Capital Defense Weekly, October 21, 2002
Two cases of note make the Hot List this week. The first is the Supreme Court's refusing to hearIn re Stanfordaddressing the issue of killing juvenile offenders. The other case isIllinois v. Brown, examing "life qualifying" during voir dire.
The Court inIn re Stanfordappears to dodge, at least for now, the issue of juvenile executions in refusing to hear Stanford's original action. Four Justices, led by Justice Stevens in a blistering dissent, note that the Court is throwing the issue back to the states where the issue will continue to be fought in state houses, state supreme courts and governor mansions around the country for years to come.In re Stanfordalso highlights that while four votes are normally enough to grant cert recent Supreme Court practice in capital cases five votes appear to now be needed for cert.In re Stanfordis important for another reason, it strongly suggests that the question is no longer if the juvenile death penalty will be ended, it is a question of when it will be ended; unfortunately for Stanford he may well be dead when it happens. An online petition that will be submitted to Governor Patton in consideration for Kevin Stanford can be found at www.petitiononline.com/clemency/petition.html. [Note: the use of online petitions and other methods to garner support for clemency will be examined in an upcoming edition.]
The second case,Illinois v. Brown, deals with the continuing issue of voir dire and how much is enough in a capital case. The Illinois Supreme Court inBrowndefines how little is too little. Here "the trial court's questioning was not sufficient to discover the beliefs and opinions of prospective jurors and did not allow for the removal of those prospective jurors who would automatically vote for the death penalty in every case."
The issue of how to deal with Atkins v. Virginia is also ongoing and noted this week. Two decisions this week,Illinois v. PulliamandBell v. Cockrell, deal with mental retardation remands. In focus this week deals with this issue by posting a recent winning motion in New Mexico v. Ruben Flores.
The United States Supreme Court has also jousted on a cert denial on the issue of the so-called "death row" phenomenon in Foster v. Florida. In Foster the issue is whether the a 27 year stay on death row prior to third trial. Denying cert Justices Thomas and Breyer (perhaps illustrating why five justices are now required for cert) clash on the issue. Justice Thomas noting that Foster is free to end any putative injury by dropping his appeals offers a quite skeptical eye to the claim; Justice Thomas's acid tongued barb was not joined by any other justice. Likewise, Justice Breyer's opinion was not joined by any other justice.
Execution Information
The following executions dates for the next few weeks that are considered serious:*
November
6 James Colburn Texas
7 George Sibley, Jr. Alabama----volunteer
14 Mir Aimal Kasi Virginia---foreign national
19 Graig Ogan Texas
20 William Chappell Texas
20 William R. Jones Missouri
21 James Clark Texas
December
4 Leonard Rojas Texas
11 James Collier Texas
12 Jay Neill Oklahoma
17 Earnest Carter Oklahoma
HOT LIST
In re Stanford, No. 01-10009 (US 10/21/2002) Supreme Court punts on the issue of juvenile executions. Four justices dissenting, lead by Justice Stevens, note:
Petitioner has filed an application for an original writ of habeas corpus asking us to hold that his execution would be unconstitutional because he was under the age of 18 when he committed his offense. A bare majority of the Court rejected that submission 13 years ago. Stanford v. Kentucky, 492 U. S. 361 (1989). There are no valid procedural objections to our reconsideration of the issue now and, given our recent decision in Atkins v. Virginia, 536 U. S. __ (2002), we certainly should do so.
In Atkins, we held that the Constitution prohibits the application of the death penalty to mentally retarded persons. The reasons supporting that holding, with one exception, apply with equal or greater force to the execution of juvenile offenders. The exception—the number of States expressly forbidding the execution of juvenile offenders (28) is slightly fewer than the number forbidding the execution of the mentally retarded (30)—does not justify disparate treatment of the two classes. Indeed, the fact that since 1989, state legislatures in Indiana,1 Montana,2 New York,3 and Kansas,4 and the Supreme Court of the State of Washington5 have all forbidden the execution of persons who were under 18 at the time of their offenses minimizes the significance of that exception.
Rather than repeating the reasoning in our opinion in Atkins, I think it appropriate to quote the following comments from Justice Brennan’s dissenting opinion in Stanford v. Kentucky, 492 U. S., at 394–396 which I joined in 1989:
“Proportionality analysis requires that we compare ‘the gravity of the offense,’ understood to include not only the injury caused, but also the defendant’s culpability, with ‘the harshness of the penalty.’ Solem [v. Helm, 463 U. S. 277, 292 (1983)]. In my view, juveniles so generally lack the degree of responsibility for their crimes that is a predicate for the constitutional imposition of the death penalty that the Eighth Amendment forbids that they receive that punishment.
“Legislative determinations distinguishing juveniles from adults abound. These age-based classifications reveal much about how our society regards juve-niles as a class, and about societal beliefs regarding adolescent levels of responsibility. See Thompson [v. Oklahoma, 487 U. S. 815, 823–825 (1988) (plurality opinion)].
“The participation of juveniles in a substantial number of activities open to adults is either barred completely or significantly restricted by legislation. All States but two have a uniform age of majority, and have set that age at 18 or above. . . . No State has lowered its voting age below 18. . . . Nor does anyState permit a person under 18 to serve on a jury. . . . Only four States ever permit persons below 18 to marry without parental consent. . . . Thirty-seven States have specific enactments requiring that a patient have attained 18 before she may validly consent to medical treatment. . . . Thirty-four States require parental consent before a person below 18 may drive a motor car. . . . Legislation in 42 States prohibits those under 18 from purchasing pornographic materials. . . . Where gambling is legal, adolescents under 18 are generally not permitted to participate in it, in some or all of its forms. . . . In these and a host of other ways, minors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life.
“‘The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.’ Thompson, supra, at 835 (plurality opinion). Adolescents ‘are more vulnerable, more impulsive, and less self-disciplined than adults,’ and are without the same ‘capacity to control their conduct and to think in long-range terms.’ Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978) (hereafter Task Force). They are particularly impressionable and subject to peer pressure, see Ed-dings v. Oklahoma, 455 U. S. 104, 115 (1982), and prone to ‘experiment, risk-taking and bravado,’ Task Force 3. They lack ‘experience, perspective, and judgment.’ Bellotti v. Baird, 443 U. S. 622, 635 (1979). See generally Thompson, supra, at 835–836, n. 43; Brief for American Society for Adolescent Psychiatry et al. as Amici Curiae (reviewing scientific evidence). Moreover, the very paternalism that our society shows toward youths and the dependency it forces upon them mean that society bears a responsibility for the actions of juveniles that it does not for the actions of adults who are at least theoretically free to make their own choices: ‘youth crime . . . is not exclusively the offender’s fault; offenses by the young represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth.’ Task Force 7.
“To be sure, the development of cognitive and reasoning abilities and of empathy, the acquisition of experience upon which these abilities operate and upon which the capacity to make sound value judgments depends, and in general the process of maturation into a self-directed individual fully responsible for his or her actions, occur by degrees. See, e. g., G. Manaster, Adolescent Development and the Life Tasks (1977). But the factors discussed above indicate that 18 is the dividing line that society has generally drawn, the point at which it is thought reasonable to assume that persons have an ability to make, and a duty to bear responsibility for their, judgments. Insofar as age 18 is a necessarily arbitrary social choice as a point at which to acknowledge a person’s maturity and responsibility, given the different developmental rates of individuals, it is in fact ‘a conservative estimate of the dividing line between adolescence and adulthood. Many of the psychological and emotional changes that an adolescent experiences in maturing do not actually occur until the early 20s.’ Brief for American Society for Adolescent Psychiatry et al. as Amici Curiae 4 (citing social scientific studies).”
Today, Justice Brennan’s observations are just as forceful and correct as they were in 1989. But even if we were not convinced in 1989, we should be all the more convinced today. Indeed, when determining what legal obligations and responsibilities juveniles will be allowed to take on, the trend tends to require individuals to be older, rather than younger. See, e.g., U. S. National Survey of State Laws 418–422; 478–488 (R. Leiter ed., 4th ed. 2001) (re-porting that, without exception, all States now require one to be at least 18 in order to marry without parental consent and that all States now require one to be at least 18 to be the age of majority if unmarried). Neuroscientific evidence of the last few years has revealed that adolescent brains are not fully developed, which often leads to erratic behaviors and thought processes in that age group. See Supplemental Brief for Petitioner 3–5. Scientific advances such as the use of functional magnetic resonance imaging—MRI scans—have provided valuable data that serve to make the case even stronger that adolescents “‘are more vulnerable, more impulsive, and less self-disciplined than adults.’” Stanford, 492 U. S., at 395.
Moreover, in the last 13 years, a national consensus has developed that juvenile offenders should not be executed. No state has lowered the age of eligibility to either 16 or 17 since our decision in 1989. See V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973–September 30, 2002, 7 (updated Oct. 9, 2002) (unpublished manuscript) (avail-able in Clerk of Court’s case file). In fact, as I mentioned above, the movement is in exactly the opposite direction. Although it is clear that the treatment of this issue by the legislatures has led to a trend in only one direction—to-ward abolition of the death penalty for juvenile offenders—the fact that the legislatures are paying attention to this issue is remarkable. Juvenile offenders make up only 2% of the total population of death row and about that same percentage of the executions that are carried out. See id., at 13, 4. As a result of such small numbers, one might expect that this issue would draw little public attention and even less interest from the state legislatures. But the legislatures have acted, and those actions are uniformly against the execution of those who were under 18 when they committed their offense. This uniform treatment makes sense, too, when one considers its consistency with widely held views on the subject: The majority of Americans, when asked in 2001, indicated that the death penalty should not apply to juvenile offenders. See, e.g., T. Smith, Public Opinion of the Death Penalty for Youths, National Opinion Research Center, University of Chicago 2,6 (Dec. 2001) (unpublished manuscript) (available in Clerk of Court’s case file).
All of this leads me to conclude that offenses committed by juveniles under the age of 18 do not merit the death penalty. The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice.
I would set the application for an original writ for argument and respectfully dissent from the Court’s refusal to do so.
Illinois v. Brown, 2002 Ill. LEXIS 945 (Ill 10/18/2002) "[T]he trial court's questioning was not sufficient to discover the beliefs and opinions of prospective jurors and did not allow for the removal of those prospective jurors who would automatically vote for the death penalty in every case. Consequently, the trial court's actions frustrated the purpose of voir dire and constituted an abuse of discretion."
Defendant next contends that he should be granted a new sentencing hearing because the trial court, in violation of Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), erroneously refused, and then failed, to ask all the potential jurors whether they would automatically impose the death penalty if defendant should be convicted of murder. The State responds that defendant has waived this issue since he did not properly preserve it for appeal when he failed to object to the trial court's denial of his proposed voir dire questions. In the alternative, the State argues that the trial court's [*12] questioning of the venire was proper and that the trial court did not abuse its discretion in conducting the voir dire.
We address at the outset the State's contention that defendant waived this issue due to his failure to object to the trial court's denial of his proposed venire questions. Normally, an error must be properly preserved in order for it to be brought to the attention of a reviewing court. See People v. Buckley, 40 Ill. App. 3d 750, 751, 353 N.E.2d 4 (1976). An issue is properly preserved for appeal by making the appropriate objections at trial and including these objections in a post-trial motion. See Buckley, 40 Ill. App. 3d at 751. Typically, an issue which is not properly preserved is deemed waived. People v. Ward, 48 Ill. 2d 117, 121, 268 N.E.2d 692 (1971). However, application of the waiver rule is less rigid where the basis for the objection is the trial judge's conduct. People v. Woolley, __ Ill. 2d __, 2002 Ill. LEXIS 282 (2002); People v. Smith, 176 Ill. 2d 217, 237, 223 Ill. Dec. 558, 680 N.E.2d 291 (1997); People v. Nevitt, 135 Ill. 2d 423, 455, 142 Ill. Dec. 854, 553 N.E.2d 368 (1990); [*13] People v. Sprinkle, 27 Ill. 2d 398, 401, 189 N.E.2d 295 (1963). In the present case, as seen below, the record reveals that the trial court denied defendant's proposed venire questions because it intended to individually voir dire the venire in accordance with Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, 46 Ohio Op. 2d 368 (1968), and Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). Given the trial court's reassurance to comply with Morgan, defendant did not object to the denial of his proposed Morgan questions. We do note, however, that defendant raised this issue in his amended posttrial motion. The key question then is whether strict compliance with the waiver rule shall apply in a situation where a criminal defendant fails to object to the conduct of the trial court at the time of the occurrence but later objects in a post-trial motion. In the instant matter, we think not. We will not rigidly apply the waiver rule pursuant to the cases cited above since the underlying cause for defendant's failure to object to the trial court's denial of his proposed Morgan questions is clearly [*14] based on the trial court's conduct.
As alluded to above, prior to jury selection, defendant submitted nine questions to the trial court for the venire. Defendant's last three questions, in one form or another, asked the venire whether they would automatically vote to impose the death penalty if defendant was convicted of murder. The trial court denied defendant's proposed questions, stating:
"THE COURT: The question proposed by Morgan v. Illinois is whether the individual juror has a strong belief in favor of the death penalty that regardless of the facts of the case or the background of the defendant that they would automatically vote to impose the death penalty because the defendant was found guilty of murder, and would not consider signing a verdict which would result in a sentence of imprisonment. These questions will not be allowed. I will individually voir dire the jurors with regard to Witherspoon and Morgan."
However, when the time came for conducting the voir dire, the trial court first proposed this question to all veniremembers: "Do you have any strong feelings either by reason of conscience or religion against the death penalty?" Next, the trial court [*15] put forth this question to all veniremembers: "Do any of you have strong feelings or beliefs in favor of the death penalty?" (Hereinafter referred to as the "strong feeling" questions.) The veniremembers who indicated that they had strong feelings in response to either question were sequestered and individually asked by the court: "Would you automatically vote against the death penalty no matter what the facts may be?" or, "If the defendant were found eligible for the death penalty, you would automatically vote to impose the death penalty and would not consider signing a verdict which would result in a sentence of imprisonment?" (Hereinafter referred to as the "automatic" questions.) The persons who answered "yes" to the automatic questions were dismissed for cause. The individuals that did not answer positively to the automatic questions were sent back into the venire. This process was also used on the second venire to distinguish those that should be excused for cause. Upon the completion of jury selection, only one juror of the 12 and two alternates chosen had been asked the automatic question since that juror had originally responded to a strong feeling question.
As noted, defendant [*16] claims that the trial court violated Morgan because it refused, and then failed, to ask all prospective jurors whether they would automatically impose the death penalty if defendant was convicted of murder. We agree.
In Morgan, the defendant requested that the trial court ask all prospective jurors whether they would automatically impose the death penalty if they found the defendant guilty. Morgan, 504 U.S. at 723, 119 L. Ed. 2d at 499, 112 S. Ct. at 2226. The trial court refused defendant's request, believing it had already asked the question in a different vein. Morgan, 504 U.S. at 723, 119 L. Ed. 2d at 499, 112 S. Ct. at 2226. The Supreme Court found that the trial court had violated the defendant's due process rights under the fourteenth amendment, which independently requires the impartiality of any jury empaneled to try a cause. Morgan, 504 U.S. at 726, 119 L. Ed. 2d at 500-01, 112 S. Ct. at 2228. The Supreme Court held that if requested by a defendant, a trial court is constitutionally required to ask all potential jurors at voir dire whether they would automatically vote to impose the death penalty should defendant [*17] be convicted of murder. Morgan, 504 U.S. at 736, 119 L. Ed. 2d at 507, 112 S. Ct. at 2233. The Supreme Court reasoned:
"A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence." Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 502-03, 112 S. Ct. at 2229-30.
In the current case, defendant requested that the trial court ask the venire whether they would automatically impose the death penalty should defendant be convicted of murder. Stating that it would individually voir dire the jurors in accordance [*18] with Morgan, the trial court denied defendant's request. However, during voir dire, the trial court only asked the potential jurors whether they would automatically impose the death penalty if they first responded to one of the trial court's strong feeling questions. As a result, the trial court posed the automatic question to only one juror of the 12 and two alternates chosen to sit on defendant's jury. Thus, not only did the trial court refuse to ask defendant's proffered questions to each potential juror, the trial court then failed to properly question the venire in accordance with Morgan. Given the above, we find that the trial court violated Morgan when it erroneously refused to ask defendant's proposed question, and then subsequently failed to ask all potential jurors whether they would automatically impose the death penalty should defendant be convicted of murder.
Moreover, we find that the trial court abused its discretion when it refused to ask defendant's proposed Morgan question to all potential jurors. Although it is well settled that the conduct and scope of jury voir dire is within the discretion of the trial court, an abuse of discretion will [*19] be found when the trial court's actions have frustrated the purpose of voir dire. People v. Hope, 168 Ill. 2d 1, 30, 658 N.E.2d 391, 212 Ill. Dec. 909 The purpose of voir dire is to ascertain sufficient information about prospective jurors' opinions and beliefs so as to allow the removal of those prospective jurors whose minds are so closed by bias and prejudice that they cannot apply the law as instructed. Hope, 168 Ill. 2d at 30. Defendant contends that inquiring as to whether a prospective juror has any strong feelings or beliefs about the death penalty cannot be equated with inquiring as to whether the prospective juror would automatically impose the death penalty. We agree.
In People v. Shaw, 186 Ill. 2d 301, 315, 239 Ill. Dec. 311, 713 N.E.2d 1161 (1998), the trial court inquired as to whether the prospective juror had strong feelings or beliefs about the death penalty. Upon receiving a negative answer, the trial court nevertheless inquired as to whether the prospective juror would automatically vote to impose the death penalty. Shaw, 186 Ill. 2d at 315. Likewise in People v. Macri, 185 Ill. 2d 1, 235 Ill. Dec. 589, 705 N.E.2d 772 (1998), [*20] the trial court "questioned the prospective jurors regarding any religious, moral or personal beliefs they might have against the imposition of the death penalty, whether the jurors could determine facts based upon the evidence presented and then follow the law as instructed, and whether the jurors would automatically vote to impose death in every murder conviction." Macri, 185 Ill. 2d at 36.
In the present case, the trial court's question regarding the prospective juror's feelings and beliefs required a subjective answer from the prospective juror. The question left open the possibility that a prospective juror would vote to impose the death penalty automatically upon a finding of guilt, yet characterize his feelings and beliefs about the death penalty as other than "strong." It matters not whether the prospective juror would do so intentionally or through a misconception that social norms required the imposition of the death sentence upon a finding of guilt. As the Supreme Court stated in Morgan:
"It is true that 'voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." ' [Citation. [*21] ] The Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. Even so, part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 503, 112 S. Ct. at 2230.
Thus, in the instant cause, the trial court's questioning was not sufficient to discover the beliefs and opinions of prospective jurors and did not allow for the removal of those prospective jurors who would automatically vote for the death penalty in every case. Consequently, the trial court's actions frustrated the purpose of voir dire and constituted an abuse of discretion. We cannot assume that defendant here was sentenced to death by a jury empaneled in compliance with the fourteenth amendment, given the inadequacy of voir dire. See Morgan, 504 U.S. at 739, 119 L. Ed. 2d at 509, 112 S. Ct. at 2235. Accordingly, we find the trial court's actions insufficient to meet the requirements set forth in Morgan, and hold that the trial court violated defendant's due process rights to an impartial jury. We therefore [*22] vacate defendant's death sentence and remand the cause for a new death sentencing hearing. See Morgan, 504 U.S. at 739 n.11, 119 L. Ed. 2d at 509 n.11, 112 S. Ct. at 2235 n.11.
SUPREME COURT
Foster v. Florida, No. 01-10868 (US 10/21/2002) Cert denied on issue on whether 27 years on death row constitutes sufficent harm to forbid a third penalty phase hearing.
Death row's inevitable anxieties and uncertainties have been sharpened by the issuance of two death warrants and three judicial reprieves. If executed, Foster, now 55, will have been punished both by death and also by more than a generation spent in death row's twilight. It is fairly asked whether such punishment is both unusual and cruel.
CAPITAL CASES (Favorable Disposition)
Illinois v. Pulliam, 2002 Ill. LEXIS 947 (Ill 10/18/2002) Remand, sua sponte, ordered on mental retardation claim in light of Atkins.
Bell v. Cockrell, 2002 U.S. App. LEXIS 21687 (5th Cir 10/17/2002) Remand ordered for determination of mental retardation in light of Atkins.
CAPITAL CASES (Unfavorable Disposition)
Illinois v. Caballero, 2002 Ill. LEXIS 948 (Ill 10/18/2002) Relief denied on claims that "(1) his constitutional right to due process was violated because he did not receive a full and fair hearing before the circuit court on remand, and (2) his death sentence is unconstitutionally disproportionate to [co-defendant's] life sentences."
Wrinkles v. Indiana, 2002 Ind. LEXIS 802 (Ind 10/15/2002) Permission to file successive post-conviction petition denied on (1) Ring; (2) prosecutor's remarks about nonstatutory aggravation; and (3) racial composition of the jury venire.
Illinois v. Coleman, 2002 Ill. LEXIS 946 (Ill 10/18/2002) Relief denied, most notably, on issues relating to suppression of exculpatory evidence.
Lawrence v. Florida, 2002 Fla. LEXIS 2173 (FL 10/17/2002) Relief denied on appellate counsel's ineffectiveness, and: " (1) ineffective assistance of counsel; (2) denial of the right to an impartial jury-due process violation; (3) improper reference to prior prison record during guilt phase - due process violation; (4) lack of sentencing proportionality between codefendants; (5) improper aggravator evidence regarding under a sentence of imprisonment; (6) improper admission of hearsay evidence relative to a wire transfer; (7) noncompliance with public records requests; (8) noncompliance with judicial records requests; (9) erroneous jury instructions pertaining to expert testimony; (10) improper jury instructions on aggravators; (11) inadequate appellate review by the Florida Supreme Court pertaining to erroneous jury instructions on the HAC and CCP aggravators; (12) improper jury instruction regarding the under sentence of imprisonment aggravator; (13) incorrect jury instruction on the advisory role of jury; (14) death penalty is unconstitutional"
Tennessee v. Odom, 2002 Tenn. Crim. App. LEXIS 871 (Tenn Crim App 10/15/2002) Relief denied on: (1) The indictment failed to charge a capital offense; (2) The court erred in denying the defendant's motion for a continuance in order to complete psychiatric and neuropsychological testing; (3) The court erred in denying the defendant's motion to sentence him according to Tennessee Code Annotated section 39-13-204, as it existed at the time of the offense rather than as it existed at the time of resentencing; (4) The court erred in allowing photographs of the homicide victims; (5) The court erred in denying the defendant's motion to allow the jury to impose a sentence of life without parole; (6) The death penalty violates treaties which have been ratified by the United States, and violates international law; (7) The Tennessee death penalty sentencing statute is unconstitutional; (8) The criteria of section 39-13-206(c)(1) have not been satisfied in the present case; and (9) The cumulative effect of all errors necessitates reversal."
Ohio v. Franklin, 2002 Ohio LEXIS 2551;97 Ohio St. 3d 1; 2002 Ohio 5304 (Ohio 10/16/2002) Relief denied on competence, failure to grant a continuance, guilt phase jury instructions (most notably reasonable doubt), and a very strong claim of improper shackling during the penalty phase.
Ohio v. Burke, 2002 Ohio LEXIS 2549;2002 Ohio 5310 (Ohio 10/16/2002) Motion to reopen appeal on claims of appellate ineffectiveness denied.
Cooper v. Calderon, 2002 U.S. App. LEXIS 21704 (9th Cir 10/18/2002) Successive petition, and rehearing on same, denied on allegations that another confessed to the murder for which the condemned was convicted.
NOTABLE NONCAPITAL CASES
No cases noted this week.
FOCUS
This week's focus is yet another winning Atkins motion, this time out by Jeffrey Buckels of the New Mexico Public Defender's Capital Crimes Unit in State v. Ruben Flores. In light of Atkins portions of the state death penalty were declared unconstitutional as it relates to mental retardation.
Defendant Ruben Flores, by and through his undersigned attorney, hereby moves this Court to grant him jury determination of the question whether the death penalty is barred in this case for the reason that Mr. Flores is mentally retarded. In seeking this relief, Mr. Flores is mindful that, if this Court should determine in accordance with pretrial defense motions and showings that he is retarded, the question will be moot and need not be addressed by a jury. As grounds for the relief requested, Mr. Flores states as follows.
Summary
The New Mexico Capital Felony Sentencing Act provides that the death penalty cannot be imposed on a person who is mentally retarded. NMSA 31-20A-2.1. The trial judge is required to determine on motion whether the capital defendant is in fact mentally retarded. The statute does not entitle the defendant to a jury determination of the issue. This is unconstitutional under the recent decisions of the United States Supreme Court in Ring and Atkins. Moreover, though the statute provides for judicial determination of the issue, the statute does not require that the judicial screening take place pretrial. Under State v. Ogden, and as an urgent matter of judicial economy and fairness, this court should hear the matter pretrial. Finally, if this Court should rule that the New Mexico statute is not unconstitutional, it should certify the question for interlocutory review by the Supreme Court of New Mexico.
Procedural Background
As the Court knows, Judge Gallini made a finding on December 17, 2001, that Mr. Flores was competent to stand trial and that the defense had failed to prove at the competency hearing he is mentally retarded. The defense has objected to Judge Gallini's finding on the grounds that the defense had no notice that the judge was considering the issue of retardation in connection with the competency hearing and that, because of this, the defense did not have the opportunity fully and fairly to litigate the issue. Accordingly, the defense has moved this Court to convene a pretrial evidentiary hearing on the retardation issue and to find that Mr. Flores is mentally retarded. The finding would bar the prosecution from seeking the death penalty under the New Mexico statute. See Motion to Dismiss the Death Penalty, Pursuant to 31-20A-2.1 by Reason of Mental Retardation (filed 7/12/02); Defendant's Supplemental Memorandum to Motion to Dismiss the Death Penalty, Pursuant to 31-20A-2.1 by Reason of Mental Retardation, Etc. (filed 7/24/02); Supplement to Request for a New Hearing, Etc. (filed 7-31-02).
The present motion seeks other and further relief mandated by the recent decisions of the United States Supreme Court in Ring v. Arizona, 122 S.Ct. 2428 (2002), and Atkins v. Virginia, 122 S.Ct. 2242 (2002).
The Constitution Entitles Mr. Flores to Jury Determination
Of the Question Whether He Is Mentally Retarded
In Ring, the Supreme Court held that the Sixth Amendment does not permit the state to exact a penalty exceeding the maximum permitted by a jury verdict of guilty, in and of itself, in the absence of further jury determination of additional facts. The defendant is entitled to a jury determination of any additional fact -- above and beyond that of guilt -- on which the legislature conditions an increase in punishment. In the context of capital punishment and mental retardation, this means that the defendant is entitled to a jury determination of the question whether he is mentally retarded. The New Mexico Legislature, and after Atkins the Sixth Amendment, require an additional finding that the defendant is not mentally retarded in order to raise the maximum penalty from life imprisonment to death.
Ring overruled Walton v. Arizona, 497 U.S. 639 (1990), "to the extent that … [Walton] allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." Ring, 122 S.Ct. at 2432. Ring subjects capital sentencing to the Sixth and Fourteenth Amendment rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), "that the Sixth Amendment does not permit a defendant to be 'expose[d] … to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.'" Ring, 122 S.Ct. at 2432. "Capital defendants, no less than non-capital defendants," the Court in Ring declared, "are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Id.
In Atkins, the Supreme Court held that the Eighth Amendment's prohibition of cruel and unusual punishment prevents the state from taking the life of a mentally retarded offender. 122 S.Ct. at 2252. The New Mexico Legislature banned the death penalty in the case of the mentally retarded in 1991. NMSA 31-20A-2.1(B). On either basis, statutory or constitutional, mental retardation is a factual issue upon which a defendant's eligibility for the death penalty depends.
So, in New Mexico there are now two separate prohibitions against the execution of the mentally retarded -- the New Mexico statute and the Eighth Amendment to the United States Constitution. Where the two conflict, the state statute must give way pursuant to the Supremacy Clause. U.S. Const. Art. VI.1
Judicial Pretrial Determination of the Issue of Mental Retardation
Under the New Mexico statute, we have pre-sentencing judicial determination of the mental retardation issue, but the statute does not require the judicial determination to be made pretrial. Neither does it proscribe pretrial determination. It simply requires that the determination be made at some time prior to the capital sentencing proceeding. NMSA 31-20A-2.1(C). For reasons of sound public policy and judicial economy, pretrial is when the determination should be made. Other sources of federal and New Mexico law mandate that the determination be made pretrial.
The federal constitutional requirement of pretrial judicial determination or pre-screening of the mental retardation issue is implicit in Jackson v. Denno, 378 U.S. 368 (1964), as reiterated in Crane v. Kentucky, 476 U.S. 683 (1986). In Jackson, the Supreme Court stated that "the requirement that the court make a pretrial voluntariness determination does not undercut the defendant's traditional prerogative to challenge the statement's reliability during the course of the trial." 378 U.S. at 386 (emphasis added). In short, there is a due process mandate that the trial court make a pretrial determination as to whether the defendant's constitutional rights have been violated. Crane, 476 at 687-88.
The mandate is even stronger in death penalty cases involving a claim of mental retardation. Atkins banned execution of the mentally retarded in part because of the handicaps retarded people suffer in litigating life and death issues in front of juries. It exposes them to "a heightened risk of wrongful execution," because the mentally retarded may have greater problems testifying, the demeanor of the mentally retarded can give an "unwarranted impression of lack of remorse," and evidence of mental retardation may unfairly influence the jury to find the aggravating circumstance of future dangerousness. 122 S.Ct. at 2252.
It is equally clear that the jury must be permitted to make its own independent determination of the mental retardation issue in the event the trial court does not find mental retardation. Jackson v. Denno, 387 U.S. 368 (1964), established the rule long ago that, where the trial court has authority to make a pretrial determination of a fact -- in Jackson the voluntariness of a confession -- and determines the fact adversely to the accused, the jury must still be permitted to make its own independent finding, which may be adverse to that of the court. New Mexico has long recognized and held to this rule, e.g., State v. Tindle, 104 N.M. 195, 198, 718 705, 708 (1986) (voluntariness of confession).
A pretrial determination of the mental retardation issue is also highly desirable, whether convened pursuant to the federal constitution or the state statute. In State v. Ogden, 118 N.M. 234 (1994), the New Mexico Supreme Court explained the utility of a pretrial hearing on the question whether the state can show a triable case for the aggravating circumstances relied upon as the basis for the death penalty. It is a matter of husbanding scarce judicial and political resources. Death penalty trials eat time and money in mass quantities. Whether the checks are made out to the prosecution, the court, or the defense, it all comes out of the pocket of the taxpayers. The many weeks required to stage a capital trial come out of everyone's hide -- court personnel, prosecution and defense teams, law enforcement people, witnesses, jurors. And "jurors" includes the scores upon scores of veniremen it takes to produce what is referred to with more or less irony as a "death-qualified" panel.2 It is wasteful in the extreme to convene a death penalty trial if a pretrial hearing might take the death penalty out of the picture, especially when both the statute and the federal constitution require a judicial determination at some time before the jury is given the issue. It only makes sense to have the bench hearing on the mental retardation issue -- and therefore on the availability of the death penalty -- before trial. This is what Ogden is about.
If the State Statute Is Interpreted to Proscribe Jury Determination
Of the Mental Retardation Issue, the Statute Is Unconstitutional
The combined effect of Atkins and Ring is that the U.S. Constitution entitles a capital accused who comes forward with evidence of mental retardation to (1) a determination (2) by a jury of the question whether he is mentally retarded. The New Mexico mental retardation statute does not provide this. The protection the statute provides to the accused is therefore constitutionally inadequate under Ring and Atkins. If this Court interprets the statute to bar jury determination of the issue, then the statute must fall before the Supremacy Clause: The New Mexico statute cannot impede the jury's determination of the question whether the death penalty would be cruel and unusual punishment within the meaning of the Eighth Amendment because of mental retardation.
As a result of Atkins and Ring, the New Mexico statute provides an impermissibly limited opportunity to the mentally retarded capital accused. If the accused seeks a ruling on the mental retardation issue, the trial judge is to hold a hearing prior to the capital sentencing. If he finds by a preponderance of the evidence that the defendant is mentally retarded, he is to dismiss the death penalty and sentence the defendant to life. If he finds that the defendant is not mentally retarded, he is to send the issue of the death penalty to the jury in accordance with the terms of Capital Felony Sentencing Act. The defense can re-present its evidence of mental retardation to the jury at the life/death phase and urge the jury to accord it "mitigating significance." NMSA 31-20A-2.1(C).
This is the problem.
The Capital Felony Sentencing Act requires the jury to determine whether any aggravating circumstances exist. If one or more is found, the jury is then to consider the evidence of mitigating circumstances and weigh the mitigating circumstances against the aggravating circumstances. NMSA 31-20A-2.1(C). If the jury thinks the aggravating circumstances outweigh the mitigating circumstances, then it can give death. Id.
HENCE, IN THE NEW MEXICO STATUTORY SCHEME, THE JURY, OR MEMBERS OF IT, CAN BELIEVE THAT THE DEFENDANT IS MENTALLY RETARDED AND STILL GIVE DEATH.
Atkins bars the death penalty for the mentally retarded absolutely. If the New Mexico statute is interpreted to bar jury determination of the federal constitutional issue, the statute is unconstitutional. It contravenes the Eighth Amendment's prohibition of cruel and unusual punishment.
The Burden Is on the State to Disprove Mental Retardation
Beyond a Reasonable Doubt
In connection with the jury determination of the mental retardation issue, this Court should hold that, once the defense comes forward with evidence that the defendant is mentally retarded, the burden shifts to the state to disprove mental retardation beyond a reasonable doubt. As discussed above, any fact beyond the fact of guilt, including the fact of mental retardation, "must be found by a jury beyond a reasonable doubt." Ring, 122 S.Ct. at 2439. Any finding of fact that makes the defendant eligible for death must be made by the jury unanimously and beyond a reasonable doubt. 122 S.Ct. at 2240.3 Apprendi itself makes it clear that the jury determination must be unanimous. The Sixth Amendment right to jury trial recognized in Apprendi and Ring stands upon an historical foundation … [that] extends down centuries into the common law. "[T]o guard against a spirit of oppression and tyranny on the part of the rulers," and "as the great bulwark of [our] civil and political liberties," 2 J. Story, Commentaries on the Constitution of the United States 540-41 (4th ed. 1873), trial by jury has been understood to require that "the truth of every accusation, whether preferred in the shape of an indictment, information, or appeal, should be afterwards confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbors…." 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) … (emphasis added).
Apprendi, 530 U.S. at 477.
Placing of the burden of persuasion and the heaviest burden of proof on the state follows from the most basic principles of our system of justice. The state is the proponent of the death penalty. The death penalty is the most extreme and final legal consequence that can be imagined. The state is for that reason responsible for supplying any and all legal and factual preconditions. In comparison to the "relief" the state seeks, the burden is light.
INTERLOCUTORY REVIEW
If this Court should rule that Mr. Flores is not entitled to a jury determination of the question whether he is mentally retarded, then the Court should certify that a substantial ground for difference of opinion exists on this controlling question and that an immediate appeal may materially advance the ultimate determination of the litigation. NMSA 39-3-3A(3) or 39-3-4A. This is a crucial and pivotal issue in this case, and, until resolved uniformly, the same issue will arise repeatedly in death penalty cases in New Mexico. In the event of an adverse ruling, Mr. Flores should be permitted to take the matter up with the Supreme Court immediately. Because the Supreme Court will surely have to resolve Mr. Flores' issue -- and the general issue -- in time, there is no time like the present. There is no reason to expend the mammoth resources required for a capital trial, get the answer from the Supreme Court, then expend the resources again.
CONCLUSION
For all the foregoing reasons, this Court should hold that Mr. Flores is entitled to a pretrial, judicial predetermination of the question whether he is mentally retarded. If the Court's determination is that he is not, the jury should then determine, in the event of a conviction for first-degree murder, whether Mr. Flores is mentally retarded. If the matter reaches that stage, and if the defense has come forward with evidence of mental retardation, the Court should rule that the state has the burden of persuading the jury, unanimously and beyond a reasonable doubt, that Mr. Flores is not mentally retarded. If the jury fails to make such a unanimous determination, the Court must dismiss the death penalty. If the Court finds that the New Mexico statute prevents it from granting the relief requested herein, then the Court should declare the statute unconstitutional and decline to give it force and effect. If the Court will not, then it should certify the issues raised herein to the New Mexico Supreme Court for interlocutory review.
OTHER RESOURCES:
The Death Penalty Information Center (Deathpenaltyinfo.org) notes:
Justice Breyer Questions Constitutionality of Prolonged Death Row Confinement
The U.S. Supreme Court declined to hear the case of Charles Foster, a Florida inmate who has served 27 years on death row. Foster asked the Court to determine whether the lengthy proceedings in his case violate the Eighth Amendment's ban on cruel and unusual punishment. In a dissent from the denial of certiorari, Justice Breyer wrote that the Court should hear the case, noting, "The length of [Foster's] confinement has resulted partly from the state's repeated procedural errors." Breyer added:
Death row's inevitable anxieties and uncertainties have been sharpened by the issuance of two death warrants and three judicial reprieves. If executed, Foster, now 55, will have been punished both by death and also by more than a generation spent in death row's twilight. It is fairly asked whether such punishment is both unusual and cruel.
Justice Stevens has raised similar concerns in other cases Justice Breyer noted that international courts have found such confinement on death row to be shocking and degrading. (Foster v. Florida, No. 01-10868, 537 U.S. ___ (2002) (Breyer, J., dissenting)) See also, Supreme Court.
Illinois Clemency Hearings Spark Editorials
Two recent editorials sparked by the on-going clemency hearings in Illinois highlight the issues faced by the state's review board and Governor George Ryan. The Christian Science Monitor observed:
The hearings, replaying grisly murders, have set loose a flood of emotion. But that can't be allowed to obscure the basic purpose: determining whether convictions and subsequent death sentences resulted from fair trials or tainted ones.
. . .
In many cases, there's no question the convicts did what they were accused of. The question is whether their trials were so flawed that their sentences should be commuted.
. . .
In any event, the process in Illinois illustrates the multitude of human failings that can work their way into capital trials, raising the terrible prospect of executing the innocent. That prospect, together with deep moral concerns about state-sanctioned killing, underscores the need to put the death penalty permanently back on the shelf of history. (Christian Science Monitor, October 18, 2002)
The Courier & Press of Indiana noted:
Indiana and other death penalty states should pay close attention to what is happening in Illinois.
. . .
[A]fter an examination of capital punishment in Indiana, we arrived at the conclusion that the death penalty in Indiana should be abolished. We based that on its failure to serve as a deterrent, on the potential for irreversible mistakes (as have been discovered in Illinois), the expense, the delay and the pain it causes to families. (Courier & Press, October 20, 2002).
See also, Illinois Commission on Capital Punishment.
Four Justices Signal Readiness to Consider Execution of Juvenile Offenders
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer called the execution of juvenile offenders a "shameful practice." The Justices stated, "The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society." (Associated Press, October 21, 2002). The Justices were dissenting from the Supreme Court's refusal to consider direct relief for Kevin Stanford from Kentucky. Stanford's petition was an unusual appeal, since he had previously exhausted the typical ways for obtaining relief. The four votes for taking this case would have been enough for the High Court to hear this issue if presented in an ordinary petition for certiorari. The temporary delay in deciding the juvenile execution issue gives states the opportunity to resolve it themselves. States could also stay the executions of juvenile offenders because of the likelihood that the Court will clear up this issue in the near future. Read the Supreme Court dissenting opinion. See also, Juveniles and the Death Penalty.
NEW RESOURCE: The Invention of the Electric Chair
In his book, "Executioner's Current: Thomas Edison, George Westinghouse and the Invention of the Electric Chair," author Richard Moran examines the development of the electric chair and the related debate that ensued between electrical pioneers Thomas Edison and George Westinghouse. Moran's book explores news stories and witness accounts regarding electrocutions and how these contributed to the search for a more "humane" method of execution. (Knopf, 2002). See also, Books and Methods of Execution.
NEW VOICES: Ohio Gubernatorial Candidate Would End Executions
If elected to serve as Ohio's next governor, Democrat candidate and Tim Hagan would grant clemency to any inmate nearing his scheduled execution. "I'm going to commute every person who comes before me, because I'm opposed to capital punishment," Hagan said during a recent joint appearance with his Republican challenger, Governor Bob Taft. "Unlike you (Taft), I don't believe the people in the state of Ohio are any safer executing 5 people." (Lancaster Eagle-Gazette, October 15, 2002). See also, New Voices.
If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit:http://www.lidab.com/(Louisiana's public defender),probono.net(ABA/ABCNY) &http://www.capdefnet.org/(federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue.Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects atnewsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised). For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org). Finally, if you find yourself in the wilds of western New Jersey or the Upper Delaware River Valley feel free to call for cappuccino & biscotti.