One capital case is covered this week, Dowthitt v. Johnson, out of the Fifth Circuit. The panel in Dowthitt's case seemed most interested in setting even worse precedent in the realm of ineffective assistance of counsel, precedent that is increasingly out of step with the rest of federal circuits.

Note that two burning hot decisions will not be covered by this edition. The first, Burdine v. Johnson, was a dramatic lost with the panel holding that a sleeping lawyer is not an ineffective lawyer; emphasizing the politics of the death penalty both judges affirming death sentence republican, in lone dissent, the panel's only democrat. In the Sixth Circuit Gall v. Parker a writ issued with an opinion calling into doubt as many as a third of Kentucky's death sentences due to serious problems with a common murder jury instruction (the decision will unlikely be wide impacting beyond Kentucky due to the uniqueness of the jury instruction on EED).

Supreme Court

No cases reported this week.

Capital Cases

Dowthitt v. Johnson, No. 00-20159 (5th Cir. 10/16/2000) "Dowthitt seeks a COA from this court on the following issues: (1) actual innocence, (2) ineffective assistance of counsel, (3) admission of DNA evidence without a factual predicate, (4) State misconduct, (5) failure to instruct the jury on lesser-included offenses, and (6) the district court's limited evidentiary hearing."

Dowthitt must make a substantial showing of a denial of his Sixth Amendment right to counsel to obtain a COA. His ineffective assistance of counsel claim meets the threshold question under AEDPA, § 2254(d)(1), that the rule of law be clearly established at the time of the state court conviction in 1992. This is so because the merits of an ineffective assistance of counsel claim are governed by the well-established rule of Strickland v. Washington, 466 U.S. 668 (1984). Dowthitt must establish both prongs of the Strickland test in order to prevail. First, he "must show that counsel's performance was deficient." Id. at 687. Second, he "must show that the deficient performance prejudiced . . . [his] defense." Id.

Deficient performance is established by showing "that counsel's representation fell below an objective standard of reasonableness." Id. at 688; Hernandez v. Johnson, 213 F.3d 243, 249 (5th Cir. 2000). Moreover, as the Supreme Court has counseled, a "fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Thus, our scrutiny of counsel's performance is highly deferential. See id. We must be particularly wary of "argument[s] [that] essentially come[] down to a matter of degrees. Did counsel investigate enough? Did counsel present enough mitigating evidence? Those questions are even less susceptible to judicial second-guessing." Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir. 1999).

Prejudice ensues when "there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceedings would have been different." Clark v. Johnson, --- F.3d ----, 2000 WL 1285270, *7 (5th Cir. 2000) (internal quotations omitted) (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

In his ineffective assistance of counsel claim, Dowthitt raises several sub-issues concerning his mitigation defense, investigation, and closing arguments. We will examine each of his claims in turn.

1. Failure to Present a Mitigation Defense Based on Mental Illness

Dowthitt argues that trial counsel failed to present a mitigation defense based on mental illness. In support of this argument, Dowthitt points to several aspects of his life and trial. He states that his habeas counsel located records indicating he suffered from mental illness that were not discovered by trial counsel. A 1964 re-admission form from Austin State Hospital shows that a young Dowthitt was diagnosed as having a "schizophrenic reaction" of a "chronic paranoid type" and was committed temporarily. The admission history also states that when Dowthitt was hospitalized due to an automobile accident in August 1962, a test "showed slight brain damage." In addition, Dowthitt points to Sergeant Walter Blakeslee's statement of July 14, 1964 recommending that Dowthitt be discharged from the Air Force. Blakeslee stated "it was evident to . . . [him] that Airman Dowthitt was suffering from some mental deficiency."

Dowthitt also relies heavily on declarations from Dr. Paula Lundberg-Love and Dr. Faye E. Sultan, mental health experts hired by habeas counsel. Lundberg-Love stated that her "clinical impression was that . . . [Dowthitt] was not sadistic or sociopathic." She further wrote that Dowthitt's "profile was consistent with paranoid and schizophrenic features" and that he suffers from depression. Sultan stated in her affidavit that the interrogation videotapes showed Dowthitt's "severe mental problems" and that the trial mental health expert's "examination was cursory." She also wrote that Dowthitt "functions quite peacefully and successfully within the prison environment," rebutting the predictions made at trial about his potential for future dangerousness.

Dowthitt argues that trial counsel's affidavits provide further support for their deficient performance with regard to his mitigation defense. He states that, by their own words, trial counsel did not investigate mental health defenses because they "had no knowledge that Defendant suffered brain damage," and "he appeared sane and competent at all times." Dowthitt further quotes trial counsel's affidavit: "During our many interviews Defendant never appeared to be suffering from any mental problems other than being upset and unhappy about his circumstances." Dowthitt asserts that such impressions on the part of trial counsel were not reasonable because he was on anti-depressants during that time, because his video-taped interrogation exposes his unstable state of mind, and because the Lundberg-Love and Sultan declarations confirm his mental illness. Citing to Goss v. State, the State responds that Texas caselaw has discounted mitigation evidence not relevant to the crime or future dangerousness. 826 S.W.2d 162, 165 (Tex. Crim App. 1992), cert. denied, 509 U.S. 922 (1993).

The State further argues that, even in the face of Dowthitt's repeated denials of any mental problems, trial counsel retained a psychiatrist to examine Dowthitt. The State also points out that Dowthitt received funds for neuropsychological expert assistance during the state habeas corpus proceedings, but that no evidence from that expert's testing has ever been presented.

As for the reports of Lundberg-Love and Sultan, the State asserts that they are precluded from consideration because they were not presented to the state courts. Further, the State claims that Dowthitt has not established cause and prejudice for his failure to develop this evidence below. Finally, citing to the district court's findings, the State argues that even if the reports were considered, they are insufficient because Lundberg-Love and Sultan appeared to have formed their impressions from speaking with Dowthitt's habeas counsel.

In reply, Dowthitt argues that under the Supreme Court's decision in (Terry) Williams v. Taylor, the "nexus" requirement for mitigation evidence is erroneous. He further states that although the State continuously refers to "brain damage," he is contesting trial counsel's failure with regard to "mental illness." And, Dowthitt asserts that the Lundberg-Love and Sultan reports are not barred from consideration because he has established "cause" via the denial of funding to obtain experts by the state habeas courts.

As for Dowthitt's brain damage claim, the state habeas court found that Dowthitt was competent to stand trial, that no neuropsychological expert had found that Dowthitt suffered from brain damage, and that Dowthitt exhibited no signs of brain damage. These findings*fn8 are not unreasonable in light of the record, and Dowthitt has not presented clear and convincing evidence rebutting their presumption of correctness. Moreover, Dowthitt concedes these findings in his reply brief by abandoning his initial reliance, in part, on brain damage. He states that "mental illness . . . is the mitigation evidence upon which . . . [he] bases his ineffectiveness claims."

As for the evidence indicating "mental illness" (the Austin State Hospital and the Air Force records), we are bound by the state habeas court's findings that these records included "information which could have hurt . . . [Dowthitt's] case."*fn9 Such information included, among other data, the following: that Dowthitt attempted to rape his eight-year old niece, that he had allegedly molested the same girl when she was five, that he had an immature personality (as opposed to psychotic tendencies), and that he "showed a temper and insisted on having his own way." In light of these details, the state habeas court's findings are clearly supported by the record. See 28 U.S.C. § 2254(d)(2).

Thus, even assuming arguendo that trial counsel were deficient in failing to discover these medical records,*fn10 Dowthitt was not prejudiced in his defense. See Buxton v. Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989) ("Strickland allows the habeas court to look at either prong first; if either one is found dispositive, it is not necessary to address the other."). There is no "reasonable probability" that the outcome would have been different because the evidence was double edged in nature. As such, trial counsel's actions in not discovering and presenting the records to the jury to bring out indications of mental illness do not create a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The state habeas court did not make additional findings dealing with Dowthitt's asserted mental illness because Dowthitt did not present any other evidence to that court. The Lundberg-Love and Sultan affidavits were introduced for the first time to the district court on federal habeas review. Thus, we must initially answer the threshold question of whether we are precluded from considering these affidavits. Although both the State and Dowthitt argue this issue as one of "factual development" under § 2254(d) and (e),*fn11 it is more accurately analyzed under the "exhaustion" rubric of § 2254(b).*fn12

"We have held that a habeas petitioner fails to exhaust state remedies when he presents material additional evidentiary support to the federal court that was not presented to the state court." Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (emphasis added); see also Young v. Lynaugh, 821 F.2d 1133, 1139 (5th Cir. 1987), abrogation on other grounds recognized by Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989); Brown v. Estelle, 701 F.2d 494, 495-96 (5th Cir. 1983). Furthermore, "we are unwilling to . . . accommodate new factual allegations in support of a previously asserted legal theory, even though these factual allegations came into existence after the state habeas relief had been denied." Joyner v. King, 786 F.2d 1317, 1320 (5th Cir. 1986) (emphasis added).

Thus, we must first determine whether this claim is before us "in a significantly different and stronger evidentiary posture than it was before the state courts." Joyner, 786 F.2d at 1320. We find that Dowthitt does not allege "new facts" via the affidavits of the two experts because "all crucial factual allegations were before the state courts at the time they ruled on the merits" of Dowthitt's habeas petition. See Young, 821 F.2d at 1139; cf. Graham, 94 F.3d at 969 (finding no exhaustion in the case because petitioner did present significant new facts in his federal petition). Dowthitt had presented to the state habeas court his assertions of mental illness of the schizophrenic, paranoid type. The Lundberg-Love and Sultan affidavits add little to those claims.

While we find that consideration of these affidavits is not precluded, we do not find them to demonstrate a substantial showing of the denial of the Sixth Amendment right to counsel. Even if trial counsel had obtained this information, Dowthitt fails to demonstrate that such information would have altered the jury's judgment. Sultan's affidavit is based on her review of a portion of the paper record, and she did not personally interview Dowthitt. We also agree with the district court's assessment that "much of Dr. Sultan's initial declaration is based on her discussions with habeas counsel rather than on independent analysis" because her statements put forth information that she could not have known otherwise.*fn13

Lundberg-Love's affidavit also presents similar problems. She stated that she could have testified to Dowthitt's mental trauma "that he was experiencing as a result of witnessing Delton sexually assault Gracie after he had cut her throat and kill her sister prior to . . . [Dowthitt's] arrival back at the murder scene."*fn14 As the jury had decided not to believe Dowthitt's claims, this version of the murders would not be credited during sentencing. Therefore, even assuming arguendo that trial counsel's performance was deficient,*fn15 Dowthitt fails to make a substantial showing of prejudice on this Strickland claim as he does not demonstrate a sufficient probability that the alleged errors of trial counsel undermined confidence in the outcome. See, e.g., Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir.), cert. denied, 527 U.S. 1055 (1999) ("The potential negative impact of the retardation evidence, in addition to the cold-blooded nature of the murder and . . . [defendant's] other violent conduct, persuades us that the outcome of the sentencing would not have been different if counsel would have investigated further.").

Habeas Cases

Williams v. Cain, No. 99-30340 (5th Cir. 10/17/2000) (former capital case) "[T]he state trial court's use of "grave uncertainty" and "actual or substantial doubt" is materially indistinguishable from the instruction in Cage.*fn8 By contrast, the "moral certainty" phrase and its surrounding context bear a stronger resemblance to the constitutionally permissible instructions in Victor. . . . Without a defective "moral certainty" phrase, the other two phrases in and of themselves do not render the instruction constitutionally defective. . . . [Since it] was not even remotely close regarding Williams's guilt or innocence, we do not believe that Williams has demonstrated a reasonable likelihood that the jury applied the instruction unconstitutionally

Minter v. Beck, No. 99-7255 (4th Cir. 10/20/2000) "Minter's petition was time-barred"

Leslie v. Artuz, No. 99-2680 (2d Cir. 10/17/2000) "Petitioner . . . . [asserts] that his Sixth Amendment right to counsel was violated because he was represented at his state trial by a non-attorney. The district court denied the petition, ruling that there was no Sixth Amendment violation because Leslie was simultaneously represented by a bona fide attorney at all stages of the trial. Leslie challenges this ruling on appeal. He also contends that he was entitled to an evidentiary hearing as to whether his bona fide attorney knew that the non-attorney was not an attorney. Finding no basis for reversal, we affirm the district court's judgment.

Williams v. Gibson, No. 00-6014 (10th Cir. 10/17/2000) "[A] `properly filed' application is one filed according to the filing requirements for a motion for state post-conviction relief. These requirements may include: [time, place, filing fee, and judicial authorization requirements, as well as] (4) other conditions precedent that the state may impose upon the filing of a post-conviction motion." Id. at 1210-11. However, Habteselassie made it clear that "conditions precedent" do not include state procedural bars. "[A] state petition that is dismissed on the basis of procedural default does not render the petition not `properly filed' . . . .The state argues that the requirements of Rule 5.2(C) are jurisdictional, and should be viewed as "a condition precedent to the Court entertaining such an appeal." It cites to Duvall v. Oklahoma, 869 P.2d 332, 334 (Okla. Crim. App. 1994) where the OCCA said: "Appellant has failed to file a Petition in Error with the Clerk of this Court. This, too, is jurisdictional." . However, Duvall was interpreting Rule 5.2(C) prior to its 1994 amendments. . . . . The current version of Rule 5.2(C), which was quoted verbatim in the OCCA's order dismissing Mr. Williams' appeal, states: "Failure to file a petition in error, with a brief, within the time provided, shall constitute a procedural bar for this Court to consider the appeal." Rule 5.2(C)(5). Given the new language of Rule 5.2(C)(5) and the OCCA's order, it is clear that Mr. Williams' appeal was "properly filed" when he filed the Notice of Appeal, and that the OCCA subsequently dismissed the appeal as a matter of state procedural bar.. . . . Therefore, Mr. Williams' appeal was "properly filed" as specified in Habteselassie, and Mr. Williams' habeas petition was timely."

United States v. Prestenbach, No. 99-60772 (5th Cir. 10/16/2000) "Whenn officials conducted a routine inspection of defendant Chris Prestenbach's personal property. They discovered that a lotion bottle in his possession contained a plastic bag with six Postal Service money orders inside. Four of the money orders had been altered. . . . Prestenbach contends that he is guilty of only a single act of possessing four altered money orders, and thus his consecutive sentences punish him four times for a single crime. We must determine the "unit of prosecution" Congress created--the act of possessing money orders, or the act of possessing a single money order. . . . Turning to the facts of this case, we find that the government alleged only a single act of possession. As noted above, whether a transaction results in the commission of one or more offenses is determined by whether separate and distinct acts made punishable by law have been committed. Keeping four altered money orders in a lotion bottle is one action, and therefore one crime."

Loeblein v. Dormire, No. 99-3480 (8th Cir. 10/24/2000) "Mr. Loeblein first argues that his prosecution was time-barred by the applicable Missouri statute of limitations.. . .Mr. Loeblein also maintains that his convictions violated due process because there was insufficient evidence to sustain them. See Jackson v. Virginia, 443 U.S. 307, 321 (1979 . . . Mr. Loeblein's third claim for relief is that his convictions violated the double jeopardy clause of the fifth amendment. Although he was convicted of two counts of sexual assault in the first degree and four counts of deviate sexual assault in the first degree, he contends that the evidence presented supports at most one count of each charge and that the prosecution separated what were single courses of conduct into multiple charges. Mr. Loeblein therefore claims that he received " 'multiple punishments for the same offense' " in violation of the fifth amendment, Ohio v. Johnson, 467 U.S. 493, 497-98 (1984). . . Mr. Loeblein also argues that his appellate counsel was ineffective for failing to make a confrontation clause argument based on events that occurred at trial." Relief Denied.

Hunnicutt v. Hawk, No. 99-6435 (10th Cir. 10/16/2000) "The record does not include any objections to the presentence report, and Mr. Hunnicutt did not dispute this evidence by filing an objection to the magistrate judge's report. We [therefore]find this evidence sufficient to support the district court's finding that a § 924(c) firearms offense is the underlying offense for his § 371 conspiracy conviction.

Section 1983 & Related Filings

No cases reported this week.

In Depth Features

This week's installment features the Washington Post's analysis of Burdine v. Johnson, "Death Sentence Reinstated in 'Sleeping Lawyer' Case" by Paul Duggan

(Saturday, October 28, 2000; Page A13).

AUSTIN, Oct. 27 –– Relying on a legal precedent long criticized by execution opponents, a divided federal appeals court panel today reinstated the death sentence of a defendant whose murder case gained notoriety as one of several in Texas in which court-appointed lawyers slept through stretches of testimony.

Two members of a three-judge panel of the U.S. Court of Appeals for the 5th Circuit voted to reinstate the death sentence. One of them was Judge Edith Jones, whom many legal observers see as a possible Supreme Court nominee if Texas Gov. George W. Bush (R) wins the presidency. Jones, named to the appeals court by President Ronald Reagan, was considered for a Supreme Court appointment by Bush's father in 1990.

Today's ruling came in the case of Calvin Jerold Burdine, 47, who was sentenced to death by a Houston jury in 1984 for the stabbing death of a former roommate. Burdine's court-appointed trial lawyer, Joe Frank Cannon, who died in 1998, was notorious in Houston for nodding off in courtrooms. By one law professor's count, a dozen of Cannon's indigent clients went to Texas's death row in a 10-year span before judges stopped assigning him to capital cases in the late 1980s.

During Burdine's appeal, lawyers for the state did not dispute that Cannon slept during parts of the trial. But the Supreme Court has held that in cases like Burdine's, the appellant must show that his lawyer's napping had an impact on the trial's outcome.

The state's lawyers argued that Burdine had failed to make such a showing. Jones and Judge Rhesa Barksdale, an appointee of President George Bush, agreed with the state in today's ruling. Judge Fortunato Benavides, who was named to the New Orleans-based appeals court by President Clinton, wrote a strongly worded dissent.

Burdine did not raise Cannon's sleeping as an appellate issue until the mid-1990s. At a hearing in 1995, several participants in the 1984 trial testified that they had seen Cannon napping at the defense table for up to 15 minutes. But they could not recall specifically at what points in the trial he nodded off.

"In sum, on this record, we cannot determine if Cannon slept during 'a critical stage' of Burdine's trial," Barksdale wrote. The ruling reinstated a death sentence thrown out last year by a lower federal court. "Of course," Barksdale added, "our rejecting Burdine's . . . claim should not be understood as condoning sleeping by defense counsel during a capital murder trial (or any other trial, for that matter)."

Benavides wrote, "It shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel's representation of Burdine."

The Sixth Amendment entitles a defendant to "the assistance of counsel," and the Supreme Court has said that such assistance must not be "ineffective."

But under a 1984 Supreme Court case, Strickland v. Washington, a defendant making an "ineffective assistance of counsel" claim must show not only that his trial lawyer's performance was grossly substandard. He must also show that if not for that poor performance, the trial's outcome likely would have been different.

The Strickland standard has been cited in appellate decisions upholding death sentences in Texas, where execution opponents say scores of capital cases have been mishandled by incompetent court-appointed attorneys.

Gov. Bush, who has strongly defended his state's vigorous death penalty system, was asked about Texas's "sleeping lawyer" cases, including Burdine's, during a campaign debate in Los Angeles on March 2. Bush cited the lower court's decision to throw out Burdine's sentence as evidence that the system worked fairly.

But a day after that debate, Texas prosecutors asked the 5th Circuit to reinstate Burdine's sentence, resulting in today's ruling.

Errata

From the Death Penalty Information Center reports:

United Nations Asked to Enforce U.S. Compliance With Race Convention

On October 24, prominent U.S. civil rights activists presented a "call to action" urging the United Nations to hold the United States accountable for racially discriminatory practices, such as the imposition of the death penalty, in the criminal justice system. The petition appealed to the U.N. to call on the U.S. government to honor its obligation under the International Convention on the Elimination on All Forms of Racial Discrimination and other human rights treaties, and suggests state and federal moratoriums on executions in the U.S. The petition was signed by such civil rights activists as Julian Bond, Jesse Jackson, Spike Lee, and Kweisi Mfume. (Reuters, 10/24/00) See also, Race and the Death Penalty, and DPIC Executive Director Richard Dieter's statement at recent Ford Foundation Symposium on U.S. Compliance with the Race Convention.

International Moratorium Groups to Meet with United Nations Secretary General

On December 18, Moratorium 2000's United States representative, Sister Helen Prejean, will join representatives of the Sant'Egidio Community of Italy and Amnesty International in a private meeting with United Nations Secretary General Kofi Annan to present over 2.5 million signatures calling for a moratorium on the death penalty. A press conference is scheduled to follow the meeting. Moratorium 2000 organizers are also inviting all of those involved in the moratorium movement to come together for a day of events in New York on December 17. For more information, please visit www.Moratorium 2000.org (Moratorium 2000 Press Release, 10/25/00) See also, Upcoming Events

Former Prosecutor Calls for Clemency

John W. Pierotti, the former district attorney for Shelby County (Memphis), Tennessee, will head the clemency appeal of Philip Workman, who was convicted in Shelby of the murder of police Lt. Ronald Oliver in 1981. Pierotti, a death penalty supporter, said the Workman case concerns him because new evidence indicates that Workman may not have fired the shot that killed Lt. Oliver. "It would be a miscarriage of justice for this execution to go on," said Pierotti. Workman is scheduled to be executed on January 31, 2001. (The Tennessean, 10/25/00) See also, innocence.

89th Innocent Inmate Released From Death Row

On October 20, 2000, William Nieves was freed from death row when a Philadelphia jury acquitted him of the 1992 murder of Eric McAiley. Nieves was convicted of the murder in 1994, but maintained his innocence. In 1997, the Pennsylvania Supreme Court held that Nieves was inadequately represented at his first trial and granted him a new trial. "William Nieves' first trial was not presented in the way it should have been presented, and that's wrong when someone is being sentenced to death," said Nieves' new attorney, former prosecutor John McMahon, Jr. At the re-trial, McMahon pointed out inconsistencies in the key witness's identification of the killer (Associated Press, 10/21/00) Nieves is the 89th person freed from death row since 1973, and the 5th this year.

International, National, and State Responses to U.S. Violations of the Vienna Convention

• The International Court of Justice (ICJ) will soon decide how the Vienna Convention on Consular Relations applies to domestic use of the death penalty. On November 13, the ICJ will begin public hearings in the case Germany v. United States of America. Germany is suing the United States for violating the treaty by executing two German foreign nationals, who were denied consular access, in Arizona in 1999.
• The Mexican government recently filed an amicus brief with the U.S. Supreme Court on behalf of Miguel Flores, a Mexican national scheduled to be executed in Texas on November 9, 2000. The brief asserts that Flores was denied due process when Texas law enforcement authorities violated the Vienna Convention by failing to inform him of his right to assistance from the Mexican consulate.
• The Chicago Police Department has decided to post signs to notify foreign arrestees of their right to consular assistance. The decision came in response to complaints from Mexico and Poland that the Department had violated the Vienna Convention.

(Consular Rights Newsletter #13, October 2000)

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's, who may not be at a public defender's office or similar non-profit, a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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List owner: capitaldefense-owner@onelist.comAs always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.