Leading off this week are two Southern cases dealing with the use of prior felonies as aggravators. The Alabama Court of Criminal Appeals in Knight v. Alabama orders a new sentencing phase hearing after the trial court erred in instructing the jury during the penalty phase on the law governing the Defendant's prior out-of-state conviction. Likewise, the Fifth Circuit inNixon v. Eppsgrants a Certificate of Appealability in the Mississippi capital case on the use of a prior violent felony conviction before the jury as an aggravator where it is unclear to the Court that the prior felony involving statutory rape was in fact a violent felony under Texas law.

Elsewhere, Texas released Ernest Willisfrom death rowtoday after serving there for 17 years with the district attorney being quoted as saying that he does not even think a crime was committed and that even if there was that Willis wasn't guilty. The exoneration of Willis is in stark contrast to the majority opinion inHouse v. Bell, where the Sixth Circuit en banc, in an eight to seven vote, note that this is a case of possible actual innocence but, nonetheless, deny relief "despite the uncertainties that remain" as conceded by the majority. Likewise, in Gary v. Schofield the federal district court denied relief on claims relating to actual innocence including denial of a fingerprint and serological expert (neither purportedly match Gary), as well as failure to turn over certain odontological evidence and results of serological examinations of semen (again, neither purportedly matched Gary). Finally, on the same topic, this week's Focus involves the recent book review ofInnocent: Inside Wrongful Conviction Casesby Scott Christianson in the New York Law Journal and reviewed by Norman Greene.

As always, thanks for reading, - k

Archived on the internet athttp://capitaldefenseweekly.com/archives/041004.htm

EXECUTION INFORMATION

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

October

5 Edward Green III Texas

6 Peter Miniel Texas

8 Sammy Perkins North Carolina

Pending execution dates believed to be serious include:

October

12 Donald Aldrich Texas

13 Adremy Dennis Ohio

20 Ricky Morrow Texas

22 Charles Roache North Carolina----volunteer

26 Dominique Green Texas

SUPREME COURT

Reasding the tea leaves again, the Supreme Court issued orders in two apparent lethal injection cases this week. The Supreme Court summarily granted, vacated and remanded in Hines v. Johnson for reconsideration of his claims under Nelson v. Campbell, however at this time there isn't enough information to be sure what the exact LI issue on which the GVR was ordered. Just a few days later, however, lifted a stay 5-4 in Beck v. Perkins, an apparent lethal injection case where the stay had survived the Fourth Circuit.

CAPITAL CASES (Favorable)

Nixon v. Epps, 2004 WL 2166271 (5th Cir. 9/27/2004) (unpublished) COA granted on claim regarding introduction of a prior felony conviction before the jury as an aggravator. COA granted but relief denied on Batson/Powers claim. Ruling on ineffective assistance claim deferred pending briefing.

Knight v. Alabama, 2004 WL 2201237 (Ala.Crim.App. 10/1/2004) New sentencing ordered as the trial court erred in instructing the jury during the penalty phase on the law governing the Defendant's prior out-of-state conviction.

Arkansas v. Newman, 2004 WL 2188967 (Ark 9/28/2004) Stay ordered to permit state supreme court to consider appellant's potential retardation, next-friend standing, and whether the retarded may waive Atkins.

Amendments to the Florida Rules of Appellate Procedure, 2004 WL 2201732 (Fla. 9/30/2004) Technical amendments made to state open records act as it pertains to capital post-conviction proceedings.

Walker v. Alabama, 2004 WL 2201197 (Ala.Crim.App. 10/1/2004) Remand ordered to so the trial court may make specific findings concerning the existence or nonexistence of aggravating and mitigating circumstances. Relief otherwised denied on claims including (1) defense counsel's deficient performance in failing to prepare\ for a key State witness did not prejudice defendant; (2) state's improper comments in jury selection and the penalty phase did not prejudice defendant or warrant a mistrial; and (3) pretrial publicity was not unduly prejudicial.

CAPITAL CASES (Other Than Favorable)

House v. Bell, 2004 U.S. App. LEXIS 20915 (6th Cir 10/6/2004) (en banc & dissent) Relief denied -- splitting eight to seven -- in a possible case of actual innocence. "The case comes down to the question of whether the newly discovered evidence undermining the case against House and incriminating Mr. Muncey is sufficiently strong -- despite the uncertainties that remain -- to preclude a rational juror from finding guilt beyond a reasonable doubt and to make the execution of House 'constitutionally intolerable'." This case is a strong cert / original petition possibility.

Gary v. Schofield, 2004 WL 2169384 (M.D.Ga. 9/28/2004) Petition denied on claims including denial of funds for a fingerprint expert, denial of serological expert to enable petitioner to cross-examine prosecution expert about his findings that Gary could not be eliminated as the perpetrator of a rape but error was not unduly injurious; failure to turn over report concerning odontological evidence; serological examinations relating to semen found at the various crime scenes, even if favorable to the defendant, were not material for Brady purposes; and suggestive nature of eyewitness identification. (Note: Gary purportedly has a strong claim of actual innocenceincluding:His fingerprints didn't fit. His blood type didn't match. The bite marks belonged to another man.)

Galloway v. Dretke, 2004 WL 2173495 (N.D.Tex. 9/28/2004) IFP denied in capital case (potentially threatening to trigger the AEDPA's one-year filing deadline) as prison records indicate that Petitioner has $109.07 on deposit and should pay filing fee.

Eggers v. Alabama, 2004 WL 2200853 (Ala.Crim.App. 10/1/2004) Relief denied on claims that statements were involuntary because on two occasions before he gave his first statement he requested counsel; that counsel was ineffective "(1) they did not prepare for and properly present evidence of his mental state at the time of the crime; (2) they did not properly handle the motion to suppress his statements to police; (3) they did not object to the introduction of certain photographs into evidence; and (4) they did not object to the introduction of what he claims was evidence of prior collateral crimes; and sufficiency of the evidence."

Tennessee v. Robinson, 2004 WL 2158117 (Tenn. 9/28/2004) (dissent) Death sentence reinsated as defendant was not entitled to jury instruction on lesser-included offense of solicitation; trial court did not abuse its discretion in allowing forensic pathologist to use victim's clean and reconstructed skull when testifying about victim's injuries; defendant opened door to police sergeant's testimony on redirect that nontestifying declarant was very sure of himself when he identified murder defendant in photographic spread; State did not violate defendant's due process rights by presenting differing theories of guilt of trials of co-defendants, and sufficient evidence existed to uphold HAC aggravator.

HOT LIST

Nixon v. Epps, 2004 WL 2166271 (5th Cir. 9/27/2004) COA granted on claim regarding introduction of a prior felony conviction before the jury as an aggravator. COA granted but relief denied on Batson/Powers claim. Ruling on ineffective assistance claim deferred pending briefing.

Prior Violent Felony Claim

Nixon asserts that his prior Texas conviction for rape should not have been introduced before the jury to satisfy the “prior violent felony” aggravating circumstance because he pled guilty to statutory rape, not rape involving the use of force. See Miss. Code Ann. § 99-19-101(5)(b) (indicating that a prior conviction for “another capital offense or of a felony involving the use or threat of violence to the person” is an aggravating circumstance under Mississippi law). Mississippi law requires that the prosecutor prove each aggravating circumstance beyond a reasonable doubt. See Nixon , 533 So. 2d at 1099; Miss. Code Ann. § 99-19-103 (Supp. 1986).

The 1958 Texas indictment to which Nixon pled guilty accused him of “ma[king] an assault and . . . ravish[ing] and hav[ing] carnal knowledge” of a woman under eighteen years of age. The Mississippi Supreme Court held that this conviction qualified as a prior violent felony based on the Texas Court of Criminal Appeals decision in Rodrigues v. State , 308 S.W.2d 39 (Tex. Crim. App. 1957). Nixon , 533 So. 2d at 1098-99. The district court independently reviewed the claim and agreed with the Mississippi court, reading Rodrigues to stand for the proposition that because an indictment including the terms “ravish” and “assault” could support a conviction for rape by force as well statutory rape, and because the terms were not necessary to a conviction for statutory rape, Nixon’s guilty plea qualified the conviction as a prior violent felony.

The district court relied upon the language in Rodrigues which indicates that under Texas law,

[t]he word “ravish” implies force and want of consent, and its use in the indictment in connection with the allegation of rape of a female between the ages of 15 and 18 years, as here, renders the indictment sufficient to support a conviction for rape by force as well as for statutory rape.

Rodrigues , 308 S.W.2d at 40. However, as Nixon points out, the Texas court went on to hold that “[t]he word ‘ravish’ is not, however, descriptive of the offense, and it is therefore not necessary that force be proven in order to sustain a conviction under such indictment.” Id. (emphasis added). Indeed, in Rodrigues , the Texas court rejected the state’s argument that such an indictment could only support a conviction for rape by force. Id. As a result, the court held that the defendant should have been permitted to submit a jury instruction indicating that the previous unchaste behavior of the accuser would constitute a valid defense to the indictment — a defense that was only available in statutory rape cases under Texas law at the time. 6 Id.

In addition to the dispute over the status of this conviction as an aggravator, there is a question whether its being placed before the jury amounted to harmless error. See Billiott , supra .

Thus, we find it at least debatable among jurists of reason whether a guilty plea to such an indictment can support a jury finding that Nixon had committed a prior violent felony and that such a finding may support the imposition of the death penalty. 7 Therefore we grant the COA on this claim.

Knight v. Alabama, 2004 WL 2201237 (Ala.Crim.App. 10/1/2004) New sentencing ordered as the trial court erred in instructing the jury during the penalty phase on the law governing the Defendant's prior out-of-state conviction.

Not only must the circuit court correct its sentencing order but in reviewing this case for plain error it has come to this Court's attention that the circuit court improperly instructed the jury during the penalty phase on one of the aggravating circumstances that we have previously stated should not have been applied in this case. The circuit court instructed the jury that Knight's prior Florida conviction could be used to find the existence of the aggravating circumstance defined in § 13A-5-49(2), Ala.Code 1975. The circuit court also incorrectly defined the Florida robbery statutes and gave a definition on robbery by sudden snatching--an offense that was not the law in Florida until after Knight pleaded guilty to robbery.

The Alabama Supreme Court in Ex parte Williams, 556 So.2d 744 (Ala.1987), recognized the importance of a jury's recommendation when it refused to find harmless error after the circuit court improperly instructed a jury on the aggravating circumstance that Williams was under a sentence of imprisonment at the time of the offense, when in fact he was not, even though the circuit court did not apply that aggravating circumstance. The Supreme Court noted that it could not apply the harmless-error doctrine because, "[t]he basic flaw in this rationale is that it totally discounts the significance of the jury's role in the sentencing process." 556 So.2d at 745. See also Ex parte Stewart, 659 So.2d 122 (Ala.1993). [FN7]

In Ex parte Hagood, 777 So.2d 214, 218 (Ala.1999), the Alabama Supreme Court stated:

"In Ex parte Stewart, 659 So.2d 122 (Ala.1993), we reversed a death sentence and remanded the case for the trial court to conduct new sentencing proceedings because the trial court had given an erroneous instruction to the jury during the sentencing phase. We held that although the trial court properly found two statutory aggravating circumstances, this fact did not render the erroneous instruction harmless. Id. at 128. Our holding in Stewart was based upon Ex parte Williams, 556 So.2d 744 (Ala.1987), wherein we had held that the mere fact that a sentencing jury had considered an improper aggravating circumstance required that the sentence of death be set aside, despite the fact that the trial court had properly exercised its sentencing authority. 556 So.2d at 745."

Compare Ex parte Broadnax, 825 So.2d 233 (Ala.2001) (the Alabama Supreme Court applied the harmless-error analysis to a circuit court's instructions on the consideration the jury was to give mitigating circumstances--a jury instruction that was insufficient, not erroneous).

The circuit court instructed the jury to consider an improper aggravating circumstance. Therefore, based on Stewart and Williams, Knight is entitled to a new sentencing hearing before a jury.

For the foregoing reasons, this case is remanded to the circuit court for Baldwin County for that court to hold a new sentencing hearing before a duly empaneled jury and enter a new sentencing order after weighing the aggravating circumstances and the mitigating circumstances. Due return should be filed in this Court within 140 days from the date of this opinion.

OTHER NOTABLE CASES

Ex Parte Rhone, 2004 WL 2202074 (Ala. 10/1/2001) Apparent major changes to state post-conviction precedent holding amendment of a petition for postconviction does not require an initial showing diligence in filing the amendment or that the facts underlying the amendment were unknown to him before filing of original petition, overruling Cochran v. State and only such things as actual prejudice to the opposing party, or undue delay, will support not granting leave to amend.

Virginia Dep’t of State Police v. Washington Post, et al, 2004 WL 2198327 (4th Cir 10/1/2004) In a noncapital DNA exonaration Court holds, in most relevant part for our purposes here, state police department's interest in protecting integrity of its ongoing investigation of rape and murder was insufficient to overcome public's First Amendment right of access to documents, where bulk of information in these documents related to another suspect and to the DNA testing of his semen, information which was already matter of public record.

FOCUS

This week's Focus involves the recent book review of Innocent: Inside Wrongful Conviction Casesby Scott Christianson and reviewed by Norman Greene.

New York Law Journal

September 28, 2004

Reviewed by Norman L. GreeneInnocent: Inside Wrongful Conviction CasesBy Scott Christianson, New York University Press, New York, N.Y. 196 pages, $26.95 "If the system can survive only by imprisoning innocent people, then it deserves to be destroyed."- Philip K. Dick, "The Minority Report "In 1932, Professor Edwin M. Borchard dedicated his classic "Convicting the Innocent" to Professors John H. Wigmore and Felix Frankfurter for their contributions to the subject of preventing wrongful conviction.

"Erroneous conviction of innocent people," Borchard concluded, is "among the most shocking" of "injuries and most glaring of injustices" resulting from "official wrongdoing and error."

Borchard studied 65 cases of wrongful conviction from various states, in which innocence was established in a number of ways, including "the turning up alive of the alleged 'murdered' person." In several of Borchard's cases, the "convicted prisoner, later proved innocent, was saved from hanging or electrocution by a hairbreadth."

Scott Christianson's "Innocent" on wrongful convictions in New York State is a worthy successor to Borchard and the growing literature in the field. In selecting New York, the author states that New York "in legal matters, is generally considered relatively advanced and sophisticated and often regarded as one of the best," and wonders what goes on in states with lesser reputations. (The author does refer to New York's share of criminal justices candals, however.)

"Innocent" groups the causes of wrongful convictions into chapters - mistaken identification, eyewitness perjury, ineffective counsel, false confessions,police misconduct, fabrication of evidence, and prosecutorial misconduct.Another chapter catalogs selected wrongful conviction cases, person byperson, including capital cases, and eerily warns us that this might not beall. "Unfortunately, not much is known about the current nature and extentof wrongful conviction. The state does not maintain a master list of itsmistakes," says Christianson. The wrongful convictions typically addressedare "only where very long sentences are involved" - not those of the "vastbulk of offenders, who serve two years or so in prison," even though some ofthose convictions are likely to be wrongful as well.

The book moves rapidly through brief case summaries - lousy evidence, shoddy police work, inept defense lawyers and obstinate or unapologetic district attorneys seeking to uphold wrongful convictions. Contributing to the problem, says Christianson, are "trial judges [who] consistently make rulings that favor the prosecution above the law" and the fact that"[a]ppellate courts ... tend to uphold convictions."

"Wrongful conviction is a team sport," says the author, with police,prosecutors, defense attorneys, trial judges, juries, appellate courts, and legislators sharing responsibility, but rarely held accountable. It is unusual for the participants to be "voted out of office, dismissed,disciplined or subject to civil damages."

Borchard observed that in his day, the tendency of prosecutors "to regard a conviction as a personal victory calculated to enhance the prestige of the prosecutor" and the impact of inflamed community opinion on prosecutors,judges and juries, were also factors.

To explain the catastrophic consequences of wrongful conviction, the author quotes a Court of Claims judge, who asked in awarding damages to Gregory Reed for wrongful conviction: "How can this Court place itself within the experience of the claimant?" and "How does one feel when handcuffed andshackled and placed in a cell ...?" and "How can one replace the emotional contact of loved ones forever gone?"

The author also includes an excerpt from a long letter (virtually a poem) in 2001 from since exonerated prisoner Lamont Branch - then at Shawangunk Correctional Facility and who served 13 years in prison - which describes the prison experience in part as follows

"Prison is a place where you write letters and cannot think of anything to say. ... where you hear about your neighbor's kids graduating from school and you didn't even know that they had kids who started school ...; where you forget the sounds of a baby's cry. You forget the sounds of a dog's bark, or even the sounds of a dial tone from a telephone. ... where if your married, you watch your marriage die ....

Space allows only a sample of the cases Scott Christianson presents: Nate Carter, a basketball playmate of New York Governor George E. Pataki in the 1960's, was convicted of murder and sentenced to 25 years to life, and served 2-1/2 years before being released; Betty Tyson, sentenced to 25 years to life for murder and served over 25 years; Gregory Reed, convicted of murder and sentenced to 15 years to life, freed after serving 6-1/2 years; and Luis Rojas, freed after serving 7-1/2 of a 15 years to life sentence in prison for murder. These are some of the "fortunate" ones; they were not only exonerated but also received compensation. Not everyone is so "lucky.

Will books like "Innocent" inspire change? After all, we assume that the vast majority who are convicted are guilty; we rarely personally know anyone who has been wrongfully convicted; at least some few (very few, the author assures us) are receiving significant settlements or awards against the state for their ordeal; and it takes a tremendous effort to "scrutinize" a criminal conviction and "undo an unjust result." There is also a sense that it cannot happen to me; and if it does, everything will work out in the end. As Alexander Solzhenitsyn wrote in "The Gulag Archipelago": "Since you aren't guilty, then how can they arrest you? It's a mistake!... They'll set things straight and let me out! ... You still believe that the Organs are humanly logical institutions: they will set things straight and let you out." But according to Borchard, anyone might find himself wrongfully taken from the streets and jailed "and suffer the tribulations of the damned." The modern American criminal justice system, of course, bears no relationship whatsoever to the horrific Soviet system described by Solzhenitsyn or the precrime system described in Philip Dick's science fiction (in which people are arrested before committing crimes); and it is decades after the one described by Borchard. Yet there is still no assured happy ending, only hard struggles and uncertain results

There are some promising developments. New York has renowned private organizations and persons dedicated to undoing wrongful convictions, such as Cardozo Law School's "Innocence Project" and Brooklyn Law School's "Second Look Program" (the book includes an intriguing questionnaire from that program) and "good police, prosecutors, defense lawyers, investigators, advocates, and judges who struggled to right such wrongs." The success stories entail "terrible misfortune but also great perseverance." The author notes that "North Carolina has created an independent commission to review how innocent parties get convicted and what can be done to address wrongful conviction," which may provide a useful model for New York. But "'innocence' to some officials has become archaic and quaint - a luxury we can no longer afford," and certain "hard-liners deny that anyone ever gets wrongly convicted." Perhaps they do not recognize that overturning wrongful convictions not only restores an innocent person's freedom but furthers law enforcement, since "cases of wrongful conviction represent instances where the real criminals go unpunished.

"Innocent" is an excellent recommendation to make the next time someone questions the need for further criminal justice reform. Let him explain that to the wrongfully convicted and their families. Norman L. Greene is a member of the New York City law firm of Schoeman, Updike & Kaufman and the past chair and current member of the Committee on Capital Punishment of the Association of the Bar of the City of New York.

FROM AROUND THE WE

The Death Penalty Information Center(Deathpenaltyinfo.org) notes

Ashcroft's Push for Death Penalty Met With Juror Resistanc

Despite efforts by U.S. Attorney General John Ashcroft to broaden the use of the federal death penalty, less than a third of the federal death penalty trials since 2001 have resulted in a death sentence. Of the 34 federal capital cases Ashcroft authorized, 23 did not result in the death penalty. Critics say that this poor record suggests waning public enthusiasm for executions and that juries and judges see through what many believe to be weak cases for the federal death penalty. Ashcroft, who claims that broader use of the federal death penalty will remedy the documented geographic disparities in federal capital sentencing, is a long-time supporter of capital punishment. He has pushed federal prosecutors around the country to go against their own objections and be more aggressive in identifying cases that could qualify as capital. Much of that effort has been focused on states that have banned or rarely impose capital punishment. In some instances, the Justice Department chief has overridden local federal prosecutor's plea bargain agreements. In prior administrations, federal prosecutors were given the freedom to determine the usefulness of such plea bargains without oversight, but a new policy put into place by Ashcroft ensures that all federal prosecutor decisions are now reviewed in Washington. Under Ashcroft's administration, 65 defendants are facing capital trials, compared with a high of 39 under former Attorney General Janey Reno. (Los Angeles Times, September 29, 2004). See Federal Death Penalty

NEW RESOURCES: Research Shows Significant Decline in Death Sentences for Juvenile

In a forthcoming article, Columbia University researchers found that, since 1994, when death sentences for juvenile offenders peaked, these sentences have declined significantly. In particular, the decline in juvenile death sentences since 1999 is statistically significant after controlling for the murder rate, the juvenile homicide arrest rate, and the rate of adult death sentences. This downward trend in juvenile death sentences is indicative of an evolving standard in state trial courts opposing the imposition of death sentences on minors who commit capital offenses. This evidence is relevant for the upcoming Supreme Court case of Roper v. Simmons that will decide whether a national consensus has evolved against such death sentences. One measure of this consensus would be a lessening in the number of juveniles sentenced to death. The Decline of the Juvenile Death Penalty: Scientific Evidence of Evolving Norms, by Jeffrey Fagan and Valerie West of Columbia University, will be presented at the Symposium on Actual Innocence at Northwestern University in October and has been accepted for publication in the peer reviewed publication, The Journal of Criminal Law and Criminology. (Press Release, Columbia Law School, Oct. 5, 2004) (Link to Press Release and Article). See "From DPIC" on DPIC's home page, and DPIC's Roper v. Simmons page

Another Innocent Inmate Close to Release in Texa

Ernest Willis is likely to be the eighth person exonerated and freed from Texas's death row. He would be the 117th person freed nationwide since 1973. Willis was sentenced to death 17 years ago for allegedly setting a house fire that killed two people. Now the state's own fire expert, Gerald Hurst, has concluded: "There is not a single item of physical evience in this case which supports a finding of arson." He labeled some of the "scientific" evidence at Willis's first trial as "absurd." The district attorney in Fort Stockton, Texas, said that he would file a motion today requesting the dismissal of all charges. "I don't have to decide whether he's innocent or not, but I think that's probably a probability--that he is innocent," said district attorney Ori White. A federal district judge in San Antonio had ruled in July that Willis must be either freed or given a new trial, stating that there is "strong reason to be concerned that Willis may be actually innocent." (San Antonio Express-News, Oct. 5, 2004). See DPIC's new report on innocence

Plea Bargains Underscore Arbitrary Death Penalty in Orego

A series of murder cases in Oregon underscores the ineffectiveness of the state's capital punishment system according to both death penalty supporters and opponents. Jesse Lee Johnson was sentenced to death while two other men who committed equally or more brutal crimes plea bargained to lesser sentences. Johnson received a death sentence in large part because he maintained his innocence, while convicted murderers Ward Weaver and Edward Morris pleaded guilty in exchange for not receiving the death penalty. Weaver was found guilty of sexually assaulting and killing two Oregon City girls and Morris was convicted of murdering his wife and three children in the Tillamook State Forest. Opponents of capital punishment note that the sentences prove the state's death penalty is arbitrary and unfair, while supporters of capital punishment are unhappy that the system continues to lack consistency and is ineffective. "Oregon has shown for all to see, through the plea bargains of Edward Morris and Ward Weaver, that the administration of the death penalty in Oregon is now capricious. As such, the only responsible civil action at this point is for the citizens of Oregon to abandon the death penalty," recently wrote William Long, a Willamette Law School professor. Since voters reinstated the death penalty in Oregon, more than half of the men sentenced to death have had their sentences reversed on appeal. The state has carried out 2 executions and both were of men who chose to abandon their appeals. No executions are currently pending in the state, but 28 individuals remain on death row. (The Oregonian, September 24, 2004). See Sentencing

Texas Police Chief Calls for Halt to Executions in Wake of Scanda

In the wake of a scandal that has called into question the reliability of the police crime lab's testing and handling of evidence in Harris County, Texas, Police Chief Harold Hurtt has said that executions of inmates from the county should not be scheduled until all relevant evidence has been reexamined to assure accuracy. He went on to note that the executions of nine individuals convicted in Harris County that are scheduled to take place before March 2005 should not be allowed to go forward. "I think it would be very prudent for us as a criminal justice system to delay further executions until we have had time to review the evidence," Hurtt said. Harris County investigators are about a quarter of the way through their review of hundreds of boxes of evidence that had been forgotten in a storage room and may impact thousands of crimnal cases. (Houston Chronicle, September 30, 2004). See Innocence

Following a One-day Trial and no Appeal, Mentally Ill Man Executed in Alabam

David Kevin Hocker, a mentally ill man who waived all his appeals, was executed in Alabama last night (Sept. 30). He was the first person to be executed in that state without a review by the state's Supreme Court. Hocker had murdered his employer in 1998. No one from the victim's family attended the execution. Hocker's mother did attend her son's execution, and was so distraught she had to leave the witness room. She said that her son had been suicidal for many years. Hocker's trial lasted one day and at his request no witnesses were called on his behalf. The following story is by Carla Crowder of the Birmingham News (Oct. 1, 2004)

International Conference on the Death Penalty to Convene in Montrea

On October 6, the 2nd World Congress Against the Death Penalty will convene in Montreal, Canada. More than 1,000 participants from around the world are expected to gather at the city’s Place des Arts, including many U.S. policy makers and death penalty experts. Americans such as Mike Farrell, Barry Scheck, and several death row exonerees will join international human rights leaders including former U.N. High Commissioner on Human Rights Mary Robinson, Bianca Jagger, and actress Catherine Deneuve for the 3-day conference. The Congress will explore criminal justice issues and will aim to advance worldwide ratification of a United Nations treaty to forbid capital punishment in all circumstances. For more information, visit the Congress's Web site. (Source: ECPM (Together Against the Death Penalty) Press Release, Sept. 29, 2004). Read the Press Release

North Carolina Preparing to Execute Mentally Ill Ma

Sammy Perkins is scheduled for execution in North Carolina on October 8, despite his mental illness and the fact that the jurors at his trial did not learn the extent of his disability. According to a press release from Perkins's attorneys

"The jury never heard the full story of Sammy Perkins' mental disorder: A family history of psychiatric problems left its mark on Sammy Perkins. Several family members suffered from mental illnesses. In his late teens and early twenties, the time when bi-polar disorders are often discovered, Perkins was found ranting in public, sometimes completely naked. From a poor family, he was not able to get psychiatric help, treatment or medication. Bi-polar disorder, left untreated, is a debilitating mental illness, with wild mood swings, depression and manic highs during which the person can be out of touch with reality. As he self-medicated his moods and depression with cocaine, heroin and alcohol, the condition worsened. Myasthenia Gravis claimed Perkins as well. This autoimmune disease causes muscular weakness. Prescription Prednisone, given to Perkins to abate the symptoms, causes euphoria, hyperactivity and is highly addictive." (Press Release, Sept. 29, 2004, Attorneys Ed West: 910.254.4748 and Nora Hargrove: 910.763.7952). See Mental Illness

Supreme Court to Hear Pennsylvania Death Penalty Cas

The U.S. Supreme Court agreed Tuesday to hear a death row appeal from a Pennsylvania man who maintains that jurors at his trial should have been told that they had the option of sentencing him to life without parole instead of the death penalty. According to the brief filed on behalf of Ronald Rompilla, the jury asked several questions during his trial about Rompilla's "future dangerousness," yet were never told that if sentenced to prison he would never be eligible for later release. The jury then sentenced him to death. The U.S. Court of Appeals for the 3d Circuit ruled that jurors did not have to be given a special instruction. Rompilla was convicted of murder during a 1988 robbery in Allentown. Rompilla also alleges that his public defenders presented inadequate evidence of his mental retardation and traumatic upbringing. Most death penalty states offer life without parole, but only Pennsylvania and South Carolina have routinely declined to tell jurors that a defendant will not be released if sent to prison, according to Rompilla's brief. (Rompilla v. Beard, 04-5462, Associated Press, Sept. 28, 2004). See Life Without Parole; see also Supreme Court

Arkansas Execution Stayed, Raising New Legal Question

The execution of Rickey Dale Newman in Arkansas, scheduled for the night of September 28, was stayed by the state Supreme Court. Newman had waived his appeals. Nevertheless, there is evidence that he may be mentally retarded. The U.S. Supreme Court ruled in Atkins v. Virginia (2002) that people with mental retardation cannot be executed. Newman's case raises the question of whether a third party can intervene to request a stay of execution, even though the defendant does not want to appeal but is mentally retarded. (DPIC; also Arkansas Democrat Gazette, Sept. 29, 2004). See Mental Retardation

Innocence Case Results in Prosecutor Reprimand

The North Carolina State bar has reprimanded two former assistant attorney generals for withholding evidence that could have prevented the wrongful conviction of Alan Gell, who was finally freed from death row in 2004 (pictured). The State Bar panel found that prosecutors David Hoke and Debra Graves failed to turn over evidence to Gell, did not adequately supervise the conduct of their chief investigator for the case, and brought the judicial system into disrepute by their conduct. Hoke and Graves received a written reprimand for their behavior, which the panel found to be unintentional. Gell, who spent nine years in jail and half of those on death row, won a new trial in 2002 on the basis of the withheld evidence. Among the evidence prosecutors failed to disclose were statements of people who saw the victim, Allen Ray Jenkins, alive after Gell had been jailed for vehicle theft and could not have committed the crime, as well as a taped conversation of the state's star witness saying she had to "make up a story" for police. With the new evidence that had surfaced, Gell's 2004 retrial ended in a quick acquittal. Hoke continues to serve as the No.2 state administrator in the state court system, and Graves now works as an assistant federal public defender. (News Observer, September 25, 2004). See Innocence

NEW RESOURCE: Law Review Adresses "Who Deserves Death?

Articles from a symposium entitled "Rethinking the Death Penalty: Can We Define Who Deserves Death?" can be found in the Fall 2003 edition of the Pace Law Review. The symposium, hosted by the Association of the Bar of the City of New York in May 2002, featured speakers Robert Blecker, Jeffrey Kirchmeier, the Honorable William Erlbaum, David Von Drehle, and Jeffrey Fagan. The speakers addressed the question of whether it is possible to limit the death penalty to the "worst of the worst" and, if so, who would fall into this category. The panel further examined whether such a limited use of the death penalty would be supportable morally, philosophically, and constitutionally. (24 Pace Law Review 107 (2003)) See Resources

NEW RESOURCE: Address to the American Correctional Association on the Death Penalt

The American Correctional Association has recently published the proceedings of their 2003 Annual Conference in Nashville containing a presentation by DPIC Executive Director Richard Dieter on the death penalty. The text of the speech is available on DPIC's site, click here. The full publication is available from the ACA, and also contains remarks on the death penalty by Prof. John McAdams of Marquette. (The State of Corrections: 2003 Proceedings, ACA Annual Conferences, American Correctional Association (2004)). See also Resources

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