "THE PROSECUTOR DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL BY NUMEROUS INSTANCES OF MISCONDUCT." App. to Pet. for Cert. 80 (capitalization in original). Outlining specific allegations of prosecutorial [*5] misconduct, the text of the brief under this argument heading cites the Fifth and Fourteenth Amendments to the Constitution of the United States. It further cites the following federal cases, all of which concern alleged violations of federal due process rights in the context of prosecutorial misconduct: Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974); Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314, 55 S. Ct. 629 (1935); United States v. Valentine, 820 F.2d 565 (CA2 1987); United States v. Burse, 531 F.2d 1151 (CA2 1976).

This is not an instance where the habeas petitioner failed to "apprise the state court of his claim that the . . . ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment." Duncan v. Henry, 513 U.S. 364, 366, 130 L. Ed. 2d 865, 115 S. Ct. 887 (1995) (per curiam). Nor is this a case where a state court needed to look beyond "a petition or a brief (or a similar document)" to be aware of the federal claim. Baldwin v. Reese, 541 U.S. 27, 32, 158 L. Ed. 2d 64, 124 S. Ct. 1347 (2004). The state-court brief was clear that the prosecutorial misconduct claim was based, [*6] at least in part, on a federal right. It was error for the Court of Appeals to conclude otherwise.

A second reason the Dye II panel denied relief was that the habeas petition filed in the United States District Court presented the prosecutorial misconduct claim in too vague and general a form. This alternative holding cannot rescue the Dye II judgment, for it, too, is incorrect. The habeas corpus petition made clear and repeated references to an appended supporting brief, which presented Dye's federal claim with more than sufficient particularity. See Fed Rules Civ. Proc. 81(a)(2), 10(c). As the prosecutorial misconduct claim was presented properly, it, and any other federal claims properly presented, should be addressed by the Court of Appeals on remand.

State v. Penry 2005 Tex. Crim. App. LEXIS 1622 (Tex. Crim App 10/5/2005) Relief ganted holding "there is a reasonable likelihood that the jury believed that it was not permitted to consider mental impairment outside of determining whether the appellant is mentally retarded. As a result, the instructions in this case fell short of the constitutional requirement that the jury be provided a vehicle to give effect to its reasoned moral response to the appellant's mitigating circumstances."

In its instructions regarding the fourth special issue, the trial court told the jury that neither party had the burden of proof on the fourth special issue and that the jury should "consider mitigating evidence, if any, that a juror might regard as reducing the [appellant's] moral blameworthiness." The trial court then told the jury that mental retardation is a mitigating factor as a matter of law, and it defined mental retardation. The jury was instructed that, if it believed that the appellant is mentally retarded, it should answer the fourth special issue yes. If the jury found that the appellant was not mentally retarded, the jury was instructed to "follow the Court's [*6] instructions previously given herein concerning the appropriate answer to Special Issue No. 4 and consider whether any other mitigating circumstance or circumstances exist as defined herein."

****

The appellant complains that the jury was foreclosed from considering his evidence of mental impairment that did not establish mental retardation. The jury was instructed, if it found that the appellant was not mentally retarded, to "consider whether any other mitigating circumstance or circumstances exist as defined herein." He argues that this specific language created [*7] a reasonable likelihood that the jury applied the instruction in such a way that prevented the appropriate consideration of the appellant's constitutionally relevant mitigating evidence of mental impairment that did not rise to the level of establishing mental retardation.

The State argues that the statutory definition of mitigating evidence, when read in tandem with the instruction to consider all evidence when deciding whether sufficient mitigating circumstances exist to warrant a life sentence, was sufficient. For this proposition, the State cites Shannon v. State, n10 in which we held that the statutory definition of mitigating evidence as laid out in Code of Criminal Procedure Article 37.071 does not unconstitutionally narrow a jury's consideration of mitigating evidence. But Shannon deals with the special issues generally and not the specific facts of this case.

A jury in a capital [*8] case must be given a vehicle to give effect to the appellant's constitutionally relevant mitigating evidence. n11 The states have discretion to structure the jury's consideration of mitigating evidence, but it "may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all."

****

The parties' arguments to the jury [*13] did not clear up this confusion. The State told the jury

If you don't believe he's mentally retarded, your job is not complete on that fourth special issue. As we discussed, you still have to look at the other evidence in this case and decide whether there are any other kinds of evidence in this case there that you believe reduces this man's moral culpability for commission of these crimes, whether it's child abuse, mental illness, whatever."

In the context of victim-impact evidence, the State told the jury, "And that's important to that mitigation question, because that mitigation question asks you to consider all the evidence and it also asks you to consider the circumstances of the offense and the character of the Defendant."

Defense counsel came close to explaining how the jury should consider the evidence, but in light of the trial court's instructions and the State's argument, this is not sufficient to correct the problem.

But we also suggest to you, respectfully, that there are mitigating circumstances in this case that reduce his moral blameworthiness. His mental deficiencies, call it whatever you want, mental retardation, borderline, everyone [*14] agrees, even the State's witnesses, this is a very slow man. His brain simply does not work the way yours and mine do.

The parties' arguments did not explicitly inform the jury that it should reconsider the appellant's mental impairment when considering the fourth special issue if it concluded that the appellant was not mentally retarded.

Because there is a reasonable likelihood that the jury believed that it could not give effect to mental impairment, outside of tending to show that the appellant is mentally retarded, the trial court erred in instructing the jury to "consider whether any other mitigating circumstance or circumstances exist as defined herein."

We appreciate that the trial court had once again found itself in a difficult position. During this trial, the Supreme Court handed down its opinion in Atkins v. Virginia, n18 holding that executing people who are mentally retarded violates the Eighth Amendment to the United States Constitution. The legislature has not modified the statutory special issues within Articles 37.071 and 37.0711 to include a special issue on mental retardation. The trial court might have believed that it was not permitted to submit a [*15] separate special issue solely on mental retardation. n19

Although we may have sympathy for the trial court's position, we conclude that there is a reasonable likelihood that the jury believed that it was not permitted to consider mental impairment outside of determining whether the appellant is mentally retarded. As a result, the instructions in this case fell short of the constitutional requirement that the jury be provided a vehicle to give effect to its reasoned moral response to the appellant's mitigating circumstances.

Moore v. Parker, 2005 U.S. App. LEXIS 21439 (6th Cir 10/4/2005) The former Chief Judge of the Sixth Circuit Boyce Martin issued, in part, the following dissent in this case:

[W]hile the system suffers from many flaws, much of the arbitrary imposition of the death penalty stems from the exceedingly distressing fact that during all my years on the bench, the quality of lawyering that capital defendants receive has not substantially improved. In many cases it has deteriorated. In fact, one of the most clear examples of the arbitrariness of the death penalty is the common knowledge that those defendants with decent lawyers rarely get sentenced to death. Death has more to do with extra-judicial factors like race and socio-economic status than with whether death is deserved. A system, whose basic justification is the interest in retribution and general deterrence, is not served when guided by such irrelevant factors. Nor should a system of life and death hinge on the proficiency of counsel/

I have no delusions of grandeur and I know my place in the judiciary. My oath requires me to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.

THE SMALL PRINT

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