Three cases are hot listed this week.Perry v. Floridasees relief granted for the use extraneous evidence that amounted to unchanged crimes in the penalty phase. Similarly out of Florida,Ragsdale v. Florida, relief has been granted for failing to adequately prepare for the penalty phase. Finally in Phillips v. Woodford,the Ninth Circuit grants relief on penalty phase ineffectiveness.

Continuing with the analysis of penalty phase performance, this week an out take from the Louisiana Capital Trials Manual. This week's Focus selection covers developing & presenting mitigation evidence. with case law examples of what has been used in the past. (Note that lidb.com has been overhauled to include substantially more resources & is now one of the two largest death penalty defense websites in terms of raw volume as to the amount of materials available, the other being capdefnet.org).

A brief note that a copy of the so-called USA Act can be found at http://capitaldefenseweekly.com/ata.htm. The ACLU's analysis of the act can be found at http://www.aclu.org/congress/archives.html

Since the last edition the following have been excuted.

The are no remaining scheduled executions considered likely for October.

HOT LIST CASES

Perry v. Florida, 2001 Fla. LEXIS 2081 (FL 10/18/2001) Penalty phase relief granted as testimony by appellant's ex-wife amounted to evidence of an uncharged, nonstatutory aggravator.

Perry argues the trial court erred in permitting Perry's ex-wife to testify, while on direct examination during the penalty phase, to specific instances of Perry's violent behavior and to Perry's general statements regarding the use of a knife to kill someone, such that the evidence constituted impermissible nonstatutory aggravation. We agree.

At the very beginning of the direct examination during the penalty phase, the prosecutor asked Perry's ex-wife, Melissa Perry, if during her marriage to him, Perry was ever violent or involved in violent [*25] activity. Defense counsel objected on the ground that this subject was not an issue at trial. The court overruled the objection. At that point, the prosecutor asked Melissa to recount some specific instances of violent behavior. Melissa Perry's statements to the penalty phase jury described, in detail, a vicious beating inflicted by Perry during an incident unrelated to the crime for which he was charged. n12 In addition, Melissa Perry was permitted to testify regarding various incidents of spousal abuse by Perry. n13

In considering the admission of evidence during the penalty phase of a trial, this Court, in Hildwin v. State, 531 So. 2d 124, 127 (Fla. 1988), noted:

At the outset, it must be remembered that there is a different standard for judging the admissibility and relevance of evidence in the penalty phase of a capital case, where the focus is substantially directed toward the defendant's character. See § 921.141(1), Fla. Stat. (1987) In Elledge v. State, 346 So. 2d 998, 1001 (Fla. 1977), we pointed out that the purpose [*27] of considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case.

Thus, evidence that would not be admissible during the guilt phase could properly be considered in the penalty phase.

Section 921.141(1), Florida Statutes (1997), relating to sentencing proceedings, provides that evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida.

Id. (emphasis added). This Court has [*28] held that, to be admissible in the penalty phase, the State's direct evidence must related to any of the aggravating circumstances. See Hitchcock v. State, 673 So. 2d 859, 861 (Fla. 1996) (citing Floyd v. State, 569 So. 2d 1225 (Fla. 1990)).

The State, however, does not claim that any of the evidence Perry challenges was relevant to an aggravating circumstance. Instead, the State argues their direct examination of Perry's ex-wife during their penalty phase presentation was admissible because defense counsel "opened the door" to it during the guilt phase of the trial because, by claiming to be nonviolent, Perry placed this trait in issue. Indeed, this Court has said that "during the penalty phase of a capital case, the state may rebut defense evidence of the defendant's nonviolent nature by means of direct evidence of specific acts of violence committed by the defendant." Hildwin v. State, 531 So. 2d at 128.

The State's answer brief, however, makes this assertion without providing any references to the record. Moreover, our own review of the record reveals that the door was not opened to Perry's character for nonviolence during the [*29] guilt phase. Because the State offered this evidence through their first witness during the direct portion of the State's penalty phase case, Melissa Perry's testimony regarding Perry's prior violent acts, all unrelated to the crime at issue, constituted impermissible nonstatutory aggravation.

Moreover, the State's argument that such evidence was "anticipatory rebuttal" also fails because at the time the State introduced this evidence, the penalty phase instructions were not yet resolved, and the mitigating circumstances to be included were not finalized. This is apparent in a conference between the trial judge and counsel during a break in the defense's penalty phase case at which the prosecutor brought up instructions and asked about the mitigating circumstances to be included. n14

Ragsdale v. Florida, 2001 Fla. LEXIS 2084 (FL 10/18/04) Penalty phase relief for failure to investigate granted.

We find that the present case is distinguishable from our recent cases in which we have found that defendant has not met his burden in establishing that trial counsel was ineffective. In Cherry, we affirmed the circuit court's denial of defendant's ineffectiveness claim where defendant refused to provide any names of potential mitigation witnesses and prohibited his attorney from making arguments that were inconsistent with maintaining defendant's innocence. See 781 So. 2d at 1050. In Cherry, defendant's counsel made a reasonable tactical decision to present evidence of mental mitigation to the jury by introducing the expert's report into evidence at the penalty phase in order to avoid the State's cross-examination of the expert. [*18] Additionally, in Cherry, we held that in light of conflicting expert opinions, the circuit court's factual decision to credit the opinion of the State expert rather than defendant's expert was supported by competent, substantial evidence. In Asay v. State, 769 So. 2d 974, 988 (Fla. 2000), we affirmed the circuit court's rejection of defendant's ineffectiveness claim where the attorney was informed of the defendant's abusive background and, after contacting potential witnesses, made a strategic decision to forego the presentation of nonstatutory mitigation to avoid "opening the door to damaging cross-examination regarding [defendant's] violent past." Id. at 988. In Asay, we also found that defendant's attorney was not deficient where after receiving an initial unfavorable report from the examining psychologist the attorney decided to discontinue his investigation for mental mitigation evidence. See id. at 986; see also Jones v. State, 732 So. 2d 313, 320 n.5 (Fla. 2000) (affirming trial court's finding that counsel had made reasonable tactical decision to forego further investigation of mental health mitigation [*19] evidence after receiving initial unfavorable diagnosis).

In contrast to Cherry, we find no evidence that Ragsdale was uncooperative or that he precluded his counsel from investigating and presenting evidence in mitigation. In addition, Ragsdale's siblings testified that they were never contacted and that they would have testified if they had been contacted at the time of Ragsdale's trial. Ernie Ragsdale, Ragsdale's younger brother, had been deposed by Ragsdale's predecessor counsel and even came to Ragsdale's trial pursuant to a State subpoena and, after talking to prosecutors, was released from the subpoena. Ernie, however, was never contacted by counsel. Byron Ragsdale, Ragsdale's cousin, lived in Pasco County at the time of Ragsdale's trial, yet he was never contacted by counsel. Darlene Parker, Ragsdale's cousin, and Byron drove eight hours from Georgia to Pasco County, Florida, to testify on Ragsdale's behalf. Rebecca Lockhart, Ragsdale's aunt, and Sheila Adams, Ragsdale's cousin, provided corroborative testimony of Ragsdale's child abuse by way of depositions to perpetuate testimony. Therefore, the evidence establishes that these witnesses would have been available if counsel [*20] had conducted a minimal investigation. See Riechmann, 777 So. 2d at 349-50 (finding ineffective assistance of counsel and rejecting counsel's contention that family members were not available where counsel conducted no investigation and presented no evidence of mitigation); see also Ventura v. State, 26 Fla. L. Weekly S361 (Fla. May 24, 2001) (finding trial counsel deficient for failing to investigate and present mitigating evidence where family members testified at postconviction evidentiary hearing that they would have testified at penalty phase had they been contacted). Furthermore, unlike the situation in Asay, since counsel did not conduct a reasonable investigation, he was not informed as to the extent of the child abuse suffered, and thus he could not have made an informed strategical decision not to present mitigation witnesses.

In sum, Ragsdale has clearly established that counsel deficiently handled the penalty phase, and when the evidence which was available is measured against the evidence presented at the penalty phase, there is a reasonable probability of a different result. See Rose, 675 So. 2d at 572 (counsel ineffective [*21] at penalty phase for failing to present evidence of severe mental disturbance and for failing to present evidence of defendant's alcoholism and mistreatment as a child); Hildwin, 654 So. 2d at 110 (ineffective assistance where counsel failed to present evidence of defendant's mental mitigation and several categories of nonstatutory mitigation including defendant's abuse and neglect as a child and his history of alcohol abuse); Phillips v. State, 608 So. 2d 778, 783 (Fla. 1992) (ineffective assistance of penalty-phase counsel where, although counsel presented some evidence in mitigation, he did not present a large amount of evidence concerning defendant's childhood riddled with abuse and testimony of experts describing defendant's mental and emotional deficiencies); Stevens v. State, 552 So. 2d 1082, 1087 (Fla. 1989) (counsel's failure to investigate defendant's background, failure to present mitigating evidence during the penalty phase, and failure to argue on defendant's behalf rendered his conduct at penalty phase ineffective). This is especially compelling when considered with the relative culpability evidence presented at the penalty [*22] phase by counsel for Ragsdale's codefendant, Illig, who pled nolo contendere in exchange for a life sentence.

We recognize that when reviewing ineffective assistance of counsel claims we give deference to the circuit court's superior vantage point and uphold factual findings that are supported by competent, substantial evidence. See Stephens, 748 So. 2d at 1034. However, in this instance, while the circuit court ruled against Ragsdale on the deficiency and prejudice prongs of the ineffectiveness claim, the circuit court's summary order contains virtually no factual findings. We have repeatedly stressed the need for trial judges to enter detailed orders in postconviction capital cases. The present order is completely inadequate and does not assist us in our review. Accordingly, we reverse the circuit court's order, vacate Ragsdale's death sentence, and remand for a new penalty phase before a jury.

Phillips v. Woodford,2001 U.S. App. LEXIS 22344 (9th Cir 10/15/2001) (Dissent) Evidentiary hearing ordered on Phillips claim that the combined prejudicial effect of his counsel's ineffective assistance, and the State's presentation of false testimony regarding the existence of a plea agreement with its chief witness, requires setting aside the findings that rendered him eligible for a sentence of death.

Phillips contends that his trial counsel, Paul Martin, rendered ineffective assistance by presenting his patently meritless alibi defense to the jury without investigating any other defenses --notably, the defense that Bartulis was killed during a shoot-out --and that "effective trial counsel in a capital case cannot allow his client to decide without adequate advice upon a hopeless alibi defense which counsel believes is false." Because there has been no state court hearing on Phillips's ineffectiveness claim, "the only question is whether [Phillips] raises a 'colorable' claim of ineffective assistance." Babbitt v. Calderon, 151 F.3d 1170, 1177 (9th Cir. 1998). [*19] In other words, to obtain an evidentiary hearing, Phillips's allegations, if proved, must raise a colorable claim that his counsel's performance fell below reasonable standards, as well as a colorable claim that, but for counsel's ineffective performance, there is a reasonable probability that the outcome of the proceedings would have been different. To put this appeal in perspective, Phillips does not contend that effective counsel would have secured him an acquittal on the basic charges, but rather that, had a "shoot-out" defense been presented at trial, there is a reasonable probability that the jury would not have found him eligible for the death penalty --as it did when it found him guilty of first degree murder with the special circumstance of having committed that murder during the commission of a robbery. In short, Phillips does not contend that he could not have been convicted on a murder charge, but only that he could not have been found to be death-eligible. . . .

Phillips's argument is that a reasonably competent attorney who had access to the above-listed evidence would have recognized the viability of a "shoot-out" defense and discussed that option with his client. He has strong support for that assertion from an unlikely source: Martin himself. During a state-court evidentiary hearing in January, 1990, Martin testified that he "would have considered putting on an alternative defense of self-defense and mutual shoot-out if he had Colman's December 28, 1977, statement and the police report indicating Colman had told Dr. ReVille that there had been a mutual shoot-out." In fact, Martin did have that evidence, and the state habeas court made a finding of fact to that effect. Based in part on that finding, Phillips raised his current claim of ineffective assistance of counsel, alleging that Martin was ineffective for not using the materials in his possession in support of a "shoot-out" defense, and instead presenting a defense he knew had no chance of success. Martin then submitted a declaration, less than a year later, in which he recanted his earlier testimony and insisted that even if he had been aware of the evidence in his case [*23] file, he would not have considered an alternative defense.

Martin's original statement in the state evidentiary hearing was presented in support of a due process claim challenging the State's alleged failure to disclose exculpatory evidence --a claim that in no way implicated his effectiveness as a lawyer. His subsequent declaration, in contrast, was prepared in response to Phillips's newly asserted ineffective assistance of counsel claim; in the same declaration, Martin asserted: "I did not render Phillips ineffective assistance at trial. "Because the district court denied Phillips's petition without a hearing, Martin has never been called upon to testify under oath regarding his contradictory statements; nor has he ever been examined regarding the nature of his consultations with Phillips on this issue.

Equally troubling is Martin's statement, in the same declaration, that he "never thought Phillips's alibi defense had any merit, especially since he was adamant that he was not present even after he had read all the police reports and other documents [Martin] provided him." This statement is critical because Martin's justification for not investigating a "shoot-out" theory was [*24] that it "would be both unethical and immoral to knowingly permit [Phillips] to commit perjury." Phillips contends that Martin's statement about the weakness of the alibi defense shows that he never believed Phillips's story, and that indeed seems to be the most sensible interpretation of Martin's statement; otherwise, his reference to Phillips's "adamance" in the face of the police reports that presented overwhelming evidence of his presence at the crime scene would make little sense.

However, if Martin never believed the alibi defense, then his explanation for failing to pursue an alternative "shoot-out" defense --that it would have been unethical to assist Phillips in committing perjury --cannot be accurate. This apparent contradiction, if proven through testimony, would not be inconsequential. Phillips's ineffectiveness claim "is grounded upon his factual allegation that Martin did not believe his alibi story." His argument is that Martin "reasonably could not rely upon information which Martin believed to be false regardless of the source of such information because false information has zero value." The district court purported to resolve the apparent inconsistency in Martin's [*25] statements by finding that Martin did believe Phillips's alibi story: "Martin's [state court] declaration[recanting his earlier testimony] implies that Martin believed Phillips's account" (emphasis added). A careful review of that declaration reveals no such implication. Moreover, such an implication does not constitute the kind of statement that is ordinarily required for purposes of resolving an important question in an order denying an evidentiary hearing. If a potentially material fact is in dispute, the district court may not rest its denial of an evidentiary hearing, even in part, on a dubious --if not highly implausible --inferencee it draws from a general recitation of events in order to resolve the disputed factual question.

Phillips has "identified the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The first question, then, is whether he has raised a colorable claim that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent [*26] assistance." Id. We have held that "counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (emphasis in the original). Counsel's failure to consider an alternative defense cannot be considered "strategic" where counsel has "failed to conduct even the minimal investigation that would have enabled him to come to an informed decision about what defense to offer ...." Id.

It is undisputed that Martin did not investigate any defense other than the alibi defense that was presented at trial. What makes this case a difficult one is that, in so doing, Martin was simply acting in compliance with his client's own version of events. This is not, however, the first occasion on which we have been called upon to consider an ineffectiveness claim grounded upon a petitioner's contention that his counsel was ineffective for accepting his implausible story rather than conducting a further investigation. In Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997), the petitioner's counsel failed to investigate his "incredibly [*27] lame "alibi defense or to "confront[][the petitioner] with the difficulties of his story." Id. at 838, 840. Instead, counsel presented the petitioner's uncorroborated defense that he had not been present at the scene of a rape, despite overwhelming evidence to the contrary. Although, as in Phillips's case, the petitioner'scounsel had presented a defense that was consistent with his client's story, we found that the petitioner had been prejudiced by counsel's ineffectiveness:

We do not find it anomalous that an attorney who fulfills his or her duty to investigate the facts of a case may discover and need to act upon information contrary to that which the client has furnished. As the facts were found by the state courts, [petitioner] offered [counsel] an uncorroborated denial that, in light of evidence that minimal investigation would have revealed, was utterly unconvincing. [Counsel] was not entitled to stop there, but for all practical purposes, he did .... Had [counsel] confronted [petitioner] with the lack of corroboration for his alibi, and the strength of the defense that no sexual intercourse had occurred, [petitioner] probably would have elected not [*28] to lie to the jury. The prejudice from failing to investigate the alibi and confer more fully with [petitioner] is not avoided by the fact the [petitioner] misinformed his attorney.

Id. at 840. . . .

In sum, we hold that Phillips's allegations, as well as Martin's conflicting statements regardinghis reasons for not investigating or presenting a "shoot-out" defense, raise a colorable claim that Martin provided ineffective assistance. We next consider whether Phillips has raised a colorable claim that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

Supreme Court

The Supreme Court has granted the following certiorari petition (from Law.com)

Newland v. Saffold, No. 01-301

Argument: Unscheduled

Cert. Granted: October 15, 2001

Review of: Saffold v. Newland, 250 F.3d 1262 (9th Cir. 2000)

Question Presented: Whether a convicted murderer should have been penalized for waiting more than four months after losing one round of his state appeals before filing another, and whether that gap should be counted as part of a one-year time limit set by 1996's Anti-Terrorism and Effective Death Penalty Act.

Positive Capital Case Results

Servin v. Nevada, 2001 Nev. LEXIS 69; 117 Nev. Adv. Op. No. 65 (Nev 10/17/2001) (dissent) Imposition of death held to be excessive.

Servin had not yet reached the age of majority and was sixteen years old at the time of the murder; his youth has significant value as a mitigating factor pursuant to NRS 200.035(6). n55 [*40] He was the youngest of the three involved in the crime. It is undisputed that Rodriguez, nineteen years old at the time, was the instigator. Further contributing to the excessiveness determination, Servin's background did not include a significant criminal history, he expressed remorse for his actions, and he was under the influence of methamphetamine throughout the robbery and murder. Taking all these factors into account, we are persuaded that the imposition of the death penalty against Servin is excessive. We therefore vacate the sentence of death and impose two consecutive terms of life in prison without the possibility of parole.

Pennsylvania v. Tedford, 2001 Pa. LEXIS 2269 (PA 10/18/2001) Remand ordered as the trial court erred in concluding post-conviction petition was untimely.

Pennsylvania v. Williams, 2001 Pa. LEXIS 2283 (PA 10/19/2001) Remand ordered for examination of the issue of procedural default & for a more detailed opinion as to the reasons for denial of relief. Standards for IAC of appellate counsel examined.

Amendment To Florida Rules of Criminal Procedure (DNA Test),2001 Fla. LEXIS 2083 (FL 10/18/2001)Florida's adoption & rules governing DNA testing

Capital Cases Relief Denied

Santellan v. Cockrell, 2001 U.S. App. LEXIS 22411 (5th Cir 10/17/2001) Where the jury convicted on a ground that was not supported by adequate evidence, but there existed alternative grounds for which the evidence was sufficient, a state appellate court may affirm the conviction without running afoul of federal law so as to justify habeas relief.

Franqui v. State, 2001 Fla. LEXIS 2082 (FL 10/18/2001) Relief denied on the following issues: "(1) the trial court erred in excusing two potential jurors for cause; (2) the trial court erred in instructing and permitting the jury to be instructed by the State that it was required to recommend a death sentence if the aggravating circumstances outweighed the mitigating [*9] circumstances; (3) the trial court erred in overruling defense objections to prosecutorial closing argument; (4) the trial court erred in refusing to instruct the jury that it could consider the life sentences given to codefendants San Martin and Abreu as a mitigating factor; (5) the trial court failed to find and weigh all mitigating circumstances; and (6) the death penalty is disproportionate in this case."

Illinois v. Moss, 2001 Ill. LEXIS 1427 (Ill 10/18/2001) Relief denied on claims relating to admission of unchanged crimes, inclusion of inculpatory hearsay while excluding exculpatory hearsay, closing statements at the guilt & penalty phase (including race baiting), proportionality compared to co-defendants' sentences & constitutionality of the Illinois sentencing scheme.

Nevada v. Rodriguez, 2001 Nev. LEXIS 70; 117 Nev. Adv. Op. No. 66 (Nev 10/17/2001) Relief denied on claims relating to the denial of a severance, reasonable doubt instructions, denial of certain pretrial motions, sufficiency of evidence as to aggravator of avoidance of arrest, & double jeopardy on felony murder aggravator.

Illinois v. Gosier, 2001 Ill. LEXIS 1425 (Ill 10/18/2001) Trial court's error in concluding that state habeas petition was untimely was erroneous, but the petition's substantive claims were nonetheless without merit. State post-conviction petition was correctly held to be untimely.

Louisiana v. Duncan, 2001 La. LEXIS 2865 (LA 10/16/2001) Despite appellant's raising "125 assignments of error variously combined into 27 arguments" the only two worth discussion, the state supreme court held, "(1) alleged Batson-J.E.B. violation, and (2) exclusion of demonstrative bite-mark evidence," were without merit.

Illinois v. Burt, 2001 Ill. LEXIS 1424 (Ill 10/18/2001 (dissents) Post-conviction relief denied, chiefly, on claims that appellant was unfit to stand trial & that his course of conduct should have put the court on notice to raise the issue sua sponte, even if trial counsel failed to do so.

Illinois v. Caffey, 2001 Ill. LEXIS 1426 (Ill 10/18/2001) (dissents) Relief denied on the question of: [a] inclusion of some hearsay remarks detrimental to appellant & the non inclusion of statements beneficial to the appellant;, [b] improper closing remarks , including race baiting; [c] ineffective assistance of counsel for failing to introduce certain exculpatory information; [d] exclusion of evidence suggesting innocence; [e] failure to render a witness-accomplice instruction; [f] sentencing forms; [g] sentencing instructions; [h] failure to present mitigation information through both ineffective assistance & restrictions place by the trial court; [i] proportionality of sentence & [j] constitutionality of Illinois's death penalty.

Delayed Publication /Amended Opinions

No cases noted

Other Notable Cases(As reported byFindlaw, and other sources)

Trenkler v. United States, No. 00-1657 (1st Cir 10/16/2001) The statute of limitations for a 28 USC 2255 motion begins to run upon the completion of a prisoner's direct appeal from the judgment of conviction, and there is no statutory basis for tolling the limitations period while the prisoner seeks post-conviction relief under F. R. Crim. Proc. 33.

Doe v. Dept of Pub Safety, No. 01-7561, 01-7600 (2nd Cir 10/19/2001) Connecticut's version of "Megan's Law," Conn. Gen. Stat. 54-250-261, which requires people convicted of designated crimes to register with the State and mandates disclosure of the information to the public, is unconstitutional.

Francis v. Reno, No. 00-2375 (3rd Cir 10/16/2001) The Pennsylvania misdemeanor crime of vehicular homicide does not involve a substantial risk that physical force will result, so it is not a "crime of violence" within the meaning of 18 USC 16, requiring removal of the alien pursuant to 8 USC 1227(a)(2)(A)(iii).

Urbina v. Thoms, No. 00-5464 (6th Cir 10/17/2001) The United States Parole Commission has jurisdiction to initiate a change in parole status while a deported alien is out of the country.

Peveler v. United States, No. 99-6707 (6th Cir 10/17/2001) The Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 144 (1995), regarding the use of firearms in drug trafficking cases, is not so novel as to excuse petitioner from raising the argument on direct appeal.

Manning v. Huffman, No. 99-3490 (6th Cir 10/19/2001) Evidence that defense counsel did not object to alternate jurors participating in deliberations, and that the alternate jurors did participate, is sufficient to show prejudice from ineffective assistance of counsel.

Grady v. United States, No. 01-1564 (8th Cir 10/15/2001) Under the 1998 version of the Federal Rule of Appellate Procedure 4(c), a prisoner seeking to comply with the prison mailbox rule need not file a declaration of deposit at the same time he files his notice of appeal.

Sistrunk v. Armenakis, No. 99-36000 (9th Cir 10/16/2001) Evidence that an expert witness in a child abuse case testified falsely that children rarely lie about abuse is not sufficient evidence of actual innocence to excuse a procedural default for a successive habeas petition.

People v. Slayton, No. S086153 (CA 10/18/2001) The Sixth Amendment right to counsel does not extend to uncharged offenses, even if they are inextricably intertwined factually with charged offenses, but when the right to counsel attaches, it encompasses offenses that even if not charged, would be considered the same offense under the Blockberger test.

Focus

This week's Focus is Louisiana Death Penalty Trial Manual's (http://lidb.org) examination of developing & presenting mitigation evidence.

II. DEVELOPING AND PRESENTING MITIGATING EVIDENCE

A. The Constitutional Entitlement to Present Anything About the Life and Background of the Defendant as a Mitigating Circumstance

There is an almost unlimited right to present evidence in mitigation: The United States Supreme Court and the Supreme Court of Louisiana have consistently reaffirmed the right to present almost unlimited evidence in mitigation. Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (jury must consider "any aspect of the defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death); accord Bell v. Ohio, 438 U.S. 637, 98 S. Ct. 2977, 57 L. Ed. 2d 1010 (1978); State v. Lee, 559 So. 2d 1310, 1319 (La. 1990) ("Special precaution should be taken in capital cases to allow all relevant mitigating evidence before the jury...", citing right under U.S. Constitution to present such evidence); Busby v. Butler, 538 So. 2d 164, 172 (La. 1988) ("The defendant has the right to introduce virtually any evidence in mitigation at the penalty phase."); State v. Weiland, 505 So. 2d 702, 707 (La. 1987) ("It is well established that the defendant in a capital case must be allowed to place before the sentencing jury all relevant evidence in mitigation of punishment); see State v. Brown, 514 So. 2d 99, 112 (La. 1987) (court approves of trial court's jury instructions that jury not only consider statutory mitigators, but any other relevant circumstances that may mitigate the severity of the punishment); see also State v. Jones, 474 So. 2d 919, 932 (La. 1985). As the California courts have held, "[w]henever the evidence proposed by the defense is not "plainly inadmissible, it is better to let it go in . . . trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight." People v. Wright, 39 Cal.3d 576, 703 P.2d 1106, 217 Cal. Rptr. 212 (1985). Counsel should accept the invitation to present a broad spectrum of evidence. Below, there are some examples of factors which have been specifically held to be mitigating. However, it cannot be stressed enough that counsel should not try to shoehorn the client into a formula--capital cases are won, and lives saved, by presenting the diverse frailties and merits of the individual client.

Do not be put off by some of the early decisions on mitigating evidence, that have subsequently been overtaken by events. In State v Brogdon, 457 So. 2d 616 (La. 1984) the defendant wanted to introduce evidence that his equally culpable co-defendant received life. State v. Brogdon, 457 So. 2d at 626. The Supreme Court held that the trial court properly excluded such evidence, though not without saying that the question raises an interesting issue. Years later, it is clear that it is more than an interesting issue, and the admission of such evidence has been explicitly endorsed by the United States Supreme Court. See Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991) ("There is no question that Parker presented [non-statutory mitigating] evidence. * * * At the sentencing hearing, Parker's attorney emphasized to the jury that none of Parker's accomplices received a death sentence for the . . . murder").

The first phase should not be inconsistent with the mitigation evidence: Counsel should also be careful to seek a consistent approach in the trial. For example if, at the first phase of the trial, counsel sought to obtain a manslaughter verdict by showing that the crime was a product of a momentary loss of control, this may fit into a penalty phase presentation concerning the client's mental instability. Counsel should not, however, fall into the trap of thinking that a powerful presentation in mitigation is somehow incompatible with a first phase defense that the client did not commit the crime at all. While "whimsical" or "residual" doubt can be a very important factor at the penalty phase, it is by no means contradictory to argue that the client did not commit the crime, but is in any event a human being with redeeming virtues.

The approach must be consistent in more than simply defense strategy. For example, counsel should be sensitive to who is on the jury, and seek to question and select the jury with a view to the presentation to be made at the penalty phase. Mitigating evidence of the client's intoxication will fall on barren ground if the jurors selected believe that alcohol abuse should not be considered an excuse. The same is true even for mitigating evidence where there is no legal controversy.

For example, there is no issue that mental illness and mental retardation must be considered mitigating. Zant v. Stephens, 462 U.S. 862, 887, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Wilson v. Butler, 813 F.2d 664 (5th Cir. 1987) (Fifth Circuit remands petitioner's appeal from district court's denial of federal habeas relief with order to conduct evidentiary hearing on whether defendant was mentally impaired at time of crime, which counsel did not investigate at trial); Busby v. Butler, 538 So. 2d 164, 169 (La. 1988) (counsel has duty to investigate defendant's mental health history for possible mitigation evidence); La. Code Crim. Pro. Art. 905.5(e); see State v. Sullivan, 596 So. 2d 177, 192 (La. 1992) ("Psychiatric mitigating evidence not only can act in mitigation, it also can significantly weaken the aggravating factors"). The Supreme Court has explicitly held, as a matter of constitutional law, that mental illness must be considered mitigating. To the contrary, some jurors in post-trial interviews have stated that they imposed the death penalty because the client was mentally ill, since this made the client a walking time-bomb. Emphatically, counsel should not fall into the other trap of refusing to present this evidence, for fear it might back fire: Those jurors who would execute a retarded person will likely vote for the death penalty for almost anyone. Rather, this is just another reason why jury selection is so important.

You cannot allow the client to dictate a strategy of "Live Free or Die": Indeed, if your client says the equivalent of the New Hampshire license plate, do not think you are unique. At one point or another, almost every client in a capital case says this. You should be aware that lawyers have been held ineffective for taking this "jailhouse bravado" seriously. See, e.g., Thomas v. Kemp, 796 F.2d 1322 (11th Cir. 1986), cert. denied, 479 U.S. 996, 107 S. Ct. 602, 93 L. Ed. 2d 601 (1986) (attorney ineffective for failing to investigate and present evidence in mitigation just because 19-year old client said he did not want anyone to "cry for him" at trial); see also Busby v. Butler, 538 So. 2d 164, 169 (La. 1988) (counsel ineffective for failure to investigate mitigation evidence even though defendant told counsel he did not want to spend the rest of his life in prison; counsel has duty to contact family members that will plead for life); see also State v. Myles, 389 So. 2d 12 (La. 1979) (ineffective assistance at sentencing phase where counsel did not investigate mitigation evidence that obviously existed)

Your client cannot plead guilty: For all the need for consistency between the two phases of the trial, counsel should not show too much fear of putting on a defense at the first phase of the case. Louisiana has an idiosyncracy that makes it possible to put on a defense and then meaningfully justify the decision to the jury if they reject it. In State v. Jett, 419 So. 2d 844 (La. 1982), the court held that a defendant may not plead guilty to capital murder and agree to the death penalty because such an act would be "judicial suicide". In State v. Fabre, 525 So. 2d 1222 (La. App. 1 Cir. 1988), the Court noted that "the legislative history of La. C. Cr. P. art. 557 reveals that the article was drafted to insure that an accused could not plead guilty in a manner to bring about his own death, there being a well-founded legislative policy against a person accomplishing such judicial suicide. To that end, a court is prohibited from accepting a guilty plea to first degree murder unless that plea is qualified to exclude the possibility of the imposition of capital punishment." Id. at 1228 (citing State v. Jett, 419 So. 2d 844, 851 (La. 1982). Indeed, the Code specifically provides that the defendant in a capital case may not plead guilty to first degree murder unless the state has agreed not to seek the death penalty. See La. Code Crim. Pro. art. 557. You have the right to an instruction on this issue, and can then tell the jury that you were legally obligated to put on a defense to the first phase.

Be careful about opening any doors--You can potentially limit the evidence in aggravation: There is a point of immense importance that counsel should consider in putting together the case for life. Generally, the prosecution may not introduce evidence in aggravation that does not meet the statutory definition of aggravating circumstances, unless the defense opens the door.1 In State v. Jackson, 608 So. 2d 949 (La. 1993) (state barred from putting on evidence of prior non-felony convictions unless defendant introduces evidence relating to his good character or lack of criminal history). In Fitzpatrick v. Wainwright, 490 So. 2d 938 (Fla. 1986), construing a statute very similar in this regard to our own, the Florida Supreme Court recognized that "[m]itigating factors are for the defendant's benefit, and the State should not be allowed to present damaging evidence against the defendant to rebut a mitigating circumstance that the defense expressly concedes does not exist." Id. at 939 (quoting Maggard v. State, 399 So. 2d 973, 978 (Fla. 1981), cert. denied, 454 U.S. 1059, 102 S. Ct. 610, 70 L. Ed. 2d 598 (1982)).

The Court went on to hold in Fitzpatrick that "[i]n Maggard, this Court held that the trial court erred in allowing the state to present evidence of past criminal activity (not falling within the definitions of any statutory aggravating circumstances) to rebut the existence of the mitigating factor of lack of prior criminal record, where the defense had expressly waived any reliance on lack of prior record and had affirmatively represented to the court that it would not attempt to show such mitigating factor." Id. at 939. Thus, "[d]uring the penalty phase, the state is limited to introducing evidence that proves an aggravating circumstance or rebuts mitigating circumstances argued by the defendant." Randolph v. State, 562 So. 2d 331, 338 (Fla. 1990) (citing cases). This theory is not just a matter of statutory interpretation, but of federal constitutional dimension. See, e.g., Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993) (federal court granted relief where three prior non-violent convictions were introduced to "rebut" mitigating circumstance of lack of criminal history that was not offered). When the defense invokes this provision of the law, it should be noted that "the jury should not be advised of the defendant's waiver [of a particular mitigating factor]. In instructing the jury, the court should exclude the waived mitigating circumstances read to the jury, and neither the state nor the defendant should be allowed to argue to the jury the existence or non-existence of such mitigating circumstance." Fitzpatrick v. Wainwright, 490 So. 2d at 939.

Thus counsel must also be aware of the effects that the first-phase strategy may have on the second phase. Counsel should not seek to make peripherally relevant points that may open the door to the admission of bad evidence at the second phase. For example, in State v. Wille, 559 So. 2d 1321, 1336-38 (La. 1990), the prosecutor was permitted to call a witness he knew would invoke her privilege against self-incrimination at sentencing to rebut defense attempts at the guilt phase to draw an inference from state's failure to call the same witness then.

Both the state and defense evidence must be particularized to the defendant: It is important, from both the perspective of combatting state evidence, and admitting defense evidence, that the witnesses particularize their testimony to the accused. Consider State v. Wingo, 457 So. 2d 1159, 1167 (La. 1984), where the Supreme Court ruled that the trial court properly excluded testimony the defendant wanted to put on that would have showed that society benefitted from the defendant spending his life in prison. The reasoning was that such evidence did not properly focus on the defendant and the individual crime, but note this was because the expert had not even met with the defendant and hence could only testify about such benefits in general terms. The same works in reverse--the prosecution may not introduce evidence of what "sociopaths normally do," or whether some generic form of pedophile will be likely to commit dangerous acts in the future.

B. The Scope of Evidence in Mitigation

There are two broad categories of mitigating circumstances--those set forth in the statute, and those that are included by constitutional mandate in the catch-all ("any other mitigating circumstance"). See Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (jury must consider "any aspect of the defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death).

(i) Louisiana's statutory mitigators

La. Code Crim. Pro. art. 905.5 states:

The following shall be considered mitigating circumstances:

(a) The offender has no significant prior history of criminal activity;

(b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;

(c) The offense was committed while the offender was under the influence or under the domination of another person;

(d) The offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct;

(e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect or intoxication;

(f) The youth of the offender at the time of the offense:

(g) The offender was a principal whose participation was relatively minor;

(h) Any other relevant mitigating circumstance.

These are rather self-explanatory. However, counsel should be careful not to fall into the trap of thinking that mitigating evidence is limited by the notion of such qualifiers as "significant" impairment. For example, in State v. Gallegos, 870 P.2d 1097 (Ariz. 1994), the court reversed because the sentencer had discounted evidence of the influence of alcohol or drugs at the time of the crime that did not rise to the level of "significant" impairment. The court held that, under the "catch-all" provision, the sentencer must still consider this evidence as a non-statutory mitigating circumstance, even if it is not considered "significant."

In instructions--as discussed later in the manual--counsel should not allow the prosecution to list all of the statutory circumstances, regardless of whether each has been offered, and then denigrate each one.

(ii) United States Supreme Court decisions regarding non-statutory mitigating circumstances

The United States Supreme Court has decided many cases involving the notion of mitigation, including the following examples:

Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (any of the "diverse frailties of humankind" constitute mitigating factors which must be considered as a matter of law in deciding punishment)

Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (jury must consider "any aspect of the defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death"); accord Bell v. Ohio, 438 U.S. 637, 98 S. Ct. 2977, 57 L. Ed. 2d 1010 (1978)

Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (death sentence vacated because sentencer did not recognize that defendant's troubled childhood was a mitigating factor and weigh it in deciding punishment)

Zant v. Stephens, 462 U.S. 862, 887, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) (the defendant's mental illness must be considered mitigating)

Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (death sentence vacated because defendant not allowed to put on evidence of good behavior in prison after arrest as a mitigating factor)

Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987) (jury instructions may not limit the jury's consideration of mitigating circumstances)

Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988) (jurors must be told that they should each evaluate the evidence in mitigation and, if one juror believes a mitigating circumstance exists, he or she must weigh it in the balance even if the other eleven disagree); accord McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990)

Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (jury must consider mental retardation in mitigation).

(iii) The courts have recognized a broad array of evidence that must be considered in mitigation

The Courts have recognized a broad array of issues that must be accepted as mitigating circumstances. Those set forth below are really only some of the examples. Counsel should feel limited only by his or her imagination. It is also very important to remember that the point is not to squeeze your client's personality into a particular circumstance that has been used before, but rather to set out as many circumstances as possible that fit the individual personality of your client.

AGE:

_ Age: youth and extreme age, State v. Holtan, 250 N.W.2d 671 (Neb. 1977); Hitchcock v. State, 413 So. 2d 741 (Fla. 1982) (age 20 mitigating); Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987) (youth at the time of crime mitigating); Jones v. Thigpen,788 F.2d 1101 (5th Cir. 1986) (age 17); Norris v. State, 429 So. 2d 688 (Fla. 1983) (age 19); State v. Lindsey, 543 So. 2d 886, 905-907 (La. 1989) (youth)

ALCOHOL & DRUGS:

_ Alcohol & drug abuse at the time of the crime, Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812, 822 (1991) ("Parker was under the influence of large amounts of alcohol and various drugs, including LSD"); Mathis v. Zant, 704 F. Supp. 1062 (N.D.Ga. 1989) (citing Roberts v. Louisiana, 431 U.S. 633, 637 (1977)); Cheshire v. State, 568 So. 2d 908, 911 (Fla. 1990); J. C. Hadley v. State, 575 So. 2d 145 (Ala.Cr.App. 1990) (intoxication and mental impairments); Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812, 822 (1991) (under influence of alcohol and drugs); Gore v. Dugger, 933 F.2d 904 (11th Cir. 1991); Norris v. State, 429 So. 2d 688 (Fla. 1983); Amazon v. State, 487 So. 2d 8 (Fla. 1986); Wright v. State, 586 So. 2d 1024 (Fla. 1991); State v. McIlvoy, 629 S.W.2d 333 (Mo. 1982) (en banc); State v. Williams, 383 So. 2d 369, 374-75 (La. 1980) (voluntary intoxication at time of crime proper mitigating circumstance); State v. Brogdon, 457 So. 2d 616, 633 (La. 1984) (alcohol consumption); State v. Loyd, 489 So. 2d 898, 906-907 (La. 1986) (defendant had been drinking excessively prior to crime); State v. Weiland, 505 So. 2d 702, 708-709 (La. 1987) (alcoholic in remission on a lengthy drunk); State v. Myles, 389 So. 2d 12, 23 (La. 1980) (defendant's alleged drug use at time of crime); State v. Tassin, 536 So. 2d 402, 416 (La. 1988) (drugs during crime); State v. Lee, 524 So. 2d 1176, 1188 (La. 1987) (possible impaired capacity due to use of alcohol and marijuana on night of crime)

_ In combination with other matters: State v. Prejean, 379 So. 2d 240, 247-249 (La. 1979) (defendant's borderline mental retardation and intoxication are mitigating factors; combined impact of the two is especially proper consideration, for the intoxication "aggravated" the defendant's already impaired capacity to appreciate the criminality of his conduct)

_ General substance abuse or alcoholism problem: Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988); Norris v. State, 429 So. 2d 688 (Fla. 1983); Amazon v. State, 487 So. 2d 8 (Fla. 1986); Wright v. State, 586 So. 2d 1024 (Fla. 1991); State v. McIlvoy, 629 S.W.2d 333 (Mo. 1982) (en banc); State v. Watson, 449 So. 2d 1321, 1334 (La. 1984) (defendant's addiction to drugs is mitigating evidence)

_ Mental problems resulting from drug abuse: State v. Williams, 383 So. 2d 369, 374-75 (La. 1980) (drug induced mental disturbance)

CHARACTER:

_ General good character, State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (N.C. 1979); Harris v. Dugger, 874 F.2d 756, 761 (11th Cir. 1989) ("kind, decent man, a dependable employee, a family man, dedicated to his son, his niece and his ex-wife's other children"); Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir. 1986) ("loving human being who cared deeply about his mother, sister, wife, and daughter"); Tyler v. Kemp, 755 F.2d 741, 745 (11th Cir. 1985) ("character and reputation as wife and mother were good"); State v. Loyd, 489 So. 2d 898, 906-907 (La. 1986) (prior history that defendant was "law abiding citizen")

_ Including, but not limited to, hard working nature, kindness to others, and efforts to raise a family properly, with good discipline. State v. Johnson, 257 S.E.2d 597 (N.C. 1979).

_ Good parent, Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812, 822 (1991) ("a positive adult relationship with his own children and with neighbors"); Tyler v. Kemp, 755 F.2d 741, 745 (11th Cir. 1985) ("good mother, 'crazy about her children,' and kept them clean and cared for"); State v. Wingo, 457 So. 2d 1159, 1163-64 (La. 1984) ("good parent" testimony from relatives)

_ Non-violence: State v. Wingo, 457 So. 2d 1159, 1163-64 (La. 1984) (defendant's good reputation for non-violence, psychologist's testimony that defendant had a non-violent disposition)

_ Other good acts generally: State v. Martin, 376 So. 2d 300, 313 (La. 1979) (defendant was counselor for runaway youths and individuals with drug problems)

CHILDHOOD ABUSE, ETC.

_ Disadvantaged childhood: Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987) (evidence presented on disadvantaged childhood)

_ Difficult childhood: Eddings v.Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) ("Evidence of a difficult family history . . . is typically introduced by defendants in mitigation"; "there can be no doubt that evidence of a turbulent family history . . . is particularly relevant"); Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812, 822 (1991) ("a difficult childhood, including an abusive, alcoholic father"); Morgan v. Illinois, 504 U.S. ___, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (Scalia, J., dissenting) ("(Presumably, under today's decision, a juror who thinks a 'bad childhood' is never mitigating must also be excluded.)"); People v. Marsh, 36 Cal.3d 134, 679 P.2d 1033, 209 Cal. Rptr. 92 (Cal. 1984) (defendant's "unhappy childhood and emotional disturbance"); Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988); Armstrong v. Dugger, 833 F.2d 1430 (1987) ("poverty and the poor living conditions of his childhood"; "did not have adequate adult supervision as a child"); Wilson v. Butler, 813 F.2d 664 (5th Cir. 1987) ("poverty-stricken childhood"); Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir. 1986) ("extremely difficult home environment"); Thomas v. Kemp, 796 F.2d 1322 (11th Cir. 1986) (difficult home environment, mother's drinking problem); Hall v. State, 541 So. 2d 1125 (Fla. 1989); Wright v. State, 586 So. 2d 1024 (Fla. 1991);

_ Abuse as a child: State v. Loyd, 489 So. 2d 898, 906-907 (La. 1986) (prior history that defendant was abused as a child); State v. Sullivan, 596 So. 2d 177, 191-192 (La. 1992) (evidence that defendant was "raised in an abusive, alcoholic, often brutal environment"); State v. Lindsey, 543 So. 2d 886, 905-907 (La. 1989) ("parental neglect" of defendant)

_ Absence of family figures: State v. Myles, 389 So. 2d 12, 23 (La. 1980) (defendant's traumatic childhood, including the death of his mother at the hand of his father when defendant was two); State v. Lee, 559 So. 2d 1310, 1319 (La. 1990) (defendant's father's death over a year before the crime and its impact on him); State v. Cage, 554 So. 2d 39, 44 (La. 1989) (evidence of defendant's childhood/broken family life)

_ Problems as a child generally: Busby v. Butler, 538 So. 2d 164, 169-171 (La. 1988) (working class parent's testimony of "pain of raising a child who was difficult from birth")

_ Defendant overcame many childhood difficulties, Dolinsky v. State, 576 So. 2d 271 (Fla. 1991)

CO-DEFENDANTS GENERALLY:

_ Sentences imposed on co-defendants, Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812, 822 (1991) ("There is no question that Parker presented [non-statutory mitigating] evidence. * * * At the sentencing hearing, Parker's attorney emphasized to the jury that none of Parker's accomplices received a death sentence for the . . . murder"); Ex parte (Curtis Lee) Henderson, 1900152 (Ala. Apr. 10, 1992)

_ Evidence of Co-defendant's Lenient Plea Bargain: Messer v. State, 330 So. 2d 137 (Fla. 1976); Messer v. State, 403 So. 2d 341 (Fla. 1981); Herzog v. State, 439 So. 2d 1372 (Fla. 1983); Bassett v. State, 449 So. 2d 803 (Fla. 1984); State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (N.C. 1981); Jeffers v. Ricketts, 627 F. Supp. 1334 (D. Ariz. 1986)

_ Lesser participation in crime than Co-defendant: Defendant's lesser participation in the crime, Lockett v. Ohio, 438 U.S. 586, 608, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) ("a defendant's comparatively minor role in the offense"); Davis v. State, 246 Ga. 432, 271 S.E.2d 828 (Ga. 1980); State v. Sonnier, 402 So. 2d 650 (La. 1981); Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979) (death sentence reversed where trial court refused to allow defense witness to testify that codefendant had admitted firing fatal shot where codefendant was unavailable).

_ Influence of Co-defendant: State v. Sonnier, 380 So. 2d 1, 8-9 (La. 1979) ("substantial" mitigating evidence included fact that defendant was a "mental and physical weakling" acting under his co-defendant brother's influence, and played a "subsidiary" role)

_ Aid in Apprehension in another criminal: State v. Bacon, 326 N.C. 404, 390 S.E.2d 327 (1990) (in helping the police to catch co-defendant, defendant "aided in the apprehension of another capital felon")

CONFESSION:

_ Giving confession "demonstrates a 'recognition and affirmative acceptance of personal responsibility,'" Minnick v. Mississippi, 498 U. S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990) (Rehnquist, C.J., & Scalia, J., dissenting); Washington v. State, 362 So. 2d 658 (Fla. 1978);

CRIMINAL HISTORY:

_ No prior criminal history: Johnson v. State, 292 Md. 405, 439 A.2d 542, 561-62 (Md. 1982) ("at least one--that he had no criminal record of a prior enumerated crime of violence--was not controverted and thus, as a matter of law, defendant has met his burden and the jury was required to recognize its presence"); State v. Weiland, 505 So. 2d 702, 703 (La. 1987) (death disproportionate in light of "thirty-two law abiding, non-violent years"); State v. Sonnier, 380 So. 2d 1, 8-9 (La. 1979) ("substantial" mitigating evidence included fact that defendant had insignificant prior criminal record); State v. Williams, 383 So. 2d 369, 374-75 (La. 1980) (lack of significant prior criminal record); State v. Lee, 524 So. 2d 1176, 1188 (La. 1988) (lack of prior criminal record)

_ Mitigating Impact of Prior Criminal History: evidence of other sentences that will reduce parole eligibility, Davis v. State, 512 So. 2d 1291, 1293 (Miss. 1987) (evidence of prior sentence relevant to show that "Davis would be subject to severe punishment even without the death penalty")

_ Prior Criminal History less serious than facially evident: evidence that prior violent felony was less serious that the conviction may seem admissible in mitigation, State v. Hamlette, 302 N.C. 490, 276 S.E.2d 338 (N.C. 1981); State v. Glass, 455 So. 2d 659, 666 (La. 1984) (fact that defendant committed prior crime while under influence or domination of another is mitigating circumstance)

_ Errors in Prior Criminal History: evidence that accused did not commit crimes, Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987)

_ Institutionalization as a result of prior criminal history: Porter v. Wainwright, 805 F.2d 930, 933-34 (11th Cir. 1986) (defendant spent time in juvenile detention centers which molded him so that "to some extent, [he was] not responsible for [his] subsequent behavior;" "victim of his environment")

EMOTIONAL DISTURBANCE:

_ Not just "Extreme" Emotional disturbance: Eddings v. Oklahoma, 455 U.S. 104, 107, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) ("Eddings was emotionally disturbed in general and at the time of the crime"); State v. Young, 305 S.C. 380, 409 S.E.2d 352 (S.C. 1991) (error not to list extreme emotional disturbance as mitigator); Cheshire v. State, 586 So. 2d 908, 912 (Fla. 1990) ("[A]ny emotional disturbance relevant to the crime must be considered and weighed"); State v. Sonnier, 380 So. 2d 1, 8-9 (La. 1979) ("substantial" mitigating evidence included fact that defendant was a "young man of excitable disposition"); Busby v. Butler, 538 So. 2d 164, 169-171 (La. 1988) (defendant's "significant history of emotional and mental problems")

_ Arguably justified anger at victim: State v. Martin, 376 So. 2d 300, 313 (La. 1979) (wife slept with one of the victims and told defendant about the affair without repenting); State v. Weiland, 505 So. 2d 702, 708-709 (La. 1987) (victim was unfaith-

ful girlfriend in a heat of passion); State v. Lee, 559 So. 2d 1310, 1319 (La. 1990) (recent breakup with his girlfriend); Cheshire v. State, 586 So. 2d 908, 911 (Fla. 1990) (lovers' quarrel, emotional distress caused by impending divorce and estrangement from wife and son)

_ General life stressors: State v. Martin, 376 So. 2d 300, 313 (La. 1979) (was married and recently had a child with brain damage, for which he blamed himself); State v. Lee, 524 So. 2d 1176, 1188 (La. 1988) (stress due to recent termination of relationship with girlfriend, uncontrollable loss of hair and fear that he had herpes)

_ Efforts to take own life: State v. Lee, 559 So. 2d 1310, 1319 (La. 1990) (suicide attempt 8 months before the crime)

FUTURE DANGEROUSNESS (LACK OF): (see also Rehabilitation)

_ Lack of Future Dangerousness, Eddings v. Oklahoma, 455 U.S. 104, 108, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) ("The psychiatrist suggested that, if treated, Eddings would no longer pose a serious threat to society")

MENTAL ILLNESS/RETARDATION:

_ "Mental illness is a condition that should militate in favor of a lesser penalty." Mathis v. Kemp, 704 F. Supp. 1062 (N.D.Ga. 1989) (citing Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983)); Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) ("[n]or has Georgia attached the 'aggravating' label . . . to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness"): Thomas v. Kemp, 796 F.2d 1322 (11th Cir. 1986); Edwards v. State, 441 So. 2d 84 (Miss. 1983) (mental illness short of insanity); Ex Parte Cochran, 500 So. 2d 1179 (Ala. 1985) (mental deficiency); Clisby v. State, 456 So. 2d 99, 102 (Ala. Crim. App. 1983), aff'd, 456 So. 2d 105 (Ala. 1984) (same);

_ Abnormal mental condition of any sort (such condition falling short of allowing verdict of not guilty by reason of insanity pursuant to La. R.S. 14:14): State v. English, 367 So. 2d 815, 819 (La. 1979); State v. Perry, 502 So. 2d 543, 561 (La. 1986) (defendant's mental disorders are mitigating evidence); State v. Comeaux, 514 So. 2d 84, 98-99 (La. 1987) (mental retardation and other mental defects are mitigating circumstances)

_ Mental Retardation: Ex parte (Curtis Lee) Henderson, 1900152 (Ala. Apr. 10, 1992); Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987); Wilson v. Butler, 813 F.2d 664 (5th Cir. 1987) (IQ of 66); Jones v. Thigpen, 788 F.2d 1101 (5th Cir. 1986) (mental retardation); State v. Lindsey, 543 So. 2d 886, 905-907 (La. 1989) (mental retardation)

_ Mental Retardation: Borderline, Davis v. State, 241 Ga. 376, 247 S.E.2d 45, 52 (1978) (borderline mentally retarded); State v. Brogdon, 457 So. 2d 616, 633 (La. 1984) ("dull normal intelligence and his borderline personality diminished his intellectual capacity to some extent")

_ Mental Retardation: Mental Age, Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) ("testimony that Eddings' mental and emotional development were at least several years below his chronological age")

_ Guilty but mentally ill verdict: Sanders v. State, Nos. 130, 181, 1987 (Del. Dec. 28, 1990)

_ Consequences of Mental Illness: State v. Sullivan, 596 So. 2d 177, 191-192 (La. 1992) (evidence defendant had been confined in a mental institution for schizophrenia over 20 years before crime)

_ Anti-Social Personality Disorder: Eddings v. Oklahoma, 455 U.S. 104, 107, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) ("A state psychologist stated that Eddings had a sociopathic or antisocial personality and that approximately 30% of youths suffering from such a disorder grew out of it as they aged")

_ Battered wife syndrome: United States v. Whitetail, ___ F.2d ___ (8th Cir. Feb. 12, 1992) (federal sentencing guidelines case)

_ Post-Traumatic Stress Disorder (PTSD), State v. Goad, 707 S.W.2d 846 (Tenn. 1986);

MILITARY EXPERIENCE:

_ VIETNAM: personality change after Vietnam, Moody v. State, 418 So. 2d 989 (Fla. 1982); State v. Sharp, 418 So. 2d 1344, 1346 (La. 1982) (testimony that 11 months in combat in Vietnam "indelibly scarred" the defendant was proper mitigation); State v. Felde, 422 So. 2d 370 (La. 1982)

PAROLE INELIGIBILITY:

_ Ineligibility for Parole: Life without Parole, Simmons v. South Carolina, ___ U.S. ___, No. 92-9059 (1994) (constitution requires that jury be informed that accused will never be eligible for parole); Turner v. State, 573 So. 2d 657, 673-75 (Miss. 1990); Berry v. State, 575 So. 2d 1 (Miss. 1990); Mackbee v. State, 575 So. 2d 16 (Miss. 1990); Ladner v. State, 584 So. 2d 743 (Miss. 1991); Allen v. State, 821 P.2d 371 (Crim. App. 1991) (error not to give LWOP charge); State v. Wade, ___ P.2d ___ (Okla 1992) (same); State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (S.C. 1991) (error to give erroneous instruction on LWOP).

_ Ineligibility for Parole: evidence of other sentences that will reduce parole eligibility, Davis v. State, 512 So. 2d 1291, 1293 (Miss. 1987) (evidence of prior sentence relevant to show that "Davis would be subject to severe punishment even without the death penalty")

POLYGRAPH:

_ Favorable Polygraph tests admissible, State v. Bartholemew, 101 Wash. 2d 631, 683 P.2d 1079 (Wash. 1984); see also Lankford v. Ohio, 500 U.S. 110, 111 S. Ct. 1723, 114 L. Ed. 2d 173 (1991) (without reaching issue, notes that such results are arguably admissible)

REHABILITATION:

_ Capacity for rehabilitation: Conner v. State, 251 Ga. 113, 303 S.E.2d 266 (1983), cert. denied, 464 U.S. 865, 104 S. Ct. 203, 78 L. Ed. 2d 177 (1983); Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982); Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987) (evidence offered on ability to be rehabilitated); Horton v. Zant, 941 F.2d 1449, 1463 (11th Cir. 1991) ("successfully adjusted to previous stays in prison"); see also Pope v. State, 256 Ga. 195, 345 S.E.2d 831 (Ga. 1986) (right to access to parole file for evidence in mitigation)

_ Capacity for, expert testimony: Simmons v. State, 419 So. 2d 316 (Fla. 1982); Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir. 1983) (in finding ineffective assistance, criticizes counsel's "failure to use a psychiatrist or psychologist to . . . testify about his rehabilitation prospects")

_ Adaptation to prison life: Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986); State v. Watson, 129 Ariz. 60, 628 P.2d 943 (Ariz. 1981) (good behavior in prison); Creech v. Arave, 928 F.2d 1481 (9th Cir. 1991); State v. Copeland, 530 So. 2d 526, 538 (La. 1988) (testimony from assistant warden that defendant had been model prisoner during time between conviction and re-sentencing)

_ Specific examples of good acts in prison: Assistance in saving life of fellow inmate, State v. Holtan, 250 N.W.2d 671 (Neb. 1977)

_ Evidence of low recidivism, etc., in other similarly situated defendants, State v. Davis, 96 N.J. 611, 477 A.2d 308 (N.J. 1984); Davis v. State, 241 Ga. 376, 247 S.E.2d 45, 52 (1978) (noting that defendant called a "former death row inmate [who] testified that he (the witness) had been rehabilitated, and that 'lifers' are not people who cause trouble in prison"); State v. Wingo, 457 So. 2d 1159, 1163-64 (La. 1984) (testimony from an inmate as to the "positive contributions made by lifers in prison" proper mitigating evidence)

RELIGION:

_ Church membership: Dawson v. Delaware, 503 U.S. ___, 112 S. Ct. 1093, 117 L. Ed. 2d 309, 323 (1992) (Thomas, J., dissenting); Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987); State v. Wingo, 457 So. 2d 1159, 1163-64 (La. 1984) (testimony from priest that defendant held "basic Christian beliefs"); State v. Martin, 376 So. 2d 300, 313 (La. 1979) (defendant active in his church)

_ Rebirth in or Conversion to Christianity, Dawson v. Delaware, 503 U.S. ___, 112 S. Ct. 1093, 117 L. Ed. 2d 309, 323 (1992) (Thomas, J., dissenting); State v. Cage, 554 So. 2d 39, 44 (La. 1989) (defendant's discovery of religion proper mitigation); State v. Copeland, 530 So. 2d 526, 538 (La. 1988) (testimony from prison minister that defendant had been baptized while in prison, attended Bible classes regularly and assisted the minister)

_ Religious obsession: Moody v. State, 418 So. 2d 989 (Fla. 1982);

REMORSE: (see also "CONFESSION"; "EMOTIONAL DISTURBANCE")

_ Defendant's remorse: Magill v. State, 386 So. 2d 1188 (Fla. 1980); Pope v. State, 441 So. 2d 1073 (Fla. 1983); State v. Loyd, 489 So. 2d 898, 906-907 (La. 1986) (defendant experienced psychological problems as a result of the remorse and depression he felt after the crime); State v. Weiland, 505 So. 2d 702, 708-709 (La. 1987) (showed immediate remorse and attempted suicide)

_ Defendant turned himself in: People v. Murtishaw, 29 Cal.3d 733, 631 P.2d 446, 175 Cal. Rptr (1981); Washington v. State, 362 So. 2d 658 (Fla. 1978); Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987)(evidence offered of voluntary surrender to authorities)

_ Defendant's Offer to Plea to life, Bloodworth v. State, 369 So. 2d 1251, 1258 (Ala. 1979) (Bloodworth, J., concurring).

RESIDUAL (WHIMSICAL) DOUBT:

_ Jury's residual doubt of accused's role in the crime: State v. Lee, 524 So. 2d 1176 (La. 1987), rehearing granted, 524 So. 2d 1190, 1192 (La. 1988) (court reverses death sentence and remands on basis of use of improperly admitted confession at sentencing phase; "[e]ven if the jury was certain enough of the defendant's guilt to convict (without hearing the confession), one or more jurors might have retained minor trepidations about the nature of the state's circumstantial evidence . . . [s]uch uncertainty, though not rising to the level of reasonable doubt regarding guilt, might have led such a juror to hold out for a life sentence); cf. State ex rel. Burnham v. Blackburn, 484 So. 2d 656, 657 (La. 1986) (court reverses life sentence in capital conviction because trial court did not properly instruct jury that they had to find an aggravating circumstance to convict defendant for first degree murder; based on the record, the existence of an aggravator was in doubt because the jury may have had "lingering doubts" about the credibility of the state's only witness as to the aggravator); State v. Watson, 61 Ohio St. 3rd 1, 572 N.E.2d 97 (Ohio 1991) (error to preclude argument on residual doubt; death sentence disproproportionate due to residual doubt); State v. Davis, 306 S.C. 246, 411 S.E.2d 220 (S.C. 1991) (error to stop capital defendant from asserting innocence at the penalty phase); State v. Hutton, 53 Ohio St. 3d 36, 559 N.E.2d 432, 445 (1990) ("the issue of guilt or innocence is relevant to sentencing"); State v. Tyler, 50 Ohio St. 3d 24, 553 N.E.2d 576, 583 (1990) (defendant properly allowed to argue "[b]ut do you honestly feel that I'm guilty?"); State v. Gillard, 40 Ohio St. 3d 226, 533 N.E.2d 272, 281 (1988) ("'Residual doubts' of a capital defendant's guilt are properly considered in mitigation"); State v. Buell, 22 Ohio St. 3d 124, 489 N.E.2d 795, 811 (1986) ("[t]he proclamation of innocence is a factor relevant to the issue of whether the sentence of death should be imposed and as such can be asserted by a defendant along with other relevant factors"); State v. Hughes, 106 Wash. 176, 721 P.2d 902, 908 (1986) ("'whimsical doubts' . . . might prevent them from voting for the death penalty"); Cook v. State, 255 Ga. 565, 340 S.E.2d 843, 860 & n.11 (1986) (approving "sentencing-phase argument on 'whimsical doubt'"); People v. Haskett, 30 Cal.3d 841, 640 P.2d 776, 792, 180 Cal. Rptr. 640 (1982) (accused permitted "to awaken any residual doubt the jurors might have had about his guilt"); Stout v. State, 693 P.2d 617, 628 (Okla. Cr. 1985) (the penalty phase "is for additional evidence and in no way excludes from consideration on sentence the matters heard on the issue of guilt or innocence"); State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, 1132 (1983) (approving use of consideration of sodium amythal "truth serum" evidence at the penalty phase to show that defendant was innocent, although such evidence would not have met admissibility standards at the guilt phase); State v. Teague, 680 S.W.2d 785, 788 (Tenn. 1984) ("parties at capital re-sentencing are entitled to offer evidence relating to circumstances of the crime"); People v. Terry, 61 Cal. 2d 137, 390 P.2d 381, 387, 37 Cal. Rptr. 605, (1964); see also Smith v. Wainwright, 741 F.2d 1248, 1255 (11th Cir. 1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed. 2d 150 (1985); see also Johnson v. Wainwright, 806 F.2d 1479, 1482-83 (1986), rehearing denied, 810 F.2d 208 (11th Cir. 1987); Aldrich v. Wainwright, 777 F.2d 630, 639 (11th Cir. 1985); Smith v. Balkcom, 660 F.2d 573, 580-81, modified, 677 F.2d 20 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 882, 103 S. Ct. 181, 74 L. Ed. 2d 148 (1982); Johnson v. Thigpen, 806 F.2d 1243, 1251 (5th Cir. 1986); Brown v. Rice, 693 F.Supp. 381, 397 (W.D.N.C. 1988); Moon v. State, 258 Ga. 748, 375 S.E.2d 442, 452 (1988); Minnick v. State, 551 So. 2d 77, 94-95 (Miss. 1988), rev'd on other grounds sub nom. Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990)

_ Co-Defendant & Residual Doubt: One should also remember that the client's lesser involvement in the crime will often make evidence of "residual doubt" admissible and relevant at the penalty phase. Indeed, one of the statutory (let alone non-statutory) mitigating circumstances in our law is that "the offender was a principal whose participation was relatively minor." La. Code Crim. Pro. Art. 905.5; see also State v. Sonnier, 402 So. 2d 650, 656 (La. 1981). Clearly, then, evidence must be admitted to prove the client's lesser involvement in the crime. In Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979), the Supreme Court reversed a capital conviction because the state court refused to admit hearsay evidence at the penalty phase that the co-defendant had confessed to the crime.

VICTIM PARTICIPATION:

_ Victim provocation: Coleman v. State, 378 So. 2d 640, 650 (Miss. 1979) ("the victim, upon seeing the foot of Sims protruding from under the pickup truck, began firing his pistol. Only after being fired upon did the 16-year-old Coleman shoot")

_ Victim Characteristics: Tyler v. Kemp, 755 F.2d 741, 745 (11th Cir. 1985) (husband, victim, was abusive and drunk and defendant and her children had previously had to leave home)

WORK HISTORY:

_ Reputation as hardworking: Horton v. Zant, 941 F.2d 1449, 1463 (11th Cir. 1991) ("hard worker . . . able to provide for his common law wife and their daughter"); Harris v. Dugger, 874 F.2d 756, 761 (11th Cir. 1989) (dependable employee); Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987); Thomas v. Kemp, 796 F.2d 1322 (11th Cir. 1986); Tyler v. Kemp, 755 F.2d 741, 745 (11th Cir. 1985) ("good work record and used her earnings to help care for her family"); Dolinsky v. State, 576 So. 2d 271 (Fla. 1991)

OTHER GENERAL EXAMPLES:

_ SCOUTS: Former membership in Cub Scouts, Dawson v. Delaware, 503 U.S. ___, 112 S. Ct. 1093, 117 L. Ed. 2d 309, 323 (1992) (Thomas, J., dissenting)

_ POETRY written by accused: People v. Harris, 36 Cal. 3d 36, 679 P.2d 433, 201 Cal. Rptr. 782 (Cal. 1984)

_ TRIAL BEHAVIOR: defendant's good behavior at trial, Delap v. State, 440 So. 2d 1242 (Fla. 1983)

_ WITNESS' desire that the accused not be executed, Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983); Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (Ga. 1981) (parents' love for the defendant); Harris v. Dugger, 874 F.2d 756, 761 (11th Cir. 1989) ("witnesses found value in the appellant's life, despite his incarceration and prior criminal conduct")

C. Obtaining Adequate Funds for Experts, Investigators, and Defense

Errata

TheDeath Penalty Information Centerreports:

Indiana Newspapers Investigate State Death Penalty

Seven Indiana newspapers spent a year examining the fairness of the state's capital punishment system. Among the findings is that the decision to seek the death penalty is often arbitrary, depending on the personal views of the prosecutor and whether or not a county can afford a death penalty trial. Additional findings cited in the series include:

Two Indiana counties, Marion (Indianapolis) and Lake, have produced almost as many death sentences as all other counties combined. (South Bend Tribune, 10/21/01)

Since the death penalty was reinstated, at least 8 people who were facing the death penalty at trial were acquitted by the jury. In 2 other cases, defendants who did get the death penalty were just days away from being executed, but received a stay, and were later exonerated at re-trial. (Evansville Courier-Press, 10/23/01)

In one case (John Stephenson), taxpayers spent $760,000 for the defense at trial. In another case (Perry Miller), the costs of the defense were $12,000. Miller's case was recently overturned because of ineffective representation. (Fort Wayne Journal Gazette, 10/24/01)

Currently, a study commission, formed by Indiana Governor Frank O'Bannon, is reviewing the state's capital punishment laws and trial procedures. See also, recent articles on the death penalty.

EDITORIAL: Baltimore Sun Calls Maryland Death Penalty A House Built on Paper Foundation

The recent reversal of Maryland death row inmate Kevin Wiggins's conviction by a federal judge prompted the following Baltimore Sun editorial:

Like houses built on paper foundations, Maryland's death row cases are crumbling, folding and disintegrating at a staggering rate. A year and a half ago, 17 men were condemned to die in this state. Now there are merely 11.

The 6 who dodged a state-sanctioned death had cases that were dogged by procedural errors, a paucity of evidence connecting them to the crimes or unconscionably bad legal representation.

. . .

The longer the state continues to operate its capital system without a serious review of how and why decisions get made about who lives and who dies, the less integrity our entire judicial system will have.

. . .

The legislature should not balk when it meets in January. Fix the system, and stop the killing while the repairs take place.

Any other course of action defies common sense, fairness and any notion that justice is the goal behind state-sanctioned killing.

(Baltimore Sun, editorial, 10/17/01) See also New Voices and Editorials.

Juvenile Offender Executed in Texas

Gerald Mitchell was executed in Texas on October 22 for a shooting and robbery he committed when he was 17-years old. (Associated Press, 10/23/01) This is the 18th execution of a juvenile offender since the death penalty was reinstated and the only one this year.

Texas has accounted for more than half of the juvenile offenders executed in the U.S. since 1976. In the past 2 years, only Texas and Virginia have executed juvenile offenders, and Virginia currently has no such offenders on its death row (see below). For more information, read the European Union's and Council of Europe's letters to the Texas Governor appealing for clemency: www.wcl.american.edu/humright/deathpenalty/mitchell.html. or see Amnesty International's press release about the case. See also, juveniles and the death penalty.

NEW RESOURCES: "Wrongly Convicted: Perspectives on Failed Justice"- This book features a collection of essays and articles about wrongful convictions by some of the nation's most respected lawyers, sociologists, criminologists, and psychologists. The essays consider the causes of wrongful convictions, the social characteristics of the innocent men and women sent to prisons and death rows, personal stories and case studies of these innocent inmates, and suggestions for system-wide reforms in order to prevent future wrongful convictions. (Saundra D. Westervelt and John A. Humphrey, eds., Rutgers University Press, July 2001) See also, books on the death penalty.

NEW VOICES: Justice O'Connor Again Voices Concern About Innocence

At the Nebraska State Bar Association's annual meeting, U.S. Supreme Court Justice Sandra Day O'Connor expressed her concern about the possibility of executing the innocent and the need for better representation of indigent defendants. O'Connor stated, "More often than we want to recognize, some innocent defendants have been convicted and sentenced to death." She added that that would continue to happen unless indigent defendants were represented by qualified lawyers.

Earlier this year, O'Connor expressed similar concerns about executing the innocent while speaking to the Minnesota Women Lawyers' Group. (Nebrask StatePaper.com, 10/19/01) See also, New Voices.

NEW VOICES: New Perspectives on Terrorist Attacks

Jane Chiles, the executive director of the Catholic Conference of Kentucky lost her 26-year-old nephew, Scott Johnson, during the September 11 attack on the World Trade Center. She recently stated her opposition to the death penalty even for those who perpetrated these attacks:

My 26-year-old nephew, Scott Johnson, was a victim of one of the most horrific crimes ever to occur on U.S. soil. Scotty was murdered on Sept. 11, 2001, while working on the 89th floor of the World Trade Center.

. . .

I took myself back to my basic belief -- that all life belongs to God and He will decide the punishment. Although someone took Scotty's life, I can't make that same mistake. When it comes down to judging Jane Chiles and (Osama) bin Laden, I want God to judge bin Laden.

(Courier-Journal (Kentucky) 10/17/01) See also, New Voices.

Kentucky Governor Supports Ban on Executing Juvenile Offenders

Governor Paul Patton stated that he would support a bill to ban the execution of those who committed capital crimes as juveniles. "The death penalty is for cases that cry out for it," said Patton. "It's not for every case." Dennis Fleming, Patton's general counsel, stated that the governor "questions whether 16 or 17-year-olds are capable of fully understanding the consequences of their actions." The proposed legislation may also have support from a number of state prosecutors, according to George Moore, president of the Kentucky Commonwealth's Attorneys Association. (Courier-Journal (Kentucky), 10/17/01)

If passed, the legislation would not apply retroactively to Kevin Stanford, the only juvenile offender on Kentucky's death row. Patton, however, stated that he would have reservations about signing a death warrant for an inmate convicted of a murder he committed when he was 17. The Governor said he would "examine Stanford's case closely'' if the legislation prohibiting such executions was enacted and Stanford exhausted his appeals during Patton's term. (Lexington Herald-Leader, 10/18/01) See also, juveniles and the death penalty.

NEW VOICES: Former Judge Criticizes Death Penalty

Former Arizona Court of Appeals Judge Rudolph J. Gerber expressed his concerns about the about the death penalty in a recent article in the Arizona Law Review. Gerber, who spent over 25 years as a prosecutor and judge, wrote:

"For those who do not or cannot address the moral issues, there remain the disturbing facts . . . that our capital punishment falls disproportionately on minorities . . . and sweeps some innocent defendants. . . in its wide nets. . . ."

(Arizona Republic, 10/11/01) See also, New Voices.

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

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RELATED RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, the discussion groups above can help you with any questions you might have.

DISCUSSION LIST FOR LEGAL PROFESSIONALS:A discussion list for legal professionals invoved with capital litigation has been formed. The list is private & limited to just legal professionals at this time due to the natue of the conversations. With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. The hope of the list is to get some cross-pollination of ideas, as often what is winning in one stae has yet to be heard of in another. Subscribe:capitaldefense-subscribe@onelist.com

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