Capital Defense Weekly, October 29, 2001

By Capital Defense Newsletter
Oct 29, 2001

This week's edition has one capital case hot listed, this time out of Texas. The Texas Court of Criminal Appeals inThompson v Texasreversed sentence of death based on the admission in the penalty phase of evidence obtained outside the presence of counsel. The reversal inThompson is noteworthy as it falls into the vast gray area created last term by the Supreme Court's holding in Texas v. Cobb. Thompson, undoubtedly the first of many decisions examining this gray area in limiting penalty phase admissibility of evidence of other crimes in the penalty phase in light of Cobb

Continuing with the examination of penalty phase issues is a brief selection from the unofficial Virginia Death Manual, "Defending a Capital Case in Virginia" ( This week's selection involves preparing the penalty phase investigation.

Due to a technical faux pas (read accidentally deleted) the non-capital section will not run this week.

Since the last edition there have been no domestic executions.

The following are the scheduled executions considered likely for November:

6 Jose High Georgia

6 Terry Clark New Mexico---volunteer

13 Fred Gilreath Georgia

14 Jeffery Tucker Texas

15 Emerson Rudd Texas


Thompson v. State, 2001 Tex. Crim. App. LEXIS 87 (Tex.Crim.App. 10/24/2001) (dissents) Appellant's right to counsel was violated by use in the penalty phase of statements made outside the presence of counsel that went to future dangerousness.

In his fourth point of error, appellant claims the State conducted an interview with him while he was in custody pending charges in the instant case, by utilizing an undercover officer without notifying his counsel or warning him of hi7s rights, and then used statements he made during that interrogation about his plans to commit another crime, against him at the punishment phase of the instant capital murder trial. Appellant says those statements were erroneously admitted in violation of his Sixth Amendment right to counsel.
The pertinent facts follow. Deputy Max Cox of the Harris County Sheriff's Department testified at punishment that he was approached by an inmate, Jack Reid, who told him that appellant was attempting to solicit the murder of Diane Zernia, who was slated to be a witness in his capital murder case. Reid shared a cell with appellant. Reid told Cox that appellant had already arranged for the murder by another inmate, Max Humphrey, who had also shared a cell with appellant and had recently been discharged, but was looking for someone to retrieve a gun and give it to Humphrey in order for him to carry out the murder. *fn2 Cox told Reid that if he was approached by appellant again, he should tell him that he knew someone who could retrieve the gun for him. Reid called Cox the next day and indicated that he had complied with Cox's instructions. Cox then arranged for Gary Johnson, an investigator with the Harris County District Attorney's Office, to meet with appellant in an undercover capacity to discuss the retrieval of the weapon and record their conversation. Johnson was to assume the identity of Reid's friend, who had supposedly been contacted by Reid about retrieval of the gun. Cox further testified that he gave Johnson a map that presumably identified where the gun could be located. *fn3 Johnson testified that he had been contacted by Cox and had agreed to assume an undercover identity for the purpose of meeting with appellant to discuss retrieving a weapon to be used in a murder that had possibly already been arranged. Johnson testified that he was wired for recording throughout their meeting. He further testified that appellant brought a hand-drawn map to the meeting, similar to the one Cox had given him, and held it up to the glass for him to see. At that point during Johnson's testimony, the State offered the tape into evidence.
Appellant was given permission to question Johnson on voir dire. Johnson admitted to having been aware that appellant was represented by counsel on the capital murder charge at the time of their meeting. He conceded that had not notified counsel of their meeting, had not informed appellant that he was an officer of the State, and had not given appellant any warnings. See Tex. Code Crim. Proc. art. 38.22; Miranda v. Arizona, 384 U.S. 436 (1966). Appellant objected and sought suppression of the tape on the ground that he had been denied counsel during the meeting with Johnson. The trial court overruled the objection and admitted the tape into evidence. The tape was played for the jury.
During their tape-recorded meeting appellant and Johnson briefly discussed retrieval of the gun. Then, appellant told Johnson that there was a witness in his case that he wanted "taken care of." Appellant stated that he had already paid Humphrey to kill the witness, but Humphrey had not gone through with the job. Appellant gave Johnson the witness' address, and described the witness as a mother with a fourteen year old daughter and a husband. He described her car, and informed him that she was usually home in the mornings after her daughter went to school. He described her house as Victorian and her mailbox as black and white spotted, like a cow. Appellant promised that when he got out of jail, he would pay Johnson $1,500 for killing the witness. After the tape was played for the jury, Johnson testified further, without objection, that appellant had brought the map with him to the meeting, and that it had an address written on it. Johnson stated that appellant had held it up to the glass for Johnson to read.
The Sixth Amendment guarantees a criminal defendant the assistance of counsel at the initiation of adversary proceedings against him, and at any subsequent "critical stage" of the proceedings against him. Estelle v. Smith, 451 U.S. 454, 469-70 (1981). Thus, in Estelle, where the defendant had been indicted and counsel appointed at the time he was subjected to a competency examination by a court-ordered psychiatrist, his Sixth Amendment rights were violated by the introduction of the psychiatrist's diagnosis against him at the penalty stage on the issue of future dangerousness. Id. at 470-71. The right to counsel had attached at the time of the interview and "the interview proved to be a `critical stage' of the aggregate proceedings" against the defendant. Id. at 470.
But the right to counsel is "offense specific." See Maine v. Moulton, 474 U.S. 159 (1985). *fn4 That is, the Sixth Amendment does not require the assistance of counsel as to interrogations in the course of an investigation concerning then-uncharged criminal conduct, even though other charges are pending as to which the right has attached. However, such investigations might encroach on the defendant's rights concerning the pending charges. The Supreme Court has recognized the competing interests at stake in such situation:
The police have an interest in the thorough investigation of crimes for which formal charges have already been filed. They also have an interest in investigating new or additional crimes. Investigations of either type of crime may require surveillance of individuals already under indictment. Moreover, law enforcement officials investigating an individual suspected of committing one crime and formally charged with having committed another crime obviously seek to discover evidence useful at a trial of either crime. In seeking evidence pertaining to pending charges, however, the Government's investigative powers are limited by the Sixth Amendment rights of the accused. To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah. On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, not withstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused's right to the assistance of counsel. Id. at 179-80. *fn5
Thus, if the right to counsel has attached as to a charged offense, and the police interrogate the defendant in the absence of his counsel about matters that the police knew or should have known might elicit incriminating evidence pertaining to the pending charges, the Sixth Amendment right to counsel has been violated and such evidence is "inadmissible at the trial of those charges." But if, during that same interrogation, the police elicit incriminating evidence pertaining to criminal conduct that is not yet the subject of a formal charge, the Sixth Amendment right to counsel has not yet attached as to that offense, and therefore any such evidence is admissible against the defendant at the trial on the then-uncharged offense.
At the time of the interrogation in the instant case, appellant had been charged with capital murder but had not been charged with solicitation for murder. There is no question that evidence obtained in connection with questioning appellant about the solicitation offense would be admissible at the trial for that offense because his Sixth Amendment right to counsel had not yet attached as to that offense. And there is no question that evidence obtained in the course of such questioning, incriminating appellant as to his guilt for the capital murder, would be inadmissible in his capital murder trial. The question here is whether evidence obtained about the solicitation offense is admissible against appellant on the question of future dangerousness at the punishment phase of his capital murder trial, as to which appellant's Sixth Amendment rights had attached.
This issue was recently addressed by this Court. *fn6 Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)(plurality opinion), cert. denied, 121 S.Ct. 1407 (2001). In Wesbrook, the trial court overruled a motion to suppress evidence that the defendant argued had been obtained in violation of his Sixth Amendment right to counsel. The complained-of evidence allegedly established an attempt by the defendant to solicit the murder of various individuals, including witnesses at the defendant's trial. Wesbrook, 29 S.W.3d at 116. Facts developed at a hearing on the matter showed that an informant, a fellow inmate at the Harris County Jail, became acquainted with the defendant about three months prior to the defendant's trial. During numerous conversations, the defendant expressed a desire to hire someone to kill two individuals (the defendant's ex-wife and her husband). The informant contacted law enforcement. In exchange for a favorable recommendation by the State during the prosecution of his own pending charges, the informant arranged a meeting between the defendant and undercover investigator Gary Johnson, who was to pose as a hit man. Johnson tape-recorded the conversation he had with the defendant concerning the murder solicitations. In the recorded conversation, the defendant expressed his desire to have murdered the two individuals he had mentioned to the informant, plus five others, four of which were to be, or already had been, witnesses in his capital murder trial. Johnson admitted at trial that he had assumed the evidence would be used against the defendant at his capital murder trial. Id. at 116-17.
At the conclusion of the hearing, the trial court determined that no Sixth Amendment violation had taken place because the right to counsel had not attached to the solicitation offense. Therefore, the court concluded that the evidence was admissible and denied the defendant's motion to suppress. Seven judges on this Court disagreed, holding that a Sixth Amendment violation had occurred. *fn7 The three-judge lead opinion explained:
By intentionally creating a situation likely to induce appellant to make incriminating statements without the assistance of counsel, the State violated appellant's Sixth Amendment right to counsel. [The informant] was not housed with appellant to act as a passive "listening post." He was sent in with instructions to exploit the existing relationship he had forged with appellant in order to "deliberately elicit" incriminating information regarding the solicitation of murder. This information was then to be used at appellant's capital murder trial to help satisfy the State's burden of establishing that appellant posed a continuing threat to society. Just as a psychiatrist, acting as a state agent, cannot elicit information that would be used to help demonstrate future dangerousness without counsel being notified first, so too, a jail house informant, acting at the behest of the State, cannot elicit information to be used at any stage of trial concerning charges in which the Sixth Amendment right to counsel had already attached and counsel had not been notified." Id. at 118 (citations omitted).
No developments in the law since Wesbrook would change or affect the holding of the seven-judge majority there. *fn8 We turn again to the instant case. As in Wesbrook, the State elicited information from appellant regarding the solicitation of the murder of a person who was to be a witness against appellant. The information was elicited by an agent of the State, without notifying appellant's counsel, and was then used at appellant's capital murder trial to help the State establish that appellant posed a continuing threat to society. The State knew the capital murder charges were pending against appellant at the time, and that any evidence incriminating appellant in another offense would probably be used against him in the capital punishment phase. We hold appellant's Sixth Amendment right to counsel was violated by the State's actions in soliciting the tape recorded conversation between appellant and Johnson and using it against appellant in the punishment phase of his capital murder trial, the charges of which were pending at the time of the conversation. Wesbrook, supra. The trial court should have granted appellant's motion to suppress the tape. We turn now to the question of harm. Tex. R. App. P. 44.2(a).
Appellant's punishment will be reversed unless we can conclude that the erroneously admitted evidence was harmless beyond a reasonable doubt. Wesbrook, supra. The seven Wesbrook judges who held there was error, split on the question of whether the error was harmful. Three of the judges concluded the error was not harmful in light of the facts of that case and the other punishment evidence, apart from the improperly admitted solicitation evidence. The evidence in the case reflected that the defendant had killed five people in the subject capital murder, had made some previous threats of violence, and that he had tried, from prison, to solicit the murder of his ex-wife and her husband. The evidence of these solicitations were admissible because it was obtained by the informant prior to his becoming an agent of the State. Id. at 119-20 (Mansfield, J., joined by Meyers and Keasler, J.J.). Four other judges could not say the erroneous admission of the evidence was harmless. Id. at 127-28 (Womack, J., joined by Price, Holland and Johnson, J.J.). They pointed to the importance of the erroneously admitted evidence in corroborating the testimony of the cell mate who might otherwise have been disbelieved, and also to the emphasis placed on the illegally obtained evidence by the State in closing arguments at punishment. Id. at 128. In closing, the State repeatedly relied on the tapes and urged the jury to listen to the tapes "over and over and over." Id.
To support a finding of future dangerousness in the instant case, the State relied on the facts of the crime itself, the unadjudicated extraneous solicitation offense, and a number of bad acts committed by appellant. *fn9 Appellant presented testimony from a psychologist who admitted on cross-examination that appellant had trouble controlling himself whenever stimulated by strong feelings and there was no guarantee that these feelings would not be evoked by some event in the prison setting. Appellant's psychologist also admitted appellant was narcissistic and had a sociopathic personality, was a follower and could be easily manipulated. Appellant's psychologist testified that test results revealed that appellant had "chronic problems with obeying rules and exercising proper moral judgment."
Although the tape itself was inadmissible, substantively similar testimony regarding appellant's attempts to solicit the murder of the witness was before the jury that was not objected to and/or was not inadmissible. All of Cox's testimony and most of Johnson's testimony before and after the tape, was not objected to. The information that Cox initially obtained from Reid (appellant's cell mate) before Reid became an agent for the State was admissible. Cox testified without objection that he had been approached by Reid who told him that appellant was attempting to arrange for the murder of Diane Zernia, a witness in appellant's case. Reid also told Cox that appellant wanted to hire someone to recover a weapon to be used in that subsequent murder. The map showing the location of the gun was also before the jury without objection. Johnson testified that he agreed to go undercover and meet with appellant, pretending to be a friend of Reid's who could help retrieve the weapon for appellant. Johnson also testified, without objection, that appellant had brought a hand-drawn map to the meeting, supposedly showing the location of the weapon. After the tape was played, Johnson testified further, without objection, that the map appellant had brought to the meeting also had an address written on it, and that appellant had held the map up to the glass for him to see.
Without the tape, the jury would not have known that appellant made plans with Johnson for Johnson to kill the witness, in addition to retrieving the gun. It would have heard only that Reid had reported to authorities that appellant was attempting to hire Humphrey to kill the witness.
The State emphasized appellant's taped conversation with Detective Johnson in closing arguments:
Think about this. This shows what that defendant is like. He identifies [Diane Zerbia] for his want to be killer by describing the 14 year old soon to be motherless daughter she has. If you hadn't heard it yourself from his own mouth, you wouldn't even believe somebody would be that evil. Just mind boggling. . .
* * *
. . . Every time [appellant] threatened he has followed through on it. What did he tell Gary Johnson? I'm a man of my word. When I get out you got a free one coming. . . . He also tried to frame an innocent man. He tried to have Gary Johnson go get the gun, give it to somebody else so that person could be the one caught with the weapon and framed for the murder of the people he killed. . . . When he wanted to have Diane Zernia killed did it ever bother him? Did he ever flinch? Did he ever hesitate about the fact that she had a 14 year old daughter or a husband? All he was concerned with was getting the details right. That it was a cow mailbox. . . . Remember this. He came to that cell to meet Gary Johnson that day with that address already written down. He didn't think it up on the spur of the moment as he was talking to Gary Johnson that day. He came down there meaning to have her killed.
The evidence of appellant's future dangerousness, apart from the tape, is considerably less than the evidence of the defendant's future dangerousness in Wesbrook. In Wesbrook, the defendant had killed five people in the course of committing the subject capital murder. There was admissible evidence that the defendant attempted to solicit from prison the murders of two others (his ex-wife and her husband). These were the critical facts that led three judges to conclude the error was harmless: "because the jury possessed details of both the crime itself and the solicitation to murder, there is no reasonable likelihood that the inadmissible portion of Jones' testimony, considered either alone or in context, moved the jury from a state of nonpersuasion to persuasion regarding the issue of future dangerousness." Id. By contrast, the facts of the capital murder in the instant case involved two victims, rather than five. The admissible solicitation evidence pertained to the planned murder of one person, rather than two. Further, as emphasized by the four Wesbrook judges who could not conclude the error was harmless, the prosecutor in the instant case emphasized the inadmissible evidence in closing. He referred the jury to statements made by appellant to Johnson on the tape. Further, as pointed out by the four Wesbrook judges who found the error harmful in that case, without the tape to corroborate him, Reid's testimony might not have borne much credibility. Although Cox had testified that Reid had reported appellant's efforts to solicit the murder of Zernia by a former cell mate, the tape corroborates Reid's report and further demonstrates appellant's additional efforts to see that the murder was carried out by attempting to enlist yet another hitman. We are unable to say beyond a reasonable doubt that the tape did not influence the sentencing jury. Point of error four is sustained.


No cases noted


Jacobs v. Kentucky, 2001 Ky. LEXIS 187 (10/25/2001) Kentucky's capital sentencing scheme doesn't include kidnapping as an aggravating categeory to make a murder death eligible.

At Jacobs's first trial, the only aggravating circumstance alleged by the Commonwealth, submitted in the trial court's instructions, and found by the jury was that "at the time he killed Judy Ann Howard, the defendant, Clawvern Jacobs, was engaging in the commission of rape in the first degree." n35 Upon remand, the Commonwealth gave notice that it would allege another aggravating circumstance - that Jacobs murdered Howard during the commission of a kidnapping.
After the jury's guilt/innocence phase verdict which found Jacobs guilty not of attempted first degree rape, but the lesser-included offense of first degree sexual abuse, the trial court's capital sentencing phase instructions allowed the jury to consider only one possible aggravating circumstance in determining the appropriate penalty for Jacobs's murder conviction:
In fixing a sentence for the defendant [*40] for the offense of Murder, you shall consider the following aggravating circumstances which you may find from the evidence beyond a reasonable doubt to be true:
The defendant murdered Judy Ann Howard and that at the time Clawvern Jacobs murdered Judy Ann Howard he was engaged in the commission of kidnapping.
On its verdict form, the jury indicated that it found the aggravating circumstance beyond a reasonable doubt and copied verbatim the language of Instruction No. 3. Because we find that the General Assembly has not established kidnapping as an aggravating circumstance to the crime of murder, we reverse Jacobs's sentence of death and remand the matter to the trial court for sentencing on non-capital murder.
In Gregg v. Georgia n36 the United States Supreme Court examined legislative amendments to Georgia's death penalty statutes four years after it had declared Georgia's death penalty procedures unconstitutional in Furman v. Georgia. n37 The Gregg court determined that the new death penalty procedures passed constitutional muster and emphasized that the statutes "channel" a jury's discretion to impose the death penalty by requiring it to find a statutory aggravating [*41] factor:
The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. n38
Kentucky's statutory death penalty sentencing procedures likewise control jury discretion by requiring juries to identify authorized aggravating circumstances before returning a sentence of death:
The jury, if its verdict be a recommendation of death, or imprisonment for life without benefit of probation or parole, or imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases, the judge shall make such designation. In all cases unless at least one (1) of the statutory aggravating circumstances enumerated in subsection (2) of this section is so found, the death penalty, or imprisonment for life without possibility of probation or parole, or the sentence to imprisonment for life without benefit of probation or parole until the defendant [*43] has served a minimum of twenty-five (25) years of his sentence, shall not be imposed. n39
The list of eight aggravating circumstances contained at KRS 532.025(2)(a) does not include the aggravating circumstance found in this case. The Commonwealth cites this Court's opinion in Harris v. Commonwealth n40 in support of its contention that the trial court's death penalty instructions were proper. In Harris, we held that juries must find beyond a reasonable doubt an aggravating circumstance "authorized by law" before imposing the death penalty, but that juries need not necessarily find one of the aggravating circumstances enumerated in KRS 532.025(2)(a). n41 The Harris Court identified a circumstance within the kidnapping statute itself which aggravates the crime of capital kidnapping and affirmed Harris's sentence of life without possibility of parole for twenty-five (25) years for capital kidnapping:
Here, the "aggravating [*44] circumstance otherwise authorized by law" is provided by the penalty section of the kidnapping statute, KRS 509.040(2), which makes kidnapping a capital offense when the victim is not released alive.
Although observers have levied some criticism at the reasoning behind the Harris holding, n42 we need not address the viability of the Harris holding in this case because Harris holds only that a defendant is death-eligible for the offense of capital kidnapping if he or she also murdered the kidnapping victim. n43 The case now before us involves a sentence of death not for a kidnapping conviction, but for a murder conviction - Jacobs was convicted of kidnapping, but received a sentence of life imprisonment. And Harris simply does not hold that a defendant convicted of murder is death-eligible if he or she also kidnapped the murder victim. No such aggravating circumstance is "authorized [*45] by law" for the crime of murder, and any attempt to engineer one from the Harris holding would require more legal gymnastics than the Constitution's demand for determinacy in death penalty cases could withstand.
Kentucky statutory designation of kidnapping as a capital offense is a minority position found in only a handful of other jurisdictions," n44 and the General Assembly's failure to address the intersection between Kentucky's two capital crimes in KRS 532.025 likely stems from its attempt to define aggravating circumstances applicable to both capital crimes. The Model Penal Code's draft provisions for aggravating circumstances in capital cases contemplate a statutory scheme which authorizes capital punishment only in murder cases, n45 and designate as an aggravating circumstance the fact that the murder was committed while the defendant was in the course of a number of violent felony offenses, including kidnapping. n46 Of the jurisdictions which authorize imposition of the death penalty for the crime of murder, most have specific statutory aggravating circumstances for murders committed in connection with a kidnapping crime. n47 KRS 532.025 contains an aggravating circumstance for capital crimes committed in the course of certain designated felonies, n48 but that circumstance does not address the possibility of concurrent capital [*47] crimes.
The Kentucky legislature has simply not identified "while in the course of a kidnapping" as an aggravating circumstance which authorizes capital punishment for a murder conviction. This Court has no business saying otherwise. As we recently stated in Young v. Commonwealth, n49 "the death penalty cannot be imposed simply because we or the jury believe the actions or motives of a particular defendant are deserving of capital punishment. That is the kind of discretionary, ad hoc application of the death penalty specifically condemned in Furman." n50

People v. Wiley, 2001 Ill. LEXIS 1435 (Ill. 10/25/2001) (U) Remand for an evidentiary hearing on penalty phase ineffectiveness allegations.

Defendant next asserts that he was denied the effective assistance of counsel at sentencing because trial counsel failed to investigate potential sources of mitigation and failed to present the evidence that such an investigation would have uncovered. Specifically, defendant claims that trial counsel failed to discuss any mitigation strategy with him and that counsel knew that defendant suffered from extreme emotional and mental distress at the time of the offense. Defendant also claims that his trial counsel failed to contact several family members who would have provided testimony more favorable than that of the witness counsel did subpoena.
* * * *
As with alleged claims of ineffectiveness occurring during the guilt phase of the trial, the standard for determining whether a defendant has received constitutionally deficient representation at a capital sentencing hearing is governed by the standard enunciated in Strickland. As such, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that, absent the errors, the judge " `would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.' " People v. Henderson, 171 Ill. 2d 124, 145 (1996), quoting Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.
As noted, defendant claims that his attorney failed to discuss mitigation strategy with him and that, as a result, counsel did not call witnesses who were available and willing to testify on his behalf. These witnesses include defendant's daughter, Gwen Jones; his stepsister, Rosie Rhodes; and his sister, Juanita Jones. The affidavits of each of these women indicate that they would have testified that defendant was a good person, who had an exemplary employment history. They would have stated that defendant was a good relation, but that he had a strained relationship with his stepfather. Defendant also points out that counsel should have adduced evidence of the history of mental illness that runs through defendant's family. Further, counsel knew, or should have known, that defendant was psychologically impaired, and, as a result, should have had defendant examined by experts. In support of these allegations, defendant attached to his petition various documents that he claims to have recovered from his case file with the Cook County public defender's office. These documents indicate that defendant may have been suffering from psychological disorders at the time of the murders. Defendant also supported his petition with the evaluations of mental health experts, secured by post-conviction counsel, which would corroborate the prior diagnoses of head trauma and neurological disorders.
It is well settled that counsel has a duty to make reasonable investigations for potential sources of mitigating evidence to present at the capital sentencing hearing, or must have a legitimate reason for failing to make a particular investigation. See Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066; People v. Howery, 178 Ill. 2d 1, 55 (1997); People v. Orange, 168 Ill. 2d 138, 170 (1995); People v. Ruiz, 132 Ill. 2d 1, 27 (1989). If mitigating evidence exists, counsel then has a duty to introduce it in support of the defense. See Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989). However, where counsel has conducted an adequate investigation, the failure to present mitigating evidence does not by itself demonstrate deficient performance. See Howery, 178 Ill. 2d at 55; People v. Ruiz, 177 Ill. 2d 368, 385 (1997); Orange, 168 Ill. 2d at 167-68.
Generally, courts are highly deferential in reviewing counsel's strategic decisions regarding the presentation of mitigating evidence. See Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065; Orange, 168 Ill. 2d at 170. In fact, strategic choices made after a thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. An informed decision by counsel not to present certain mitigating evidence may represent a valid strategic choice and is entitled to judicial deference, where the evidence is potentially damaging to the defendant. See Burger v. Kemp, 483 U.S. 776, 793-95, 97 L. Ed. 2d 638, 656-57, 107 S. Ct. 3114, 3125-26 (1987); Ruiz, 177 Ill. 2d at 385. Such deference is not warranted, however, where the lack of mitigating evidence presented is not attributable to strategy, but rather is the result of counsel's failure to properly investigate mitigation and prepare a defense. See Howery, 178 Ill. 2d at 56; Orange, 168 Ill. 2d at 170. Consequently, counsel's presentation of mitigation is not deemed to be a legitimate strategy without a reasonable investigation into mitigating circumstances. See Ruiz, 177 Ill. 2d at 385; see also Hall v. Washington, 106 F.3d 743, 749-50 (7th Cir. 1997).
In our view, defendant's petition and supporting affidavits make a substantial showing that defense counsel's limited presentation of mitigating evidence at the sentencing hearing was not the result of a strategic decision preceded by a reasonable investigation. The record before this court contains no evidence that allows us to conclude that counsel's decision not to present additional mitigating evidence was a strategic decision. We acknowledge that when the drawbacks of potential mitigating evidence appear obvious from the record, it can be assumed that counsel decided not to present evidence for such reasons. See Ruiz, 132 Ill. 2d at 26. Here, however, there appears to be no obvious disadvantage in the additional mitigating evidence. On this record, we reject the State's claim that trial counsel's failure to present the additional mitigating evidence was a strategic decision.
The mitigating evidence offered by trial counsel at the sentencing hearing portrayed defendant as someone who had good parents, but who fell in with a bad crowd and got entangled in drugs and alcohol abuse. Information regarding defendant's need for psychiatric counseling and history of mental illness might have provided the sentencing judge with additional information that could have influenced the choice of sentence. See People v. Perez, 148 Ill. 2d 168, 188-89 (1992) (the State's theory that counsel reasonably declined to introduce school reports at the sentencing hearing because they contained aggravating evidence that the defendant was a "troublemaker" was not reasonable strategy where counsel did introduce a psychological report at sentencing which portrayed the defendant as much worse than a "troublemaker"). Moreover, the record before us reveals no attempt by counsel to secure the testimony of any member of defendant's family other than his step-brother, Jerry. The affidavits of the family members here reveal that they were willing to come and provide mitigating evidence on defendant's behalf. Given the record before us, we decline to assume that defense counsel's alleged failure to present the additional mitigating evidence represented a legitimate strategic decision.
Having considered the performance prong of the Strickland standard, we must further examine whether defendant has made a substantial showing that he was prejudiced by counsel's alleged deficient performance. In establishing prejudice, defendant must show that there is a reasonable probability that, absent counsel's deficient performance, the sentencer would have concluded that the balance of aggravating and mitigating factors did not warrant death. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69. We note that, in the past, this court has held that despite the violent nature of the offenses and the fact that a defendant had been convicted of multiple murders, counsel's failure to investigate and present mitigating evidence so prejudiced the defendant as to warrant an evidentiary hearing. See Orange, 168 Ill. 2d at 173; People v. Thompkins, 161 Ill. 2d 148, 167-68 (1994). While we view some of the mitigation now being proffered as cumulative to what was presented by counsel at the hearing, some of it was not. The only type of psychiatric testimony adduced on defendant's behalf was the stipulated testimony of Cheryl Winke, who stated that defendant was average in intelligence and was aggressive. The evidence regarding defendant's mental history that he contends was available to counsel and should have been offered in mitigation paints a picture that is at odds with that stipulated testimony.
We also note that the circuit court, in sentencing defendant to death, specifically pointed out that with the exception of Jerry, members of defendant's family had not testified at sentencing despite the fact that the trial took place in Chicago, where they lived. The implication was that defendant's family did not think enough of defendant to testify on his behalf. The affidavits here tend to show that other members of defendant's family were available to testify such that Jerry Wiley, an unwilling witness, need not have provided the only mitigation voice from the family. We also cannot ignore the fact that Jerry, the only family member whom counsel did compel to testify in mitigation, was found by the court to have been a perfect witness for the State.
In light of these circumstances, we cannot say, as a matter of law, that the outcome of the sentencing hearing would have been the same had the additional pieces of evidence been discovered and presented by trial counsel. We hold that defendant's post-conviction allegations, liberally construed in his favor and taken as true in light of the original trial record, establish a substantial showing of a violation of defendant's right to effective assistance of counsel at the sentencing hearing. The circuit court improperly dismissed this claim without an evidentiary hearing.

Lee v. Alabama, 2001 Ala. Crim. App. LEXIS 272 (Ala Crim App 10/26/2001) "[S]entencing order is deficient because the trial court did not state the specific reasons it gave the jury's sentencing recommendation the consideration it gave it, as required by Ex parte Taylor, [Ms. 1991307, March 9, 2001] ___ So. 2d ___ (Ala. 2001)." (not available online)


Head v. Ferrell, 2001 Ga. LEXIS 825 (Ga. 10/22/2001) Grant of relief reversed on the question of whether "Ferrell's appellate counsel rendered ineffective assistance in how she handled the argument that his trial attorneys labored under a conflict of interest."

Toles v. Gibson, 2001 U.S. App. LEXIS 23001(10th Cir 10/26/2001) Relief denied on Ake claim, admission of videotape evidence, & sufficiency of evidence on the HAC aggravator.

Taylor v. Commonwealth, 2001 Ky. LEXIS 182 (KY 10/25/2001) (dissent) Relief denied on numerous issues including a contentious admission of a confession by a co-defendant & racial bias in jurty selection. (not available online)

Hodges v. Alabama, 2001 Ala. Crim. App. LEXIS 279 (Ala Crim App 10/26/2001) Relief denied on a hodge-podge of issues including whether trial counsel met standards of counsel required in capital cases, judicial override to death, racial prejudice in grand jury selection, penalty phase definition of kidnapping, & recusal.(not available online)

McNabb v. Alabama, 2001 Ala. Crim. App. LEXIS 280(Ala Crim App 10/26/2001) Remand ordered so the trial court an "amend its sentencing order with specific findings regarding the existence or nonexistence of each statutory aggravating circumstance in § 13A-5-49 and each statutory mitigating circumstance in § 13A-5-51, and, if necessary, to reweigh the aggravating and mitigating circumstances and resentence McNabb." (not available online)

Johnson v. State, 2001 Fla. LEXIS 2137 (Fla. 10/25/2001) Relief denied on this post-conviction appeal on "claims that (1) summary denial was improper; (2) he was denied access to public records relating to the jurors; (3) he was denied effective assistance of counsel because his post-conviction attorneys were prohibited by rule from interviewing the jurors to determine if constitutional error occurred; (4) the method of execution in Florida is unconstitutional; and (5) he is incompetent to be executed."


Carroll v. State, 2001 Ala. Crim. App. LEXIS 235 (Ala.Crim.App. 09/28/2001) Following a prior remand for further elucidation of rationale for judicial override to death the trial court'swritten explaination sufficient.(not available online)

Commonwealth v. Tilley, 2001 Pa. LEXIS 2076 (Pa. 09/26/2001) (interlocutory appeal) As the condemned's asserted Batson/Powers claim is insufficient as a matter of law he has not shown the necessary "good cause" required for discovery related to this claim.

Stallworth v. State,2001 Ala. Crim. App. LEXIS 243 (Ala.Crim.App. 09/28/2001) Remanding this case so that the trial court can correct its sentencing orders as to [A] the role it gave victim impact testimony, [B] as to why the murders were "especially, heinous, atrocious, or cruel" as compared to other capital murders, [C] the existence or nonexistence of any non-statutory mitigating circumstances, gravity of the prior conviction for which the defendant was on probation when the murders were committed, [D] whether it considered Stallworth's arrest for his robbery charge and his subsequent acquittal of that charge when determining whether Stallworth had a significant history of criminal activity & [E] when it corrects its sentencing orders and reweighs the aggravating and the mitigating circumstances. (not available online)

OTHER NOTABLE CASES(As reported byFindlaw, and other sources)

Not covered this week


Continuing with the examination of penalty phase issues is a brief selection from the unofficial Virginia Death Manual, "Defending a Capital Case in Virginia" ( This week's selection involves preparing the penalty phase investigation.

The purpose of this section of the manual is to prepare defense counsel for the special problems which arise during the course of a capital murder case, and to assure that the client is given the most effective assistance of counsel possible. The materials that follow are primarily designed to assist the attorney with investigation for the penalty phase of the capital murder case. The Clearinghouse assumes that defense counsel is adequately prepared for the normal investigation for the guilt/innocence phase of the trial.
The penalty phase of a capital murder trial is something unfamiliar to most Virginia attorneys. There are several things counsel should keep in mind in preparing for the penalty phase of a capital murder case. The first is the broad right to present mitigation; the jury must consider any and all evidence that the defendant proffers in mitigation. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). For this reason, anything which might convince the jury to vote for a life sentence should be used in the case in mitigation. Defense counsel should not limit themselves to the mitigating circumstances listed in the Virginia statutes.
The evidence that can be used in the penalty phase of the case does not exclude evidence that was also used in the guilt/innocence phase. Evidence as to the influence of others, heat of passion, insanity, etc., even if the evidence does not succeed at the guilt/innocence phase, may influence the penalty trial and should be reemphasized whenever possible there.
Investigating for the penalty phase means investigating the defendant's entire life, from conception to the date of the sentencing trial. This includes facts such as the mother's medical condition during pregnancy (including ingestion of drugs during this time), the defendant's early childhood, and even events which occur after the defendant commits the crime (e.g., acts of heroism in prison). A narrative of a recommended investigation procedure is given below, and a quick-reference chart is on page 7.
Counsel should seek the assistance of any and all appropriate experts in developing a case in mitigation. Defendants have a constitutional and statutory right to the assistance of experts in the development in the case in mitigation. Counsel should note, however, that primary responsibility for developing a case in mitigation rests with counsel and not with the experts. See the section on experts beginning on page 27 for further details on the use of experts as an aid in developing a case in mitigation.
The first step in the investigation of the evidence in mitigation is the development of a "paper trail." This involves obtaining every possible document on the defendant and his parents and siblings, dating as far back as possible. Even the childhood medical records of the parents may be relevant. The Life History Checklist in this section lists many of the records to look for, but the attorney should always be alert for the existence of other important records.
The next step in the preparation for the penalty trial is the review of that paper trail. This involves reviewing the document with the objective of gleaning a basic theory of mitigation. The theory developed at this point will be very basic and may change as the investigation continues.
The third step in the preparation for the penalty phase is the evaluation of the defendant and the interviewing of witnesses, both with the objective of obtaining a total history and character of the defendant. The evaluation of the defendant should be performed by a mental health expert. Interviews should be conducted of every family member, teacher, clergy, friends, etc., that the defendant has ever had. The interviews may be performed by the attorney or by a professional investigator. The attorney should be able to identify the potential themes of the theory of mitigation at this point. The theory may be one of mental or physical impairment, the responsibility of others for the crime or for the condition of the defendant, worthwhile characteristics of the defendant, or any other circumstance of the defendant's life or of the crime which the attorney feels may persuade the jury to vote for life imprisonment as opposed to death. It is up to the attorney to use his or her best judgment in developing a theory of mitigation in the particular case.
The fourth step in the preparation for the penalty trial is the review of the documents obtained (including the statements of witnesses) during the first three steps. The purpose of this review is to more fully articulate the theory of mitigation. The Capital Case Clearinghouse is available to assist attorneys with this most difficult task.
The fifth step in the preparation for the penalty trial is the evaluation of the theory by an expert in mitigation cases. Again, the Clearinghouse is available for assistance in this step, and the Clearinghouse can refer the attorney to other sources of assistance. By the end of this step, the attorney should feel comfortable enough with the theory of mitigation to be able to give a mock closing argument. There is, however, more to be done before the case in mitigation is completed.
The sixth step in the preparation for the penalty trial is a follow-up investigation. This investigation is performed in order to develop the evidence that will be used to present the case in mitigation to the jury. The basic theory of mitigation is developed, but it is still subject to change, should the attorney come upon some new information.
The last step in the preparation for the penalty phase is the preparation of witnesses and exhibits (e.g., medical records, etc.) to present to the jury. The attorney must use his or her best judgment to determine which witnesses and exhibits would be the best to present to the jury as evidence in mitigation, based on the theory of mitigation that counsel has developed.
Counsel should keep in mind, and should inform the jury, that mitigation is not excuse. If a penalty trial is necessary, the jury has already determined that there was not a sufficient "excuse" for the crime. Evidence in mitigation is those circumstances which tend to make the defendant less suitable for a penalty of death, for whatever reason. It may include those circumstances traditionally used as excuses or justifications for crimes (e.g. a belief of self-defense, insanity, etc.), but it need not. The defendant will still be severely punished for his crime; evidence in mitigation only serves to make the death penalty improper for this defendant.


TheDeath Penalty Information Centerreports:

NEW VOICES: New Mexico Governor Says Eliminating Capital Punishment May Be "Better Public Policy"

New Mexico Governor Gary Johnson recently sent a letter to the hundreds of people who wrote to him about the upcoming execution of Terry Clark. In the letter, Johnson, who campaigned as a supporter of the death penalty, said his mind was "not closed on the subject" of capital punishment, adding:
I am of the opinion that swift and sure punishment deters crime. Currently, I do not believe that New Mexico's death penalty serves as an effective preventative measure because it is neither swift nor sure. The time period currently allowed for appeals under the process is too long and yet I have come to believe that innocent people might be put to death if these safeguards are not in place.
Opponents allude to an array of alarming national statistics, which suggest that the death penalty is discriminatory in its application. Those opposed to the death penalty point out the disparities that exist with regard to individuals receiving the death-penalty sentence. They argue persuasively that these disparities are a result of several factors including prosecutorial discretion as well as racial and economic discrimination.
Although I do not intend on declaring a moratorium on executions in New Mexico, eliminating the death penalty in the future may prove to be better public policy given the reality of the sentence today. Accordingly, within these parameters, I am open to a debate on this topic.
(Santa Fe New Mexican 10/28/01). Terry Clark is scheduled to be executed on November 6, 2001. It will be the first execution in New Mexico in over 40 years. See also, New Voices.
Latest Uniform Crime Report Shows Highest Murder Rate Again in the South
The latest FBI Uniform Crime Report shows that in 2000, the national murder rate decreased 3.1% from 1999, with the smallest decline in the South. The South remains the region with the highest murder rate, 6.8 victims per 100,000, compared to 5.1 in the West and Midwest, and 4.0 in the Northeast. (Crime in the U.S. 2000, FBI Uniform Crime Reports, October 2001) Read the report.
Since the death penalty was reinstated, over 80% of all executions have occurred in the South, the region with the highest murder rate. The Northeast, the region with the lowest murder rate, has accounted for less than 1% of the executions.
The FBI report also showed that in 2000, 49% of murder victims were white and 48.5% are black. Although blacks and whites are victims of murder in about equal numbers, over 80% of the victims in death penalty cases resulting in execution since 1976 have been white. See also, executions by region, and race and the death penalty.
Investigation of Oklahoma Cases Widens
A state task force headed by the Oklahoma State Bureau of Investigation has ordered DNA testing for two death row inmates, John Hooker and Michael Hooper. The task force is investigating cases that involved Police Chemist Joyce Gilchrist, (see below), who was involved with both men's cases. Although Gilchrist's work is the primary focus of the task force's examination, the Oklahoma City Police Department has asked the task force to review as many as 10 additional cases handled by another former police chemist, the late Janice Davis. (Dallas Morning News, 10/22/01)
The investigation of Gilchrist has shed light on other cases, including some handled by OSBI itself. The agency is currently reviewing the case against Albert Wesley Brown. At Brown's trial, a former OSBI chemist testified that hairs found at the scene belonged to Mr. Brown, but recent DNA tests proved otherwise (see below). See also, Innocence.
Indiana Newspapers Investigate State Death Penalty
Seven Indiana newspapers spent a year examining the fairness of the state's capital punishment system. Among the findings is that the decision to seek the death penalty is often arbitrary, depending on the personal views of the prosecutor and whether or not a county can afford a death penalty trial. Additional findings cited in the series include:
Two Indiana counties, Marion (Indianapolis) and Lake, have produced almost as many death sentences as all other counties combined. (South Bend Tribune, 10/21/01)
Since the death penalty was reinstated, at least 8 people who were facing the death penalty at trial were acquitted by the jury. In 2 other cases, defendants who did get the death penalty were just days away from being executed, but received a stay, and were later exonerated at re-trial. (Evansville Courier-Press, 10/23/01)
In one case (John Stephenson), taxpayers spent $760,000 for the defense at trial. In another case (Perry Miller), the costs of the defense were $12,000. Miller's case was recently overturned because of ineffective representation. (Fort Wayne Journal Gazette, 10/24/01)
Currently, a study commission, formed by Indiana Governor Frank O'Bannon, is reviewing the state's capital punishment laws and trial procedures. See also, recent articles on the death penalty.
EDITORIAL: Baltimore Sun Calls Maryland Death Penalty A House Built on Paper Foundation
The recent reversal of Maryland death row inmate Kevin Wiggins's conviction by a federal judge prompted the following Baltimore Sun editorial:
Like houses built on paper foundations, Maryland's death row cases are crumbling, folding and disintegrating at a staggering rate. A year and a half ago, 17 men were condemned to die in this state. Now there are merely 11.
The 6 who dodged a state-sanctioned death had cases that were dogged by procedural errors, a paucity of evidence connecting them to the crimes or unconscionably bad legal representation.
. . .
The longer the state continues to operate its capital system without a serious review of how and why decisions get made about who lives and who dies, the less integrity our entire judicial system will have.
. . .
The legislature should not balk when it meets in January. Fix the system, and stop the killing while the repairs take place.
Any other course of action defies common sense, fairness and any notion that justice is the goal behind state-sanctioned killing.
(Baltimore Sun, editorial, 10/17/01) See also New Voices and Editorials.
Juvenile Offender Executed in Texas
Gerald Mitchell was executed in Texas on October 22 for a shooting and robbery he committed when he was 17-years old. (Associated Press, 10/23/01) This is the 18th execution of a juvenile offender since the death penalty was reinstated and the only one this year.
Texas has accounted for more than half of the juvenile offenders executed in the U.S. since 1976. In the past 2 years, only Texas and Virginia have executed juvenile offenders, and Virginia currently has no such offenders on its death row (see below). For more information, read the European Union's and Council of Europe's letters to the Texas Governor appealing for clemency: or see Amnesty International's press release about the case. See also, juveniles and the death penalty.
NEW RESOURCES: "Wrongly Convicted: Perspectives on Failed Justice"- This book features a collection of essays and articles about wrongful convictions by some of the nation's most respected lawyers, sociologists, criminologists, and psychologists. The essays consider the causes of wrongful convictions, the social characteristics of the innocent men and women sent to prisons and death rows, personal stories and case studies of these innocent inmates, and suggestions for system-wide reforms in order to prevent future wrongful convictions. (Saundra D. Westervelt and John A. Humphrey, eds., Rutgers University Press, July 2001) See also, books on the death penalty.

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

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FAX IT! A new update feature is being offered. Several courts are unable to post their decisions on the net & they don't appear in Westlaw or Lexis until months well after publication & therefore they wont appear here. Your help is needed. Feel free to telefax any opinion (or even winning motion) you think may be germane to (617)249-0219 or (617)249-0557 which have been set up to turn your fax into a document file so that it can be used

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

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


DISCLAIMER:Karl R. Keys, Esq*, is an attorney duly admitted in the Commonwealth of Massachusetts. This weekly has been prepared for educational & information purposes only save as noted below. Pursuant to the applicable rules governing attorney conduct this weekly & related website may or may not be construed as legal advertising, however, at of an abundance of caution please treat it as such. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located at Submissions related to this letter may be reproduced without further notice.Translation:Reading this newsletter & writing to me does not make me (or those I work with, for or for me) your lawyer. Although I'm not taking on any additional capital clients, to be on the safe side I am complying with Massachusetts lawyer advertising rules. If you are in a jam call a lawyer in your state.

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WARNING:Although the news letter & related web site are award winning and used as a resource by many, be forewarned it is usually written under the influence of extrreme caffeination at very late hour of the night/morning by someone who is well out of the mainstream of the American body poltic. Perfection takes time that doing this newsletter on a weekly basis for free, on top of a busy work week & practice schedule, simply does not allow. Please use caution before citation, which is why Lexis cites are used (see on how to plug into that fantastic database system) to allow a quick double check, especially for the noncapital cases that are heavily dependent on Findlaw's weekly newsletter, a newsletter notoriously wrong on the law.