Leading off this edition is the Sixth Circuit's grant of penalty phase relief inRayshawn Johnson v. Bagleywhere counsel started thinking about a mitigation strategy when “the verdict was back and [the jury] found [Johnson] guilty” and otherwise performed poorly in the penalty phase of the trial. The Florida Supreme Court inAndrew Michael Gosciminski v. Stateorders a new trial in light of the admission of hearsay in what it termed a weak case for the State. Similarly, the Florida Supreme Court remanded inDana Williamson v. Stateas to whether "defendant’s counsel was ineffective in failing to request a Frye hearing before the opinion testimony of the State’s expert, Dr. Robert Ofshe, was admitted into evidence.” Finally, the Alabama Supreme Court in Ex parte Anthony Ray Hinton, (In re: Anthony Ray Hinton v. State of Alabama) grants relief on trial counsel's failure to retain a firearms expert where ballistics was central to State's case at trial.

The Supreme Court on Monday denied cert in Georgia v. Walker. Both Justice Stevens (here)and Justice Thomas (here) concurred in the denial. Justice Stevens noted:

I find this case, which involves a black defendant and a white victim, particularly troubling. . . Rather than perform a thorough proportionality review to mitigate the heightened risks of arbitrariness and discrimination in this case, the Georgia Supreme Court carried out an utterly perfunctory review. Its undertaking consisted of a single paragraph, only the final sentence of which considered whether imposition of the death penalty in this case was proportionate as compared to the sentences imposed for similar offenses. … Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case

Justice Thomas noted merely such proportionality review is not required under the Court's precedent.

Two stays of note are had.The Eleventh Circuit has stayed the execution of Troy Davis noting "the parties are directed to address whether Davis may be executed if he can establish actual innocence under 28 U.S.C. § 2244(b)(2)(B)(ii), but cannot satisfy his burden under § 2244(b)(2)(B)(i)." The Texas Court of Criminal Appeals has stayed the execution of Bobby Woods possibly on some sort of mental retardation /Atkinsclaims [stay order//brief].

Lethal injection developments in several jurisdiction are noted. The Delaware Supreme Court recentheard argumenton that state's protocols. The Nashville City Paper notes "Tennessee lethal injection questions remain." In North Carolinathe trial court judge hearing the lethal injection protocols casethere has indicated he needs to hear additional argument before deciding the matter.

Several pieces of new scholarship deserve mention.DPIC notes"Elon University School of Law’s Professor Victor Streib has released a new edition of his book,Streib’s Death Penalty in a Nutshell.Executing Retributivismby Dan Markel looks (available in draft form on SSRN) looks atPanetti v Quartermanand whether that case should be examined relatively narrowly or should it be interpreted as a potential dramatic broadening of the Court's Eighth Amendment jurisprudence. Finally, and perhaps the one with the broadest application, Brandon Garrett has placed online at SSRN an article entitledThe Substance of False Confessions, which has something for both the academic and the litigator.

In other news,Alabama Tommy Douglas Arthur’s claims of innocencewill get a hearing this February. The Dallas Morning News recently ran an examination ofDNA Exonerationsof DNA examinations in Dallas County. The National Law Journal reports, "Ill. law school poised to help wrongly convicted on a shorter path to pardon, compensation." The Tennessean looks at the state's indigent criminal justice system and its application of capital punishment in a piece entitledTentative steps being taken toward fairness in the system."DeKalb, Fulton juries resist giving death penalty" reports the Atlanta Journal-Constitution in a look at metro-Atlanta's death sentencing practices.

Looking ahead, in a fairly straightforward application ofSmith v. Texasa Ninth Circuit panel grants penalty phase habeas relief inJames Styers v. Schriro. Specifically, the Arizona state courts erred in concluding that PTSD was not mitigating factor as they incorrectly concluded there had to be a causal connection between proffered mitigation and the crime. The Fifth Circuit granted a COA inNelson Gongora v. Quartermanon prosecutorial comments on failure to testify, as well as eligibility for death in light of Tison v. Arizona.

Pending Executions

October

28 Eric Nenno - Tex*

30 Gregory Wright - Tex*

November

6 Elkie Taylor - Tex.*

12 George Whittaker III - Tx*

13 Denard Manns - Tex.*

18 Eric Cathey - Tex.*

18 Wayne Tompkins - FL*

19 Rogelio Cannaday - Tex.*

19 Gregory Bryant-Bey - Ohio*

20 Robert Hudson - Tex.*

21 Marco Chapman - Ky*(vol)

December

8 Antoinette Frank - La.

Recent Executions

October

14 Alvin Kelly - Tex

14 Richard Cooey - Ohio

16 Kevin Watts - Tex

21 Joseph Ries -Tex.

Stays

23 Bobby Woods - Tx

27 Troy Davis - Ga

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin& press accounts]

Week of October 6, 2008–In Favor of the Defendant or the Condemned

• Rayshawn Johnson v. Bagley, 2008 U.S. App. LEXIS 21200 (6th Cir 10/10/2008) :”Johnson’s attorneys admitted in their post-conviction testimony that they began thinking about a mitigation strategy only when “the verdict was back and [the jury] found [Johnson] guilty.” Penalty phase relief in light of ineffective assistance of counsel seems to almost have been a given.
• Dana Williamson v. State, No. SC07-564 &Dana Williamson v. McNeil, No. SC07-1787 (FL 10/8/2008) Remand ordered on “issues alleging that defendant’s counsel was ineffective in failing to request a Frye hearing before the opinion testimony of the State’s expert, Dr. Robert Ofshe, was admitted into evidence.”
• Andrew Michael Gosciminski v. State, No. SC05-1126 (FL 10/8/2008) The improper admission of hearsay and other evidence — in light of a weak State’s case — requires a new trial.
• Amendments to Florida Rule of Criminal Procedure 3.112, No. SC08-1292 (FL 10/8/2008) Modifying rules of criminal procedure governing the minimum standards for the appointment of counsel, sunsetting certain exemptions and modifying the rule to account for the creation of the Offices of Criminal Conflict and Civil Regional Counsel.

Week ofOctober 6, 2008– In Favor of the State or Government

• Richard Cooey II v. Strickland, 2008 U.S. App. LEXIS 21180 (6th Cir 10/9/2008) "[W]e conclude that the district court correctly held that each of Cooey's "new" claims is time barred for the reasons stated in its opinion dated September 30, 2008. We therefore AFFIRM the decision of the district court granting Defendant's motion to dismiss and denying Cooey's motion for a preliminary injunction as moot.
• Daniel Lugo v. State, 2008 Fla. LEXIS 1918 (FL 10/8/2008) "Defendant was not entitled to postconviction relief under Fla. R. Crim. P. 3.851; defendant could not show he received ineffective assistance of counsel, as counsel pursued reasonable strategy of presenting mitigation witnesses who could testify about defendant at time of crimes and not such witnesses who had last seen him many years before crimes." [via LexisOne]
• Frederick R. Whatley v. Terry, 2008 Ga. LEXIS 824 (GA 10/6/2008) From the court's summary "Whatley argued that the habeas court made a number of mistakes, including its failure to find that his trial attorney, the late Johnny Mostiler, a well-known public defender, had been ineffective, in part because of his overwhelming caseload. Whatley also claims his case was hurt by the State‟s suppression of an audio-taped interview of a witness that would have buttressed his contention he did not intend to kill Allen and shot him only after Allen chased him with a gun. But in today‟s 37-page opinion, the Supreme Court disagrees. “We conclude as a matter of law that there would not have been a reasonable probability of a different outcome at trial if Whatley had been provided the January 27 interview…,” the opinion says. Similarly, Whatley has failed to show that Mostiler‟s heavy caseload or other shortcomings prejudiced the outcome of his trial, the Court finds."
• Andre Lee Thomas v. State, 2008 Tex. Crim. App. Unpub. LEXIS 733 (Tex. Crim. App. 10/8/2008) Relief denied on claims, most notably, that the trial court erroneously allowed video and audio tapes of his statements into evidence.
• James Eugene Bigby v. State, 2008 Tex. Crim. App. Unpub. LEXIS 716 (Tex. Crim. App. 10/8/2008) Relief denied, most notably, on claims relating to jury selection, flaws in the indictment, jury instructions, challenge to the statutory mitigating evidence questions, and lethal injection.
• State v. George Skatzes, 2008 Ohio App. LEXIS 4530 (Ohio 2nd App 10/10/2008) "Many claims asserted by an inmate in his petition for postconviction relief were barred by res judicata where they could have been raised in his direct appeal, including assorted claims of ineffectiveness of counsel, and a failure by the State to disclose Brady materials."[via LexisOne]

Week ofOctober 6, 2008– Noncapital

• Michael SlovIIk v. Yates, 2008 U.S. App. LEXIS 21008 (9th Cir 10/6/2008) "District court erred in denying § 2254 habeas relief to prisoner convicted of assault, Cal. Penal Code § 245(a)(1); trial court violated U.S. Const. amend. VI Confrontation Clause when, pursuant to Cal. Evid. Code § 352, it prevented questions on cross-examination that would have established that prosecution's key witness likely lied under oath." [via LexisOne]

Week of October 13, 2008–In Favor of the Defendant or the Condemned

• Ex parte Anthony Ray Hinton, (In re: Anthony Ray Hinton v. State of Alabama), 2008 Ala. LEXIS 215 (Ala 10/17/2008) "As sole evidence connecting death-row inmate to two murders was expert testimony that bullets were fired from his gun, trial court, which dismissed his claim defense counsel was deficient for failing to call qualified firearms expert, erred by not making findings under Ala. R. Crim. P. 32.9(d) as to qualifications of expert counsel used at trial." [via LexisOne]

Week ofOctober 13, 2008– In Favor of the State or Government

• People v. Joseph Bannister, 2008 Ill. LEXIS 1422 (Ill 10/17/2008) [dissent] "On direct appeal, Bannister challenged the validity of his waiver of jury for the guilt-or-innocence phase of trial as well as the fact that the court denied defense counsel’s request for bench sentencing after the defendant expressed his own desire to be sentenced by a jury. Both of these claims were rejected by the Illinois Supreme Court in this decision. The court also rejected Bannister’s complaints concerning jury instructions and prosecutorial argument." [from the Court's summary]
• State v. James Were, 2008 Ohio LEXIS 2787 (Ohio 10/16/2008) "An inmate's claim of ineffective assistance of appellate counsel did not warrant the reopening of his appeal pursuant to App. R. 26(B)(5) and (8) where no genuine issue of a colorable claim was raised; many claims were barred by res judicata, and an evidentiary hearing was not required prior to the denial of the application." [via LexisOne]
• Ex parte Gustavo Julian Garcia, 2008 Tex. Crim. App. Unpub. LEXIS 747 (Tex.Crim.App. 10/15/2008)(unpublished) State habeas petition denied without substantive discussion of the merits.

(Initial List)Week of October 20, 2008–In Favor of the Defendant or the Condemned

• James Lynn Styers v. Schriro, 2008 U.S. App. LEXIS 22054 (9th Cir 10/23/2008) The Arizona state courts erred in concluding that PTSD was not mitigating factor as they incorrectly concluded there had to be a causal connection between proffered mitigation and the crime.
• Nelson Gongora v. Quarterman, 2008 U.S. App. LEXIS 22164 (5th Cir 10/22/2008) "Gongora requests a COA from this court on two issues: (1) whether he is entitled to federal habeas relief because the prosecutor commented on his failure to testify during the prosecutor's closing argument, and (2) whether he could be sentenced to death based on the jury's finding that he was able to anticipate that death might result from his participation in the robbery in light of the Supreme Court's decision in Tison v. Arizona, 481 U.S. 137 (1987). For the following reasons, Gongora's application for COA is granted on both issues."

(Initial List)Week ofOctober 20, 2008– In Favor of the State or Government

• Yosvannis Valle v. Quarterman, 2008 U.S. App. LEXIS 22165 (5th Cir 10/22/2008) COA denied on "three claims: (1) his Sixth Amendment right to counsel was violated when his trial counsel failed to obtain a psychological evaluation of him by a mental health professional and present evidence of his post-traumatic stress disorder ("PTSD"); (2) he was denied due process by the trial court's exclusion as inadmissible hearsay of the audio and transcript of an interview with petitioner's mother; (3) his Eighth Amendment rights were violated by Texas's capital-sentencing statutory scheme, because it does not assign a burden of proof to the mitigation special issue and does not afford meaningful appellate review to the special issues of mitigation and future dangerousness."

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