Leading off this case is the Texas Court of Criminal Appeals opinion inBilly Wayne Coble v. State.Scott HensonatGrits for Breakfastnarrows in the core of the opinion: "'[f]orensic psychiatry is certainly a science; as Dr. Coons stated, it is practiced solely by those with a medical degree. It may be a 'soft science,' but trial courts, in their gatekeeping function, must ensure that the expertise is not only soft, but that it is science as well. 'Soft' science does not mean soft standards.The opinion walks through standards under precedential cases (Daubert/Kelly) and concludes Dr. Coons' testimony does not qualify.. . . Cochran warns that ''gatekeeping' standards of the trial court must keep up with the most current understanding of any scientific endeavor,' including forensic psychiatry, keeping in mind that 'The validity of the expert’s conclusions depends upon the soundness of the methodology.' A footnote cites research declaring 'two out of three predictions of long-term future violence made by psychiatrists are wrong.'" I should add, at the end of the day what is good for most practitioners is bad news for Mr. Coble as he loses on what amounts to harmless error analysis.

The Ninth Circuit's opinion inRicky Lee Earp v. Cullenis up next.Jon Sandsover at theNinth Circuit blognotes that "[i]n this death penalty case, the 9th remands on the issue of prosecutorial misconduct. The district court had the case back on a remand to hold an evidentiary hearing on the matter of misconduct and IAC. In the former, the petitioner argued that a witness favorable to him had been intimidated by the prosecution. The petitioner wanted to call the victim's mother to relate the pressure she felt from the police. Appointed counsel, she invoked the Fifth, and the court allowed a blanket invocation. This was error. The 9th precludes blanket invocations of the Fifth, and the invocation here denied the petitioner a full and fair opportunity to develop the facts. The witness did not, as the State argues, face perjury; the statute had run. The 9th remanded to a different judge given that the court had made findings of credibility already, had sought to cut the hearing short, and was critical of the 9th having issued a stay so that petitioner could bring in witnesses. On the IAC claim, the 9th affirmed the denial. It held that trial counsel was not ineffective in its psychological evidence and in not presenting evidence of organic brain damage, if it existed, at that time. Counsel also was not ineffective in its mitigation investigation of the petitioner's background."

In the news, thefinal opinionfrom the TexasSpecial Court of Review resultedin dismissal of the public reprimand of Texas CCA Presiding Judge Sharon Keller.Fifteen Mississippi death row inmates are challengingthethe Mississippi Office of Capital Post-Conviction Counsel was inadequately staffed and funded and its attorneys were not versed in handling death row appeals. Jeffrey Landrigen's execution was green lighted Tuesday night by the United States Supreme Court, 5-4,following revelations that Arizona imported its sodium thiopental from Great Britain, Britain's Foreign Office has not yet responded.

DPIC notes "[t]he Atlantic Center for Capital Representation (ACCR) is a newly formed non-profit death penalty resource center located in Philadelphia, Pennsylvania. ACCR provides pre-trial consultation to capital defense practitioners and defense teams in Pennsylvania and Delaware. They are involved in conducting statewide capital defense trainings, as well as public education and advocacy. The ACCR is led by Marc Bookman and Dana Cook, both formerly of the Homicide Unit of the Defender Association of Philadelphia. If you are interested in or have additional questions about this new resource, please contact Mr. Bookman at 215-732-ACCR (2227);mbookman@atlanticcenter.orgordcook@atlanticcenter.org."

Two final notes: I've been in trial mode for the last few weeks and likely will be for a few more weeks, my apologies for "skimping" on analysis. Secondly, and directly related to the first, a few cases (all from Texas) will be covered later this week on the daily blog as simply there was not enough time to cover them and to finish trial prep.

Pending Executions

October

26 Jeffrey Landrigen* (Az)

November

4 Phillip Halford* (Ala)

9 Steven Michael West* (Tenn)

16 Sidney Cornwell* (Ohio)

December

1 Steven Staley* (Tex)

7 Billy Irick* (Tenn)

16 John David Duty* (Okla)

Stays & Commutations

October

14 Gayland Bradford* (Tex)

16 Jeffrey Matthews (Okla)

20 Roderick Nunley* (Mo)

Executions

October

6 Michael Benge* (Ohio)

14 Donald Wackerly II* (Okla)

21 Larry Wooten* (Tex)

*"serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [ via DPIC]

Week ofOctober 18, 2010:In Favor of the Accused or Condemned

• Roderick Nunley v. Bowersox,2010 U.S. App. LEXIS 21553 (8th Cir 10/19/2010)(unpublished) Stay upheld on claims relating toRing. I would encourage all habeas practitioners to read the this and the district court's opinion. The stay survived cert attempts by the warden and offers an interesting take on AEDPA.
• Ricky Lee Earp v. Cullen, 2010 U.S. App. LEXIS 21477 (9th Cir 10/19/2010) "Inmate who sought habeas relief was not given a full and fair evidentiary hearing on a prosecutorial misconduct claim; the victim's mother was improperly allowed to anticipatorily claim the Fifth Amendment privilege against self-incrimination because the district court believed that the mother was going to testify untruthfully." [via Lexisone]

Week ofOctober 18, 2010:In Favor of the Prosecution or Warden

• Ernest Valencia Gonzales v. United States Dist. Court (In re Gonzales), 2010 U.S. App. LEXIS 21605 (9th Cir 10/20/2010) "A petition for a writ of mandamus by an inmate sentenced to death to stay his habeas proceeding was granted because the district court's decision was foreclosed that a stay under the Rohan decision was categorically unavailable when a capital habeas petitioner's claims consisted only of record-based or legal questions." [via Lexisone]
• Kobal v. Sec. Dep’t of Corrections, No. 08-11722 (11th Cir 2010) Panel "denied habeas relief to a Florida inmate sentenced to death for the 1983 murder a sailor. The Court rejected Kobal’s argument that his lawyer was ineffective for failing to conduct an investigation that would have revealed Kobal’s brain damage. The Court found that the Florida Supreme Court, in previously balancing the aggravating and mitigating factors, had not weighed the factors unreasonably in concluding that Kobal was not prejudiced by the lack of evidence of brain damage. The Court noted the “heartless” nature of the murder, and that, even had Kobal presented evidence of brain damage (which the Court found weak), he would also have presented evidence of his substance abuse on the night of the crime, a two-edged sword. "
• Jimmy Wayne Lawrence v. Cooper, 2010 U.S. App. LEXIS 21675 (4th Cr 10/20/2010) (unpublished) "Applying the North Carolina statute of limitations for personal injury actions to the inmate's 42 U.S.C.S. § 1983 claims concerning his state post-conviction proceedings, the inmate's actions were time-barred as outside the applicable three-year period and were properly dismissed the action as frivolous under 28 U.S.C.S. § 1915." [via Lexisone]
• Rodrigo Hernandez v. Thaler,2010 U.S. App. LEXIS 21519 (5th Cir 10/18/2010) (unpublished) "Because petitioner put forth no reason to second-guess his lawyer's decision not to object during questioning of the medical examiner, reasonable jurists had to presume that the trial tactic was sound, and the claim did not warrant a COA; an objection would have drawn more attention than necessary to the strangulation of the victim." [via Lexisone]
• Brand Eugene Lacy v. State, 2010 Ark. 388; 2010 Ark. LEXIS 484 (Ark 10/21/2010) Relief deneid on sufficiency, admission of certain evidence sought by the state, undue burdens placed on the defense hampering their ability to present a defense, Brady violations, and prosecutorial abuse of the subpoena power.
• People v. Robert Allen Bacon, 2010 Cal. LEXIS 10686 (Cal 10/21/2010) "Defendant's conviction for first degree murder and other crimes, and sentence of death are affirmed on automatic appeal over various challenges including: 1) trial court's exclusion of a note written by defendant; 2) Miranda violation; 3) trial court's various jury instructions; 4) sufficiency of evidence for prior-murder special circumstance; 5) admission of handgun possession evidence under Penal Code section 190.3(b); 6) penalty phase prejudice from failure to suppress defendant's statements; 7) challenges to the death penalty law; and 9) cumulative effect of penalty phase errors." [via FindLaw]
• Ronnie Lee Bowling v. Simpson, 2010 Ky. Unpub. LEXIS 93 (Ky 10/21/2010) (unpublished)* Attempts to use habeas corpus to challenge detention denied as under state precedent habeas corpus is reserved for this cases where a conviction is void ab initio.
• William Eugene Thompson v. Commonwealth, 2010 Ky. Unpub. LEXIS 99 (Ky 10/21/2010) (unpublished) Trial counsel's decision in argument to the jury to stress the theoretical possibility of parole only when the defendant was 75 was reasonable, and even if ineffective not harmful. Remaining claims should have been previously litigated or were barred by state precedent concerning the right to an evidentiary hearing.
• People v. Rodney Adkins, 2010 Ill. LEXIS 1543 (Ill 10/21/2010) Relief denied on claims including: "whether Mr. Adkins’s home invasion conviction must be vacated because the same physical acts underlie the home invasion and murder and whether the trial court erred in finding him eligible for a death sentence because he had committed home invasion;" "whether counsel’s concession that Mr. Adkins was guilty of residential burglary requires this court to vacate the finding that Mr. Adkins was eligible for a death sentence because the murder was committed in the course of a residential burglary;" and "whether Mr. Adkins was denied his right to confront witnesses at the aggravation/mitigation hearing where the state played the taped statement his girlfriend made to the police and presented an incriminating affidavit from a former director of the Arkansas State Police" [viaIllinois OSAD]
• People v. Angelo Thompson, 2010 Ill. LEXIS 1536 (Ill 10/21/2010) (dissent) "When the jury was selected in 2007, the trial judge did not question the venirepersons as to whether they understood and accepted that the defendant was not required to produce any evidence. Also, he did not ask whether they accepted the concepts of proof beyond a reasonable doubt and the presumption of innocence. In so doing, the trial judge failed to comply with a revised supreme court rule concerningvoir direwhich had taken effect just two weeks before. The defendant did not preserve these issues in the trial court and complained of these defects for the first time on appeal, seeking plain-error review. The appellate court reversed for noncompliance with the rule, ordering a new trial.In this decision, the supreme court held that the circuit court conviction could stand. It held that this was not an instance in which there should be automatic reversal, since the defects complained of did not necessarily result in a biased jury, and since there was no indication that the jury was, in fact, biased. Also, there had been admonitions and instructions to the jury on these same issues. Thus, it could not be said that the defects rendered the trial fundamentally unfair or unreliable in determining guilt or innocence. The defense, having failed to give the trial court below an opportunity to correct the defects at the time, had sought plain-error review on appeal, but failed to meet his burden of persuasion under the plain-error doctrine." [via Illinois Supreme Court prepared summary]
• Robert Sparks v. State, NO. AP-76,099 (Tex. Crim. App. 10/20/2010) (unpublished)
• Christoper Chubasko Wilkins v. State. AP-75,878 (Tex. Crim. App. 10/20/2010) (unpublished)
• United States v. Michael Whitten, et al., 2010 U.S. App. LEXIS 21483 (2nd Cir 10/19/2010) (dissent of denial en banc) Sharp dissent over the denial of rehearing en banc on the issue of prosecutorial rhetorical excesses in summation.

Week ofOctober 11, 2010:In Favor of the Accused or Condemned

• State v. Nathaniel Jackson, 2010 Ohio 5054; 2010 Ohio App. LEXIS 4254 (Ohio 11th App 10/15/2010) Trial court judge "admitted in an affidavit that he enlisted prosecutorial assistance in preparing and drafting appellant's sentencing entry but failed to include defense counsel in the process. The ex parte collaboration between Judge Stuard and the prosecution to prepare the court's sentencing opinion was "wholly inconsistent" with the ethical constraints of Canon 3(B)(7) and DR 7-110(B). Based on the Supreme Court of Ohio's holding in Roberts, appellant is entitled to the same relief afforded to his co-defendant. Thus, the trial judge must personally review and evaluate the appropriateness of the death penalty, prepare an entirely new sentencing entry as required by R.C. 2929.03(F), and conduct whatever other proceedings are required by law and consistent with this opinion."

Week ofOctober 11, 2010:In Favor of the Prosecution or Warden

• Billy Wayne Coble v. State, 2010 Tex. Crim. App. LEXIS 1297 (Tex. Crim. App. 10/13/2010) Trial court erred in finding the State's proffered witness an expert for the purposes of figure dangerousness analysis.Death sentence nonetheless affirmed. DPIC notes "the methodology used by Dr. Richard Coons to predict the "future dangerousness" of capital defendants was unreliable. Whether a convicted defendant would be a future danger to society is a crucial question for juries in Texas in choosing between a life or death sentence.Dr. Coons has testified in over 150 death penalty trials across the state. He admitted in a recent hearing that he had developed his own methodology for assessing future dangerousness, one in which he considers the defendant’s conscience, attitudes toward violence and criminal history. “These factors,” according to the court opinion, “sound like common sense ones that the jury would consider on its own.” Capital defense experts consider this a significant ruling pertaining to expert testimony in death penalty cases. Russ Hunt Jr., who represented the defendant in the case where this ruling was made, said, “If you are going to be an expert, you should have some scientific basis of what you are testifying about.” Hunt continued, “[Coons] basically just says, ‘Trust me. I’m a doctor. I know it when I see it.’” Dr. Coons, a forensic psychiatrist, has recently stopped taking death penalty cases."
• Carlos Cuesta-Rodriguez v. State,2010 OK CR 23; 2010 Okla. Crim. App. LEXIS 23 (Okla. Crim. App. 10/12/2010) "Evidence was sufficient to support defendant's first-degree murder conviction under Okla. Stat. art. 21, § 701.7, where he killed his girlfriend by shooting her twice because the evidence was sufficient to establish intent to kill where the gun used was unusual in that it required several sequential steps to be fired a second time." [via Lexisone]
• Justin Anderson v. State,2010 Ark. 375; 2010 Ark. LEXIS 470 (Ark 10/7/2010) Publicly removing appellate counsel and referring to the bar ethics committee for a "woefully deficient" brief.
• Paul Everett v. State, 2010 Fla. LEXIS 1731 (FL 10/14/2010) On post-conviction appeal, relief denied on "four guilt-phase ineffective assistance of counsel claims, asserting that counsel was ineffective due to his (a) failure to adequately communicate with Everett; (b) failure to adequately present Everett‘s Miranda argument at the pretrial suppression hearing; (c) failure to adequately challenge forensic serological evidence and object to an unqualified witness opining on that evidence; and (d) failure to adequately represent Everett by presenting the lead police detective as the sole defense witness. Everett also raises four penalty-phase ineffective assistance of counsel claims, asserting that counsel was ineffective due to his (a) improper reliance upon Everett‘s alcoholic father for mitigation; (b) failure to present evidence that Everett had no male role model other than his alcoholic father and that Everett was denied a stable upbringing; (c) failure to consult with a psychological or psychiatric professional for purposes of establishing mitigation; and (d) failure to introduce evidence about Everett‘s drug use. Everett presents three additional arguments. He contends that the cumulative effect of the errors and omissions of counsel in the guilt and penalty phases warrants relief. He asserts that the postconviction court erred in summarily denying his claim that Florida‘s death penalty procedures violate due process. Finally, Everett argues that the postconviction court erred in summarily denying his challenge to Florida‘s lethal injection procedures."
• Ex parte Gayland Bradford, NO. WR-44,526-03 (Tex. Crim. App. 10/13/2010) (unpublished) Denial of State habeas corpus relief without substantial discussion.
• Ex parte Adam Kelly Ward, NO. WR-70,651-02 (Tex. Crim. App. 10/13/2010) (unpublished) Denial of State habeas corpus relief without substantial discussion.
• Ivan Abener Cantu v. State, No. AP-76,281 (Tex. Crim. App. 10/13/2010) (unpublished) Relief deneid on claims "inter alia that: (1) testing of the "biological material found under the decedents' fingernails . . . would exculpate" him and (2) testing of the hair "could be critical to proving" that someone other than him drove Mosqueda's Corvette on the night of the murders or the following day.
• Gregory Lee Wilson v. Rees, 2010 U.S. App. LEXIS 21296; 2010 FED App. 0329P (6th Cir. 10/14/2010) (dissent of denial en banc) Sharp dissent over the denial of rehearing en banc technically on the issue controlling lethal injection precedent but, a fairly harsh discussion of the quality of indigent defense also had. State trial court proceedings denounced as a "kangaroo court."

Week ofOctober 4, 2010:In Favor of the Prosecution or Warden

• Lee Andrew Taylor v. Thaler, 2010 U.S. App. LEXIS 21429 (5th Cir 10/7/2010)(unpublished) "While juveniles (JUV) could not be sentenced to death, a JUV offense could be used to elevate murder to capital murder, and since an inmate received a death penalty for a murder he committed as an adult, the JUV conviction and its life sentence rendered him eligible for death under Tex. Penal Code Ann. § 19.03(a)(6)(B); habeas relief was denied." [via Lexisone]
• Ex parte Jedidiah Isaac Murphy, NO. WR-70,832-02 (Tex. Crim. App. 10/6/2010) (unpublished) Remand to "the trial court to make findings of fact and conclusions of law regarding whether or not the factual basis of the claim was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed. See Art. 11.071, 5(e). If the trial court determines that the factual basis of the claim was not ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed, then it will proceed to determine the merits of the claim."
• Ex parte Jedidiah Isaac Murphy, NO. WR-70,832-02 (Tex. Crim. App. 10/6/2010) (unpublished) Remand to "the trial court to make findings of fact and conclusions of law regarding whether or not the factual basis of the claim was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed. See Art. 11.071, 5(e). If the trial court determines that the factual basis of the claim was not ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed, then it will proceed to determine the merits of the claim."
• Paul David Storey v. State,NO. AP-76,018 (Tex. Crim. App. 10/6/2010) (unpublished)
• Justin Anderson v. State,2010 Ark. 375; 2010 Ark. LEXIS 470 (Ark 10/7/2010) Publicly removing appellate counsel and referring to the bar ethics committee for a "woefully deficient" brief.
• Jason Taylor v. State, 2010 Ark. 372; 2010 Ark. LEXIS 468 (Ark 10/7/2010) Relief denied on claims “that the circuit court erred in (1) denying his motion for directed verdict, (2) refusing to declare Christina Head an accomplice as a matter of law and refusing to submit the issue to the jury, (3) denying his motion to quash the felony information based on the unconstitutionality of the death penalty statute, and (4) allowing prosecutorial misconduct.”
• Dane Patrick Abdool v. State10) Relief denied on claims relating to whether “(A) the trial court erred in denying his motion for judgment of acquittal because the evidence did not prove premeditation; (B) the trial court erred in allowing Detective Bobby Gammill to state his opinion on whether Amelia‘s death was accidental; (C) the trial court erred by allowing the State to call the victim‘s father because he presented no relevant evidence; (D) the trial court erred by ordering defense counsel to turn over the raw data used by its mental health expert prior to the penalty phase; (E) the prosecutor elicited improper, inflammatory, and irrelevant evidence during the penalty phase, rendering the proceeding unfair; (F) the victim impact evidence was irrelevant and prejudicial and denied Abdool due process; (G) the trial court improperly found CCP and failed to consider weighty mitigation; (H) the death sentence is not proportionate; and (I) Florida‘s capital sentencing scheme is unconstitutional under Ring.
• Kenneth Louis Dessaure v. State(1) failing to move for a competency determination after Dessaure waived the presentation of mitigation evidence to a penalty phase jury; and (2) failing to present the mitigation testimony of [a certain expert] at his Spencer hearing.” As to the habeas petition, relief denied on whether “appellate counsel was ineffective for (1) failing to raise on direct appeal that the jury instructions constituted fundamental error by improperly instructing the jury on felony murder and other charges not contained in the grand jury indictment; and (2) failing to raise instances of prosecutorial misconduct.”
• People v. Daniel Ramsey, 2010 Ill. LEXIS 1534(Ill 10/7/2010) Relief denied, most notably, on claims relating to whether the People reneged on its promise to not seek death if Mr. Ramsey plead guilty to murder and whether counsel met the requirements to be members of the Capital Litigation Trial Bar.
• Wayne Kubsch v. State, 2010 Ind. LEXIS 572 (Ind 10/5/2010) Relief denied on claims that the State failed to disclose exculpatory evidence, and, “trial counsel were ineffective because they: (a) failed to object to evidence regarding investigation of a life insurance claim, (b) failed to object to testimony regarding the presence of a non-testifying defense expert during DNA testing, (c) failed to object to the State’s 404(b) notice, (d) failed to object to the introduction of a receipt for the purchase of a ski mask, (e) failed to present all available impeachment evidence to one of the State’s witnesses, (f) failed to seek a stipulation or present evidence to bolster Kubsch’s testimony, (g) failed to present evidence regarding a car driving away from the murder scene, (h) failed to present evidence of an ATM transaction the day after the murder, (i) introduced testimony that contradicted his defense, and (j) failed to adequately cross-examine the State’s expert and correct inaccuracies in the State’s closing argument ” Court finds a large number of undisclosed claims defaulted or waived.
• State v. Michael Addison, 2010 N.H. LEXIS 110 (N.H. 10/6/2010) Addressing proportionality review, “in state case comparison is preferable. Local jury verdicts best express contemporary community values regarding whether the punishment of death is appropriate for a particular crime committed by a particular defendant.. . . [But,] in this case we will consider published opinions of out-of-state cases to the extent such comparison would be meaningful for performing comparative proportionality review under the framework set forth in this opinion. If New Hampshire’s death penalty jurisprudence develops beyond this first death penalty case of its kind, we may in the future find it unnecessary to consider out-of-state cases for purposes of comparative proportionality.”
• State v. H.R. Hester, 2010 Tenn. LEXIS 897 (Tenn 10/5/2010) Relief denied holding that: “(1) the manner in which the district attorney general gave notice of the State’s intention to pursue the death penalty was not improper; (2) the defendant was not denied his right of self-representation; (3) the trial court did not err by denying the defendant’s request for a continuance filed eight days before the trial; (4) the defendant failed to establish a prima facie case that the process used to select the jury venire deprived him of his right to select a jury from a fair cross-section of the community; (5) the defendant failed to make the necessary pretrial objections to raise an argument that the jury selection procedures violated Tenn. Code Ann. § 22-2-304(e) (1994) and has failed to demonstrate any prejudice that he suffered from any violations thereof; (6) the trial court did not err by denying the defendant’s request to retain an expert statistician; (7) even assuming two of McMinn County’s jury commissioners were not statutorily qualified for their positions, Mr. Hester suffered no resulting prejudice; (8) the trial court did not commit reversible error with regard to its decisions relating to the admission or exclusion of evidence; (9) the trial court did not improperly comment on the evidence; (10) the trial court’s instruction on reasonable doubt was not erroneous; (11) the trial court did not err when it replaced a juror during the sentencing phase of the trial; (12) the record contains sufficient evidence of premeditation; (13) the defendant’s due process rights were not infringed by the denial of compulsory process, the trial judge’s failure to recuse himself sua sponte, or the manner in which the trial court considered his motion for new trial; (14) the defendant is not entitled to a reversal of his conviction and sentence because of the cumulative effect of errors during the entire proceeding; and (15) the defendant’s multiple challenges to Tennessee’s death penalty statutes and the procedures and the protocol for carrying out the death penalty are without merit. ”

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