Two cases lead off this double edition. First up is Middleton v. Ignacio. In Middleton the Nevada Supreme Court remands for a new post-conviction proceeding as appointed postconviction counsel's work was so substandard as to call into question the entire integrity of the post-conviction process. The Court ultimately holds that where post-conviction counsel's performance is sufficiently substandard a new post-conviction proceeding must be held.

In the second case, Connecticut v. Peeler, the Appellant got life below; so why is it spotlighted? Following the life verdict below the state supreme court, in a split decision, orders a new penalty phase proceedings where death will once again be on the table. The Peeler court holds that the trial court should have ordered a mistrial in the penalty phase following bad instructions on unanimity that favored the defendant and should not have accepted a deadlock verdict. Watch for this case to be revisited soon as this is one of a small handful of similar cases and a growing trend in recent months around the country.

Focus this week covers the ongoing aftermath of House v. Bell. Noting that House is an exceptionally strong innocence case, an editorial byDwight Lewis in the Tennesseanexamines that case's facts and the unfortunate intersection of the case meeting the full Sixth Circuit en banc while it has a majority of Republican political appointees.

Please note that due to scheduling issues this edition does not contain hyperlinks to the various opinions cited or news updates -- such as new releases for actual innocence and the Roper v. Simmons oral arguments (see below for DPIC's comments on the news). The dual Lexis / Westlaw cite provided below should permit anyone to visit Lexisone.com to view the opinions there at no cost.

Now for some house-keeping matters. The lawyer discussion list capital-defense is open again for new subscribers (please emailcapitaldefense-subscribe@onelist.com with a short description that you are in fact involved in capital defense work). Thanks to Stephen Bedrick for the information update (actually press release) on the district court win in the Constantino Carrera case out of the Eastern District of California. Thanks toPanera Breadfor the wi-fi hotspot for this on the road edition. Finally, on a more personal note, thank you to all those who in recent days have filled out the online request for Thomas Bowling, a former client of mine (indeed my first client out of law school in the mid-90s); the petition is online athttp://www.thepetitionsite.com/takeaction/849542885.

As always, thanks for reading. - k

Archived on the internet athttp://capitaldefenseweekly.com/archives/041018.htm

EXECUTION INFORMATION

Since the last edition there have been the following executions in the United States:

October

12 Donald Aldrich Texas

13 Adremy Dennis Ohio

20 Ricky Morrow Texas

22 Charles Roache North Carolina----volunteer

Pending execution dates believed to be serious include:

October

26 Dominique Green Texas

November

2 Lorenzo Morris Texas

4 Robert Morrow Texas

9 Demarco McCullum Texas

10 Frederick McWilliam Texas

12 Frank Chandler North Carolina

16 Donnie E. Johnson Tennessee

17 Anthony Fuentes Texas

18 Troy Kunkle Texas

December

1 Frances Newton Texas----female

2 George Banks Pennsylvania

3 Charles Walker North Carolina

6-10 Heath Burch Maryland

SUPREME COURT

Decker v. Missouri, 2004 WL ---- (10/18/2004) Cert granted on issue of shackling the defendant in front of the jury during the penalty phase.

CAPITAL CASES (Favorable)

Mississippi v. Conner, 2004 WL 2249507; 2004 Miss. Lexis 1226 (Miss. 10/7/2004) On rehearing, Appellant found to have sufficiently plead his retardation claim & the record amply supports his retardation, therefore a remand ordered to consider whether, in light of Atkins, he may be executed. Standard for Mississippi noted as: "Conner can obtain a hearing only by presenting this Court with an affidavit from an expert which states, to a reasonable degree of probability/certainty, that Conner has an IQ of 75 or below and that, in the expert's opinion, there is a reasonable basis to believe that--upon further testing--he will be found mentally retarded."

Middleton v. Ignacio, 2004 WL 2302852; 2004 Nev Lexis 98 (Nev 10/14/2004) Removal of appointed postconviction counsel was warranted, because counsel flagrantly and pervasively violated Supreme Court's orders and procedural deadlines for submitting opening appellate brief, and the brief ultimately submitted was wholly substandard and unacceptable. Performance was not better and post-conviction trial court denied relief on that ground. No matter how irksome and unprofessional counsel’s performance, however, the client shall not be made to pay, therefore remand ordered for a new post-conviction proceedings.

Carrera v. Brown, 2004 WL ------ (E.D. CA. 10/4/2004)

Relief granted on penalty phase issues including (1) errors in instructions to the jury on the element of intent to kill, (2) misconduct by the trial prosecutor in concealing benefits given to inmate witnesses, and (3) misconduct by the prosecutor in presenting contradictory stories of the events at the separate trials of Carrera and his co-defendant, Ramiro Ruiz. The district court appears to have reserved on numerous guilt phase issues including additional prosecutorial misconduct. (Thanks to counsel Stephen Bedrick for keeping me up to date on this matter).

CAPITAL CASES (Other Than Favorable)

Aldrich v. Johnson, 2004 WL 2272210 (5th Cir. 10/9/2004) Lethal injection challenge denied on an odd ground, that since lethal injection is the only method of execution in Texas a section 1983 ws improper.

Aldrich's § 1983 action challenges the constitutionality of the protocol that Texas will use to execute him, but he does not allege that there is any specific acceptable alternative method that the state could use, or that the proposed protocol is wholly unnecessary to the execution. Thus, contrary to the situation in Nelson, Aldrich's § 1983 claim challenging the constitutionality of that protocol and stay of its usage will effectively prevent the state from carrying out his execution. Nelson 's holding clearly requires that a capital defendant, in order to assert a § 1983 method-of-execution claim, must allege that, because there are alternative methods of execution, the challenged protocol is wholly unnecessary to proceeding with the execution. Because Aldrich did not allege or show that there is any alternative to the protocol that the State proposes to use in his execution, the district court properly dismissed his § 1983 action.

Connecticut v. Peeler, 2004 WL 2210195; 2004 Conn Lexis 394 (Conn10/12/2004) Following life sentence below, new penalty phase proceedings ordered as instruction that if the jury remained deadlocked the court would be required to sentence defendant to life imprisonment, was improper as state law authorizes neither a life sentence nor death when there is a deadlock.

Phillips v. Florida, 2004 Fla Lexis 1808 (FL 10/14/2004) Relief denied on claims including whether failure to exercise remaining peremptory challenges was ineffective; IAC for failure to adequately investigate and present evidence concerning claim of mental retardation and organic brain damage; and whether expert's testimony to rebut defendant's evidence of mental mitigation was admissible at resentencing despite expert's prior evaluation of competency.

Alston v. Florida, 2004 Fla Lexis 1809 (FL 10/14/2004) “[C]ircuit court did not abuse its discretion in finding Alston competent to proceed in his postconviction proceedings or in finding Alston knowingly, intelligently, and voluntarily waived his rights to postconviction counsel and proceedings.”

Hodges v. Crosby, 2004 WL 2303643 (FL 10/14/2004) Relief denied on claims relating to ineffective assistance counsel on penalty phase investigation, failure to present mitigation evidence & not objecting during penalty phase closing arguments, use of experts during the penalty phase, ex parte contact with assistant state attorney, post-conviction court's grant to state of access to petitioner for purposes of mental health evaluation did not implicate due process penalty phase jury instructions regarding effect of tie vote on recommendation of life imprisonment were not negated by previous statements; and admission did not abuse its discretion in admitting collateral crime evidence.

Baker v. Maryland, 2004 WL 2255335, 2004 Md Lexis 612 (Md 10/8/2004) Since no mitigating factors were found below "Baker's challenge to the preponderance of the evidence standard that is used when weighing aggravating circumstances against mitigating circumstances during the sentencing proceeding in death penalty cases is not a proper issue in this case." "Maryland's use of a preponderance of the evidence standard in the weighing of aggravating against mitigating factors, even if we were to assume that such a weighing occurred before Baker's sentencing in this case, is not unconstitutional and does not invalidate the State's capital punishment law."

Bell v. North Carolina, 2004 WL 2248241, 2004 N.C. Lexis 1126 (N.C. 10/7/2004) Relief denied on numerous claims including a seemingly strong Batson claim, improper joinder of defendants, prosecutor's comments during closing arguments of guilt phase, trial court's act of telling the jury in pretrial meeting with jurors that its decision would be reviewed by an appellate court, sufficiency, disjunctive instructions to jury on charge of first-degree kidnapping abrogating right to a unanimous verdict, sufficiency of pecuniary gain aggravator, admission of out-of-court statements made to police by victim of prior robbery committed by defendant violated defendant's constitutional right to confrontation; submission of mitigating circumstance that defendant had no significant history of prior criminal activity, sufficiency of the especially heinous, atrocious, or cruel aggravator, and proportionality.

Ohio v. Jackson, 2004 WL 2260095, 2004 Ohio 5350 (Ohio App. 3 Dist 10/4/2004) Relief denied on claims relating to trial court's denial of his request for leave to conduct discovery and that the "trial court erred in dismissing Jackson's post-conviction petition where sufficient operative facts were presented to merit relief or, at least warrant, an evidentiary hearing."

Oregon v. Cox, 2004 WL 2304859; 2004 Ore Lexis 704 (Ore 10/14/2004) Relief denied on claims relating to exclusion of evidence relating to the victims prior bad acts, striking defendant's testimony for his failure to answer cross-examination questions was not abuse of discretion, defendant opened the door in his comments about the victim allowing introduction of rebuttal evidence of victim's violent act, and claims relating to the defective indictment.

Moeller v. Weber, 2004 WL 2254535; 2004 S.D. Lexis 181 (S.D. 10/6/2004) Relief denied on claims relating to the destruction of soil samples, trial court's refusal to answer jury's question on meaning of "life without parole," counsel's performance at a pretrial DNA & other scientific evidence admissibility hearing, admission of DNA evidence; preclusion of the exercise of prosecutorial discretion as to whether to seek death penalty sentence under ; and failure to allege aggravating circumstances in indictment.

Abdur'Rahman v. Brederson, 2004 WL 2246227; 2004 Tenn. Crim. App. Lexis 643 (Tenn.Ct.App. 10/6/2004) Tennessee's lethal injection protocol does not result in cruel and unusual punishment. and the adoption of the protocol was consistent with state law.

Howard v. Texas, 2004 WL 2303593; 2004 Tex. Crim. App. Lexis 1729 (Tex. Crim. App. 10/13/2004) Relief denied on sufficiency of future dangerousness special question, prosecutor's penalty phase argument suggesting potential for defendant's participation in gang-related activities in prison, mental retardation under Atkins and failure to adequately present evidence of mental retardation.

Treadgill v. Texas, 2004 WL 230361; 2004 Tex. Crim. App. Lexis 1730 (Tex. Crim. App. 10/13/2004) Relief denied on claims relating to the warrantless DNA testing of defendant's clothing, sufficiency, failure to instruct on felony murder and murder as lesser included offenses of capital murder, prosecutor's closing in the guilt phase, denying defendant's challenges to prospective jurors for cause, introduction of photographs of bombs and weapons made by prison inmates was in sentencing phase, and facial challenge to statute shifting burden of proof to defendant on mitigation, amongst other challenges.

HOT LIST

Middleton v. Ignacio, 2004 WL 2302852 (Nev 10/14/2004) Removal of appointed postconviction counsel was warranted, because counsel flagrantly and pervasively violated Supreme Court's orders and procedural deadlines for submitting opening appellate brief, and the brief ultimately submitted was wholly substandard and unacceptable. Performance was not better and post-conviction trial court denied relief on that ground. No matter how irksome and unprofessional counsel’s performance, however, the client shall not be made to pay, therefore remand ordered for a new post-conviction proceedings.

"This court places the highest priority on diligence in the discharge of professional responsibility in capital cases." [FN6] Capital cases are distinguishable from other criminal cases not only by the severity of sentence given to the defendant but also by the often-lengthy proceedings and complex issues that such a sentence entails. [FN7] This court recognizes the unique burdens placed upon defense counsel who represent capital defendants. [FN8] Yet such counsel contribute vitality to this court's deliberative process and assist this court in ensuring that capital cases receive a "just and expeditious final disposition." [FN9]

The highest standards of competence and diligence are expected of capital defense counsel in all stages of the criminal proceedings. [FN10] When these standards are not met and the interests of justice demand, this court must exercise its inherent authority to sua sponte remove counsel from representing a capital defendant. [FN11] Unfortunately, such is the case here.

Lindsay has repeatedly violated this court's orders and procedural deadlines. And despite these violations and the generous amount of time afforded Lindsay within which to complete and file his opening brief and appendix, the work product he ultimately submitted was wholly substandard and unacceptable.

The rules governing the proper format for briefs and appendices filed before this court are generally set forth in NRAP 28 through NRAP 32. [FN12] Flagrant and pervasive violation of these rules will not be disregarded, especially when instances of such violations impair this court's ability to meaningfully reach and dispose of the issues raised on appeal. Here, Lindsay's opening brief and appendix constitute such an instance. His violations of the relevant NRAP provisions in these submissions are of such a magnitude that they must be addressed.

The opening brief submitted by Lindsay was disorganized and often incoherent. Throughout the brief were multiple pages of single-spaced citation to case law with little or no factual analysis or support. [FN13] Compounding these deficiencies were improper legal citations, typographical errors, and arguments with no discernable beginning or end.

Most notable, however, was Lindsay's response to this court's January 21, 2004, order. Despite this court's explicit directives, Lindsay maintained his incorrect reading of Haberstroh and failed to include a complete and relevant statement of facts in his opening brief. [FN14] And no supporting citations to the multiple appendices were provided. [FN15] To comply with the 80-page limit, Lindsay made no effort to amend the opening brief and chose instead to tear out the final eight pages, abruptly ending the discussion of one issue and completely omitting any discussion of four other issues listed in the brief's table of contents.

The 11-volume appendix filed by Lindsay was also inadequate. Lindsay failed to include numerous documents and portions of the district court proceedings that appear essential to addressing the claims he raised. [FN16] Other documents he included were incomplete, unsigned, marked up with personal notes, or not stamped by the district court.

These multiple NRAP violations evince a clear disregard by Lindsay for this court, the rules governing the practice of attorneys before it, and most important, the obligations incumbent upon him as counsel for a client facing a death sentence. If Lindsay was physically or mentally unable to diligently submit a competent work product, then it was his obligation to withdraw as Middleton's counsel. [FN17] His failure to do so has now fatally impaired this court's ability to achieve a meaningful disposition of Middleton's appeal and has eroded this court's confidence in Lindsay's representation of Middleton in the proceedings before the district court below.

SCR 250(2)(d) provides that counsel appointed to represent a capital defendant in a post-conviction appeal must be "capable and competent to represent the appellant." Lindsay's performance in this appeal falls far short of this requirement, and we are therefore compelled to sua sponte remove him as Middleton's post-conviction appellate counsel. We further prohibit Lindsay from practicing before this court in any future cases without this court's express prior authorization, [FN18] and we refer him to the State Bar of Nevada for disability or disciplinary proceedings regarding his performance. [FN19]

Middleton must be afforded his statutory right to litigate his post‑conviction claims with the assistance of competent and diligent counsel. Therefore, we remove Lindsay as counsel, vacate the district court order denying Middleton's habeas corpus petition, and remand. We instruct the district court to appoint new post‑conviction counsel to represent Middleton. New counsel shall review the prior petitions filed below and revise the pleadings as he or she sees fit in a supplementary petition. The district court shall take appropriate, reasonable steps to expedite the proceedings.

Connecticut v. Peeler, (10/12/2004) Following life sentence below, new penalty phase proceedings ordered as instruction that if the jury remained deadlocked the court would be required to sentence defendant to life imprisonment, was improper as state law authorizes neither a life sentence nor death when there is a deadlock.

The state's second, and principal, claim on appeal is that the trial court abused its discretion by denying the state's motion for a mistrial after improperly instructing the jury that if it remained deadlocked, the trial court would be required to impose a sentence of life imprisonment "without the benefit of release." [FN63] Specifically, the state argues that the trial court's improper instruction was not only based upon an unsound legal premise, but tainted the subsequent jury deliberations by: (1) leading the jury to believe that the responsibility for determining the appropriateness of whether the defendant should be sentenced to life imprisonment or put to death did not rest solely in the jury's discretion; and (2) increasing the likelihood that the jury would remain deadlocked, thereby denying the state its right to fair and thorough deliberations by a jury attempting to reach a unanimous verdict. Therefore, the state argues, the trial court abused its discretion in denying the state's subsequent motion for a mistrial. We agree.

*34 The following additional facts and procedural history inform our resolution of this issue. On the third day of deliberations in the penalty phase of the defendant's trial, the jury sent to the court a note in reference to the questions on the verdict form dealing with the murder of Brown. The jury requested instructions on how to proceed if it was unable to agree on whether the nonstatutory mitigating factor or factors outweighed the aggravating factor or factors. Commenting on the note outside the jury's presence, the trial court told the parties that the jury must "strive to reach a unanimous verdict. If they become deadlocked on [the issue of weighing] ... I'll impose life without the benefit of release." In response, the state argued that if the jury was deadlocked on this issue, the court would have to declare a mistrial rather than sentence the defendant to life in prison. The trial court, however, disagreed stating: "[I]f it's deadlock, it means that you haven't met your burden," and "the defendant would get the benefit of it."

The jurors were then recalled to the courtroom and the court reinstructed them on the possible verdicts. The court reiterated that at each point in its deliberations, the jury must be unanimous. Specifically, the court stated that the jury had to agree unanimously that aggravating factors outweighed mitigating factors for death to be imposed, or in the alternative, it had to agree unanimously that mitigating factors either outweighed or were in equipoise with aggravating factors for a life sentence to be imposed. The trial court concluded its substantive re-instruction by stating: "If you continue to deliberate on this issue and at the final analysis you are not able to agree, then you report that, and in that event your deliberations would cease and by your action I would be required to impose a sentence of life without the benefit of release." (Emphasis added.) The jury was then excused to continue its deliberations.

Later that day, the jury sent a second note to the court stating that, with regard to the murder of Brown, it still was deadlocked on the issue of whether the nonstatutory mitigating factors outweighed the aggravating factors. In response, the trial court instructed the jury to put the issue aside and to move on to the questions on the verdict form dealing with the double murder of Brown and Clarke. The court implored the jurors to strive to answer the remaining questions. The court then repeated to the jury the action the court would take if the jury were to become deadlocked on the second issue: "I've already told you, if you cannot agree, then I will impose a sentence which is in accord with the inability of the state to satisfy the burden of proof beyond all reasonable doubt in respect to the aggravating factor and your consideration of the mitigating factor. So there's no puzzle." (Emphasis added.) The state again indicated to the court that it disagreed with the court's proposed disposition. The state argued that the jury's notes merely indicated that it was deadlocked and, therefore, imposing a life sentence would be improper. The court adhered to its position.

*35 Shortly thereafter, the jurors sent a third note to the court indicating that they also were deadlocked on the issue of whether the state had proven an aggravating factor pertaining to the double homicide. The trial court indicated to the parties that it would respond to the note by giving a "Chip Smith" instruction to the jury in an effort to nudge the jury toward unanimity. When the state inquired as to how the court interpreted the jury's deadlock on the aggravating factors pertaining to the double homicide, the court again stated, "[i]f they can't agree, they haven't--the state hasn't met its burden; simple as that." The court then called the jury back in and proceeded by giving the "Chip Smith" instruction.

Later that same afternoon, the jury sent a fourth, and final, note to the court stating: "We still have a problem with the word unanimous .... Some of us feel the state has proven one or more statutory aggravating factors and some of us feel the state has failed to prove one or more statutory aggravating factors." In response, the court provided the jury with an "Official Revised" version of the verdict form which permitted the jurors to "unanimously agree that [they] are unable to unanimously agree" on both counts of capital felony. All twelve jurors chose this new option for both counts.

Immediately after the jury announced that it had agreed to disagree, the trial court ordered the verdict accepted and recorded. The state then orally moved, pursuant to Practice Book § 42-45, for a mistrial. The state's motion, however, was denied by the court.

[54][55] We begin our analysis by setting forth our standard of review. "The principles that govern our review of a trial court's ruling on a motion for a mistrial are well established. Appellate review of a trial court's decision granting or denying a motion for a [mistrial] must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided.... Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds.... In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Citation omitted; internal quotation marks omitted.) State v. Cook, 262 Conn. 825, 842, 817 A.2d 670 (2003).

[56] In reviewing a claim of abuse of discretion, we have stated that "[d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Internal quotation marks omitted.) State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. See id. Therefore, "[i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required." State v. Avcollie, supra, 174 Conn. at 111, 384 A.2d 315.

*36 [57] The state first contends that the trial court's instruction that, if the jury remained deadlocked, the court would be required to sentence the defendant to life imprisonment, was improper. Specifically, the state argues that the instruction was based upon the unsound legal premise that, under Connecticut law, during the penalty phase of a capital case a deadlocked jury necessarily signifies that the trial court must sentence the defendant to life imprisonment because the state has failed to sustain its burden of proof. We agree with the state.

[58][59][60] "It is settled doctrine in Connecticut that a valid jury verdict in a criminal case must be unanimous.... A nonunanimous jury therefore cannot render any finding of fact." (Internal quotation marks omitted.) State v. Aparo, supra, 223 Conn. at 388, 614 A.2d 401. Indeed, where a jury is deadlocked, a court cannot rightfully record a verdict "because [as a matter of law] no such verdict can be found to have existed ...." State v. Goodman, 35 Conn.App. 438, 448, 646 A.2d 879, cert. denied, 231 Conn. 940, 653 A.2d 824 (1994); see also State v. Daniels, supra, 207 Conn. at 394, 542 A.2d 306 (concluding that deadlocked jury in penalty phase of capital case makes no finding of whether death or life imprisonment is warranted). Rather, it is axiomatic that a deadlocked jury makes no lawfully cognizable finding, thereby requiring no specific action by the trial court. See State v. Sawyer, supra, 227 Conn. at 580, 630 A.2d 1064; State v. Aparo, supra, at 388, 614 A.2d 401; State v. Daniels, supra, at 388, 542 A.2d 306.

This court addressed a similar issue in State v. Daniels, supra, 207 Conn. at 394, 542 A.2d 306, wherein the court concluded that under our death penalty statute, a deadlocked jury in the penalty phase of a capital trial "neither authorizes imposition of the death penalty nor requires the imposition of a life sentence." The court stated that, "[b]ecause the record in this case reveals an unchallenged finding that an aggravating factor exists, but no unanimous finding that the defendant has proved that a mitigating factor exists, the defendant was not entitled as a matter of law to a sentence of life imprisonment ...." Id., 393, 542 A.2d 306. Under Connecticut law, therefore, we concluded that a deadlocked jury authorizes neither a life sentence nor the death penalty. Id., 394, 542 A.2d 306. [FN64] We therefore determine that the jury instruction in the present case that the trial court would be required to impose a life sentence if the jury remained deadlocked was improper.

[61][62][63][64] The state further contends that this improper instruction tainted the jury's subsequent deliberations. We agree. The United States Supreme Court and this court continuously have recognized "the need for heightened reliability in death penalty deliberations ...." (Citations omitted.) State v. Ross, 230 Conn. 183, 230-31, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). "[T]he task ... of determining whether a specific human being should die at the hands of the [s]tate ... necessarily calls upon the intellectual, moral and emotional resources of the jurors in a way that far exceeds any factual determination of guilt or innocence. It requires the jury to make a reasoned moral and individualized determination regarding the imposition of the death penalty.... It is not hyperbole to say that making the choice ... between life and death ... is the most serious decision that our legal system requires a jury to make." (Citations omitted; internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 228, 833 A.2d 363 (2003). "Thus, great care must be taken by the trial court to ensure that a capital sentencing jury fully appreciates the momentous nature of its duty and, in particular, that the jury not be led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.... To ensure that the jury is fully aware of its determinative role in our capital sentencing process ... [i]t is imperative ... that the jury instructions in a capital case clearly and unequivocally explain to the jury that it is solely responsible for determining whether the defendant will receive the death penalty or, instead, a sentence of life imprisonment without the possibility of release." (Citations omitted; emphasis added; internal quotation marks omitted .) State v. Reynolds, 264 Conn. 1, 124-25, 836 A.2d 224 (2003), cert. denied, U.S. , --- U.S. ----, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).

*37 In Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the United States Supreme Court expressly concluded that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." In that case, the defendant challenged the prosecution's statement in its closing argument that, under Mississippi's capital sentencing scheme, an appellate court ultimately would decide if the defendant were to live or die. Id., 324-26. The Supreme Court vacated the defendant's death sentence, reasoning that, "under the [e]ighth [a]mendment the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.... Accordingly, many of the limits that this [c]ourt has placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion....

"In evaluating the various procedures developed by [s]tates to determine the appropriateness of death, this [c]ourt's [e]ighth [a]mendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the [s]tate. Thus, as long ago as ... McGautha v. California, 402 U.S. 183 [91 S.Ct. 1454, 28 L.Ed.2d 711] (1971), [the court has assumed] ... that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision .... Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an awesome responsibility has allowed this [c]ourt to view sentencer discretion as consistent with--and indeed as indispensable to--the [e]ighth [a]mendment's need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, [428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ] (plurality opinion). See also Eddings v. Oklahoma, [455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ]; Lockett v. Ohio, [438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ]." (Citations omitted; internal quotation marks omitted.) Caldwell v. Mississippi, supra, 472 U.S. at 329-30. [FN65]

Similarly, in the present case, the trial court's instruction to the jury tainted the subsequent deliberations by diluting the jury's appreciation of its role in the sentencing phase of a capital trial. The trial court instructed the jury that if it remained deadlocked, "[the court] would be required to impose a sentence of life without the benefit of release ... which is in accord with the inability of the state to satisfy the burden of proof beyond all reasonable doubt in respect to the aggravating factor and your consideration of the mitigating factor." (Emphasis added.) These instructions created a "reasonable likelihood"; Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (where it is claimed that instruction is subject to erroneous interpretation, "proper inquiry ... is whether there is a reasonable likelihood that the jury has applied the challenged instruction" erroneously); that the jury did not fully appreciate the "momentous nature of its duty" and "its determinative role in our capital sentencing process ...." (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. at 124-25. In other words, by charging the jury that if it were to remain deadlocked, the ultimate decision as to the defendant's sentence would be removed from its discretion, the trial court created a reasonable likelihood that the jury failed to appreciate its "awesome responsibility ...." (Internal quotation marks omitted.) Caldwell v. Mississippi, supra, 472 U.S. at 329. On the basis of the explicit content of this instruction, therefore, we cannot conclude that the trial court's instructions to the jury, as a whole, "clearly and unequivocally explain[ed] to the jury that it is solely responsible for determining whether the defendant will receive the death penalty or, instead, a sentence of life imprisonment without the possibility of release," as required by the eighth amendment. (Emphasis added; internal quotation marks omitted.) State v. Reynolds, supra, at 125, 836 A.2d 224.

*38 [65][66][67][68] The trial court's instructions further tainted the jury's deliberations by reinforcing the likelihood of deadlock, thereby denying the state its right to fair and thorough deliberations by a jury attempting to reach a unanimous result. It is unquestionable that a defendant has a substantial liberty interest at stake in any criminal trial. State v. Sawyer, supra, 227 Conn. at 578-79, 630 A.2d 1064. "That does not mean, however, that the defendant's liberty interest is the only substantial interest at stake .... The state also has a substantial interest, namely, its interest in securing a [determination of the imposition of the death penalty]" through the jury's thoughtful deliberation to a unanimous verdict. Id., 579, 630 A.2d 1064; see also State v. Malcolm, 257 Conn. 653, 658, 778 A.2d 134 (2001) (recognizing "the state's right to seek a judgment against the defendant"); State v. James, 247 Conn. 662, 674, 725 A.2d 316 (1999) ( "[t]he [state], like the defendant, is entitled to resolution of the case by verdict from the jury" [internal quotation marks omitted] ). A jury instruction that implies that a jury need not deliberate to a unanimous decision "neglects the state's interest in the resolution of the charges on which it presented the defendant." State v. Sawyer, supra, at 578, 630 A.2d 1064. Indeed, "[a jury] should not be given an instruction that could encourage it to give the [penalty phase deliberations] short shrift .... Anything less [than a unanimous completion of the difficult task] dilutes the right of the state and the defendant to have the jury give its undivided attention and most serious deliberations to the [penalty phase proceedings] and flies in the face of the unanimity requirement of Aparo and Daniels." Id., 583, 542 A.2d 306. Jury instructions must reflect the "commitment that justice be done to both the state and the defendant, and that the [penalty phase disposition] be thoroughly deliberated, considered and disposed of definitively." Id., 578, 542 A.2d 306; State v. Salgado, 257 Conn. 394, 405, 778 A.2d 24 (2001).

In the present case, after the jury reported being deadlocked, the trial court instructed the jury that, if it remained deadlocked, the trial court would sentence the defendant to life imprisonment. This instruction was reasonably likely to have influenced those jurors who, at that point in the deliberations, were inclined to vote against the imposition of the death penalty, to resist further deliberations aimed at reaching a unanimous verdict. In other words, those jurors who favored sentencing the defendant to life imprisonment improperly were informed by the court that they could ensure a sentence of life imprisonment simply by refusing to deliberate further, in which event the court would impose a life sentence.

[69] After improperly instructing the jury as to the sentence that it would be required to impose if the jury were to remain deadlocked, the trial court denied the state's motion for mistrial. The trial court's instruction in the present case impermissibly led the jury to believe that it was not solely responsible for determining the appropriate sentence for the defendant. Moreover, the improper instruction increased the likelihood that the jury would remain deadlocked, as it did, in violation of the state's right to fair and thorough deliberations by a jury attempting to reach a unanimous verdict. We conclude that the denial of the motion for a mistrial was a manifest abuse of discretion and rendered an injustice to the state because it improperly barred the state from pursuing a second penalty hearing before a properly charged and motivated jury. See State v. James, supra, 247 Conn. at 674, 725 A.2d 316 (state has strong interest "in fair trials designed to end in just judgments" [internal quotation marks omitted] ); see also State v. Avcollie, supra, 174 Conn. at 111, 384 A.2d 315 ("[i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required").

OTHER NOTABLE CASES

Blackwell v. Lambert, --- F.3d --- (10/12/2004) In a case that has stirred many serious concerns about prosecutor's "gaming" the system to hide evidence and then prevent post-conviction review of its allleged use of perjured testimony, witholding of exculpatory evidence, fabrication of evidence and state's pretrial interference with defense experts.

FOCUS

This week's Focus deals with the continuing fall-out from House v. Bell, this time an editorial from the Tennessean by Dwight Lewis.

Still on death row though six judges think he is innocent?

You might call it a travesty.

No, there's no might about it. Call it a travesty, for that is what is happening in the case of Tennessee death row inmate Paul Gregory House.

House, in his mid-40s, remains on death row although six of the 15 members of the U. S. Sixth Circuit Court of Appeals said Wednesday that he is not guilty of the murder for which he was convicted in 1986 and should be freed immediately, according to a report in The New York Times.

Eight other judges on the court said in an appeal decision that House should be executed while another judge said the inmate who was sentenced from Union County should at least be given a new trial.

''… I am convinced that we are faced with a real-life murder mystery, an authentic 'who-done-it' where the wrong man may be executed,'' Judge Ronald Lee Gilman of Memphis wrote in a dissenting opinion. ''Was Carolyn Muncey killed by her down-the-road neighbor, Paul House, or by her husband Hubert Muncey?

''The evidence at House's state-court trial clearly pointed to him as the perpetrator, highlighted by the physical evidence of the semen and the blood. But the evidence at House's habeas corpus hearing before the district court just as clearly pointed to Hubert Muncey as the guilty party, highlighted by Muncey's confession of guilt to two female acquaintances, the uncontroverted fact that the semen found on his wife's clothing turned out to be his own and the considerable doubt cast on how the victim's blood came to appear on House's blue jeans.''

Gilman added: ''At the end of the day, I am in grave doubt as to which of the above two suspects murdered Carolyn Muncey.

'' … A new trial would allow the jury to assess House's guilt or innocence free from the erroneous introduction of the semen evidence, with full knowledge of the controversy surrounding the blood evidence and with the benefit of the testimony implicating Hubert Muncey. Under circumstances where we face the execution of a man who might well be innocent, I believe that our system of justice demands no less.''

Then there was Judge Gilbert Merritt of Nashville, who said in a dissenting opionion that ''I regard this as the rare or extraordinary case in which the petitioner through newly discovered evidence has established his actual innocence of both the death sentence and underlying homicide.

''The court's opinion, like the attorney general's argument for the state, regards as 'undisputed' old evidence and inferences that are now contradicted by other evidence in the case. It fails to describe adequately the persuasive case of actual innocence that the petitioner's newly discovered evidence raises.

''Nor does it adequately describe the legal standards to be applied.''

Merritt later wrote in his dissent that ''all of the state's physical evidence, both blood and semen, allegedly tying House to the murder, has been effectively rebutted.''

''The new body of evidence as a whole so completely undermines the case against House and establishes a persuasive case against Muncey that, had it been presented at trial, no rational juror could have found evidence sufficient for conviction.

''The new evidence so completely turns the case around that the proof is no longer constitutionally sufficient to warrant a conviction or imposition of the death penalty. Thus, House should be immediately released.''

But Paul Gregory House remains incarcerated at Riverbend Maximum Security Prison in west Nashville because eight other judges on the Sixth Circuit Court of Appeals, all appointed by Republican presidents, voted to uphold his sentence. House is housed in Riverbend's infirmary because he suffers from a severe case of multiple sclerosis.

His attorney, federal public defender Stephen M. Kissinger, told me Thursday that House's case will surely be appealed to the U.S. Supreme Court.

''He is absolutely innocent,'' Kissinger said in a telephone interview. ''There is no doubt that he's innocent. He's been cleared of rape by DNA, and the victim's husband has confessed to murdering his wife and hiding her body in much the same manner as it was found.

''There are so many things which point to Mr. House's innocence. It's easily the best case of innocence I have seen in 20 years of practicing law.''

Kissinger is worried that his client won't make it to see what the U.S. Supreme Court does with his case. He's worried that his client might die before then, die in prison on death row even though he may well be an innocent man.

Wouldn't that be an awful thing to happen? And while it wouldn't be the first time for that to happen somewhere, it would be impossible to undo. And that would be more than awful.

Dwight Lewis is a columnist, regional editor and member of the editorial board for The Tennessean. E-mail: dlewis@yahoo.com.

FROM AROUND THE WEB

The Death Penalty Information Center(Deathpenaltyinfo.org) notes:

Many African Nations Abandoning Death Penalty

During the past 15 years, the number of African nations abandoning capital punishment has risen from one to 10, and another 10 nations have abolished the death penalty in practice according to a recent tally by Amnesty International. As this trend toward abolishing the death penalty continues, fewer Africans than ever are being executed by their governments. The anti-capital punishment movement has been especially powerful in West Africa, where the number of countries in the Economic Community of West African States that have either banned executions or halted them has risen to 10. Southern Africa, where the death penalty is now outlawed in five countries and at least two additional nations have abandoned it in practice, has also shifted towards ending capital punishment. Among the issues shaping Africa's attitude toward capital punishments are innocence, the impact this punishment has on those who carry out executions, and doubts about deterrence. (New York Times, October 20, 2004). See International Death Penalty.

Chicago Tribune Investigates Forensic Science and Wrongful Convictions

A five-part Chicago Tribune investigation of forensics in the courtroom has revealed that flawed testing analysis, questionable science once considered reliable, and shoddy crime lab practices can often lead to wrongful convictions. Developments in DNA technology have helped shed new light on these problems by revealing the shaky scientific foundations of techniques like fingerprinting, firearm identification, arson investigation, and bite-mark comparison. A review of 200 DNA and death row exonerations nationwide in the last 20 years found that more than a quarter (55 cases with 66 defendants) involved original forensic testing or testimony that was flawed. Through hundreds of interviews, an examination of thousands of court documents and an analysis of criminal cases that turned on forensic evidence, the Chicago Tribune reporters discovered the following:

* Fingerprinting is so subjective that the most experienced examiners can make egregious mistakes.

* Forensic dentists, who link suspects to bite marks left on crime victims, continue to testify despite having no accepted way to measure their rate of error or the benefit of peer review. DNA has shown that even the field's leading practitioners have made false bite-mark matches.

* Scandals at labs across the country - including facilities in Maryland, Texas and Washington state - have spotlighted analysts who have incorrectly assessed evidence, hidden test results helpful to defendants and testified falsely in court. These scandals underscore the often-ineffective standards governing crime labs. Analysts involved in faulty forensic work often testify in hundreds of trials, an indication of how widespread this problem can be.

(Chicago Tribune, October 17, 2004). Read the series. See Innocence.

NEW VOICES: Bush and Kerry Express Views on Executing Juvenile Offenders

In a forum hosted by the New Voters Project, U.S. Presidential candidates George Bush and John Kerry expressed their views on executing juvenile offenders. "Federal law prohibits execution of those under 18 when the offense was committed, and I see no reason to change that statute," said President Bush. Senator John Kerry stated, "I do not think that executing minors is good policy." (Knight-Ridder, October 17, 2004). On October 13th, the U.S. Supreme Court heard oral arguments in Roper v. Simmons, a case that will determine whether the execution of juvenile offenders is constitutional. See Juvenile Death Penalty. See also, Positions on Capital Punishment of the 2004 Presidential Candidates.

INNOCENCE: After 19 Years, Innocent Man to Walk Free

The Utah Attorney General's office has recommended that Bruce Dallas Goodman's murder conviction be set aside as a result of new DNA tests that have confirmed Goodman's steadfast claims of innocence. Goodman was convicted in 1984 for the murder of his girlfriend, Sherry Ann Fales, who was raped, sodomized, beaten to death and abandoned off an interstate exit, a crime that qualified for the death penalty. Since his arrest, Goodman has maintained that he did not murder Fales, and the state's case against him was largely circumstantial. Last year, the Rocky Mountain Innocence Center examined DNA evidence taken from the scene of the crime and the Center's findings excluded Goodman as the murderer. Instead, the DNA samples pointed to two men, neither of them identifiable. Following the testing, Josh Bowland, an attorney with the Innocence Center, petitioned to vacate Goodman's conviction based on the new evidence. Based on the Attorney General's recommendation, Goodman is expected to be released after 19 years in prison. (Associated Press, October 15, 2004) See Innocence.

EDITORIAL: Examine the systemic problems in the death penalty before reinstating it in NY

New York's death penalty remains in abeyance, having been found unconstitutional by the state's high court. A recent N.Y. Newsday editorial called on lawmakers to carefully examine the fundamental problems with the death penalty before considering any reinstatement legislation. The editorial noted:

On the steps of New York City Hall on Thursday, a coalition of death penalty opponents - prominently including City Council Speaker Gifford Miller and former gubernatorial candidate Andrew Cuomo - called for a "legislative moratorium" before the state tries to repair the capital punishment law struck down by the Court of Appeals.

As a result of that decision in June, New York now has no valid death penalty. That's fine. The penalty is arbitrary, racist and ineffectual in deterring crime. It's also prone to fatal error. In 2000, Illinois instituted a moratorium on the death penalty that it had re-enacted in 1977, because courts had gone on to free 13 people wrongly sentenced to die.

... [I]t's all the more important that legislators listen to New Yorkers for a Sensible Criminal Justice Policy and spend ample time studying and thinking before re-enacting. (Newsday, October 9, 2004) (emphasis added).

See Editorials.

Newspapers, Opinion Leaders Call for End to Juvenile Death Penalty

As the Supreme Court heard arguments in the case of Roper v. Simmons on October 13, newspapers throughout the country featured editorials and opinion pieces calling on the U.S. to abandon the practice of executing juvenile offenders:

The New York Times

When the Supreme Court considers an Eighth Amendment challenge, it looks to "evolving standards of decency" - and there has been a steady movement nationally away from the juvenile death penalty. In the 15 years since the Supreme Court last considered this question, a significant number of states, including Kansas, Montana, Wyoming, South Dakota and New York have prohibited the execution of juvenile offenders. In 30 states and the District of Columbia, there now is either no death penalty, or the death penalty applies only to people who were 18 or older at the time of their crimes. Even in those states where juvenile offenders can be executed, it is extremely rare. Only three states have done so in the past decade.

When it considers this case, the court should give weight to the growing scientific literature that says young people's brains are still developing in important ways before the age of 18, and to the nearly unanimous international opinion on this issue.

On the same day in 1989 that the court upheld the death penalty for juvenile offenders, it ruled that the mentally retarded could be executed. But in 2002, the court reversed itself, concluding that national standards of decency had evolved away from permitting the execution of the mentally retarded. The court should reach the same conclusion now for juvenile offenders. (New York Times Editorial, October 13, 2004).

Chicago Tribune

The U.S. Supreme Court is set to hear oral arguments on Wednesday in a case that could lead to a legal prohibition on the execution of anyone under 18 years old.

The high court in 1989 established the criteria for deciding whether such executions are permissible. At that time, it found there was no national consensus that the execution of juvenile offenders and the mentally retarded violated the 8th Amendment protection against cruel and unusual punishment.

. . .

In 2002, applying that same standard of national consensus and "evolving standards of decency," and looking in particular at what state legislatures were doing about the issue, the court reversed itself and declared that executions of those with mental retardation were unconstitutional.

It's difficult to see how the court could now reach a different conclusion in regard to juveniles. The case against executing juveniles is as strong as that against executing those who are mentally retarded.

. . .

The court in 1988 ruled it was impermissible to execute children under age 16. The question at hand is whether, in effect, to extend such protection to 16- and 17-year-olds.

In seeking evidence of a national consensus, the court is likely to consider trends in jury sentences in capital cases, public opinion polls, positions taken by professional and religious organizations and even international practice. The direction in all of those realms supports the argument that these executions should be eliminated.

Admittedly, it seems to be an odd way to determine constitutionality. Public consensus is usually the province of legislatures.

In this case, though, Congress and the states through a constitutional amendment handed the courts the power to judge what is cruel and unusual in criminal law. There was a time in this nation's history when it was considered appropriate to execute someone for stealing a neighbor's chicken. Things have evolved.

And now it's time for them to evolve again. (Chicago Tribune, October 13, 2004).

The Washington Post

The Supreme Court has an opportunity this term to correct one of the uglier mistakes of its recent history: its 1989 decision upholding the death penalty for juveniles. Yesterday the court held oral arguments in a case that asks whether it will continue to stand behind that ruling. It shouldn't. ... Even for those who favor the death penalty, killing juvenile offenders should be beyond the constitutional pale.

. . .

Of the 22 juvenile convicts executed since the death penalty's reinstatement, almost 60 percent were put to death in Texas. Only seven states have executed juvenile offenders, and in the past 10 years, only three states -- Texas, Oklahoma and Virginia -- have done so. ... Juries are increasingly reluctant to impose the death penalty on those who were children when they committed their crimes. And while overseas practice shouldn't bind American constitutional law, it is worth noting the company this country has to keep in subjecting juveniles to capital punishment: China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen. The practice simply no longer exists among democratic nations.

Abolishing the juvenile death penalty will not dramatically alter the debate over capital punishment in this country. It will, however, bring to bear against a few outlying states the powerful national consensus that children -- even when they do terrible things -- are different from adults. Insulating them from the ultimate punishment should not be a tough call. (The Washington Post, October 14, 2004).

USA Today (Opinion Piece by former President Jimmy Carter)

I am hopeful our top court will take this opportunity to acknowledge that evolving standards of decency at home and abroad — as well as basic principles of American justice — require the rejection of executing children once and for all.

Opposition to juvenile capital punishment has gained significant momentum in the past few years in the United States.

. . .

The elimination of the juvenile death penalty would be a significant step in bringing the U.S. in line with the moral consensus of the global community. The Founders of our great nation celebrated the need for “a decent Respect to the Opinions of Mankind” in our Declaration of Independence. Since the end of World War II, our country has taken the lead in speaking out against human-rights violations elsewhere in the world and has enjoyed respect in world affairs.

The American system of constitutional democracy and guaranteed freedoms has stood as an exemplar in the eyes of people and nations emerging from totalitarian and repressive regimes. The continued policy of executing juveniles detracts profoundly from our credibility as a champion of human rights and, therefore, erodes our ability to influence the behavior of other nations and world leaders.

While almost universal condemnation of the juvenile death penalty has become as well recognized as the global prohibitions against slavery, torture and genocide, in America we have executed more juveniles in the past 15 years than all other countries combined.

For all of these reasons, I joined a “friend of the court” brief to the Supreme Court in this case. Nobel Peace Prize winners, including former Russian president Mikhail Gorbachev, South African Archbishop Desmond Tutu and the Tibetan Dalai Lama all have encouraged the court to reject juvenile capital punishment. I fervently hope the jurists will agree with these esteemed peacemakers.

Our nation is now acknowledging what the rest of the world already knows: Executing juvenile offenders is cruel and inhumane. (USA Today, October 13, 2004).

See Other Editorials on the Juvenile Death Penalty and Editorials.

NEW RESOURCE: An Account of Life on Death Row

In "Waiting to Die: Life on Death Row," Richard M. Rossi provides a first-hand account of his daily life on Arizona's death row. Rossi was sentenced to death in 1983 and has taken responsibility for the murder he committed. He was originally offered a plea bargain with a life sentence, but he decided to go to trial. He has been on death row for 20 years. In his book, Rossi details how prisoners survive on death row, the conditions under which they live, and the psychological toll that living under a sentence of death takes on prisoners. He also provides a straightforward account of prison policies regulating all aspects of daily life. (Vision Paperbacks, 2004) See Resources.

NEW VOICES: Major Texas Newspapers Call for a Halt to Executions in Cases from Houston

Following a call from the Houston Police Chief and from state legislators to halt executions in cases from Harris County, four of the state's largest newspapers published editorials in support of a moratorium on executions. The Houston police crime lab has been plagued with errors in DNA testing and preservation of evidence. There have been far more executions from Harris County (Houston) than from any other county in the country.

AUSTIN AMERICAN-STATESMAN

(N)othing can justify an execution if there is any good reason to question the evidence upon which the death sentence relies.

That's why we urge Gov. Rick Perry to honor the requests from Houston Police Chief Harold Hurtt, Sen. Rodney Ellis, D-Houston, and state Sen. John Whitmire, chairman of the Senate Criminal Justice Committee, to suspend all scheduled executions of inmates from Harris County until the justice system can review the cases against them.

Such a review is necessary because of the wretched work of the Houston Police Department's crime lab.

. . .

There's no harm in waiting, and there could be enormous wrong in not waiting. No one should be executed for a crime he or she did not commit.

Not even in Texas. (Austin American-Statesman, October 7, 2004)

DALLAS MORNING NEWS

We respect Republican Gov. Rick Perry's support of the death penalty. But we don't understand his shrugging off Houston Police Chief Harold Hurtt's request for a moratorium on executions until the problems with Houston's notorious crime lab get cleaned up.

No less a death penalty supporter than state Sen. John Whitmire understands the significance of Chief Hurtt's request. If the state executes a person who, it later turns out, was convicted based upon faulty evidence from the troubled crime lab, the state will be responsible for an injustice of unimaginable magnitude. And death penalty opponents would have more reason to decry Texas executions.

. . .

If Texas is going to keep executing prisoners, it needs to make sure the cases are solid. As a death penalty supporter, you'd think Gov. Perry would see it that way. (Dallas Morning News, October 7, 2004)

HOUSTON CHRONICLE

It is a travesty of justice for Texas to continue administering lethal injections to death row inmates from Harris County even as forensic tests on hundreds of pieces of questionable evidence remain to be carried out. Even more disturbing, Houston police have only just begun a review of the contents of 280 mislabeled and previously unaccounted for boxes of evidence they discovered in August.

...

On the same day that Miniel was executed, the state released Ernest Ray Willis, a death row inmate for more than 17 years. Willis was convicted of setting a fatal fire. Modern analysis failed to find that arson had been committed.

Fortunately for Willis, capital punishment in Texas is not so swift. If gross injustice can be detected 17 years after the fact, a pause of a few months to recheck boxes of newly discovered evidence is surely justified. (Houston Chronicle, October 8, 2004)

SAN ANTONIO EXPRESS-NEWS

Members of the Harris County judiciary should stop setting execution dates for Texas death row inmates until next spring.

...

Gov. Rick Perry refused a request by Sen. John Whitmire, D-Houston, this week to halt the executions of Harris County inmates until March because of the quality of work at the crime lab.

Those valid concerns warrant a suspension of the executions.

...

Because the executive and legislative branches of state government refuse to address the issue, the judiciary is the last resort. (San Antonio Express-News, October 9, 2004)

See Innocence and Editorials.

NEW RESOURCES: A Handbook on Hanging

Charles Duff's 1928 publication A Handbook on Hanging has been re-published with updates and a new introduction by journalist Christopher Hitchens. The book provides readers with a satiric look at the practice of carrying out executions. Duff writes not only of hanging, but of electrocution, decapitation, and gassing. He also takes a tongue-in-cheek look at issues such as botched executions, public response to executions, and deterrence. With factual details and notable quotations, this book focuses primarily on British history with the death penalty, but its themes are universal. (New York Review Books, 2001) See Resources.

ARBITRARINESS: Execution May Go Forward Despite Nearly Even Split on Innocence

A deeply divided U.S. Court of Appeals for the Sixth Circuit ruled 8-7 that the execution of Tennessee death row inmate Paul Gregory House may move forward despite the fact that nearly half of the judges believe he is not guilty and should be freed immediately. "We are faced with a real-life murder mystery, an authentic 'who-done-it' where the wrong man may be executed," wrote dissenting judge Ronald Lee Gilman. A N.Y. Times article noted that although courts are often closely divided on legal issues, rarely are they split on the basic question of guilt or innocence in a death penalty case.

Recent retesting of DNA evidence in the case found that semen originally thought to have come from House, who was convicted of raping and murdering Carolyn Muncey in 1985, actually came from Muncey's husband, Hubert. At a recent federal District Court hearing to determine whether to allow House's case to be reopened based on the new DNA evidence, witnesses testified that Hubert Muncey was an alcoholic who frequently beat his wife and who later confessed to killing her while drunk. While the majority of the Court of Appeals was willing to let the execution go forwared, six dissenting judges strongly disagreed, noting, "Without any evidence of rape, the state has lost its motive, its theory of the case and the aggravating circumstance on which the state and the jury relied for his death verdict. There is no reasonable basis for disbelieving the six witnesses who now incriminate Mr. Muncey as the perpetrator of the crime. House has shown that it is highly probable that he is completely innocent of any wrongdoing whatsoever. House should be immediately released." The 8-7 ruling means that unless the U.S. Supreme Court intervenes or Mr. House dies first from the multiple sclerosis he has, he will be executed. (New York Times, October 7, 2004) See Innocence.

LEGISLATION: Senate and House Pass Versions of Innocence Protection Act

On October 9, the U.S. Senate passed by voice vote a bill called the "Justice for All Act of 2004" that contains important elements of the Innocence Protection Act, originally introduced in 2000. A similar bill recently overwhelmingly passed the House of Representatives (HR 5107), and it is expected that the final legislation will now be signed into law. The bill provides for expanded access to DNA testing for prison inmates and assistance to states for both defense and prosecution in conducting death penalty trials. The broader legislation also provides assistance to victims of crime. (Washington Post, Oct. 10, 2004). See also Justice Project Press Release.

NEW RESOURCE: Research with Jurors Finds Reluctance to Sentence Juveniles to Death

A recently published study by Northeastern criminal justice professors William J. Bowers and Michael E. Antonio, in conjunction with University of Delaware professors Valerie P. Hans and Benjamin D. Fleury-Steiner, finds jurors very reluctant to give the death penalty to juvenile defendants because of their immaturity and dysfunctional family backgrounds.

“ In interviewing almost 1,200 jurors, we’ve found that jurors across the nation would nearly always sentence a juvenile to life,” said Bowers. “Jurors need to look at juveniles as immature and incapable of committing the crimes for which they are on trial. As such, the likelihood of a death sentence drops off drastically when jurors know the defendant was under the age of 18 at the time of his crime."

On Wednesday, Oct. 13, the United States Supreme Court is scheduled to hear oral arguments about the constitutionality of the juvenile death penalty in Roper v. Simmons. Christopher Simmons was 17 at the time of his crime, but a jury convicted him and sentenced him to death. Earlier this year, the Missouri Supreme Court set aside his death sentence on the grounds that execution of persons under 18 years of age at the time of their crimes violates the U.S. Constitution.

The decision-making of capital jurors is a key way to measure community conscience, according to Prof. Valerie Hans, and the new study from the Capital Jury Project examines the decision-making of 48 jurors from 12 capital cases with defendants 17 or younger at the time of their crimes, comparing their views with more than a thousand jurors who decided capital cases with older defendants. The extensive juror interviews reveal that jurors view juvenile defendants distinctively. Jurors in juvenile cases see a defendant's dysfunctional family background and upbringing as responsible in part for his or her behavior. They see the defendant as less than a fully mature and responsible member of society. Jurors emphasize the juvenile defendant's diminished or partial responsibility for the crime. All these factors lead jurors to decide on life rather than death for the vast majority of juvenile capital defendants.

The findings are based on data from the Capital Jury Project, a study of the decision making of capital jurors conducted by university-based researchers from 14 states with the support of the National Science Foundation. The project has interviewed 1,198 jurors from 353 capital trials in 14 states.

--A summary of the principal research findinngs can be found in an article titled "Capital Jurors as the Litmus Test of Community Conscience for the Juvenile Death Penalty" in the May-June 2004 issue of the journal Judicature. --A full report of the research findings can be found in an article titled "Too Young for the Death Penalty: An Empirical Examination of Community Conscience and the Juvenile Death Penalty from the Perspective of Capital Jurors" in the June 2004 issue of the Boston University Law Review. (Northeastern Univ. Press Release, Oct. 6, 2004). See also DPIC's Roper v. Simmons page.

NEW VOICES: Author of Arizona's Death Penalty Law Has Second Thoughts

When Justice Sandra Day O'Connor was a senator in Arizona, one of the people she asked to draft the state's death penalty law was Rudolph Gerber. She requested that he "write a law we can live with." Mr. Gerber went on to become a prosecutor, an Arizona trial judge, and eventually a judge on the Arizona Court of Appeals for 13 years. He recently expressed his changing views on capital punishment as he experienced how the law was put into practice:

"My experience, not atypical by any means, revealed some intractable trial court problems surrounding the death penalty. For one thing, prosecutorial discretion to seek death remained exactly what it had been when I was a prosecutor--unstructured and capricious, with elected county attorneys usually deciding to pursue it at their whim in a high-profile case offering the prospect of political advantage. For another, capital codefendants were offered widely disparate plea bargains that, though intended to secure testimony against the supposedly more culpable offender, sometimes punished the less culpable and rewarded the more culpable.

...

"In addition, legislators crafting capital legislation with gusto lacked firsthand knowledge about the many types of individuals within the universe of first-degree murderers....Elected county attorneys and legislators touted capital punishment without any realistic understanding of these differences or of capital sentences' caprice, infrequency, small 'return,' and above all, the financial drain on law enforcement monies otherwise usable for more effective tools of crime fighting."

(R. Gerber, "Survival Mechanisms: How America Keeps the Death Penalty Alive," 15 Stanford Law & Policy Review 363, 374 (2004)).

In another article, former Judge Gerber analyzed the requirements for a punishment to act as a deterrent to crime, namely: swiftness of application, certainty of receiving the punishment, proportionality to the severity of the crime, and public exposure to the punishment being carried out. His article finds the death penalty to be seriously lacking on all counts:

"Our nation's history of capital punishment demonstrates a steady departure from the four requirements needed both for deterrence and for rational calculation of disincentives. Our capital punishment system is not swift because the appeals process takes many years, with the average death row resident spending well more than a decade on death row after the commission of the original murder. Our capital punishment is not certain because only a miniscule number of murders receive the death sentence, and even among those so sentenced, only one in ten is actually executed. Capital punishment no longer mirrors the severity of the original killing because lethal injection has made execution physically painless. Perhaps most notably absent among these requirements, executions today are no longer public events accessible either firsthand or even via detailed media accounts. They have moved progressively from the town square to the jail yard to the privacy of the execution room where the few witnesses are not those needing to learn the deterrence message--paradoxically, the only audience present is the wrong one.

...

"We should not be surprised then that law enforcement officials as well as criminological scholars regularly conclude that capital punishment offers no prospect of deterrence....To capital punishment enthusiasts and economic theorists alike who urge deterrence as a realistic goal of capital punishment, our execution history from colonial days to the present shows deterrence falling so far below these requirements as to be not only illusory but beyond recapture."

(R. Gerber, "Economic and Historical Implications for Capital Punishment Deterrence," 18 Notre Dame Journal of Law, Ethics & Public Policy 437, 449-50 (2004)). See also New Voices.

Ashcroft's Push for Death Penalty Met With Juror Resistance

Despite efforts by U.S. Attorney General John Ashcroft to broaden the use of the federal death penalty, less than a third of the federal death penalty trials since 2001 have resulted in a death sentence. Of the 34 federal capital cases Ashcroft authorized, 23 did not result in the death penalty. Critics say that this poor record suggests waning public enthusiasm for executions and that juries and judges see through what many believe to be weak cases for the federal death penalty.

Ashcroft, who claims that broader use of the federal death penalty will remedy the documented geographic disparities in federal capital sentencing, is a long-time supporter of capital punishment. He has pushed federal prosecutors around the country to go against their own objections and be more aggressive in identifying cases that could qualify as capital. Much of that effort has been focused on states that have banned or rarely impose capital punishment. In some instances, the Justice Department chief has overridden local federal prosecutor's plea bargain agreements. In prior administrations, federal prosecutors were given the freedom to determine the usefulness of such plea bargains without oversight, but a new policy put into place by Ashcroft ensures that all federal prosecutor decisions are now reviewed in Washington. Under Ashcroft's administration, 65 defendants are facing capital trials, compared with a high of 39 under former Attorney General Janey Reno. (Los Angeles Times, September 29, 2004). See Federal Death Penalty.

NEW RESOURCES: Research Shows Significant Decline in Death Sentences for Juveniles

In a forthcoming article, Columbia University researchers found that, since 1994, when death sentences for juvenile offenders peaked, these sentences have declined significantly. In particular, the decline in juvenile death sentences since 1999 is statistically significant after controlling for the murder rate, the juvenile homicide arrest rate, and the rate of adult death sentences. This downward trend in juvenile death sentences is indicative of an evolving standard in state trial courts opposing the imposition of death sentences on minors who commit capital offenses.

This evidence is relevant for the upcoming Supreme Court case of Roper v. Simmons that will decide whether a national consensus has evolved against such death sentences. One measure of this consensus would be a lessening in the number of juveniles sentenced to death.

The Decline of the Juvenile Death Penalty: Scientific Evidence of Evolving Norms, by Jeffrey Fagan and Valerie West of Columbia University, will be presented at the Symposium on Actual Innocence at Northwestern University in October and has been accepted for publication in the peer reviewed publication, The Journal of Criminal Law and Criminology. (Press Release, Columbia Law School, Oct. 5, 2004) (Link to Press Release and Article). See "From DPIC" on DPIC's home page, and DPIC's Roper v. Simmons page.

Another Innocent Inmate Close to Release in Texas

Ernest Willis is likely to be the eighth person exonerated and freed from Texas's death row. He would be the 117th person freed nationwide since 1973. Willis was sentenced to death 17 years ago for allegedly setting a house fire that killed two people. Now the state's own fire expert, Gerald Hurst, has concluded: "There is not a single item of physical evience in this case which supports a finding of arson." He labeled some of the "scientific" evidence at Willis's first trial as "absurd." The district attorney in Fort Stockton, Texas, said that he would file a motion today requesting the dismissal of all charges. "I don't have to decide whether he's innocent or not, but I think that's probably a probability--that he is innocent," said district attorney Ori White. A federal district judge in San Antonio had ruled in July that Willis must be either freed or given a new trial, stating that there is "strong reason to be concerned that Willis may be actually innocent." (San Antonio Express-News, Oct. 5, 2004). See DPIC's new report on innocence. Note: All charges against Willis were dismissed and he was formally released on October 6. See Cases of Innocence #117.

SUBSCRIBING & ARCHIVES

Capital Defense Weekly is published forty (40) times (or so) a year with the archives accessible from the pull down bar located athttp://capitaldefenseweekly.com/index.html. Capital Defense Weekly has migrated to Yahoo Groups to guarantee that deliver of the weekly will continue to your email box, as well as to maintain your privacy. Sorry for the problems but the net's watchers, in their infinite wisdom, decided the weekly was spam and therefore placed it on the spam banned list. When the weekly was moved it was still listed as spam. I have moved the weekly over to yahoogroups which should cure this problem.

Subscribe:capital_defense_weekly-subscribe@yahoogroups.com&

Unsubscribe:capital_defense_weekly-unsubscribe@yahoogroups.com