Capital Defense Weekly, October 16 , 2000

By Capital Defense Newsletter
Oct 16, 2000

This week's edition brings the First Circuit's inaugural decision in a death penalty caseUnited States v. Gilbert, albeit pretrial, and a result favorable to the defense, as well as a favorable omen in future capital cases in that circuit. The Fifth Circuit, grants relief (on one of two death sentences), inLockett v. Anderson, after the state fails to timely appeals a grant of relief below. The Tenth Circuit affirms, inWalker v. Gibson, a case which presented a grab bag of issues including competency at trial. The Ninth Circuit, citing precedent favoring evidentiary hearing in almost all capital cases, remands for an evidentiary hearing on issues relating to ineffectiveness of counsel and incompetence to stand trial. Another panel of the the Ninth Circuit inMayfield v. Calderon, however, denies relief chiefly on grounds relating to ineffectiveness of counsel.

Texas Defender Service has published a critical report on the implementation of the death penalty in Texas, "A State of Denial: Texas Justice and the Death Penalty." Excerpts from the executive summary and a link to the information are in the features section.

Several notes of import, due to a computer crash of the email program used to run this computer and a related server problem things have been touch and go for the last few editions with the last two editions delayed due to the email problem. The plan is to run two editions this week and then back on a late week publication date every week. Additionally, work is under way to update the brief bank, starting first with Florida materials (as they are the easiest to acquire). Additionally, by the end of the year the hopes are to have all editions through current archived and readily search able.

Supreme Court

No cases of note this week.

Capital Cases

United States v. Gilbert, No. 00-1810 (1st Cir. 10/03/2000) "These interlocutory appeals challenge in limine orders excluding three blocs of evidence the government wishes to present during the upcoming capital murder trial of defendant Kristen Gilbert. See 18 U.S.C. § 3731 (permitting an appeal by the government of an order excluding evidence in a criminal case so long as the defendant has not yet been put in jeopardy and the United States attorney certifies that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding). Mindful that in limine evidentiary rulings are generally provisional, see United States v. Lachman, 48 F.3d 586, 590, 594 (1st Cir. 1995) (emphasizing that in limine orders excluding evidence usually can be revisited if developments at trial so warrant), and believing that the circumstances surrounding these rulings dictate that we accord broad deference to the district court's views, we affirm in all respects except one."

Lockett v. Anderson, No. 98-60019 (5th Cir. 10/13/2000) "We have an appeal by the State and a cross-appeal by the petitioner in this death penalty case, which arises from the state courts of Mississippi. We should first note that the appellant, Carl Daniel Lockett, killed two persons, Mr. Calhoun (Case #1), and his wife, Mrs. Calhoun (Case #2), for which he was separately tried, separately convicted, and separately sentenced. He is therefore under two death sentences, which have been consolidated in this federal habeas proceeding. This appeal is from the district court's judgment in the consolidated case granting habeas relief in each of the state court cases. The district court set aside the conviction (and hence the death sentence) in each case because the indictments were defective in that they failed adequately to allege the crime of capital murder under recent Mississippi case law. We have reached a result different from that of the district court and hold only that resentencing is required."

We first consider whether we have jurisdiction to review the State's challenge to the district court's October 1997 order, which only vacated Lockett's death sentence for the murder of John Calhoun. As we have noted, the district court reversed this conviction on the grounds that the "especially heinous, atrocious, or cruel" aggravating circumstance instruction should not have been given to the jury, finding that there was insufficient evidence for any rational trier of fact to conclude that the circumstance was applicable.
We think that the State has waived any appeal of this October ruling. The only notice of appeal the State has filed is limited on its face to the district court's December order. It states quite specifically:
[T]he Respondents . . . hereby appeal . . . from the Order granting the petition for writ of habeas corpus vacating two capital murder convictions and sentences of death on the condition that the State of Mississippi either (1) retry Lockett within ninety days, (2) seek a new indictment against Lockett within ninety days or (3) resentence Lockett for simple murder, entered on December 16, 1997 . . . .
The general rule governing the scope of a notice of appeal states:
Where the appellant notices the appeal of a specified judgment only or a part thereof, . . . this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.
Capital Parks, Inc. v. Southeastern Advert. & Sales Sys., Inc., 30 F.3d 627, 630 (5th Cir. 1994) (citation omitted). Federal Rule of Appellate Procedure 3(c)(1)(B) states that "the notice of appeal must designate the judgment, order, or part thereof being appealed." Although "[a] mistake in designating orders to be appealed does not bar review if the intent to appeal a particular judgment can be fairly inferred and if the appellee is not prejudiced or misled by the mistake,"New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998);Foman v. Davis, 371 U.S. 178 (1962), (2)we simply cannot say that the State's notice of appeal evidences any mistake that would provide us with jurisdiction here.
Although a mere technical error in designating the proper judgment being appealed will not divest us of jurisdiction, our review of the case law addressing such "technical" errors demonstrates that the error committed here does not fall into that category. We can overlook such "technical" errors where, for instance, a motion for reconsideration has beendenied, and the appellant appeals only from the denial of this Rule 59 motion. In that case, we can infer that the party meant to appeal the adverse underlying judgment.See, e.g.,United States v. One 1988 Dodge Pickup, 959 F.2d 37, 41 n.5 (5th Cir. 1992);Fed. Trade Comm'n v. Hughes, 891 F.2d 589, 590-91 & n.1 (5th Cir. 1990);United States v. O'Keefe, 128 F.3d 885, 890 (5th Cir. 1997). (3)The same is true with respect to a notice of appeal from the denial of a motion for a new trial under Rule 59(e).SeeHogue v. Royse City, Tex., 939 F.2d 1249, 1251-52 (5th Cir. 1991). (4)The critical distinguishing feature of all these cases in relation to the instant matter, however, is that Lockett's Rule 59 motion was not denied, butgranted. After granting this motion, the district court entered an entirely new judgment, granting relief not to one death sentence, but to both, and for new and different reasons.
The State's notice of appeal is explicit in stating that the appeal is from the district court's December order. It references that order specifically, described by its date, without even an oblique reference to the October order. It refers to the district court's order granting habeas for "two capital murder convictions and sentences." The October order only granted habeas as to one of the murder convictions. Furthermore, the intent to appeal only from the December order is evidenced by the State's reference to the December order's grant of habeas "on the condition" of the options set forth by the district court. No such options attached to the grant of Lockett's petition with respect to the "especially heinous" factor in the October order. Nor is there anything inherent in the December order appealed from that would provide reason to believe that the October order also is in play on this appeal. Furthermore, the State's notice of appeal reveals nothing to suggest a mistake. Indeed, at oral argument, the State essentially admitted to its error here, but pled ignorance of the appellate rules. The State does not appeal the wrong order; instead, it merely does not appeal the earlier judgment.See, e.g.,C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1974) ("Where parts of a judgment are truly independent, there is more likelihood that the designation of a particular part in the notice of appeal will be construed as an intent to leave the unmentioned portions undisturbed.").
Thus, because the notice of appeal leaves no room for doubt as to its scope, we are unable to assert jurisdiction over the district court's October 1997 order granting habeas relief as to the death sentence in Case #1. Given our lack of jurisdiction, that order must stand. We turn now to the appeal and cross-appeal properly before us.

Walker v. Gibson, No. 99-5186 (10th Cir. 10/11/2000) "The district court granted a certificate of appealability (COA) on the following claims: (1) substantive and procedural due process competency; (2) ineffective assistance of trial counsel; (3) failure to instruct on the presumption of innocence; (4) improper admission of a sheriff's deputy's testimony; (5) lack of notice of aggravating circumstances; and (6) prosecutorial misconduct. This court expanded the COA to include an additional issue: failure to give a first degree manslaughter instruction. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c), we affirm the district court's denial of habeas corpus relief."

B. Substantive Due Process Competency Claim
A petitioner may make a substantive due process competency claim by alleging he was, in fact, tried and convicted while mentally incompetent. See Walker, 167 F.3d at 1344. Although the Oklahoma Court of Criminal Appeals deemed Mr. Walker to have procedurally defaulted this claim, see Walker, 933 P.2d at 340, a substantive due process mental competency claim may not be procedurally barred, see Rogers v. Gibson, 173 F.3d 1278, 1289 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). To prevail on a substantive due process competency claim, a petitioner must demonstrate by clear and convincing evidence a real, substantial, and legitimate doubt regarding his competence to stand trial. (4) See 1291 n.13.
In addition to the evidence discussed above, Mr. Walker submits his jail medical records and various affidavits to support this substantive competency claim. The jail records showed Mr. Walker had mental health problems and was a suicide risk. Up to thirty-six days before trial, he had bad dreams, heard voices, cried, huddled in the corner, and was depressed. Thirty-six days before trial, the last date of the jail records, it appears he was benefitting from the medications since he was sleeping. He, however, suffered from nervous side effects.
Mr. Walker was taking anti-psychotic medications at the time of trial. His dosages of Artane and Loxitane were at normal levels, (5)but the dosage of Asendin was low. He maintains that the medications caused him to be "constantly tired, uncaring, and steely eyed." Appellant's Br. at 14. Although "[a]ntipsychotic drugs [do] have the capacity to severely and even permanently affect an individual's ability to think and communicate[,]" Bee v. Greaves, 744 F.2d 1387, 1394 (10th Cir. 1984), the jail records are not clear and convincing evidence of a real, substantial, and legitimate doubt that Mr. Walker was incompetent at the time of trial.
Several post-conviction affidavits, prepared over seven years after trial, indicated Mr. Walker did not appear competent at trial. Cf.Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir. 1999) (noting affidavits prepared ten years after trial raised questions regarding their veracity, but treating factual allegations in affidavits as true because State did not rebut affidavits), cert. denied, 120 S. Ct. 1438 (2000). In light of the other evidence, these affidavits are of little assistance.
In his own self-serving affidavit, Mr. Walker stated he felt "out of it" the whole time he was in jail before trial, he slept all the time, his medications made him confused, and he was not a help to his attorney. Vol. I, tab 17, app. 4 at 2-3. According to Mr. Walker, his medications were increased during the trial and he therefore had problems staying awake. He further stated that officers stood on either side of him holding him up when he walked to and from the courtroom. Overall, he did not remember much of the trial. A minister who visited Mr. Walker in jail before trial said Mr. Walker had trouble formulating ideas and putting thoughts into words. He further noted that Mr. Walker's speech was slow and slurred and he had difficulty staying awake. The minister stated Mr. Walker did not react to anything at trial. Also, Mr. Walker's mother stated in her affidavit that he had a blank look and no reaction at trial. Mr. Walker's grandfather swore Mr. Walker was expressionless at trial and shuffled his feet like he could not walk.
Dr. Lippman, a neuropharmacologist, who studies the effects of drugs on the brain, evaluated Mr. Walker in May of 1996, seven years after his trial. He diagnosed Mr. Walker as suffering from Paradoxical Benzodiazepine Rage or Dyscontrol, Borderline Personality Disorder, Dysthymic Disorder and Major Depression. Dr. Lippman noted Mr. Walker had "a predisposing neurobiological vulnerability to drug abuse and also to his experiencing psychoticism and dissociative explosive dyscontrol under intense emotional stress, a form of the Borderline Syndrome, complicated by the effects of chronic drug abuse during the years of formative neurological and personality development." 2 at 2. It was the doctor's opinion that Mr. Walker was not competent at the time of trial due to drug treatment. Cf.Riggins v. Nevada, 504 U.S. 127, 134 (1992) (noting antipsychotic drugs can have serious side effects). He reached this opinion based on witness descriptions of Mr. Walker and Mr. Walker's own report, not on medical records. Indeed, he had no medical records regarding Mr. Walker's response to treatment. Thus, Dr. Lippman merely speculated any symptoms of somnolence and ataxic gait were side effects of medication.
Dr. Watson, a psychologist who examined Mr. Walker in June of 1996, speculated Mr. Walker was in and out of a daze during trial due to significant psychological medication. He believed the use of the medications "appear[ed] to raise issues of competency." Vol. I, tab 17, app. 16 at 23.
The opinions of Dr Lippman and Dr. Watson, conducted over seven years after trial, do not establish by clear and convincing evidence a real, substantial, and legitimate doubt as to Mr. Walker's competency at the time of trial. Cf.Foster, 182 F.3d at 1191 (competency evaluation, made ten years after trial, does not necessarily generate sufficient doubt).
Because Mr. Walker has not shown a bona fide doubt as to his competency and does not provide sufficient additional new evidence of his incompetency at the time of trial, we conclude he cannot meet the more stringent substantive due process competency standard. See Valdez, 219 F.3d at 1241.

Morris v. Woodford, No. 99-99028 (9th Cir. 10/05/2000) "The judgment of the district court dismissing the petition for habeas corpus is VACATED and the case is REMANDED for an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel and incompetence to aid and assist counsel. We DEFER ruling on those claims for which we have granted a COA, pending the outcome of the district court's evidentiary hearing. The rulings of the district court granting summary judgment for the state on Petitioner's remaining claims are AFFIRMED. This panel shall retain control of the further proceedings in this case."

Petitioner argues that he is entitled to further factual development as to his claims of ineffective assistance of counsel and incompetence to aid and assist counsel. In his petition, he requested an evidentiary hearing on those claims. However, because the district court dismissed the claims on procedural grounds, no evidentiary hearing was held.
"In a capital case, a habeas petitioner who asserts a colorable claim to relief, and who has never been given the opportunity to develop a factual record on that claim, is entitled to an evidentiary hearing in federal court. " Siripongs v. Calderon, 35 F.3d 1308, 1310 (9th Cir. 1994) (as amended). Here, Petitioner has raised colorable claims of ineffective assistance of counsel and incompetence, but has never received an evidentiary hearing on those claims. We hold that Petitioner is entitled to an evidentiary hearing on those claims. We also emphasize that a more developed factual record with regard to those claims is necessary for meaningful appellate review. The state argues that the lack of a factual record is Petitioner's fault and that Petitioner's failure to provide more factual support for his claims militates against granting an evidentiary hearing. We agree that a petitioner who negli-gently fails to develop the material facts supporting a claim at the state-court level generally is not entitled to a federal evidentiary hearing. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 11 (1992); Correll v. Stewart, 137 F.3d 1404, 1413 (9th Cir. 1998). But here, as was the case in Correll and Siripongs, Petitioner did not receive an evidentiary hearing in state court, either; indeed, his second state-court petition was denied only five days after it was filed. Thus, he has not received an evidentiary hearing on these claims at any level. In the circumstances, we will not address the merits of Petitioner's claims of incompetence and ineffective assistance of counsel without giving him an opportunity for an evidentiary hearing.
Those claims relate to both the guilt phase and the penalty phase of Petitioner's trial. Accordingly, a ruling in Petitioner's favor on either claim would render the rest of his petition moot. In the interest of judicial economy, we will hold in abeyance the remaining claims as to which we have granted a COA, pending the district court's completion of an evidentiary hearing on Petitioner's claims of incompetence and ineffective assistance of counsel.
The judgment of the district court dismissing the petition for habeas corpus is VACATED and the case is REMANDED for an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel and incompetence to aid and assist counsel.

Mayfield v. Calderon, No. 97-99031 (9th Cir. 10/13/2000) "Mayfield's petition challenges his 1983 convictions in San Bernardino County on two counts of first degree murder and his subsequent death sentence. In his petition, Mayfield argues that he was denied effective assistance of counsel at both the guilt and penalty phases of his trial, that the jury instructions were unconstitutional, and that California's death penalty scheme under which he was sentenced violates the Eighth and Fourteenth Amendments. . . affirm."

Mayfield contends that his trial counsel inadequately investigated and inadequately presented mitigating evidence about his background and mental health at the penalty phase trial. He also argues that, in giving a short perfunctory closing argument, his counsel essentially abandoned him and thereby left him without the Sixth Amendment representation to which he was entitled. He claims that the representation during the penalty phase trial "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688.
To prevail on the claim of ineffective assistance, Mayfield must show, in addition to deficient performance, resulting prejudice. To show prejudice at sentencing, Mayfield must show that "there is a reasonable probability that absent the error, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695. The district court found that Mayfield's counsel provided deficient performance at the penalty phase. It denied relief, however, because it found that "no reasonable probability exists that the jury would have returned a sentence of life without possibility of parole" if the jury had heard the available mitigating evidence.
California's statutory scheme permits a jury to impose a sentence of death if it finds that the aggravating factors outweigh the mitigating factors. See Cal. Pen. C. ' 190.3, CALJIC 8.84.2. Here, the prosecution argued the following aggravating factors were present: the manner in which the murders were carried out, the motives for the murders, and the fact that Mayfield had previously exhibited criminal violent conduct. The mitigating factors presented by the defense through the testimony of Dr. Rath included: Mayfield's background as an illegitimate child raised by a single parent; the diagnosis of juvenile-onset diabetes at age nine; his numerous hospitalizations due to inadequate control of the diabetes; the family difficulties which arose as a result of the diabetes; his history of drug abuse; his considerable remorse for the crime; the opinions of Dr. Rath and Dr. Hunt that his crime was out of character; Dr. Hunt's opinion that the crime can be explained only on the basis of cerebral impairment due to alcohol and drug abuse; and his friend's description of him as a gentle person. The jury considered all of these aggravating and mitigating factors before sentencing Mayfield to death. We do not address whether Mayfield's counsel's performance was constitutionally deficient because we agree with the district court that there is no reasonable probability that, presented with additional mitigating evidence and more effective advocacy, a jury would have found that the aggravating circumstances did not outweigh the mitigating circumstances. See Strickland , 466 U.S. at 694.
Although this is not a case in which the aggravating factors are so overwhelming that there is little likelihood that mitigating evidence could have made a difference, cf. Bonin v. Calderon , 59 F.3d 815, 836 (9th Cir. 1995), Mayfield's counsel did present several mitigating factors to the jury through Dr. Rath's testimony, cf. Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir. 1998) (counsel presented no evidence at penalty phase), and the mitigating evidence that counsel failed to introduce at the penalty phase is neither compelling nor exculpatory. See Mak v. Blodgett, 970 F.2d 614, 621-22 (9th Cir. 1992) (exculpatory nature of the proffered mitigating evidence is an important factor in Strickland prejudice analysis). Much of the mitigating evidence presented at the reference hearing would have been cumulative of Dr. Rath's testimony at the penalty phase. See Babbitt v. Calderon , 151 F.3d 1170, 1175 (9th Cir. 1998) (no prejudice from failure to call witnesses where testimony would have been cumulative). As the district court found, Mayfield was not prejudiced by his counsel's failure to call Dr. Hunt or Patricia Harper because Dr. Hunt's opinion and Harper's character testimony were provided to the jury through Dr. Rath's testimony. Although the other medical experts could have testified in greater detail than Dr. Rath about the interaction between Mayfield's diabetes, his history of drug use and his mental state, Dr. Rath did address each of these individual factors and opined that Mayfield's conduct was out of character, implicitly suggesting that his drug use and diabetes played a role in his criminal behavior. Moreover, Dr. Rath read Dr. Hunt's report for the jury which directly made the connection between the shootings and Mayfield's "cerebral impairment" from alcohol and drug abuse.
Apart from its cumulative nature, the value of the omitted expert testimony was lessened by the California Supreme Court's factual finding that none of the medical experts who testified at the reference hearing "could state unequivocally that [Mayfield's] consumption of food, drugs or alcohol had altered his mental state in a definite or predictable manner." 5 Cal.4th at 205. Rather, they "could only surmise that his mental state was abnormal when he committed the murders" and such testimony was undermined by "strong evidence to the contrary." Id. at 208. Because the expert testimony presented by Mayfield at the reference hearing was largely repetitive of Dr. Rath's testimony and had little exculpatory value, Mayfield was not prejudiced by its omission.
Nor did Mayfield suffer prejudice as a result of his counsel's failure to present testimony from his family and friends. At least some of this proposed testimony would have overlapped with Dr. Rath's description of Mayfield's childhood, the difficulties arising from the diagnosis of juvenile- onset diabetes and the subsequent hospitalizations, his drug problem, and Patricia Harper's statements about his gentle nature and his willingness to babysit her children. Further, as the state referee found, the testimony of Mayfield's family and friends, unless filtered through Dr. Rath, could have opened the door for damaging rebuttal testimony, particularly from Mayfield's mother. This factor weighs against a finding of prejudice. See Strickland, 466 U.S. at 700 (no prejudice in failure to present evidence because the overwhelming aggravating circumstances outweighed the mitigating circumstances and the proffered evidence would have opened the door to harmful and conflicting evidence); Campbell v. Kincheloe , 829 F.2d 1453, 1464 (9th Cir. 1987) (failure to present mitigating evidence not prejudicial in part because mitigating evidence could have been met with strong rebuttal evidence).
In addition, as the district court recognized, testimony from Mayfield's family and friends about his nonviolent nature and love for his family would likely ring hollow if presented to a jury which had already accepted the prosecution's version of the premeditated killings as evidenced by the guilty verdict. Mayfield's counsel also understood the danger in parading Mayfield's family before the jury under such cir- cumstances and indicated at the reference hearing that he had made a tactical choice not to do so. The danger, as summed up by the California Supreme Court, was that "the jury might indignantly or cynically draw a parallel between the victims' families, devastated in the jurors' minds by petitioner's crimes, and petitioner's own family, which was evidently untouched by murder." 5 Cal.4th at 208 n.15. Because this mitigating testimony from Mayfield's family and friends would have repeated many of the topics discussed by Dr. Rath, opened the door for damaging rebuttal evidence, and risked alienating jurors, Mayfield was not prejudiced by his counsel's failure to present such evidence at the penalty phase.

Habeas Cases

McMeans v. Brigano, No. 98-4096 (6th Cir. 10/05/2000) "Before us is the appeal from the district court's order dismissing the habeas petition of Jerry McMeans, an Ohio prisoner convicted of raping his stepdaughter. McMeans asserts that the district court erred when it held that he had procedurally defaulted on his Confrontation Clause, Brady, and juror bias claims. He also argues that the district court erred when it held that the Ohio court "reasonably applied" federal law in deciding that trial counsel rendered constitutionally adequate assistance. We will affirm." (split panel)

Warren v. Miles, No. 00-50117 (5th Cir. 10/13/2000) "Warren appeals the dismissal of his habeas corpus petition filed in the district court for the Western District of Texas pursuant to 28 U.S.C. § 2241(c)(3). Warren maintains that the Federal Bureau of Prisons (BOP) violated the Constitution's prohibition of ex post facto legislation by applying its regulations to him retroactively, thereby increasing the punishment for his offense. He also argues that the BOP abused its discretion under 28 U.S.C. § 3621(e) by promulgating regulations that effectively render all prisoners who receive a sentence enhancement for possession of a dangerous weapon ineligible for early release following completion of a residential Drug Abuse Program (DAP). Finally, Warren contends that the district court violated his due process rights in failing to make de novo findings of fact with respect to the preliminary sentencing report that served as the foundation for his sentence enhancement. We ultimately find no merit in Warren's arguments and, therefore, AFFIRM the ruling of the district court."

McGhee v. Yukins,No. 99-1493 (6th Cir. 10/06/2000) "Petitioner McGhee has demonstrated neither that the admission of the partially redacted statements was an objectively unreasonable application of federal law at the time of her trial nor that prosecutorial misconduct during closing argument created a substantial and injurious effect or influence in determining the jury's verdict. Therefore, we AFFIRM the district court's denial of McGhee's petition for a writ of habeas corpus."

Phillip v. United States, No. 97-5165 (6th Cir. 10/12/2000) "Phillip then petitioned this Court for a certificate of appealability, and such certificate was granted on March 24, 1998 as to three issues, namely: (1) whether the admission of a statement by his co-defendant wife violated the rule set forth in Bruton v. United States, 391 U.S. 123 (1968); (2) whether the jury instructions failed to require the jury to find proof of guilt beyond a reasonable doubt; and (3) whether exculpatory evidence, in the form of the videotaped statement of his six-year old son, was improperly suppressed." Relief denied.

Washington v. Hofbauer,No. 98-2250 (6th Cir. 10/06/2000) Washington's "petition alleged prosecutorial misconduct and ineffective assistance of counsel. We find that the prosecutor's misconduct was sufficiently egregious to violate Washington's due process rights, that Washington's trial counsel was ineffective in not objecting to that conduct, and that the state court did not reasonably apply the relevant law in finding otherwise. We are thus compelled to REVERSE and issue the writ."

Kapadia v. Tally, No. 98-1654 (7th Cir. 10/12/2000) "Amyn Kapadia was convicted in the Circuit Court of Cook County, Illinois of burglary and arson of a Jewish community center. The trial court judge meted out the harshest sentence possible under state law, a fourteen year term of imprisonment, after a courtroom deputy testified that Kapadia uttered a number of anti-Semitic slurs on his way out of court after being convicted. Kapadia complains that enhancing his sentence because he professes vile beliefs violates his First Amendment rights. However, the trial court enhanced Kapadia's sentence because of his poor rehabilitative potential and his future dangerousness and not because of his anti-Semitic speech, and we therefore affirm the district court's denial of Kapadia's petition for habeas corpus."

Cossel v. Miller, No. 98-1355 (7th Cir. 10/12/2000) "Cossel filed this habeas corpus petition challenging his 1989 state convictions for rape, criminal confinement, criminal deviate conduct, battery, and burglary, in part on the ground that his trial counsel rendered constitutionally ineffective assistance of counsel by failing to properly object to testimony by the victim relating to her identification of him as her attacker. In state post-conviction proceedings, the state courts rejected this claim, reasoning that the victim had an independent basis for her in-court identification of Cossel, which eliminates any argument that trial counsel could have been ineffective in failing to object to her testimony. The federal district court dismissed Cossel's habeas corpus petition with prejudice on the ground that the Indiana Court of Appeals did not misapply federal law. Because we cannot agree, we reverse."

Behr v. Ramsey, No. 00-1881 (7th Cir. 10/02/2000) "Thus, the narrow question before us in this case is whether Mr. Behr is entitled to defeat the pending extradition request on the ground that, were he sent to Kentucky, the state courts there would not be entitled to exercise personal jurisdiction over him because he lacks constitutionally sufficient contacts with the state. We conclude that, in the context of interstate criminal extradition, any defenses Mr. Behr may have to the jurisdiction of the Kentucky courts may be presented only to the Kentucky courts. As the record reveals that the extradition request is otherwise in order, we affirm the judgment of the district court that Mr. Behr is not entitled to be released from the custody of the Sheriff of Kane County, who may proceed to execute the extradition warrant."

Rodgers v. United States, No. 00-2916 (8th Cir. 10/13/2000) "We therefore deny Rodgers' petition because the Supreme Court has not made Apprendi retroactive to cases on collateral review, as required by the plain language of § 2255. As the Fourth Circuit has noted, "a new rule of constitutional law has been 'made retroactive to cases on collateral review by the Supreme Court' within the meaning of § 2255 only when the Supreme Court declares the collateral availability of the rule in question, either by explicitly so stating or by applying the rule in a collateral proceeding." In re Vial, 115 F.3d 1192, 1197 (4th Cir. 1997) (quoting § 2255). Nowhere in the Apprendi decision itself, or in any subsequent decision, does the Supreme Court discuss Apprendi's retroactivity. Therefore, Apprendi is not available to a prisoner filing a second or successive petition under § 2255. "

Shewfelt v. State of, No. Alaska, No. 99-35647 (9th Cir. 10/02/2000) "Having exhausted his state remedies, Shewfelt filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. S 2254. Respondent moved for summary judgment. The district court adopted the magistrate's report -- which concluded that Shewfelt's non-consensual absence from the jury playback was constitutional error but harmless -- and granted the state's motion for summary judgment. The district court found Shewfelt's absence from the playback "totally irrelevant to the jury's decision making process." Affirmed.

Charles v. Hickman,No. 99-17063 (9th Cir. 10/03/2000) "Charles is currently serving a life sentence without the possibility of parole after being convicted in 1983 of first-degree murder with special circumstances for shooting Gerald Darnell Mitchell in retaliation for his testimony against Charles in a 1980 robbery trial. To prove Charles' retaliatory motive and that the killing was intentional and premeditated, the trial court permitted the prosecution to introduce evidence from a 1982 trial in which Charles had been charged but acquitted of stabbing Steward Bonton, who had also testified against Charles in the earlier robbery trial. The district court rejected Charles' claim here that admitting evidence of the Bonton stabbing violated the Fifth Amendment's prohibition against Double Jeopardy, applicable to the states under the Fourteenth Amendment. We agree with the district court and affirm."

Jones v. Stinson, No. 00-2245 (2d Cir. 10/05/2000) "On appeal, we must decide whether the district court exceeded the narrow confines of habeas review allowed by 28 U.S.C. § 2254, as recently interpreted by the Supreme Court in Terry Williams v. Taylor, 120 S. Ct. 1495 (2000). We agree with the district court that Jones might have created a reasonable doubt which did not otherwise exist if he were allowed to testify that he had been arrested multiple times in the past for allegedly selling drugs but released each time after lab tests revealed his innocence. Nonetheless, we hold that under section 2254 and Williams, it was not objectively unreasonable for the appellate division to conclude that the testimony would not create new grounds for reasonable doubt. The appellate division could have decided that the defendant's additional testimony would, at best, only have bolstered the credibility of his statement that he did not intend to sell drugs in this case. Therefore, for reasons discussed more fully below, we find that the appellate division did not interpret or apply Supreme Court precedent in an objectively unreasonable fashion when it concluded that the trial court's evidentiary rulings did not infringe Jones' constitutional right to present a defense. We reverse the judgment of the district court."

Petrovich v. Leonardo, No. 00-2091 (2d Cir. 10/12/2000) "The state trial court had offered a jury charge on the affirmative defense of extreme emotional disturbance, which, if accepted by the jury, would have resulted in convictions on the lesser offense of first degree manslaughter. Petrovich, over the advice and vehement objection of his trial counsel, declined to assert the defense. The motion for habeas relief argues that the waiver of that defense was (or was tantamount to) waiver of counsel, and that the trial court should therefore have conducted the requisite inquiry to ascertain whether the waiver was knowing and voluntary. We reject the analogy to the decision to appear pro se; instead, we consider whether the waiver of the defense was a trial strategy decision that counsel should have been permitted to make, or whether it was a fundamental decision for the defendant alone. We conclude that the decision was for Petrovich to make, and that the trial court's inquiry, which was less searching than would be needed if Petrovich had elected to proceed without counsel, was nevertheless sufficient."

Parrott v. Government of the Virgin Islands, No. 99-3688 (3d Cir. 10/13/2000) "Roy Parrott is currently serving a life sentence for a 1976 murder conviction, based on a violation of Virgin Islands territorial law. He is appealing the dismissal by the District Court of the Virgin Islands of his petition for collateral relief under the Virgin Islands habeas statute, S 1303, Title 5 of the V.I. Code. Parrott's claim poses a variation on issues we have been facing when we interpret the 1984 amendments to the Virgin Islands Revised Organic Act. In Parrott's appeal, we must decide whether the Revised Organic Act's changes to the jurisdictions both of the District Court and of the Territorial Court, the local Virgin Islands court, operate to vest jurisdiction solely with the Territorial Court for habeas petitions arising from convictions for violations of territorial law. The District Court answered"no" to this question. We conclude, however, that the correct answer is "yes." We will, therefore, reverse the dismissal of the habeas petition by the District Court and remand this case to it for remand to the Territorial Court for further proceedings."

Callwood v. Enos, No. 98-7501 (3d Cir. 10/13/2000) "Applying the 1984 amendments to the Revised Organic Act to this case, we conclude that although the District Court of the Virgin Islands does not have jurisdiction over Callwood's petition under S 1303, the territorial habeas corpus provision, it does have jurisdiction under 28 U.S.C. S 2241. We have jurisdiction over Callwood's appeal from the District Court's final order denying the writ pursuant to 28 U.S.C. S 1291 and S 2253.. . . Although there is no statutory exhaustion requirement attached to S 2241, we have consistently applied an exhaustion requirement to claims brought under S 2241. See Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) ("The state court exhaustion requirement is mandated by statute under 28 U.S.C. S 2254(b) and has developed through decisional law in applying principles of comity and federalism as to claims brought under 28 U.S.C. S 2241."); Arias v. United States Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981) (requiring federal prisoner to exhaust administrative remedies before bringing claim under S 2241). As Callwood has understandably failed to seek relief in the Territorial Court under S 1303, this is a case particularly well-suited to dismissal at this stage for lack of exhaustion. The Territorial Court will no doubt be more familiar with the provisions and requirements of the territorial parole statute and should be given an opportunity to provide a remedy, if appropriate, before Callwood seeks federal habeas corpus relief. Callwood will be free to return to the District Court under S 2241, after exhausting any remedy available in the Territorial Court. Accordingly, we will vacate the order of the District Court dismissing the petition on the merits and will remand with instructions to dismiss for failure to exhaust local remedies without prejudice to Callwood's refiling his challenge under S 2241 after exhaustion."

Walker v. Government of the Virgin Islands, No. 99-3329 (3d Cir. 10/13/2000) "Walker filed a petition for a writ of habeas corpus in the District Court of the Virgin Islands which held that it lacked subject-matter jurisdiction over Walker's case. Our threshold task in this appeal is to satisfy ourselves that we have jurisdiction to entertain it. That task requires a review of the statutes and case law governing the litigation of habeas corpus petitions in the Virgin Islands. We ultimately conclude that we have no jurisdiction in the absence of a certificate of appealability issued under 28 U.S.C. S 2253(c). Because this Court has never held that a petitioner in Walker's position must secure a certificate of appealability in order to litigate an appeal, we will afford him a fair opportunity to request such a certificate and to provide support for that request. "

Orman v. Cain, No. 99-30739 (5th Cir. 10/11/2000) "The district court held that the state had breached its duty under Brady v. Maryland, 373 U.S. 83, 87 (1963), to disclose exculpatory evidence and that Orman's guilty plea violated Alford v. North Carolina, 400 U.S. 25, 38 & n.10 (1970), and Fed. R. Crim. P. 11(f), which require courts to ensure that there is a factual basis for entering a conviction whenever a guilty plea is accompanied by a claim of innocence. On appeal, the state argues that Orman was barred from seeking habeas relief because he failed to exhaust his state remedies and that the plea violated neither Brady nor Alford. We conclude that, although Orman satisfied the exhaustion requirement, the plea was validly entered."

Section 1983 & Related Filings

Hadix v. Johnson, No. 99-1413 (6th Cir. 10/05/2000) "This case, which has a procedural history spanning twenty years, involves a civil rights action brought by Michigan prisoners alleging unconstitutional conditions of confinement. The subject of this appeal is an order entered by the district court on March 18, 1999 relating to the defendants' motion to terminate the consent decree that was entered into by the parties in 1985. Because the district court failed to comply with the mandates of the Prison Litigation Reform Act, we REVERSE the district court's order and REMAND for further proceedings."

Hadix v. Johnson, No. 96-2567 (6th Cir. 10/04/2000) "We are presented with the issue of whether the attorney fee cap set forth in § 803(d)(3) of the Prison Litigation Reform Act violates plaintiffs' constitutional rights under the implied Equal Protection Provision of the Fifth Amendment. Plaintiffs seek attorney fees for post-judgment compliance monitoring and argue that by capping the fees they may recover, § 803(d)(3) deprives them of the equal protection guaranteed by the Constitution. The district court concluded that § 803(d)(3) does not violate plaintiffs' equal protection rights and plaintiffs appealed. Because plaintiffs have failed to show that § 803(d)(3) is not rationally related to any conceivable legitimate legislative purpose we affirm the district court."

Chelette v. Harris, No. 99-1759 (8th Cir. 10/10/2000) "Ronald Chelette, a prisoner at the Jefferson County, Arkansas, Jail Correctional Facility, filed a 42 U.S.C. § 1983 action against the facility and three of the facility's employees personally and in their official capacities (collectively, the defendants) for failing to provide him with adequate medical care. The defendants take this interlocutory appeal from the denial by the magistrate judge (presiding by consent of the parties under 28 U.S.C. § 636(c)) of their motion to dismiss on the ground that Chelette had failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). We reverse and remand."

Huey v. Stine, No. 99-1848 (6th Cir. 10/11/2000) "Huey, a prisoner in the Michigan Department of Corrections, appeals from a district court judgment dismissing his 42 U.S.C. § 1983 claim as barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). For the reasons set forth below, we affirm the judgment of the district court."

Sims v. Artuz, No. 97-2674 (2d Cir. 10/11/2000) "Plaintiff pro se Robert Sims, formerly a prisoner at New York State's Green Haven Correctional Facility ("Green Haven"), has appealed from a judgment of the United States District Court for the Southern District of New York, Loretta A. Preska, Judge, dismissing his amended complaint ("complaint") brought under 42 U.S.C. § 1983 (1994), alleging principally that defendants Green Haven officials (1) used or condoned the use of excessive force against him in violation of his rights under the Eighth Amendment to the Constitution, and (2) violated his due process rights in connection with disciplinary proceedings that resulted in excessive special confinement. The district court dismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, ruling principally that the force alleged was not sufficient to violate the Eighth Amendment and that the complaint did not describe conditions of confinement sufficiently severe or atypical to support the due process claims. For the reasons that follow, we vacate so much of the judgment as dismissed those claims, and we remand for further proceedings."

In Depth Features

This week's feature comes from Texas Deferender Services, Texas Defender Service Report - A State of Denial: Texas Justice and the Death Penalty.

A State of Denial: Texas Justice and the Death Penalty
Executive Summary
The nation is embroiled in a debate over the death penalty. Each day brings fresh accounts of racial bias, incompetent counsel, and misconduct committed by police officers or prosecutors in capital cases. The public increasingly questions whether the ultimate penalty can be administered fairly – free from the taint of racism; free from the disgrace of counsel sleeping through a client’s trial; free from the risk of executing an innocent person. Support for the death penalty is falling, and across the country, momentum gathers for a moratorium. Even death penalty supporters – such as Illinois Governor George Ryan – have acknowledged the need for fundamental reform.
In Texas, the call for reform has been deflected by state officials’ aggressive defense of the Texas system. Repeatedly, Governor Bush and others have defended the administration of the death penalty. Texas Attorney General John Cornyn has gone so far as to describe the death penalty in Texas as “a model for the nation.”
This report challenges that confident assessment. To show why Texas justice is not a model for anyone, we have undertaken a preliminary examination of the Texas death penalty system. We have conducted original research into the discriminatory charging practices of Texas prosecutors. We studied hundreds of cases, including every published decision (and many unpublished decisions) of the Texas Court of Criminal Appeals in capital cases in the modern death penalty era. We examined over half of the capital post-conviction appeals filed in Texas since 1995 – a stage of the appeals that has never before been systematically scrutinized – and we evaluated treatment given to those appeals by the state courts.
In this Report, we explain and lay bare many disturbing features of a thoroughly flawed system.
Chapter one
A Brief Overview
In this Chapter, we set forth a preliminary introduction to the Texas death penalty system: the death row population, the procedure by which people are sentenced to death, and the outlines of the torturous path of post-conviction appeals.
Chapter two
Official Misconduct: A Deliberate Attack on the Truth
We examined and assembled in this report numerous examples of Texas death penalty trials in which the prosecutors failed to discharge their duty to learn, disclose, and speak the truth. After an extensive review of Texas death penalty cases in the post-Furman era, we identified 84 cases in which a Texas prosecutor or police officer deliberately presented false or misleading testimony, concealed exculpatory evidence, or used notoriously unreliable evidence from a jailhouse snitch.
In 41 of these cases, state officials intentionally distorted the truth-seeking process by engaging in practices that resulted in the presentation, or serious risk of presentation, of false or misleading evidence.
In 43 documented cases prosecutors relied upon the inherently unreliable testimony of jailhouse informants, despite the obvious risk that inmates may fabricate testimony to curry favor with authorities. In many of those cases, such testimony was the primary evidence used to obtain a conviction.
Texas prosecutors freely engage in tactics that other jurisdictions have found violate due process. In multiple-defendant cases, for example, Texas prosecutors have presented irreconcilably inconsistent theories of the same crime: to the first jury, the prosecutor presents evidence and argument that ‘A’ shot the victim while ‘B’ stood by; in a later trial to a different jury, the same prosecutor presents evidence and argument that ‘B’ shot the victim, while ‘A’ stood by.
In other cases described in our report, police and prosecutors have suppressed evidence showing that someone other than the defendant committed the crime, have lost or destroyed potentially exculpatory evidence, have resisted the forensic examination of evidence that could exonerate the defendant, have manipulated witnesses’ testimony to support the prosecution’s theory despite contrary evidence, and have used threats against defendants or their family members to coerce confessions.
Several innocent men have been released from Texas’s death row. These wrongful convictions usually stemmed from misconduct committed by prosecutors or police officers. In the overwhelming majority of these cases, the misconduct that sent these men to death row only came to light years after the trial had ended. Since official misconduct is by its nature hidden, it is always difficult to expose. Today, new procedures sharply limit a defendant’s ability to secure review of his case in state and federal court, making it unlikely that the truth about the wrongful conviction of an innocent person will ever come to light.
Chapter Three
A Danger to Society: Fooling the Jury with Phony Experts
We treat separately another kind of official misconduct: those cases involving junk science, including “predictions” of future dangerousness, hair comparison evidence, and bite mark testimony. Of the sample we examined, we found 160 cases which contained some form of “scientific” evidence of dubious reliability.
In 121 cases, an “expert”psychiatrist testified with absolute certainty that the defendant would be a danger in the future. In the majority of those cases, the predictions were based on hypothetical questions, or only the most perfunctory interview with the defendant. These impossibly certain predictions of future behavior have been universally condemned as junk science. When the American Psychiatric Association expelled from its ranks the leading proponent of this testimony, he attacked the APA as “a bunch of liberals who think queers are normal.”
In 36 cases, the state relied upon hair comparison testimony – a practice which has been repeatedly proved to be inaccurate and misleading – to obtain a conviction. This “science” is fully replaceable by highly reliable mitochondrial DNA technology.
Because many case records and court opinions are unavailable, these numbers are extremely conservative, and likely represent only a fraction of the cases in which the state relied upon junk science to obtain a conviction and sentence of death.
Chapter four
Race and the Death Penalty: The Inescapable Conclusion
In this Chapter, we studied the persistent racism in the Texas death penalty, interviewing practitioners across the state regarding the jury selection process, researching the effect of discrimination statewide, and conducting original research into the charging practices of one East Texas county.
Though more comprehensive statewide research must be done, our data reveals a clear pattern of disparity in the punishment meted out to those convicted of killing whites as compared to those convicted of killing non-whites, despite the fact that black males are the most likely murder victims. Our research indicates that the death penalty is used most often to punish those convicted for murdering white women, the least likely victims of murder.
While a 1998 study indicates that 23% of all Texas murder victims were black men, only 0.4% of those executed since the reinstatement of the death penalty were condemned to die for killing a black man.
Conversely, as of 1998, white women represented 0.8% of murder victims statewide, but 34.2% of those executed since reinstatement were sentenced to die for killing a white woman.
Capital juries in the counties we profile are far “whiter” than the communities from which they are selected. The overall picture that emerges of the Texas death penalty is stark: non-whites are for the most part excluded from the process of assessing a punishment that is disproportionately visited upon them. African-American Texans are the least likely to serve on capital juries, but the most likely to be condemned to die.
Chapter Five
Executing the Mentally Retarded
Despite a growing national consensus that defendants with the mental age of a child should not be subject to the death penalty, Texas continues the practice of allowing the mentally retarded to be sentenced and put to death. Thirteen states and the federal government have banned the execution of the mentally retarded. Just last year, the Texas Senate passed a bill to ban the execution of the mentally retarded, but the bill was scuttled by the Texas House of Representatives.
Although there are many inmates – both those executed and those who are still on death row – who have never undergone even preliminary I.Q. testing, we know that, to date, Texas has executed at least six mentally retarded inmates. In this section, we profile two such men: one who has been executed; one who is still on death row.
Mario Marquez, whose jury never heard he was retarded, with an I.Q. of 66. When the trial judge and prosecutor learned the extent of Marquez’s impairment, they joined his new lawyer in asking that he be spared. Their plea fell on deaf ears and Marquez was executed the day George W. Bush was inaugurated Governor.
Doil Lane, who may soon be executed by the State of Texas. After Lane gave a confession to a Texas Ranger, he crawled into the officer’s lap and began to cry. Throughout his life, Lane’s I.Q. has measured consistently between 62 and 70.
Chapters six and Seven
The Right to Counsel in Texas: You Get What You Pay For; and
Sham Appeals: The Appearance of Representation in State Habeas Corpus
Recent publicity has focused the nation’s attention on Texas defense lawyers who slept through capital trials, ignored obvious exculpatory evidence, suffered discipline for ethical lapses, or used drugs or alcohol while representing an indigent capital defendant at trial. Defenders of the system dismiss these cases as an aberration. Our research indicates otherwise.
In some cases, counsel’s performance was the product of his own greed or ineptitude. Joe Lee Guy was represented at trial by an attorney who ingested cocaine on the way to trial, and consumed alcohol during court breaks. Guy’s state habeas attorneys failed to investigate the misconduct – which means those facts may never be considered by either a state or federal court.
In other cases, blame lies with the State’s refusal to both appoint lawyers with sufficient experience and training and to fund an adequate defense. For example, despite knowing about his client’s history of mental illness, Paul Colella’s lawyer failed to make any inquiry into his client’s psychiatric history. The only evidence Colella’s jury heard about his background before sentencing him to death was a brief plea from his mother.
Further, the Texas Court of Criminal Appeals routinely denies any remedy to inmates whose court-appointed lawyers performed poorly. The Court has forced lawyers to remain on capital cases even when the lawyers themselves expressed doubts about their ability to handle such cases, and it has denied relief to two death row inmates whose lawyers slept through trial. The Court’s rationale in these two cases – that the inmate failed to show that he was harmed by counsel’s sleeping – reflects a profound disregard for the constitutionally-guaranteed right to effective assistance of counsel.
When the truth has been hidden by the State or ignored by defense counsel at trial, post-conviction appeals are the only opportunity an inmate has to set the record straight. Yet the quality of counsel in these appellate proceedings has received almost no attention. To evaluate whether post-conviction counsel in Texas are providing the representation demanded by a capital case, we examined over half the post-conviction appeals filed in Texas since 1995 (187) – a study never before conducted. Our findings are deeply unsettling.
In 42% of the appeals, post-conviction counsel appeared to have conducted no new investigation, and raised no extra-record claims – even though this is the only type of claim that can be considered for review in such a proceeding.
In many cases, appointed attorneys merely repeated, sometimes word-for-word, claims which had already been rejected by the courts in a previous appeal-practically guaranteeing that there would be nothing for the courts to review in state or federal court.
In approximately one-third of the cases reviewed, the post-conviction application was under 30 pages long. In 17%, the application was under fifteen pages long. Such short applications can barely contain the requisite procedural formalities, let alone the legal arguments and factual assertions that are necessary to present a constitutional claim of error.
In a number of cases where patently inadequate state habeas applications were filed, subsequent investigation has revealed significant constitutional errors – including an alcoholic trial attorney and a possible claim of innocence – that were not reflected in the habeas application, and would have remained undiscovered if they had continued on the normal track of Texas habeas appeals.
Further, the Court of Criminal Appeals has displayed disgraceful indifference to these problems. The Court has taken no action to protect the rights of defendants – who were promised “competent” counsel by the Texas Legislature – even when the post-conviction lawyers it appoints have displayed obvious signs of inexperience and incompetence. Not only is there no standard of review for these appointed attorneys, there also is no oversight of their work.
Chapter eight
The Myth of Meaningful Review
Officials in Texas insist that redundant levels of appellate review will prevent wrongful convictions, and that deficiencies at trial will be corrected in post-conviction appeals. This rhetoric of “super due process” is meant to reassure the public that, despite the astounding number of executions in Texas, each case has received close scrutiny in the state and federal courts. In many cases, however, the notion of careful and meaningful review is a myth. For example, our study found that:
In the great majority (79% of the 103 cases studied) of post-conviction cases, the judge never held an actual hearing on the inmate’s claims of constitutional error, but instead relied merely on whatever documents were submitted.
In 83.7% of the cases reviewed, the trial court’s factual findings were identical or virtually identical to those filed by the prosecutor. In 93% of these cases, the Court of Criminal Appeals summarily adopted the trial court’s “opinion.” In all but the most unusual cases, the opinion then binds the federal court.
Few cases illustrate the myth better than Gary Graham’s. After Graham’s initial post-conviction proceedings proved unsuccessful, his new post-conviction attorneys found compelling evidence to support Graham’s longstanding claim of innocence. Graham spent the next seven years trying to secure an evidentiary hearing – in state and federal courts – at which the strength of his newly developed evidence of innocence could be measured against the prosecution’s single eyewitness. He never got it. The state courts adopted “findings” penned by the prosecutor assessing Graham’s innocence claims as if there had been a hearing where witnesses testified – but there was no such hearing. The prosecutor’s version of the facts controlled the litigation in subsequent proceedings, and no federal court ever reviewed the merits of Graham’s claims.
Chapter nine
A Bitter Harvest
In our final chapter, we profile the cases of six men executed despite substantial and compelling doubt about their guilt. Some of these cases received widespread national attention, like the case of Gary Graham. Others were executed in obscurity. These six men, however, have at least two things in common. In each case, the truth came to light long after the trial – long after it had been suppressed by the State of Texas, ignored by defense counsel at trial, or dismissed by the courts. And in each case, the truth came too late.
Five years ago, the State of Texas implemented several changes in the system of review of death penalty convictions. These changes, however, have done very little to repair a system that needs fundamental reform. Indeed, some of the changes have backfired. The reforms to state post-conviction appeals were intended to speed up the process, while ensuring fairness by granting defendants a right to competent legal assistance. However, many of the lawyers appointed under the law do not know how to provide effective representation in state habeas proceedings and end up grossly mishandling this critical stage of the case. Thus, the 1995 reforms created merely an appearance of review, and thwarted meaningful access to the state and federal courts. Neither this reform, nor any other, has slowed the Texas death penalty system’s powerful but flawed rush to execution.
In this report, we have assembled an unprecedented volume of objective evidence that raises profound questions about the fairness of how and when the death penalty is applied. We articulate the scope and breadth of the underlying problems, and offer preliminary recommendations for change. We confirm the critical need for a thorough investigation of every capital case, and we show that all too often, such an investigation either does not take place, or takes place too late for the courts to consider it. In short, we lay bare a system in desperate need of reform. We urge all who are committed to justice to read our report thoughtfully. It compels the conclusion, reached by increasing numbers of Americans, that our current method of enforcing the death penalty does violence to the ideal of basic fairness that is supposed to be the foundation of our criminal justice system.


From theDeath Penalty Information Centerreports:

Former President Jimmy Carter Joins Mrs. Carter in a Call for a Moratorium on the Death Penalty
On October 12, former President Jimmy Carter stated:
During my earlier years in public office I have supported the death penalty for some especially heinous crimes. The Supreme Court's approval of the death penalty came in 1977, but I was quite relieved that there were no executions in the United States when I was Governor or President. Beginning with special studies of human rights abuses at The Carter Center, I became increasingly concerned about the extremely distorted and abusive executions of poor, minority, and mentally deficient accused persons in America. In my book, "Living Faith," published in 1996, I expressed some of these concerns."
President Carter also said he supported remarks made by former First Lady Rosalynn Carter at an American Bar Association conference at The Carter Center. "I agree fully with the statement of my wife Rosalynn to the ABA meeting in Atlanta today that calls for a federal and state moratorium on the death penalty." At the conference, Call to Action: A Moratorium on Executions, Mrs. Carter spoke to lawyers, judges, and policymakers about the need for a moratorium, and issued the following statement:
"I am morally and spiritually opposed to the death penalty. Even for those who do not share my belief, the questions that have been raised about the unfairness of the system, the conviction of the innocent, poor quality of legal representation, racial discrimination, and the imposition of the death penalty on mentally ill or mentally retarded people and even children clearly call for a moratorium in order to have a thorough examination of these issues.
I commend and support the American Bar Association, an organization that does not take a position on the death penalty, in calling for a federal and state moratorium on executions."
(The Carter Center, "Background on President and Mrs. Carter's Stance on the Death Penalty," October, 2000)
DNA Tests Clear 2 Texas Prisoners; Governor Failed to Disclose Confession by Another
Preliminary DNA tests have apparently exonerated Christopher Ochoa and Richard Danziger of a 1989 rape and murder for which they have served 11 years in a Texas prison, despite Achim Josef Marino's confession to the crime. Marino, who is serving a life sentence for an unrelated offense, sent a confession letter to Governor George W. Bush in February, 1998, but Bush never turned it over to law enforcement authorities. Additional DNA tests are being conducted to confirm whether Marino was the perpetrator.
Ochoa, who was 22 years old at the time of the crime, says he only confessed to the crime after prosecutors threatened him with the death penalty. "There is no way to explain what happened here without pointing out one of the real problems with the death penalty," said attorney Barry Scheck, co-founder of the Innocence Project at Cardozo Law School. "We have a man [Ochoa] who gave a false confession and testified falsely against another man [Danziger] in order to avoid execution." Danziger, 19 at the time of his arrest, sustained permanent severe injuries as a result of being severely beaten while falsely imprisoned. (Los Angeles Times, 10/14/00) See also, innocence.
New Study Reveals Serious, Pervasive Problems in Texas Death Penalty
The most comprehensive study ever done on the death penalty in Texas was released on October 16 by the Texas Defender Service. "A State of Denial: Texas Justice and the Death Penalty" found critical inadequacies in the state's death penalty system, citing such problems as 84 instances of police and prosecutorial misconduct, racial disparities in prosecution and sentencing, questionable psychiatric testimony, and the use of jail house snitches. The report found numerous examples of inadequate defense attorneys, some of whom slept or used drugs and alcohol throughout the trial, and it profiles cases in which an innocent person may have been executed.
One of the study's central findings is that the appeals process in Texas is too cursory. The study found that the Texas Court of Criminal Appeals routinely denies remedy for inmates whose court-appointed lawyers performed inadequately. In addition, the report found that in 79% of the post-conviction cases studied, the judge never held a hearing on the inmate's constitutional claims and instead relied only on the documents submitted. "The big problem in Texas," said Jim Marcus, one the study's authors, "is that there is not really a stage in the system where we can be confident that these problems will be exposed and addressed." (New York Times, 10/16/00 and Texas Defender Service, "A State of Denial: Texas Justice and the Death Penalty, "Executive Summary). Read the Executive Summary or download the study. See also, New Resources
Virginia Supreme Court Considers Modifying 21-Day Rule in Capital Cases
The Supreme Court of Virginia recently proposed a new court rule that would eliminate time restrictions for death row inmates seeking a new trial based newly discovered evidence. Under the court's current rule, inmates have only 21 days after sentencing to present new evidence. The proposed rule states that if the inmate shows that new evidence, unknown to the prisoner or trial counsel at the time of the trial, would establish a substantial likelihood of actual innocence, the court can set aside the inmate's conviction, grant a new trial or sentencing proceeding, or grant other appropriate relief. (Washington Post, 10/14/00) The court is accepting comments on the proposed rule until November 13, 2000. See also, innocence.
Medical Associations Vote to Keep Doctors From Participating in Executions
At its annual general meeting in Edinburgh, Scotland, the World Medical Association (WMA) declared that doctors should not participate in any part of the capital punishment process. The WMA amended their 1981 "Resolution on Physician Participation in Capital Punishment" that stated no physician should be required to be an active participant in executions. The amendment makes the WMA's guidelines more explicit, advising doctors not to participate in any part of an execution. "Doctors should not become involved in any preliminary examinations, advise on execution methods, evaluate competency or be present during the event," said WMA chairman, Dr. Anders Milton of Sweden. Forty medical associations voted in favor of the amendments. (Reuters 10/10/00) See also, New Voices, Articles, and Statements on the Death Penalty
New Resources
Recent Poll Findings. DPIC's Web site offers summaries of recent state, national, and international polls on the death penalty and death penalty related issues. This revised page also contains links to other web sites containing polling data.
"Witness to an Execution" airs on NPR
On Thursday, October 12, NPR's "All Things Considered"® aired "Witness to an Execution," a radio documentary providing in-depth details of the process before and during an execution by lethal injection. The story is told by the men and women who participate in, or bear witness to, executions at the Walls Unit in Huntsville, Texas, where all death sentences for the state are carried out. The show is narrated by Warden Jim Willett, who oversees all Texas executions, and includes personal stories of other Department of Criminal Justice employees who take part in executions, as well as several journalists who witness and cover them. (Sound Portraits Press Release, 10/6/00) The program is available on NPR's Web site at (needs Real Player).
Germany v. United States in the International Court of Justice
The United Nation's principal court, the International Court of Justice (ICJ), will hold public hearings in the case Germany v. United States of America, from November 13-17, 2000 at The Hague. Germany is suing the United States for violating international laws and treaties by executing two German foreign nationals in Arizona in 1999. Germany maintains that brothers Karl and Walter LaGrand were denied consular access, as required by the Vienna Convention. Germany also says that Arizona prosecutors violated the Convention because they knew the defendants were foreign nationals and did not inform German authorities of the arrests and convictions for the 1982 crimes until 1992, when the brothers' legal avenues had all been exhausted. (Press Communiqué, ICJ, 9/27/00) See also, foreign nationals

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's, who may not be at a public defender's office or similar non-profit, a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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List owner: capitaldefense-owner@onelist.comAsalways, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.

DISCLAIMER & CREDITS -- Anti-copyrite1997-2000.ISSN: 1523-6684. Written with the legal professional in mind. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. This weekly has been prepared for educational and information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located at This letter may be freely redistributed with attribution. Please note that the current set up of the weekly is a one way list. Subscription information, including all names and addresses are private and unavailable to third parties. Please note all rights to terminate a subscription are retained by the editorial staff. Publisher information: All comments, inquiries or complaints may be sent to: Capital Defense Weekly/Karl R. Keys/167 Milk Street/Suite 127/Boston, MA 02109/ 1523-6684 Volume III, issue 38