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. 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 email off list for subscription information). 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:

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