Decisions from Pennsylvanian lead off this edition. InComm. v. MooreandComm v. DeJesusthe Pennsylvania Supreme Court does something still relatively unusual for it, it reverses in a capital case. Notably inMoore, the Court reverses as trial counsel failed to present any mitigating evidence of defendant's troubled upbringing. The Moore Court reminds trial counsel everywhere that mitigation, like so many other things, begins at home; here trial counsel failed to place the Defendant's mother and sister on the stand despite their being present in the courtroom, as well as failed to impress on defendants wife why she needed to testify in the penalty phase.

InComm v. DeJesus, the Pennsylvania Supreme Court again reverses. That Court had previously stated that prospectively it would not tolerate "send a message" penalty phase closings. Keeping its word, and even after a cautionary instruction, the Court strikes down DeJesus's death sentence and indicates that it will do so in any future case where such arguments are made.

Several other decisions of note are also had this week, the problem is that they are unpublished (at least for now). The a panel in the Fifth Circuit has granted rehearing to its opinion inIn re Hearn, and stays with its prior decision to grant leave to file a successive petition on Atkins grounds, upholds the appointment of counsel on a successive petition, and keeps the standards it had previously set forth for both. The Fourth Appellate, First Division in California has, inBrown v. San Diego Superior Court, given good language about the securing services of experts, market rates and the need for ex parte proceedings under state law.

On a more personal note, thanks to all those on the list who put me up (and put up with my shenanigans) during my recent "vacation," this edition is for you.

As always, thanks for reading. - k

Archived on the internet athttp://capitaldefenseweekly.com/archives/041025.htm

EXECUTION INFORMATION

Since the last edition there have been the following executions in the United States:

October

26 Dominique Green Texas

Pending execution dates believed to be serious include:

November

2 Lorenzo Morris Texas

4 Robert Morrow Texas

9 Demarco McCullum Texas

10 Frederick McWilliam Texas

12 Frank Chandler North Carolina

17 Anthony Fuentes Texas

18 Troy Kunkle Texas

December

1 Frances Newton Texas----female

2 George Banks Pennsylvania

3 Charles Walker North Carolina

SUPREME COURT

CAPITAL CASES (Favorable)

Pennsylvania v. Moore, 2004 WL 2363749 (PA 10/21/2004) Trial counsel failed to present any mitigating evidence of defendant's troubled upbringing. Court highlights Defendant's mother and sister were present in the courtroom. Counsel also failed to tell defendant’s wife why her testimony would be needed.

Pennsylvania v. DeJesus, 2004 WL 2363726 (Pa. 10/21/2004) Send a message verdicts are per se prejudicial.

Ohio v. Lee, 2004 WL 2341716 (Ohio App. 10 Dist. 10/19/2004) Conviction for rape and aggravated murder based on rape vacated due to lack of evidence supporting a rape. Conviction for attempted rape and aggravated murder based on attempted rape sustained. Case remanded for a new sentencing hearing.

In re Hearn, 2004 WL 2348275 (5th Cir. 10/19/2004) On rehearing, counsel may be appointed for a successive petition, but the appointment alone does not grant capital defendants a right to an automatic stay of execution. This is – and the opinion prior to rehearing– are very key opinions that should be read by anyone contemplated successive petition litigation. Leave to file a successive petition granted on claim under Atkins.

Brown v. San Diego Superior Court, 2004 WL 2335268 (Cal.App. 4 Dist., 1st Div 10/18/2004) (unpublished) Issuing a writ ordering greater payment for investigators with good language about the securing services of experts, market rates and the need for ex parte proceedings under state law.

CAPITAL CASES (Other Than Favorable)

Pizzuto v. Arrave, 2004 WL 2348299 (9th Cir 10/20/2004) Stay lifted in light of Schiro v. Summerlin as stay was granted on whether Ring was retroactive.

Louisiana v. Manning, 2004 WL 2340145, 2004 La. LEXIS 2981 (La 10/19/2004) Relief denied on a hodgepodge of claims including: (A) denial of a change of venue, (B) whether defendant was in custody when he inculpated himself, (C) denial of continuance, (D) failure to grant challenge for cause on a pro-law enforcement witness who was related to one of the prosecutors below, (E) Batson, (F) admission of “expert testimony” on blood splatter, (G) whether the short form indictment was permissible in a capital case, (H) introduction of juvenile criminal history, (I) limiting testimony that the defendant’s family wanted him to live, (J) HAC, (K) mental retardation, and (L) proportionality. Mental retardation claim not fully developed and will likely be addressed in postconviction.

New Jersey v. Harris, 2004 WL 2339330 (NJ 10/19/2004) (dissent) Relief denied holding, in part, that: (A) trial court's comments warranted nullification of findings and conclusions but state supreme court invoked de novo review of factual findings thereby sidestepping the need to remand; (B) police did not violate Sixth Amendment by urging defendant's friend to elicit letter from defendant; (C) counsel did not render ineffective assistance for failing to cross the putative real killer on being the real killer, by failing to accompany Harris to his presentence interview on another offense where he made damaging comments, as well as by failing to adequately investigate and present rather compelling mitigation evidence; (D) Harris was competent to stand trial; (E) newspaper reporter's telephone call to jurors in the penalty phase was not so odious as to permit defense interviews of the jurors; and (F) defendant failed to present an adequate claim of mental retardation. Note the mental retardation opinion here seems to be a very fact specific & very much an outlier opinion.

Ohio v. Fitzpatrick, 2004 WL 2367987 (Ohio App. 1 Dist. 10/22/2004) Relief denied on " four assignments of error, in which he contends that the common pleas court erred in denying his postconviction claims, in refusing to afford him discovery to develop the claims, and in declining to conduct an evidentiary hearing." Merits issued denied included restraint by a stun belt and shackles, competency, lethal injection, as well as ineffective assistance of counsel for trial counsel's inadequate and incompetent investigation, preparation, and presentation of his case in mitigation.

Ohio v Brinkley, 2004 WL 2384455 (Ohio App. 6 Dist. 10/22/2004) Relief denied on issues pertaining to failing to hold an evidentiary hearing, failure to grant discovery, and alleged recantation of state's jailhouse snitch.

Dodd v. Oklahoma, 2004 WL 2360422 (Okla.Crim.App. 10/21/2004) Relief denied on claims including: probable cause for arrest, guilt phase admission of post-arrest suicide attetmpt, evidence of Dodd's alleged drug debt to victim was harmless; admission of 404(b) "other bad act" evidence, at guilt phase (that defendant had fired several gun shots at amusement park ride) held harmless, sufficiency, and any error in admission of victim impact testimony was harmless.

Thacker v. Oklahoma, 2004 WL 2360424 (Okla.Crim.App. 10/21/2004) Relief denied holding aggravators need not be charged in indictment and there was sufficient notice, for due process purposes of the aggravator, as well as use of HAC, avoiding arrest and continuing threat aggravator.

Pennsylvania v. Dougherty, 2004 WL 2358279 (Pa 10/20/2004) Relief denied on sufficiency of capital murder / arson, failure to charge the jury that life means life without parole, and and failure to dismiss all charges as untimely.

Pennsylvania v. Udera, 2004 WL 2363725 (Pa. 10/21/2004) Relief denied on claims including, failure to determine in voir dire, whether prospective jurors could fairly consider the possibility of life sentence was not deficient performance; failure to attempt to rehabilitate a prospective juror who expressed her personal objection to the death penalty; Batson, competency, prosecutor's statement during closing arguments in the penalty phase including "you do not by your verdict give defendant the death penalty."

Pennsylvania v. Dennis, 2004 WL 2363730 (Pa. 10/21/2004) (dissent) In post-conviction a defendant is not entitled to discovery of Commonwealth's voir dire notes from capital murder trial where Batson claims were raised and rejected on direct appeal.

HOT LIST

Pennsylvania v. Moore, 2004 WL 2363749 (PA 10/21/2004) Trial counsel failed to present any mitigating evidence of defendant's troubled upbringing. Court highlights Defendant's mother and sister were present in the courtroom. Counsel also failed to tell defendant’s wife why her testimony would be needed.

With respect to the penalty phase, the Commonwealth alleges the issue of trial counsel's failure to present mitigating evidence was previously litigated on direct appeal, and therefore the PCRA court erred in granting Moore relief on this claim.

On direct appeal, Moore alleged trial counsel was ineffective for failing to present mitigating evidence, but appellate counsel was unable to specify what that evidence was. Instead, counsel requested an evidentiary hearing as an investigative tool, to establish what mitigating evidence could have been presented. This Court denied counsel's request, and concluded trial counsel was not ineffective:

[M]uch of appellant's argument improperly refers to information outside the record. To the extent that appellant finds support in the record for his arguments, such support is clearly insufficient to support a finding of ineffectiveness. Rather, the record clearly reveals that appellant received zealous and competent representation throughout these proceedings under the circumstances.

* * *

Presumably, counsel would likely be found ineffective in an instance where they failed to obtain evidence in mitigation reasonably available or failed to conduct a reasonable investigation. In such an instance, it would be readily apparent that counsel were just going through the motions during the penalty phase, especially where no evidence in mitigation is presented.... [S]uch is not the case here.

Obviously, just as there are cases where evidence in mitigation exists, there are those instances where no evidence in mitigation exists or is obtainable by reasonable means. Thus, the mere fact that [Moore's] trial counsel presented no specific evidence in mitigation does not render their performance ineffective.... [T]he record reveals that defense counsel made substantial efforts on appellant's behalf in this case, and they cannot be faulted for the lack of available mitigating evidence given the circumstances present, which included the failure of any member of appellant's own family to appear after being served with subpoenas. Trial counsel made zealous argument in mitigation of appellant's crime during the penalty phase given the limited evidence in mitigation, and appellant fails to advise this Court what mitigating evidence could have been offered.

Moore, at 1134-35 (emphasis added).

Because appellate counsel did not specify what evidence could have been offered, this Court could not conclude on the record before it, that trial counsel was ineffective. Thus, the issue of trial counsel's ineffectiveness was addressed on direct appeal.

[17] Before the PCRA court, Moore argued appellate counsel's ineffectiveness for failing to supplement the record to include what was missing--the mitigating evidence available at the time of trial. Thus, Moore's claim is not the traditional "layered" ineffectiveness claim where the underlying claim of trial counsel's ineffectiveness has been waived and only exists in relation to the "merit prong" regarding appellate counsel's performance. [FN4] Rather, the claim of trial counsel's ineffectiveness was decided adversely to Moore, and he now contends appellate counsel was ineffective in this regard. In other words, Moore alleges, but for appellate counsel's failure to advise this Court of what mitigating evidence trial counsel should have presented, he would have prevailed on his claim of trial counsel's ineffectiveness. As such, the claim of appellate counsel's ineffectiveness was not previously litigated. [FN5]

*6 Having concluded Moore's claim was properly before the PCRA court, we must determine whether he has established all three prongs of the Pierce test regarding counsel's performance. Complicating this matter, appellate counsel, who was the first counsel to represent Moore after trial counsel, was obliged to raise trial counsel's ineffectiveness on direct appeal, see Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (Pa.1977) (ineffectiveness claims must be raised at time defendant gets new counsel, or they are waived), even though there was no record of what mitigating evidence was available to trial counsel. Appellate counsel did not have the benefit of this Court's ruling in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa.2002) (overruling Hubbard to extent it requires trial counsel's ineffectiveness be raised at time when petitioner obtains new counsel; petitioner should wait to raise claims of trial counsel's ineffectiveness until collateral review). Therefore, in order to preserve the issue of trial counsel's ineffectiveness, appellate counsel had to raise it on direct appeal; however, as the PCRA court noted, he did not point to any evidence outside the record which trial counsel should have offered.

[18][19][20] On collateral review, although the PCRA court did not have the benefit of this Court's decision in Grant, its decision did what Grant sought to achieve; it heard testimony concerning the evidence actually available to trial counsel, heard testimony from both trial and appellate counsel, made credibility determinations, and assessed trial counsel's stewardship under the three Pierce prongs. [FN6] This is indeed the better practice, since "the role of an appellate counsel is to review the record for claims of error, but not necessarily to uncover extra-record claims.... '[B]ecause there is no constitutional requirement for appellate counsel to search outside the record for error, an ineffective assistance of appellate counsel claim that is in substance a trial counsel claim requiring extrinsic evidence may be dead on arrival.' " Id., at 736-37 (quoting Woods v. State, 701 N.E.2d 1208, 1222 (Ind.1998)). Accordingly, we turn to the PCRA court's review of Moore's claim that trial counsel was ineffective for failing to present mitigating evidence.

[21][22] It is well settled that failure to present mitigation evidence, without more, is not ineffective assistance per se. Commonwealth v.. Beasley, 544 Pa. 554, 678 A.2d 773, 778 (Pa.1994) (citing Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513, 531 (Pa.1988)). At the penalty phase, trial counsel told the court at sidebar that, after discussion with counsel, Moore did not wish to testify concerning mitigating circumstances. N.T. Trial, 9/12/83, at 713. Counsel also stated he was unaware of where Moore's then-wife was, Moore's sister was no longer present in the court room, and he had not heard from any of Moore's family or friends. Id. Thus, counsel concluded, "We have really nothing to offer by way of opening or argument evidence, just closing argument." Id. During closing, defense counsel argued, "there may be mitigating circumstances in this case ...," id., at 723, 549 A.2d 513, but did not detail what these might have been.

*7 At the PCRA hearing, Moore's mother, sister, and ex-wife testified concerning Moore's traumatic and abusive childhood, including witnessing his father slash his mother's throat. While this may or may not be perceived as mitigating (one juror might see this as reason for sympathy; another might see it as assuring Moore his violence permanently ingrained in him), the reason it was not provided was not strategic, and we cannot disagree with the PCRA court's determination that the jury should have been given this.

These witnesses further testified they would have testified at the penalty phase. The PCRA hearing brought to light the fact Moore's mother was not subpoenaed, but that she would have testified at the penalty phase, had trial counsel explained to her the proceeding and the significance of her testimony. N.T. PCRA Hearing, 1/25/00, at 472-86. Moore's sister, although not subpoenaed, was present at trial; however, she was not told prior to trial that she might be needed to testify. Id., at 494, 509, 549 A.2d 513. Trial counsel did not approach her until a recess during the guilt phase, and never explained to her that she would be needed for the penalty phase which would begin the next day. Id., at 498-500, 549 A.2d 513. Consequently, she left at the end of the guilt phase, unaware of the nature of the penalty phase and the need for her testimony. Id., at 500-06, 509-11, 549 A.2d 513. Moore's ex-wife was subpoenaed to present alibi testimony at the guilt phase, but did not appear. Id., at 516-17, 525, 535, 549 A.2d 513. However, trial counsel never told her she could testify at the penalty phase or explained the nature of the proceeding to her. Id ., at 518, 521-22. She testified that, although she "had [her] reasons," id., at 530, for not giving alibi testimony at the guilt phase, she would have given mitigating testimony at the penalty phase, had the proceeding and the significance of her testimony been explained to her. Id., at 524, 526, 531-34, 549 A.2d 513.

These witnesses were obviously more cooperative in 2000 than in 1983, and we sympathize with trial counsel's frustration with them. However, the PCRA court found these witnesses credible, PCRA Court Opinion, 9/22/00, at 9, and we will not disturb its determination as fact finder. [FN7] See Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 93-94 (Pa.1998) (this Court is bound by PCRA court's credibility determinations where there is record support for those determinations).

Thus, the record from the PCRA hearing reveals: (1) these witnesses existed; (2) they were available to testify at the penalty phase; (3) trial counsel knew of their existence; (4) they were prepared to cooperate and would have testified at the penalty phase; and (5) the absence of their testimony prejudiced Moore. See Commonwealth v. Crawley, 541 Pa. 408, 663 A.2d 676, 679-80 (Pa.1995) (test for ineffectiveness for failure to present witnesses). Mitigating evidence is a crucial part of the penalty phase, and trial counsel's failure to present any evidence, particularly in the face of the two aggravating circumstances presented by the Commonwealth, was not to the benefit of Moore. As the PCRA court noted, Moore was an uncooperative client, but not to an extent that relieved trial counsel of the duty to investigate potential mitigating evidence, particularly where counsel had no other penalty phase strategy. Cf. Commonwealth v. Williams, J-99-2000 (failure to investigate and present psychiatric mitigating evidence was not ineffectiveness where counsel's strategy was to portray defendant as good son and athlete, although strategy was unsuccessful).

*8 Under the circumstances in this case, presenting no mitigating evidence, when such evidence was arguably available, was not a reasonable tactic. Without any mitigating evidence before the jury, Moore's only chance at receiving a life sentence would have been if the jury did not find either of the aggravating circumstances proven. This was not likely, given the factual basis for them shown in the evidence presented by the Commonwealth; therefore, the absence of any mitigating evidence prejudiced Moore. As the PCRA court noted:

[E]vidence could have been presented during the penalty phase which would have established for consideration by the jury, that Moore's life was traumatic, abusive, neglectful, cruel, and harmful to his emotional development. The record established Moore was abused by his alcoholic father, he witnessed his mother receive beatings and when he attempted to protect his mother as a young child, he himself was beaten. He witnessed his father slash his mother's throat and after this event he lived in fear and became withdrawn. Testimony also revealed Moore was neglected and he had various physical ailments that were not cared for. It was evident from the testimony presented that Moore's childhood was one of constant trauma, fear, and terror. Clearly, this [c]ourt finds this type of evidence constitutes mitigating evidence and further finds it should have been presented to the jury and not having done so was prejudicial to Moore. Obviously, this is the type of evidence that demonstrates a reasonable probability that a different result could have occurred at Moore's capital penalty phase trial.

PCRA Court Opinion, 9/22/00, at 9. Accordingly, the grant of a new penalty phase hearing is proper in this case. [FN8]

Pennsylvania v. DeJesus, 2004 WL 2363726 (Pa. 10/21/2004) The type of "send a message" closings at issue here are per se prejudicial.

*9 Appellant also raises several penalty-phase claims, including a claim that the prosecutor's summation at the penalty-phase was improper and prejudicial. Because we conclude that the prosecutorial misconduct claim warrants relief, we need not reach the other claims.

Appellant argues, inter alia, that the prosecutor ignored enumerated statutory mitigating/aggravating factors and undermined the jury's ability to render a fair verdict when he urged the jury to "send a message" by sentencing appellant to death:

He has shown you again and again that he hurts people because he likes to and he want to, and he has earned the right to be on death row. When you think of the death penalty, there are messages to be sent. There's a message on the street saying, look at that, he got death, you see that, honey, that's why you live by the rules, so you don't end up like that. Because they're in these bad neighborhoods.... You also send a message in prisons. When you peep in that bus and talk and whisper, you can say, death penalty. Maybe you've got just one inmate sitting there going, well, he got death, this is serious, I don't want to end up like that. Maybe your penalty you'll save one guy, to scare him straight.

N.T. 9/17/99, at 24-25 (emphasis added). When the prosecutor completed his closing argument, appellant moved for a mistrial arguing, among other things, that the prosecutor's "send a message" statement was prejudicial. The trial court denied the motion. Counsel then asked the trial court to "tell the jury they should disregard everything [the prosecutor] said." Id. at 31, 668 A.2d 97. Appellant did not request a specific cautionary instruction regarding the prosecutor's "send a message" argument, and the trial court issued no such instruction; however, in its charge concerning the jury's weighing of aggravating circumstances, the trial court adverted to the argument as follows:

It's terribly important that you also understand that in your evaluation of aggravators, that's those things that the Commonwealth says are aggravating circumstances, you should follow the law and you should not base your findings on the possibility of any future crimes that might be committed, and you should not sentence him because one might feel that there is a need to send a message to the community, nor should you sentence him just because the other prisoners need some message.

Id. at 64, 668 A.2d 97 (emphasis added).

The Commonwealth argues that the prosecutor was merely employing oratorical license and impassioned argument and notes that a prosecutor is afforded more latitude in doing so at the penalty phase. The Commonwealth also cites two cases in which this Court held that a prosecutor's "send a message" exhortation was within the bounds of permissible oratorical flair. See Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121, 129 (Pa.1994); Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656, 667 (Pa.1986). Finally, the Commonwealth argues that any prejudice to appellant was cured by the trial court's instructions warning the jury that they should not sentence appellant in order to send a message.

*10 Our adversary system permits the prosecutor to "prosecute with earnestness and vigor." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Nevertheless, the arguments advanced must be confined to the evidence and the legitimate inferences to be drawn therefrom. See Zettlemoyer, 454 A.2d at 957; Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (Pa.1972). "Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated." Zettlemoyer, 454 A.2d at 957 (quoting Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70, 73 (Pa.1980)); see also ABA Standards for Criminal Justice 3- 5.8(d) ("The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.").

Although there is sometimes a "gray zone" separating acceptable from improper advocacy, this Court has categorically prohibited certain prosecutorial arguments that we have deemed extremely and inherently prejudicial. See, e.g., Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 643 (Pa.1991). Thus, in Chambers, this Court held that a prosecutor's reliance upon the Bible or other religious writings as an independent source of law supporting the imposition of a death penalty is reversible error per se. Id. at 644; see also Spotz, 756 A.2d at 1165 n. 24 (noting that the proscription in Chambers is against "reliance upon the Bible as a source, independent of Pennsylvania law, for returning a verdict of death"). In so holding, the Chambers Court noted that such an appeal to Biblical bases for returning a death verdict constituted a deliberate attempt to destroy the objectivity and impartiality of the jury which could not be cured. Moreover, we noted that in invoking a religious reference in support of the death penalty, the prosecutor reached outside the law of the Commonwealth:

Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty. Our Legislature has enacted a Death Penalty Statute which carefully categorizes all the factors that a jury should consider in determining whether the death penalty is an appropriate punishment and, if a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth requires its imposition, not because of some other source of law.

Id. at 644.

It is notable that the Chambers per se holding followed upon a series of cases in which this Court "narrowly tolerated" Biblical references, deeming them to be on the limits of oratorical flair but cautioning that such references were "a dangerous practice which we strongly discourage." Id. In Chambers, we noted that, our cautionary teaching having been ignored, we would no longer tolerate such references, and indeed, would deem such references "reversible error per se " and might also "subject violators to disciplinary action." Id.

*11 This Court has expressed similar concerns regarding prosecutorial arguments that exhort the jury to return a sentence of death in order to "send a message." Although until now we have not explicitly adopted a per se prescription similar to that set forth in Chambers, it is fair to say that we have been in the "narrow toleration" and close scrutiny stage for some time. This Court has repeatedly reminded the bench and bar that "send a message" exhortations in criminal trials are particularly prejudicial and should be avoided. See, e.g., Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334, 344 (Pa.1987) ("[i]t is extremely prejudicial for a prosecutor to exhort a jury to return a death sentence as a message to the judicial system or its officers."); see also Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 202 (Pa.1997); Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 237 (Pa.1995). [FN12]

As the Commonwealth correctly notes, in some of our older cases, this Court determined that, in some contexts, "send a message" arguments may be tolerable. See Peterkin, 649 A.2d at 129; DeHart, 516 A.2d at 667. In DeHart, we denied relief where the prosecutor stressed the general "deterrent effect" of the death penalty. DeHart relied upon this Court's decision in Zettlemoyer, which reasoned that a prosecutor's reference to the deterrent effect of the death penalty was not prejudicial because it was a matter of public knowledge based on ordinary human experience:

We do not believe that the impact of this statement, which is a "matter of common public knowledge based on ordinary human experience," would have biased or prejudiced the jury or hindered an objective weighing of the evidence, especially considering the district attorney's explicit directions to the jury to return a verdict of death "solely and exclusively as the law indicates it may be [imposed], based on the circumstances of this case, that it involved a premeditated, intentional killing of a witness to a serious crime, a felony."

Zettlemoyer, 454 A.2d at 958 (footnotes and citations omitted).

Similarly, in Peterkin this Court concluded that, while a prosecutor may not exhort a jury to send a message to the judicial system, he may urge them to send a direct message to the defendant. 649 A.2d at 129. There, the prosecutor asked the jury to "[s]end out a message about the conduct engaged in by [the defendant] as he sits passively at that table, [that his conduct] cannot be condoned among civilized men." Id. In distinguishing this remark from similar "send a message" arguments that this Court had deemed improper, see Crawley, 526 A.2d at 344, we noted that the prosecutor's comments, viewed in context, had merely asked the jury to send a message to the defendant. Indeed, we noted that in his very next sentence the prosecutor said, "[t]ell [the defendant] what you did, when you did it, how you did and for the reason that you did it you must die." Id.

*12 The Peterkin issue is not presented in the case sub judice: the prosecutor here did not exhort the jury to send a message to appellant. Arguably, the Zettlemoyer/DeHart situation also is not strictly at issue, as this was not an argument concerning the general "deterrent effect" of the death penalty. We would not overstate this distinction, however. We acknowledge that "send a message" and "deterrent effect" arguments are related in that they suggest that such an external factor may properly play a role in the jury's determination of life or death.

In any event, in the many years since Zettlemoyer and DeHart were decided, this Court has strongly admonished prosecutors to refrain from exhorting jurors to use their verdict to "send a message" to the community or the judicial system. E.g., Crawley, 526 A.2d at 344. This admonishment has particular significance when the sentence of death is at stake. In contrast to the determination of guilt, which usually depends on relatively objective findings, the decision as to whether to impose a sentence of death depends upon the weighing of specific aggravating and mitigating circumstances that may involve subjective considerations. See generally Welsh White, Curbing Prosecutorial Misconduct in Capital Cases: Imposing Prohibitions on Improper Penalty Trial Arguments, 39 AM. CRIM. L. REV. 1147, 1149 (2002). Indeed, in Crawley, this Court noted that a prosecutor's argument asking the jury to send a message to the judicial system by returning a sentence of death is "extremely prejudicial" because a jury's determination must be based solely upon the evidence of aggravating and mitigating circumstances, and not upon an external emotional appeal. 526 A.2d at 344. [FN13] Nevertheless, we declined to reverse the sentence of death in that case because the two aggravating circumstances found in that case were neutral in character--i.e., the defendant committed a killing while in the perpetration of a felony and he had been convicted of an offense before or at the time of the offense at issue for which life imprisonment of death was imposable--and because there were no mitigating circumstances found. Id. at 345. Accordingly, we determined that there was no weighing process that could have been adversely affected by the prosecutor's improper comments.

In LaCava, however, this Court held that improper remarks injecting external considerations during the penalty phase did warrant a new penalty hearing, in part because the remarks could have impermissibly influenced the jury's balancing of mitigating and aggravating circumstances in favor of a death sentence. 666 A.2d at 237. In that case, the Commonwealth pursued the single aggravating circumstance that the defendant had killed a police officer in the line of duty.

Notwithstanding that this was the single aggravator, the prosecutor attempted to expand the jury's focus to include society's victimization at the hands of drug dealers generally. In disapproving the prosecutor's appeal to this external factor, we concluded that the sole purpose of the prosecutor's comments regarding society's ongoing battle with the scourge of drugs was "to turn the jury's sentencing of appellant into a plebiscite on drugs and drug dealers and their destructive effect on society." Id. In concluding that the prosecutor's comments went beyond the permissible limits of oratorical flair and zealous advocacy, and were so prejudicial as to deprive the appellant of a fair trial, we further noted that, since the jury found two mitigating circumstances and only one aggravating circumstance, the comments could have impermissibly affected the jury's weighing of those factors. Id. Thus, we granted the appellant's request for relief on the ground of ineffective assistance of counsel for failing to object to the prosecutor's argument.

*13 In Hall, this Court reaffirmed its, by then, long-standing disapproval of such "send a message" arguments by announcing a broader prohibition, which applied to any party at any stage of a criminal proceeding. 701 A.2d at 203. In that case, the prosecutor urged the jury to send a message by finding the defendant guilty of first-degree murder:

I would ask you to send a message, and that is, you come out here from Philadelphia, as we have proven, and shoot someone like the defendant did, once in the face and once in the back of the head, you are guilty of first degree murder.

Id. at 202 (quoting prosecutor's statement). Ultimately, this Court concluded that the prosecutor's comments did not warrant relief because they were based upon the evidence presented and did not ask the jury to send a message to the judicial system or to potential criminals. Nevertheless, we explicitly warned the bar of this Commonwealth to avoid such exhortations in the future:

While this Court in the past has approved statements concerning the jury sending "messages" with their verdicts in criminal cases, such exhortations, made by either the prosecutor or the defense, in essence urge the jury to ignore their sworn duty to decide a matter only on the proper facts presented in evidence and the applicable law. Accordingly, we advise all parties in criminal matters before any court in the Commonwealth to refrain from such exhortation in the future.

Id. at 203 (emphases added).

[16] Perhaps, as in the line of decisions which culminated in Chambers, this Court's clear directive in Hall proved too subtle. [FN14] In this instance, the directive was observed only by an extended breach, as the prosecutor inexplicably and directly exhorted the jury to impose the death penalty in order to send a message to people on the street and to people in prisons. The plea to such an external irrelevancy was so direct that it culminated in the prosecutor inviting the jury to sentence this appellant to death so as to "scare straight" others who might be considering murder. There was no role for such an argument here. The prosecutor's improper comments effectively invited jurors to ignore their sworn duty to decide the matter exclusively upon the facts presented concerning the weighing of specific statutory aggravating and mitigating circumstances. See LaCava, 666 A.2d at 237; see also Chambers, 599 A.2d at 644 ("[I]f a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth requires its imposition....").

This Court well appreciates the pressures and challenges of trying criminal cases, and particularly cases where the ultimate penalty is involved. We also recognize that there are many things that occur in the course of a trial which are beyond the control or anticipation of counsel and the trial judge--such as witnesses, jurors or spectators acting inappropriately. But one aspect of a trial which is far more subject to rational control is the behavior of attorneys--officers of this Court whose professionalism is absolutely indispensable to the fair administration of justice in this Commonwealth. Lawyers have an obligation to be aware of, and to abide by, the law governing the conduct of the matters in which they are involved. This Court's unambiguous directive in Hall was not aimed at the conduct of witnesses, or police officers, or jurors, or court staff, or judges: it was aimed directly at counsel. Moreover, it concerned a matter and stage of trial over which counsel have unique, indeed premeditated control: i.e., what it is they intend to say to the jury. When this Court issues a directive concerning what is permissible at that stage, we expect officers of the Court to abide by that directive. In light of our explicit directive in Hall, which was but the last in a series of decisions expressing grave concern over this very type of argument, we are dismayed, to say the least, by the government lawyer's use of such prohibited rhetoric in this case.

*14 We are aware that the trial judge in this case ultimately informed the jury that it "should not" sentence appellant in order to send a message. But we have little confidence that such a charge was adequate to remove the prejudice resulting from the prosecutor's decision to employ an inherently prejudicial argument that had specifically been deemed off-limits. The jury in this case ultimately found two aggravating circumstances and two mitigating circumstances, and thus was required to weigh the competing factors to determine which ones predominated. In such an instance, the fact that the prosecutor had argued that a collateral external effect of a death verdict would be to send a message to others which might prevent future crimes--a factor which does not exist as a proper statutory aggravating circumstance--may well have played a role, direct or indirect, in at least one juror's balancing process. See LaCava, 666 A.2d at 237 (relief warranted in context of ineffective assistance of counsel for failing to object where prosecutor's argument went beyond single aggravating circumstance at issue to inject improper additional basis for returning verdict of death; since both aggravating and mitigating circumstances were found by jury, improper argument "could have impermissibly shifted the balance in favor of a death sentence."). In this regard, it is also significant that the trial court's cautionary charge could be read as having inadvertently validated the prosecutor's non-record-based assumptions that a verdict of death indeed would send a message both to the community at large or other prisoners. In instructing the jury, the court did not question the accuracy or legitimacy of those assumptions, but instead directed that the jury should not base its verdict upon them. On such a record, we conclude that the ability of the sentencing jury to weigh the evidence objectively was fatally compromised and, accordingly, appellant is entitled to a new sentencing proceeding.

[17] More importantly, we conclude here, as we did in Chambers when confronted with a similar challenge to this Court's directives concerning what comprises appropriate argument in the penalty phase of a capital trial, that penalty phase arguments requesting that the jury send a message with its verdict are prejudicial per se. We reach this conclusion in part because of the inherently prejudicial nature of the remarks, and in part as a matter of our supervisory authority over Pennsylvania attorneys. We do not reach the conclusion lightly. The inappropriate argument at issue here is similar to that at issue in Chambers. The argument goes to the very core of the penalty phase jury's task, injecting an improper external element in favor of death. As this Court has made clear in the decisions culminating in Chambers and LaCava, it is essential that arguments made in favor of the ultimate penalty be confined to those statutory aggravating circumstances which are specifically charged and which thereby serve as the only appropriate basis for a verdict of death. Given the critical balancing process required of the penalty phase jury, the important individual role of jurors in this assessment, the inherently prejudicial nature of the argument, and the fact that the content of a lawyer's argument is easily within his control, we will no longer proceed with case-by-case assessments in this area. Such arguments are to be avoided and the peril of defiance is to fall upon the party who would flout the rule.

OTHER NOTABLE CASES

I am sure there must be at least a few, but none noted.

FOCUS

This week a brief legal analysis of the so-called "Justice for All Act." Senator Leahy's offfice was kind enough to provide a good interpretive guideto the Act. The Justice Projectalso offers numerous interpretive guides to the new Act.

OVERVIEW

The Justice For All Act of 2004 enhances protections for victims of Federal crimes, increases Federal resources available to State and local governments to combat crimes with DNA technology, and provides safeguards to prevent wrongful convictions and executions.

Title I of the bill is the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act. The provisions of this title establish enhanced and enforceable rights for crime victims in the Federal criminal justice system, and authorize grants to help States implement and enforce their own victims’ rights laws.

Titles II and III of the bill establish the Debbie Smith DNA Backlog Grant Program, which authorize $755 million over five years to address the DNA backlog crisis in the nation’s crime labs, and also authorize more than $500 million in new grant programs to reduce other forensic science backlogs, train criminal justice and medical personnel in the use of DNA evidence, and promote the use of DNA technology to identify missing persons.

Title IV of the bill, the Innocence Protection Act, provides access to post-conviction DNA testing in Federal cases, helps States improve the quality of legal representation in capital cases, and increases compensation in Federal cases of wrongful conviction. It also establishes the Kirk Bloodsworth Post-Conviction DNA Testing Program, which authorizes $25 million over five years to defray the costs of post-conviction DNA testing.

TITLE I─ SCOTT CAMPBELL, STEPHANIE ROPER, WENDY PRESTON, LOUARNA GILLIS, AND NILA LYNN CRIME VICTIMS’ RIGHTS ACT

Sec. 101. Short Title. This title may be cited as the “Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act.”

Sec. 102. Crime Victims’ Rights. Establishes enhanced rights for victims of Federal crimes, including the right to be reasonably protected from the accused; the right to reasonable, accurate, and timely notice of certain proceedings and events; the right not to be excluded from certain proceedings; the right to be reasonably heard at certain proceedings and to confer with the attorney for the Government in the case; the right to full and timely restitution; the right to proceedings free from unreasonable delay; and the right to be treated with fairness and with respect for the victim’s dignity and privacy.

Government employees shall make best efforts to ensure that victims are notified of and accorded these rights. A victim or the lawful representative of a victim may assert these rights in district court and, if relief is denied, may petition the court of appeals for a writ of mandamus, which the court of appeals must take up and decide within 72 hours. A failure to afford a right shall not provide grounds for a new trial, and may only be used to re-open and plea or sentence in limited circumstances.

Sec. 103. Increased Resources for Enforcement of Crime Victims’ Rights. Authorizes grants to assist State and local authorities in implementing and enforcing crime victims’ rights laws, including grants to develop and implement state-of-the-art systems for notifying crime victims of important dates and developments relating to the criminal proceedings at issue in a timely and efficient manner.

Sec. 104. Reports. Requires annual reports on the implementation of this title.

TITLE II─DEBBIE SMITH ACT OF 2004

Sec. 201. Short Title. This title may be cited as the “Debbie Smith Act of 2004.”

Sec. 202. Debbie Smith DNA Backlog Grant Program. Reauthorizes and expands the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135), increasing the authorized funding levels for the DNA Analysis Backlog Elimination program to $151 million annually for the next five years, as proposed in the President’s DNA initiative.

Subsection (a) names the Backlog Elimination Act grant program in honor of Debbie Smith, a rape survivor and leader in promoting the use of the DNA technology to solve crimes. In addition, subsection (a) amends the eligibility provisions to add “units of local government” as potential grantees, so that Federal resources can meet local needs more quickly.

Subsection (b) provides a single annual authorization for the program, and modifies existing program objectives by: (1) adding the collection of DNA samples from convicted offenders as a specific program purpose; (2) ensuring that DNA testing and analysis of samples from crime scenes are carried out in a timely manner.

Subsection (b) further provides for the disbursement of grant funds by the Attorney General in conformity with a formula that maximizes the effective use of DNA technology to solve crimes and protect public safety, and addresses areas where significant backlogs exist. A minimum grant amount of 0.50 percent is to be awarded to each State, and a specified percentage of remaining funds will be awarded to conduct DNA analyses of samples from casework.

Conversion of the Backlog Elimination Act grant program into a formula grant program will ensure that funds will be fairly distributed among all eligible jurisdictions. It is expected that the factors given weight in the formula will include the magnitude and nature of the DNA backlogs and current DNA work demands in the jurisdictions that seek funding; deficits in public laboratory capacity for the timely and efficient analysis of DNA samples in these jurisdictions, and cost requirements for remedying these deficits; and the ability of these jurisdictions to use the funds to increase DNA analysis and public laboratory capacity for such analysis. It is further expected that the formula will target funding on the use of DNA analysis to solve the most serious violent crimes, including rapes and murders, whose solution through DNA testing promises the greatest return in promoting public safety.

Subsection (b) also reserves no more than 1 percent of the grant amounts to assist State and local crime labs to become accredited, and to undergo regular external audits, in order to ensure that such labs fully comply with Federal quality assurance standards. If an external audit of a crime lab funded by this Act identifies measures to remedy deficiencies with respect to the lab’s compliance with FBI standards, such remediation must be implemented as soon as practicable.

Finally, subsection (b) provides that DNA backlog grants may be used for non-DNA forensic science backlogs if the State has no significant DNA backlog or lab improvement needs relating to DNA processing.

Sec. 203. Expansion of Combined DNA Index System. CODIS -- the national database of DNA identification information – is currently limited to analyses of DNA samples from convicted offenders, crime scenes, unidentified human remains, and missing persons. This section expands CODIS to allow the inclusion of virtually any DNA information that a State chooses to collect, with two exceptions: DNA profiles of arrestees who have not been charged in an indictment or information, and DNA samples that are voluntarily submitted solely for elimination purposes.

This section also provides new authority for State and local law enforcement to perform “keyboard searches” of CODIS; using this tool, law enforcement can attempt to match DNA analyses of samples taken from crime suspects against the analyses in CODIS without permanently uploading information into the system. In addition, this section provides for the collection, analysis, and inclusion in CODIS of DNA samples from all convicted federal felony offenders – another significant expansion of the national database.

If the Department of Justice plans to modify or supplement the core genetic markers needed for compatibility with the CODIS system, it must notify the House and Senate Judiciary Committees in writing no less than 180 days before any change is made and explain the reasons therefore.

Sec. 204. Tolling of State of Limitations. Provides that, in a case where DNA testing implicates an identified person in the commission of a felony, except for a felony offense under chapter 109A, no statute of limitations would preclude prosecution of the offense until a time period equal to the statute of limitations has elapsed from the date of identification of the perpetrator.

Sec. 205. Legal Assistance for Victims of Dating Violence. Amends the Violence Against Women Act to include legal assistance for victims of “dating violence,” defined as violence committed by a person: (1) who is or has been in a romantic or intimate relationship with the victim; and (2) where the existence of such relationship is determined based upon consideration of its length and its type, and upon the frequency of interaction between the persons involved.

Sec. 206. Ensuring Private Laboratory Assistance in Eliminating DNA Backlog. Clarifies that grants may be made through vouchers and contracts to private for-profit laboratories to assist in collection of DNA samples from offenders and processing of crime scene DNA evidence.

TITLE III─DNA SEXUAL ASSAULT JUSTICE ACT OF 2004

Sec. 301. Short Title. This title may be cited as the “DNA Sexual Assault Justice Act of 2004.”

Sec. 302. Ensuring Public Crime Laboratory Compliance with Federal Standards. Requires that eligible State and local government public crime labs are accredited and undergo external audits, not less than once every 2 years, to demonstrate compliance with Federal standards established by the Federal Bureau of Investigation.

Sec. 303. DNA Training and Education for Law Enforcement, Correctional Personnel, and Court Officers. Authorizes grants to provide training, technical assistance, education and information relating to the identification, collection, preservation, analysis and use of DNA samples and DNA evidence by law enforcement personnel and other first responders who collect or examine crime scene evidence; court officers, including prosecutors, defense lawyers and judges; forensic science professionals; and corrections personnel. The grant program is authorized through 2009 at $12.5 million per year.

Sec. 304. Sexual Assault Forensic Exam Program Grants. Authorizes grants to provide training, technical assistance, education and information relating to the identification, collection, preservation, analysis and use of DNA samples and DNA evidence by medical personnel and other personnel, including doctors, medical examiners, coroners, nurses, victim service providers, and other medical professionals, including existing sexual assault and sexual assault examination programs (Sexual Assault Nurse Examiner (SANE), Sexual Assault Forensic Examiner (SAFE), and Sexual Assault Response Team (SART). The grant program is authorized through 2009 at $30 million per year.

Sec. 305. DNA Research and Development. Authorizes grants for research and development to improve forensic DNA technology, including funding of demonstration projects involving law enforcement agencies and criminal justice participants to evaluate the use of forensic DNA technology. The grant program is authorized through 2009 at $15 million per year.

Sec. 306. National Forensic Science Commission. Directs the Attorney General to appoint a National Forensic Science Commission, composed of members from the forensic science and criminal justice communities, which will be responsible for examining various issues, including: (1) maximizing the use of forensic sciences to solve crimes and protect public safety; (2) increasing the number of qualified forensic scientists; (3) disseminating best practices concerning the collection and analyses of forensic evidence; and (4) assessing Federal, State and local privacy protection laws and practices relating to access to, or use of, stored DNA samples and analyses. The grant program is authorized through 2009 at $500,000 per year.

Sec. 307. FBI DNA Programs. Authorizes $42.1 million per year through 2009 for FBI DNA programs and activities, including (1) nuclear DNA analysis; (2) mitochondrial DNA analysis; (3) regional mitochondrial DNA laboratories; (4) the Combined DNA Index System; (5) the Federal Convicted Offender DNA Program; and (6) DNA research and development.

Sec. 308. DNA Identification of Missing Persons. Authorizes $2 million per year through 2009 for grants to promote the use of forensic DNA technology to identify missing persons and unidentified human remains.

Sec. 309. Enhanced Criminal Penalties for Unauthorized Disclosure or Use of DNA Information. Modifies the existing criminal provision for unauthorized disclosure of DNA information to include unauthorized “use” of such information, and increases the potential fine to $100,000 for each criminal offense.

Sec. 310. Tribal Coalition Grants. Amends the eligibility criteria for discretionary grants under the Violence Against Women Act to include tribal coalitions, and thereby directly supports nonprofit, nongovernmental tribal domestic violence and sexual assault coalitions.

Sec. 311. Expansion of the Paul Coverdell Forensic Sciences Improvement Grant Program. Expands existing grant program to permit funds to be used to eliminate a backlog in the analysis of forensic science evidence, including ballistics examination, latent prints, and toxicology, and extends authorization of appropriations for 2007, 2008 and 2009, at $20 million a year. Current authorizations are $128,067,000 for 2004, $56,733,000 for 2005, and $42,067,000 for 2006. This section further amends the program to require any State applying for funds to certify that it has a process in place to conduct independent external investigations into any allegations of serious negligence or misconduct affecting the integrity of forensic results.

Sec. 312. Report to Congress. Requires the Attorney General to submit a report, not later than 2 years after enactment, relating to implementation of this title and title II.

TITLE IV─INNOCENCE PROTECTION ACT OF 2004

Sec. 401. Short Title. This title may be cited as the “Innocence Protection Act of 2004.”

Subtitle 1─Exonerating The Innocent Through DNA Testing

Sec. 411. Federal Post-Conviction DNA Testing. Establishes rules and procedures governing applications for DNA testing by inmates in the Federal system. A court shall order DNA testing if the applicant asserts under penalty of perjury that he or she is actually innocent, and the proposed DNA testing may produce new material evidence that supports such assertion and raises a reasonable probability that the applicant did not commit the offense. Motions filed more than 5 years after enactment and 3 years after conviction are presumed untimely, but such presumption may be rebutted upon good cause shown. Penalties are established in the event that testing inculpates the applicant. Where test results are exculpatory, the court shall grant the applicant’s motion for a new trial or resentencing if the test results and other evidence establish by compelling evidence that a new trial would result in an acquittal.

This section also prohibits the destruction of DNA evidence in a Federal criminal case while a defendant remains incarcerated, with certain exceptions.

The government may destroy DNA evidence if the defendant waived the right to DNA testing; if the defendant was notified after his conviction became final that the evidence may be destroyed and did not file a motion for testing; if a court has denied a motion for testing; or if the evidence has already been tested and the results included the defendant as the source. If the evidence is large or bulky, the government may remove and preserve a representative sample. Intentional violations of these evidence-retention provisions to prevent evidence from being tested or used in court are punishable by a term of imprisonment. Nothing in this section supersedes any law requiring that evidence be preserved.

Sec. 412. Kirk Bloodsworth Post-Conviction DNA Testing Grant Program. Authorizes $5 million a year in grants through 2009 to help States to defray the costs of post-conviction DNA testing. This program is named in honor of Kirk Bloodsworth, the first death row inmate to be exonerated by DNA testing.

Sec. 413. Incentive Grants to States to Ensure Consideration of Claims of Actual Innocence. Reserves the total amount of funds appropriated to carry out sections 303, 305, 308, and 412 of this Act for States that have adopted reasonable procedures for providing post-conviction DNA testing and preserving DNA evidence. States that have already adopted such procedures through legislation enacted before this Act shall qualify for these grants.

Subtitle 2─Improving The Quality of Representation In State Capital Cases

Sec. 421. Capital Representation Improvement Grants. Authorizes a grant program, to be administered by the Attorney General, to improve the quality of legal representation provided to indigent defendants in State capital cases. Grants shall be used to establish, implement, or improve an effective system for providing competent legal representation in capital cases, but may not be used to fund representation in specific cases. An effective system is one in which a public defender program or other entity establishes qualifications for attorneys who may be appointed to represent indigents in capital cases; establishes and maintains a roster of qualified attorneys and assigns attorneys from the roster (or provides the trial judge with a choice of attorneys from the roster); trains and monitors the performance of such attorneys; and ensures funding for the full cost of competent legal representation by the defense team and any outside experts. A State may also qualify for these grants if it has adopted and substantially complies with statutory procedures enacted before this Act under which the trial judge is required to appoint qualified attorneys from a roster maintained by a State or regional selection committee or similar entity.

Sec. 422. Capital Prosecution Improvement Grants. As part of the same program established in section 421, authorizes grants to improve the representation of the public in State capital cases. Grants shall be used to design and implement training programs for capital prosecutors; develop, implement, and enforce appropriate standards and qualifications for such prosecutors and assess their performance; establish programs under which prosecutors conduct a systematic review of cases in which a defendant is sentenced to death in order to identify cases in which post-conviction DNA testing is appropriate; and assist the families of murder victims.

Sec. 423. Applications. Establishes requirements for States applying for grants under this subtitle, including a long-term strategy and detailed implementation plan that reflects consultation with the judiciary, the organized bar, and State and local prosecutor and defender organizations, and establishes as a priority improvement in the quality of trial-level representation of indigents charged with capital crimes and trial-level prosecution of capital crimes in order to enhance the reliability of capital trial verdicts.

Sec. 424. State Reports. Requires States receiving funds under this subtitle to submit an annual report to the Attorney General identifying the activities carried out with the funds and explaining how each activity complies with the terms and conditions of the grant.

Sec. 425. Evaluations by Inspector General and Administrative Remedies. Directs the Inspector General of the Department of Justice to submit periodic reports to the Attorney General evaluating the compliance of each State receiving funds under this subtitle with the terms and conditions of the grant. In conducting such evaluations, the Inspector General shall give priority to States at the highest risk of noncompliance. If, after receiving a report from the Inspector General, the Attorney General finds that a State is not in compliance, the Attorney General shall take a series of steps to bring the State into compliance and report to Congress on the results.

Sec. 426. Authorization of Appropriations. Authorizes $75 million a year for five years to carry out this subtitle. States receiving grants under this subtitle shall allocate the funds equally between the programs established in sections 421 and 422.

Subtitle 3─Compensation Of the Wrongfully Convicted

Sec. 431. Increased Compensation in Federal Cases for the Wrongfully Convicted. Increases the maximum amount of damages that the U.S. Court of Federal Claims may award against the United States in cases of unjust imprisonment from a flat $5,000 to $50,000 per year in non-capital cases, and $100,000 per year in capital cases.

Sec. 432. Sense of Congress Regarding Compensation in State Death Penalty Cases. Expresses the sense of Congress that States should provide reasonable compensation to any person found to have been unjustly convicted of an offense against the State and sentenced to death.

FROM AROUND THE WEB

The Death Penalty Information Center(Deathpenaltyinfo.org) notes:

Justice O'Connor Notes Importance of International Law

During a recent speech at Georgetown Law School, U.S. Supreme Court Justice Sandra Day O'Connor emphasized the growing importance of international law in U.S. courts, saying judges would be negligent if they disregarded its importance in a post-September 11th world of heightened tensions. O'Connor said the Supreme Court is taking cases that demand a better understanding of foreign legal systems, noting, "International law is no longer a specialty. ... It is vital if judges are to faithfully discharge their duties. Since September 11, 2001, we're reminded some nations don't have the rule of law or (know) that it's the key to liberty." She stated that international law is "a help in our search for a more peaceful world." (Associated Press, October 27, 2004) See Supreme Court and International Death Penalty.

NEW VOICES: Texas Judge Calls for Halt to Executions

Judge Tom Price, a 30-year veteran Republican jurist on Texas's highest criminal court, recently stated that those on the state's death row convicted with evidence from the Houston Police Department crime lab should not be executed until questions about its work are resolved. Price called for a limited moratorium on executions, saying, "I think it would be prudent to delay further executions until we have had a chance to have this evidence independently verified. Once a death sentenced is carried out, you cannot reverse that." The call came after Price offered the only dissenting vote when the Court of Criminal Appeals denied Dominique Green's request for a delay of execution based on the crime lab's problems. Green, a Houston man who was sentenced to death in 1992, was executed on October 26. In his dissenting opinion, Price reiterated his concerns about the accuracy of the Houston Police Department's ballistics analysis as well as the recent discovery of 280 boxes of mislabeled evidence from some 8,000 criminal cases. The crime lab's problems have plagued the Houston Police Department for nearly two years and have prompted similar calls from the city's Police Chief, Harold Hurtt, and several lawmakers. Price's call for a moratorium is the first of this magnitude from state's judiciary. (Houston Chronicle, October 26, 2004) See Innocence.

NEW RESOURCE: New Book Examines Flawed Texas Death Penalty

In "No Justice: No Victory - The Death Penalty in Texas," author Susan Lee Campbell Solar examines capital punishment in Texas through a political lens and with a concentration on cases and anecdotes that illustrate the systemic flaws she uncovered during her research. The book, completed by friends and family of the author after she died unexpectedly, features interviews with attorneys, judges and law professors, as well as with those on death row, their family members, and families of murder victims. She closely examines the cases of Gary Graham and Odell Barnes, Jr., who were executed despite strong evidence of innocence. She also reviews the case of Larry Robison, who was executed despite the fact that he suffered from paranoid schizophrenia and was repeatedly turned away from mental health facilities because he wasn't considered violent. A crime victim herself, Solar used her research to examine the post civil war history of capital punishment in Texas and how this flawed system has been used by politicians for political gain. (Plain View Press, 2004) See Books.

Chicago Tribune Series Examines How Arson Myths May Lead to Wrongful Convictions

As part of its five-part series on forensic science and wrongful convictions, the Chicago Tribune examined how scientific developments in fire investigations have called into question crucial expert testimony in many cases, including some death penalty prosecutions. As a result of untested theories, shoddy analysis and a resistance to rigorous review, long-time arson investigators are now seeing their conclusions contradicted by colleagues who question the reliability of the folk wisdom that has dictated this profession for decades. What was once accepted as truth is now being exposed as inaccurate findings through research and laboratory tests, and some experts believe that thousands of fires may have been misinterpreted as arson over the last 50 years because of reliance on myths. For example, Ernest Willis was freed this month after spending nearly two decades on death row in Texas for alledgedly setting a 1986 fire that experts now say could not have been an arson. "God knows how many innocent people have been convicted. You've got tons of holdouts -- good old boys who've investigated 5,000 fires and they are doing it the same way they've always done it," said Gerald Hurst, a fire investigator whose expert testimony helped to exonerate Willis and several other wrongly convicted persons. Long-time fire investigator John DeHaan, who has been a fire and explosives consultant in California for more than 30 years, echoed Hurst's observation and noted, "Most of the fire investigation in the mid-1980's was taught by word of mouth by people who had been doing if for 20 years. There wasn't a lot of science in fire investigation. It was oral tradition." DeHaan also stated that among arson investigators there is a negative reaction to incorporating science into their methodology, and that many of these professionals still provide expert testimony based on outdated methodology. (Chicago Tribune, October 17, 2004) Read the complete Chicago Tribune series. See DPIC's Studies page.

NEW VOICES: California Bar Association Urges Death Penalty Moratorium

A group of 450 attorneys participating in the Conference of Delegates of the California Bar Association has urged a moratorium on the death penalty in California until the state reviews whether capital punishment laws are enforced fairly and uniformly. "If you make a mistake, it's not like you can go back and correct a mistake because the person is dead," said Los Angeles County Deputy District Attorney Danette Meyers, supporter of the measure and a member of the Bar Association that represents prosecutors, criminal defenders and civil attorneys from dozens of bar groups throughout the state. The group called on California lawmakers and Governor Arnold Schwarzeneggar to impose a two-year moratorium on executions and to create an independent committee focusing on race, the reliability of convictions and whether the condemned had adequate legal representation. It also requested an inquiry into the financial cost of capital punishment and whether capital punishment is imposed too often. Executions are rare in California even though it has the nation's largest death row of 640 inmates. One reason for the delay is that more than a quarter of those on California's death row have not been given a lawyer for their first and mandatory appeal to the state's Supreme Court. The state has carried out 10 executions since the death penalty resumed in 1976. (Associated Press, October 17, 2004) See Representation, Costs, Race, and Innocence.

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