Leading off this edition (covering reported cases October 13 - October 26, 2003) isConnecticut v. Rizzo.Rizzoearns the hot spot for the unique interpretation offered by the Connecticut Supreme Court of that state's new statutory scheme. Specifically, in examining the statutory language of that state's sentencing scheme and its state constitution (including a discussion comparing it with numerous other states' schemes and constitutions) the Court concludes that aggravators must outweigh mitigators beyond a reasonable doubt, despite language seemingly indicating the contrary in the new state statute.

Several other cases of note are also had. InPayton v. Woodfordthe Ninth Circuit en banc holds that the trial court improperly limited the presentation of mitigation evidence, specifically, "evidence of [a] post-crime religious conversion and good behavior in prison." InHead v. Striplingthe Georgia Supreme Court holds Brady applicable to sentencing and that the state unlawfully suppressed evidence of Defendant's mental retardation. InArizona v. Montanothe state vacates the sentence of death in light of Ring. InEchols v. Arkansas(one of the co-defendants in the infamous West Memphis Three case) the Arkansas Supreme Court denies relief on claims including suppression of exculpatory evidence.

USA Today has posted finished astudythat notes a decrease in the number of stays of execution the Supreme Court has granted over the past 10 years. According to the article, during the 1993-1994 term, the Court granted nearly 24% of the requests for reprieve the Court received. However, in the 2002-2003 term, the Court only granted 3% of these requests. The article maintains the decrease in stays of execution indicates the Supreme Court’s desire to have lower courts carry more of the burden in screening death row appeals. (Thanks toGoldsten & Howefor the update.)

EXECUTION INFORMATION

Executed since the last edition.

October

20 John Clayton Smith Missouri---volunteer

Upcoming execution dates include:

November

4 James Brown Georgia

7 Joseph Keel North Carolina

14 John Daniels North Carolina

December

3 Richard Duncan Texas

5 Robbie Lyons North Carolina

9 Billy Vickers Texas

10 Kevin Zimmerman Texas

11 Bobby Lee Hines Texas

SUPREME COURT

No cases noted

HOT LIST

Connecticut v. Rizzo, 2003 Conn. LEXIS 394 (Conn 10/14/2003) (dissent) State statutory scheme requires that a jury must be instructed that in "arriving at its judgment that the aggravating factors outweigh the mitigating factors by any degree or amount, it must be persuaded that death is the appropriate penalty in the case, and that its level of certitude in arriving at that ultimate weighing judgment must be beyond a reasonable doubt."

In 1995, the legislature amended the statutory scheme to [*10] provide for a weighing process by the jury at the penalty phase. See Public Acts 1995, No. 95-19, § 1 (P.A. 95-19). Under the statutory scheme as amended in 1995, the burdens of persuasion regarding proof of the existence of aggravating and mitigating factors remain the same. The state must still establish the existence of an aggravating factor by proof beyond a reasonable doubt, and the defendant must still establish the existence of a mitigating factor by a preponderance of the evidence. Furthermore, the role of a statutorymitigating factor remains the same: proof of its existence will preclude the imposition of the death penalty and mandate a sentence of life imprisonment without the possibility of release. General Statutes (Rev. to 1997) § 53a-46a (g) and (h); see footnote 4 of this opinion.

Under the 1995 amended scheme, however, the role of the nonstatutorymitigating factors has changed. Pursuant to General Statutes (Rev. to 1997) § 53a-46a (e), the jury must return "a special verdict setting forth . . . whether any aggravating factor or factors outweigh any [nonstatutory] mitigating factor or factors," and, pursuant to General Statutes (Rev. to 1997) § 53a-46a [*11] (f), if the "mitigating factors . . . are outweighed by . . . [the] aggravating factors . . . the court shall sentence the defendant to death." See footnote 4 of this opinion. Thus, under these provisions, the jury must weigh the aggravating factors proven against the nonstatutory mitigating factors proven, and if the aggravating factors outweigh the mitigating factors, the court must impose the death sentence. The statute is silent, however, with respect to a burden of persuasion on the weighing process itself.

The defendant claims that the applicable burden of persuasion on the weighing process is the traditional criminal burden of beyond a reasonable doubt. n8Before considering the defendant's claim, we must first identify it, because it is subject to two different interpretations: one interpretation focuses on measuring the balancebetween the aggravating factors and the mitigating factors; and the other interpretation focuses on the level ofcertituderequired of the jury in determining that the aggravating factors outweigh the mitigating factors. In other words, we first must clarify whether the defendant claims that: (1) in performing the weighing process, [*12] the jury must be persuaded that the aggravating factors outweigh the mitigating factors by some quantum or amount measured by the "beyond a reasonable doubt" standard; or (2) in performing the weighing process, the jury must be persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors by any degree or amount. Under the first interpretation, the jury must be persuaded that the balance of the aggravating factors against the mitigating factors must tip greatly--in the words of the defendant's request to charge, "substantially"; see footnote 8 of this opinion;--in favor of the aggravating factor such that the quantitative difference between the two factors would be aptly described as "beyond a reasonable doubt." Under the second interpretation, the jury need only determine that the aggravating factor is greater in some degree or amount than the mitigating factor, but, in arriving at that determination, it must be persuaded by a level of certitude of beyond a reasonable doubt. Although it is not altogether clear, a fair reading of the defendant's briefs is that he claims that: (1) the first interpretation is constitutionally required by our state constitution; [*13] but (2) even if the constitutional claim fails, the second interpretation should be adopted to fill a gap left by the legislature on the burden of persuasion applicable to the ultimate weighing decision.

Against this background, we consider the defendant's challenge to the constitutionality, under our state constitution, of § 53a-46a (e) and (f). Specifically, the defendant claims that, under our state due process clauses, embodied in article first, §§ 8 and 9, of the state constitution, n9in order for the death penalty to be imposed, the jury must be instructed that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. More specifically, the defendant claims that "[the] jury was not instructed about the standard of certainty that the jury needed to employ when deciding whether or not the aggravating [factor] outweighed the mitigating factors. The defendant maintains that this absence of a statutory standard [of certitude] means that the legislature has left it to the courts to provide an appropriate standard. . . . The proper standard of certitude for this question of first impression should be that, in order for there to be a death sentence, the proven aggravating factor(s) must outweigh the proven mitigating factor(s) beyond a reasonable doubt."

To summarize then, we conclude that our state constitution does not require that the jury, in deciding the balance between the aggravating factors and the mitigating factors, determine that that balance be anything other than is described by the terms, "greater than," "weightier than," "more compelling than," or "more significant than," in any degree or amount. The balance constitutionally need not be described as " substantiallymore than," or as "beyond a reasonable doubt." As we explain in part I F of this opinion, however, the jury's subjective level ofcertitudein reaching the determination that the aggravating factors outweigh the mitigating factors, as described previously, must be that level of certitude defined by the phrase, "beyond a reasonable doubt."

The [*78] Appropriate Burden of Persuasion on the Weighing Process

Having concluded that there is no state constitutional requirement that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt, we are not, however, finished with our task. We further conclude that, despite this constitutional conclusion, without an appropriate burden of persuasion placed on the level of certitude that the jury must have in making its weighing determination, there would be a potentially significant state constitutional question about our capital sentencing scheme. Therefore, without deciding and in order to avoid any such state constitutional question, we conclude n31that the jury must be instructed that, in arriving at its judgment that the aggravating factors outweigh the mitigating factors by any degree or amount, it must be persuaded that death is the appropriate penalty in the case, and that its level of certitude in arriving at that ultimate weighing judgment must be beyond a reasonable doubt. n32See Statev. Snook, 210 Conn. 244, 251, 555 A.2d 390 (1989) ("this court should try, whenever possible, to construe statutes to avoid a constitutional [*79] infirmity" [internal quotation marks omitted]), cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

Informing our conclusion regarding the required burden of persuasion for the jury in its performance of the weighing process, are three factors, namely: (1) the nature of the death penalty; (2) an overarching need for reliability and consistency in the imposition of the death penalty; and (3) the nature of the jury's determination to render a verdict requiring the penalty. These three factors are directly relevant to an analysis under In re Winship, supra, 397 U.S. 370-72, of the appropriate burden of persuasion because they indicate that the decision to sentence a defendant to death is of the highest importance and that a jury cannot be faced with a more solemn task. As a foundation for our conclusion that, in order to avoid potentially significant constitutional questions, there must be a burden of persuasion of beyond a reasonable doubt on the jury's determination to impose the death penalty, we focus first on those three factors.

Death is different. "The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic [*82] purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." Furmanv. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Stewart, J., concurring). "The imposition of death by public authority is . . . profoundly different from all other penalties . . . ." Lockettv. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). "The penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two." Woodsonv. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).

Moreover, an overarching principle of both federal and our state constitutional death penalty jurisprudence is that, "because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Id. The eighth amendment requires "heightened reliability . . . in the determination whether [*83] the death penalty is appropriate . . . ." Sumnerv. Shuman, 483 U.S. 66, 72, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987). Under our prior, nonweighing statute, we held that the finding of an aggravating factor met the federal constitutional "prerequisite of consistency and reliability by guiding the capital sentencer's discretion" at the eligibility phase, and that requiring the death penalty only where no mitigating factor was proven met the federal constitutional "individualization prerequisite by requiring the sentencer to consider any relevant mitigating information so as to enable the sentencer to make the reasoned moral judgment that death is the appropriate punishment in a particular case." Statev. Ross, supra, 230 Conn. 238-39. We have also held that "the due process clauses of our state constitution incorporate the principles underlying a constitutionally permissible death penalty statute that the United States Supreme Court has articulated in cases such as Californiav. Brown, [479 U.S. 538, 541, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987)], Eddingsv. Oklahoma, [455 U.S. 104, 110-12, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)], [*84] and Lockettv. Ohio, supra, 438 U.S. 602-605. These principles require, as a constitutional minimum, that a death penalty statute . . . must channel the discretion of the sentencing judge or jury so as to assure that the death penalty is being imposed consistently and reliably . . . ." (Emphasis added.) Statev. Ross, supra, 252. In addition, of course, the death penalty represents the most extreme form of power exercised by the state over the individual.

Furthermore, precisely because of the enormous qualitative difference between death and all other forms of punishment, the nature of the jury's determination to impose it is different from all other determinations that juries make in our state's legal system. On a strictly procedural level, a capital penalty phase proceeding differs from all other sentencing proceedings in that: (1) it is the only such proceeding in which a jury, rather than the court, may in effect impose the sentence; see Statev. Breton, 235 Conn. 206, 246, 663 A.2d 1026 (1995); (2) it is the only such proceeding in which there must be a full, trial-like, evidentiary hearing; and (3) it is the only such proceeding [*85] in which the state must establish the foundation of its case for sentencing--in the sense of establishing the aggravating factor--by proof beyond a reasonable doubt. Furthermore, as a practical matter, in many capital cases the question of whether the defendant should suffer the death penalty, as opposed to whether he or she in fact committed a capital felony, is the principal and overarching question in the case. Indeed, in the present case, it was the onlyquestion. On a more fundamental level, the "'task . . . of determining whether a specific human being should die at the hands of the State'"; Statev. Ross, supra, 230 Conn. 241, quoting Caldwellv. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985); necessarily calls upon the intellectual, moral and emotional resources of the jurors in a way that far exceeds any factual determination of guilt or innocence. It requires the jury to make "a reasoned moral and individualized determination" regarding the imposition of the death penalty. Statev. Ross, supra, 253. It is not hyperbole to say that making "the choice is between life and death"; Lockettv. Ohio, supra, 438 U.S. 605; [*86] is the most serious decision that our legal system requires a jury to make. Indeed, we have described it as an "awesome decision . . . ." Statev. Ross, supra, 253.

Under the current statute . . . . once the state has proved at least one aggravating factor (the second tier) and the defendant has proved at least one mitigating factor (the third tier), the jury must then weigh the one against the other (the fourth tier). This change in our capital sentencing scheme has effectively expanded the selection phase to include, in addition to the determination of whether [*89] the defendant has established mitigation, the weighing of the aggravating factors against the mitigating factors. It has also resulted in a significant gap in the sentencing scheme--namely, unlike our former, nonweighing statute, the current sentencing statute does not require the jury to make its ultimate determination--that the aggravating factors outweigh the mitigating factors, and that, therefore, death is the appropriate sentence--by a level of certitude beyond a reasonable doubt. Indeed, because the legislature was silent as to the required level of certitude imposed on the jury's weighing determination, there is a statutory lacuna, which, we are persuaded, should be filled.

We recognize that, in effect, by imposing the reasonable doubt standard on the jury's level of certitude in order to fill the gap in the weighing statute, we are channeling juror discretion during the selection phase. The United States Supreme Court has accorded "differing constitutional treatment" to the eligibility and selection phases; Buchananv. Angelone, 522 U.S. 269, 275, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998); emphasizing the need to channel sentencer discretion during the [*90] eligibility phase rather than the selection phase. See, e.g., id., 275-76; Tuilaepav. California, supra, 512 U.S. 971-73.

In our case law, we have, in fact, recognized this development in the Lockett-Eddingsline of cases. See Statev. Cobb, supra, 251 Conn. 483-85, quoting Buchananv. Angelone, supra, 522 U.S. 275-77. In Ross, however, when we alluded to the federal standard in the context of our discussion of the defendant's state constitutional claims, we specifically stated that the federal standards set a state "constitutional minimum . . . ." Statev. Ross, supra, 230 Conn. 252. Indeed, we acknowledged, in regard to the individualization requirement, at the selection phase, that "although this [requirement] demands that the sentencer must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime . . . the federal constitution does not require unfettered sentencing discretion. . . . States are free to structure and shape consideration ofmitigating evidencein an effort to achieve[*91] a more rational and equitable administration of thedeath penalty." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 234. This, at least implicitly, left open the question whether, under other circumstances, such as the present case, our state constitution would require channeling jury discretion during the selection phase.

Furthermore, in Ross, we recognized the dual constitutional requirements addressed by federal death penalty jurisprudence, namely, "on the one hand, [channeling sentencer discretion] so as to assure that the death penalty is being imposed consistently and reliablyand, on the other hand, [permitting the sentencer] to consider, as a mitigating factor, any aspect of the individual defendant's character or record as well as the circumstances of the particular offense." (Emphasis added.) Id., 252. In explaining the two requirements, we stated that the first requirement "requires death penalty statutes to be structured so that the death penalty is imposed in a consistent and reliablemanner. In deciding to authorize capital punishment, a state has a constitutional responsibility to tailor and apply [*92] its law in a manner that avoids the arbitrary and capricious infliction of the death penalty [including] defining the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion." (Emphasis added; internal quotation marks omitted.) Id., 231-32. In regard to the second requirement, we stated that the sentencer must "not be precluded from considering, as amitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Emphasis in original; internal quotation marks omitted.) Id., 233. Thus, in our analysis of the second requirement, we emphasized the constitutional necessity of limiting "a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to imposethe death sentence." (Emphasis in original; internal quotation marks omitted.) Id., 233-34.

Put another way, Rossmay be read as standing for the proposition that, under our state constitution, our overarching concern for consistency andreliabilityin the imposition [*93] of the death penalty extends to the ultimate decision of whether to impose or to decline to impose that penalty. Therefore, because the issue in the present case directly involves the decision of whether to impose or to decline to impose the death penalty, Ross'requirement of reliability raises the potential state constitutional question of whether the sentencer's ultimate weighing decision, which may result in the imposition of the death penalty, must be channeled by a sufficiently high burden of persuasion.

Therefore, in light of and in order to avoid this significant potential state constitutional question, and in light of the three factors discussed previously--namely, (1) the unique and irrevocable nature of the death penalty, (2) the overarching need for reliability and consistency in the imposition of the death penalty, and (3) the awesome and wrenching nature of the jury's determination to render a verdict requiring the death penalty--we conclude that the highest burden of persuasion should be imposed on the jury's weighing process. Requiring a high degree of persuasion on the weighing process would convincingly avoid any potential state constitutional question. It would [*94] also give due deference to the unique and irrevocable nature of the death penalty, and to the consequently overarching need for reliability in the imposition of such a penalty, and it would give due deference to the awesome and wrenching nature of the jury's task in arriving at its moral and reasoned judgment that the death penalty should be imposed. n34We further conclude, therefore, that the most appropriate burden of persuasion for that process is that of beyond a reasonable doubt. If a jury is required to conclude beyond a reasonable doubt that a defendant is guilty of a capital offense, and to conclude that an aggravating factor has been established, it should also be required to conclude by the same high burden of persuasion that the death penalty is the appropriate penalty in the case. Thus, just as we did in Statev. Daniels, supra, 207 Conn. 374, where we filled gaps left by the legislature in defining the burdens of persuasion on the proof of an aggravating factor and mitigating factor, we fill the gap left by the legislature in defining the burden of persuasion on the weighing process by imposing, on the most important question that our legal [*95] system entrusts to the jury, namely, whether the defendant shall live or die, the highest burden of persuasion that our legal system recognizes.

CAPITAL CASES(Favorable Disposition)

Payton v. Woodford, 2003 U.S. App. LEXIS 21112 (9th Cir 10/20/2003) (en banc) (dissent) "[A]lthough the jury instruction enabled the jury to consider pre-crime character and background evidence, it limited the permissible scope of factor (k) in such a way as to remove from the jury's consideration the only mitigating evidence he presented during the penalty phase of his trial -- evidence of his post-crime religious conversion and good behavior in prison."

Head v. Stripling, 2003 Ga. LEXIS 856 (GA 10/14/2003) State unlawfully suppressed evidence of Defendant's mental retardation. Remand ordered for resentencing and examination of mental retardation.

Arizona v. Montano, 2003 Ariz. LEXIS 128 (Az 10/21/2003) Vacated in light of Ring

CAPITAL CASES(Unfavorable Disposition)

Martini v. Hendricks, 2003 U.S. App. LEXIS 21450 (3rd Cir 10/22/2003) Relief denied on claims relating to Witherspoon challenge and trial court's answer to jury's penalty phase question that limited consideration of expert testimony and putatively excluded of mitigation evidence under Skipper v. South Carolina.

Raby v. Dretke, 2003 U.S. App. LEXIS 20943 (5th Cir 10/15/2003) COA denied on: (1) ineffective assistance of counsel at the punishment phase; (2) improper prosecutorial comments regarding Raby's silence surrounding his arrest; (3) ineffective assistance of trial counsel during the guilt phase of the trial; (4) insufficient evidence; (5) the alleged unconstitutionality of Texas law in not allowing an intoxication defense; and (6) not being able to inform the jury about his future parole eligibility in a life sentence.

Green v. Dretke, 2003 U.S. App. LEXIS 21460 (5th Cir 10/21/2003) (unpublished) COA & relief denied on claims relating to: "ineffective assistance of counsel at the penalty phase; constitutionally impermissible use of race at the guilt-innocence and penalty phases; and denial of an opportunity for a "full and fair hearing" at the state and federal habeas proceedings."

United States v. Nelson, 2003 U.S. App. LEXIS 21360 (8th Cir 10/22/2003) Relief denied on the quality of the court's voir dire; district court erred in denying his motion for change of venue due to unduly prejudicial pretrial publicity; district court unconstitutionally denied his for-cause challenges to jurors; challenge to unanimity and use of the word "shall" in penalty phase instruction; and admission of certain victim impact evidence.

Echols v. Arkansas, 2003 Ark. LEXIS 547 (Ark 10/16/2003) In one of the most notoriously suspect convictions and death penalty cases in the country (one of the so-called West Memphis Three case) permission to seek a writ of error coram nobis denied on claims relating to whether (1) he was incompetent at the time of trial, and (2) exculpatory evidence not previously provided to the defense has been discovered.

Baker v. Maryland, 2003 Md. LEXIS 706 (Md. 10/17/2003) Claims raised as to trial judge's ability to try case due to state judicial qualification requirements. Trial judge had de facto, if not actual authority, to try the case below, & defendant did not properly raise the issue as he had not made the trial judge a party to the action.

Oregon v. Fanus, 2003 Ore. LEXIS 767 (Ore 10/23/2003) Conviction and death sentence affirmed despite claims relating to the denial of a pretrial demurrer; failure to grant a change of venue; failure to strike for cause juror who had pretrial information of case; inflammatory closing by the state in the penalty phase; failure to exclude evidence of defendant's political beliefs; and sufficiency of the indictment.

Byrom v. Mississippi, 2003 Miss. LEXIS 535 (Miss 10/16/2003) (dissent) Over a strong dissent, relief denied on claims relating (most notably) to trial and appellate counsel's representation of Byrom; exclusion of evidence relating to the defendant's abuse at the hands of the "victim" in this matter; limitations on cross examination; exclusion of evidence in light of a putative violation of the defense of its discovery obligations; errors in guilt phase instructions; and whether the trial court gave proper weight to the mitigation presented below.

Howell v. Mississippi, 2003 Miss. LEXIS 556 (Miss 10/23/2003) (dissent) Relief denied on claims including, failure to find that the State's peremptory strikes of African-American venire members was racially discriminatory; failure to allow Howell to conduct individual sequestered voir dire of jurors who indicated a predisposition in the case; and allowing the State, in closing argument, to refer to Howell's failure to tell somebody about his alibi defense or give details.

Garland v. Kentucky, 2003 Ky. LEXIS 233 (Ky 10/23/2003) (dissent) Relief denied, most notably, on claims relating to: admission of victim's fear of the defendant; failure to give reasonable notice of defendant's prior bad acts; and introduction of investigative hearsay.

Walker v. Mississippi, 2003 Miss. LEXIS 534 (Miss 10/16/2003) Post-conviction relief denied on claims relating to the quality of trial counsel's performance in both phases of the trial (including in court performance); trial court's instruction, failure to grant a continuance; error in instructing the penalty phase juror in light of Tison v. Arizona; not granting for cause challenges; race based peremptories; adequacy of counsel's voir dire; intracase proportionality; and cumulative error.

Tennessee v. Davidson, 2003 Tenn. LEXIS 1007 (Tenn 10/20/2003) (dissent) Relief denied on claims relating to: "(1) whether the trial court committed reversible error in denying the defendant's motions for change of venue and for additional peremptory challenges; (2) whether the trial court committed reversible error in refusing to strike the venire; (3) whether the evidence is sufficient to sustain the defendant's convictions; (4) whether the trial court committed reversible error by admitting the testimony of Darla Harvey; (5) whether the sentencing verdict form was incomplete and erroneous; and (6) all issues mandated by Tennessee Code Annotated section 39-13-206(c)(1)."

Owen v. Florida, 2003 Fla. LEXIS 1778 (FL 10/23/2003) Relief denied on claims that: "(1) the trial court erred in failing to suppress Owen's confession on the basis of voluntariness; (2) the trial court erred in failing to suppress Owen's confession because Owen made an unequivocal invocation of his right to remain silent which was ignored by the law enforcement officers questioning him; (3) the trial court improperly applied the aggravating factor of heinous, atrocious, or cruel (HAC); (4) the trial court improperly applied the aggravating factor of cold, calculated, and premeditated (CCP); (5) the sentence of death is disproportionate; (6) Florida's death penalty statute is unconstitutional; and (7) the aggravating factor of murder in the course of a specified felony is unconstitutional."

Johnston v. Florida, 2003 Fla. LEXIS 1729 (FL 10/16/2003) (dissent) Relief denied on claims of admission of a tacit confession; admission into evidence of an unrelated murder; insufficient evidence to prove identity; sufficiency of evidence to prove premeditation; constitutional of state sentencing scheme; and proportionality.

Blue v. Texas,2003 Tex. Crim. App. LEXIS 676 (Tex. Crim. App. 10/22/2003) Conviction of capital murder and death sentence are affirmed over defendant's claim that the court below made 39 points of error.

OTHER CASES OF NOTE

Will return next week

FOCUS

Due to time constraints will return soon.

OTHER RESOURCES

The Daily Blog noted this week (http://capitaldefenseweekly.com/blognews.html):

Noted above.

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

President Carter Calls on U.S. to Protect Children's Rights

In a speech urging U.S. leaders to ratify the United Nation's Convention on the Rights of the Child (CRC), which forbids the execution of juvenile offenders, President Jimmy Carter noted that the United States and Somalia are the only two countries in the U.N. that have not approved the guidelines. "My wife (Rosalyn) writes letters to the governors of each state when a child is going to be executed," Carter noted as he praised his wife's work to end the juvenile death penalty. Carter added that America's objection to the CRC because it forbids the juvenile death penalty weakens the United Nation's ability to fight for children's rights in other areas of law, including a ban on the use of juvenile soldiers. "These kids are often 8 and 10 years old, and all they have are AK-47s. The United States is seen as the most prominent world leader...yet, by not supporting the UN Convention, other countries see that the United States does not have an intense commitment to the rights of children." (The Emery Wheel, October 22, 2003) See Juvenile Death Penalty.

Victim's Son Awarded Scholarship from Prisoners on Death Row

Two years after Brandon Biggs first expressed forgiveness for Chante Mallard, the woman who killed his father in a nationally-publicized Texas murder, he has received a $10,000 college scholarship from prisoners on death row. The scholarship is funded through advertising and subscriptions to "Compassion," a two-year-old newsletter edited by and featuring articles by death row inmates across the nation. Biggs, whose father was struck by a car on a Fort Worth highway and left to bleed to death, is the third murder victims' family member to earn the award. During Mallard's trial, Biggs expressed his forgiveness and told her family, "There's no winners in a case like this. Just as we all lost Greg (Biggs's father), you will be losing your daughter." During the scholarship presentation, he added, "If love is what makes the world go round, compassion makes it sincere." Mallard is serving 50 years in prison for the murder, and Biggs is a pastoral ministries sophomore at Southwest Assemblies of God University in Texas. (New York Times, October 23, 2003) See Victims.

NEW RESOURCE: An Expendable Man

A new book by Margaret Edds, an award-winning editorial writer with the Virginian-Pilot, explores the wrongful conviction of former Virginia death row inmate Earl Washington. "An Expendable Man: The Near-Execution of Earl Washington, Jr." provides detailed analysis of the state's prosecution of Washington, a mentally retarded man who spent almost 18 years in prison - nearly 10 of those on death row - for a murder he did not commit. The book reveals the relative ease with which individuals who live at society's margins can be wrongfully convicted and the extraordinary difficulty of correcting such a wrong once it occurs. (New York University Press, 2003) See Resources.

Judge Throws Out Last Piece of Evidence Against Tennessee Man

Michael Lee McCormick has been on Tennessee's death row for 17 years, but a recent court decision throwing out the remaining evidence against him could result in his freedom. Judge Doug Meyer ruled that tapes containing conversations between McCormick and an undercover police officer who had befriended him were inadmissible due to "police misconduct." Meyer noted that McCormick, who is an alcoholic, had continually denied his involvement in the crime "until the authorities made him dependent upon them for his alcohol. Under all these circumstances, it is clear that the crucial motivating factor behind the defendant's statements were the police misconduct in question." The ruling went on to state that Chattanooga Police "conspired with the Georgia parole officer to place the known alcoholic defendant in a manipulative living situation." The state had mainly convicted McCormick based on a hair found on the victim that was linked to him and on the recorded statements thrown out by Meyer's ruling. The DNA evidence was previously discredited because more sophisticated testing found that the hair did not come from McCormick. McCormick remains in prison awaiting a court ruling on the prosecution's appeal involving the loss of the last key piece of evidence in the case. (The Chattanoogan, October 13, 2003). See Innocence.

DUE PROCESS: Mentally Ill Man Convicted, Sentenced to Death In Three Hours

A Tennessee jury took only 2 hours to convict and another hour to sentence Richard Taylor to death. Taylor suffers from mental illness and defended himself. The trial took place 19 years after Taylor's original 1984 death sentence, which was set aside because he had inadequate representation and his complex mental-health history had not been fully investigated. In the years since that ruling, Taylor has been deemed incompetent to stand trial, but a judge recently ruled that Taylor could be retried for the crime if he took his anti-psychotic medications and was able to understand the legal proceedings against him. Before his trial, Taylor told reporters for The Tennessean that he hoped to be convicted in the belief that he would be allowed to stop taking the medications that he claims are fogging his mind, turning him into a woman and silencing the singing voices in his head. This belief continued as Taylor represented himself in the proceedings without any assistance from lawyers. Taylor - who suffers from borderline personality disorder and schizophrenia - put on no evidence, presented no closing argument, and wore sunglasses throughout the proceedings. He offered the jury no explanations or mitigating factors to consider before they sentenced him to death. (The Tennessean, October 17, 2003) See DPIC's report With Justice for Few: The Growing Crisis in Death Penalty Representation.

ARBITRARINESS: Killer of 10 Allowed to Plea to Life Sentence in Federal Case

Stephen "The Rifleman" Flemmi was allowed to plead guilty to 10 murders, drug trafficking, racketeering and extortion, as federal prosecutors agreed not to seek the death penalty against him in exchange for his cooperation with ongoing crime investigations. Under the terms of the agreement, Flemmi - who has also admitted to murders in Florida and Oklahoma - will serve a life without parole sentence in a secure unit reserved for cooperating inmates. Among the murders committed by Flemmi were the murder of his girlfriend and the daughter of another girlfriend. (Boston Globe, October 15, 2003). This plea contrasts sharply with the more aggressive recent use of the federal death penalty and with the Justice Department's rejection of plea agreements in other cases. (See, e.g., Boston Globe, September 20, 2003). Moreover, Flemmi's case bears similarities in terms of the number of victims to the case of John Muhammad and Lee Boyd Malvo, who are facing the death penalty in Virginia. The Justice Department inserted this latter case into Virginia in order to secure death sentences, particularly against Malvo. Neither the federal death penalty nor the statute in Maryland, which was the location of most of the murders, allows the death penalty for someone like Malvo, who was a juvenile at the time of the crimes. See Federal Death Penalty.

Kenya to Abolish Capital Punishment

Kenyan government officials are working to abolish the nation's death penalty and replace the punishment with life in prison. The recommendation is currently under review by Kenya's constitutional review conference, a body comprised of members of parliament, professional bodies and religious and civic leaders. Kenya has not had an execution since 1987, but 2,618 people remain on the nation's death row. Kenya's assistant minister for home affairs, Wilfred Machage, noted, "The practice has been used worldwide in the past but latest trends show that it is an abuse of an individual's right to life and it is not part of the measures that can help a convict fit in society because they will be dead." (ITV.com, October 15, 2003) See International Death Penalty.

NEW RESOURCE: Life on Death Row

"Life on Death Row" is a first-person account of living under a death sentence in Arizona. Written by Arizona death row inmate Robert W. Murray, the book explores how inmates cope with execution warrants, lethal injection, prison politics, and day-to-day life in a supermax prison facility. Find more information about this book. (www.1stbooks.com) ( Albert Publishing Co. in association with 1st Books Library, 2003) See Resources.

25-Year-Old Death Sentence Unanimously Reversed by Alabama Supreme Court

On October 3, 2003, the Alabama Supreme Court unanimously reversed Phillip Tomlin's death sentence and ordered him resentenced to life in prison without parole, marking the Court's first ruling to create a standard of review for judicial override in the state. Tomlin had been on death row for more than 25 years despite the fact that four juries have recommended that he receive a life sentence for his alleged role in a Mobile, Alabama, revenge killing. In each of those cases, the trial judge overrode the jury to impose a death sentence because Tomlin's co-defendant, John Daniels, was sent to death row. In its decision, the Court noted, "It would be inconsistent to hold that Daniels's sentence could properly be used to undermine the jury's recommendation of life imprisonment without the possibility of parole." The Court's opinion also noted an earlier Alabama Supreme Court ruling that concluded that even a 10-2 jury recommendation should be given strong consideration by the sentencing judge. Tomlin was represented by his pro-bono attorney, University of Chicago law professor Bernard Harcourt. Mobile Register, October 4, 2003, and Attorney Press Release, October 7, 2003). See Life Without Parole.