The death penalty in Georgia is at issue this week.No less than seven capital cases from that state are reported.Two of those cases are hot,Yates v. State(reversible error strike jurors in contravention of court order & state law) &Dawson v. State(electrocution banned).

Two capital case losses from Texas are also noted as hot.The Texas Court of Criminal Appeals inGarcia v. Texasupholds the use of race in an experts determination of future dangerousness & finds counsel is not ineffective for suggesting the same through questioning of the expert.The Texas special question on deliberateness is also examined & defined inWardip v. Texas.

Mental evidence is scheduled to be the Focus of the next few editions. As this is Georgia week, an article written by the Director of theThe Multi-County Public Defender Office, Michael Mears, appropriately starts off the series."Fetal Alcohol Syndrome Evidence As Mitigation in Death Penalty Cases" examines the nuts and bolts of what we as practitioners need to know about this all too common mental health disorder.

Several wins out of the Sixth Circuit are forecast for the next issue, including,Coleman v. Mitchell(6th Cir) (IAC penalty phase), In re Byrd (6th Cir) (successive petition's claims of innocence ordered to be heard by a Magistrate) & Slaughter v. Parker (W.D.Ky)(IAC penalty phase).

Since the last edition there have been no domestic executions.

The scheduled executions considered likely for October are:

12 David Ward North Carolina

18 Alvie Hale Jr. Oklahoma

18 Christopher Beck Virginia

22 Gerald Mitchell Texas

24 Stephen Johns Missouri

HOT LIST CASES

Yates v. State, 2001 Ga. LEXIS 757 (GA 10/1/2001) Striking of jurors in contravention of court order & state law reversible error.

Yates filed a pretrial motion requesting that the trial court personally determine all excusals from jury service and that the defense be provided with "notice and opportunity to be heard on any application by a potential juror to be excused" from jury service. The trial court granted the motion and ruled at a motion hearing that the procedure to be followed in this case with regard to excusals would be to require every potential juror who sought to be excused to make a written affidavit as to the reason why and to appear at a hearing so both sides have an opportunity to object. At the beginning of voir dire, defense counsel noticed that 49 of the 160 [*5] potential jurors had been struck from the jury list.. . .

In Georgia, there is no statutory exemption from jury duty for persons with medical problems. See O.C.G.A. § 15-12-1. However, the trial court or someone appointed in writing by the chief judge of the circuit may under O.C.G.A. § 15-12-1 (a) excuse a potential juror from jury duty if the juror shows "good cause why he or she should be exempt from jury duty[.]" Id.; Thornton v. State, 264 Ga. 563 (19) (449 S.E.2d 98) (1994). Thus, while a blanket, indiscriminate excusal of potential jurors who proffer medical excuses is incompatible with Georgia [*7] law and with the need to draw juries from a fair cross-section of the community, a trial court has the discretion to excuse a person based upon a determination that jury service would impose a "special and undue hardship" on that particular person due to a medical condition. See Thornton, supra; McMichen v. State, 265 Ga. 598 (33) (a) (458 S.E.2d 833) (1995). Since there was no inquiry into the nature of most of the medical excuses, no such determination of special and undue hardship was made. In fact, it appears from the record that every potential juror who offered a medical excuse was summarily removed from jury service. While a trial court has broad discretion in determining the validity of each request to be excused from jury service, McClain v. State, 267 Ga. 378 (1) (c) (477 S.E.2d 814) (1996), that discretion is abused when the trial court fails to make any inquiry into whether the proffered excuse constitutes "good cause." See O.C.G.A. § 15-12-1 (a); Thornton, supra; McMichen, supra. Because the record shows that a substantial number [*8] of potential jurors were released from jury service without such an inquiry, we conclude that the trial court erred and that this error affecting the composition of the array mandates a reversal of Yates's convictions and sentences. See Thornton, supra; McMichen, supra; Holsey v. State, 271 Ga. 856 (2) (524 S.E.2d 473) (1999). See also Hendrick v. State, 257 Ga. 17 (2) (354 S.E.2d 433) (1987) (a failure to comply with the essential and substantial provisions of O.C.G.A. § 15- 12-1 can vitiate the array). Further, the record contains no written order authorizing the clerk to excuse potential jurors and providing guidelines for such excusals in accordance with O.C.G.A. § 15-12-1 (a). See Hendrick, supra; Lumpkin v. State, 255 Ga. 363 (1) (338 S.E.2d 431) (1986), overruled on other grounds by Woodard v. State, 269 Ga. 317 (2) (496 S.E.2d 896) (1998). In fact, the trial court at the pretrial hearing specifically stated that the court clerk's authority to defer potential jurors did not extend to death penalty cases. Because the trial court's [*9] abuse of discretion prevented the presentation of a proper jury array, Yates must be retried. See id.

Wardip v. Texas, 2001 Tex. Crim. App. LEXIS 78 (Tex Crim App 10/3/2001) Applicable standard for the penalty phase special question on deliberateness examined & defined.

Appellant argues that the evidence is insufficient because there is no evidence of planning, preparation, or premeditation. He contends that he came to the murder scene unarmed and was in a "blind rage" when he attacked Sims. A jury must find "a moment of deliberation and the determination [by] the actor to kill" before it is justified in answering "yes" to special issue number one. Kinnamon v. State, 791 S.W.2d 84, 95-96 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). An act need not be premeditated to be deliberate, however, and the killing may occur during a "frenzy." Havard v. State, 800 S.W.2d 195, 212 (Tex. Crim. App. 1989) [*11] (citing Granviel v. State, 552 S.W.2d 107, 122-23 (Tex. Crim. App. 1976), cert. denied, 431 U.S. 933, 53 L. Ed. 2d 250, 97 S. Ct. 2642 (1977)). Further, this Court has recognized that whether or not a defendant comes armed to a crime scene is of probative value in proving deliberate conduct. Cooks v. State, 844 S.W.2d 697, 714 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 927, 125 L. Ed. 2d 732, 113 S. Ct. 3048 (1993).

Appellant's repeated stabbing of Sims evidences a deliberate act with a reasonable expectation that death would result. See Fearance v. State, 620 S.W.2d 577, 584 (Tex. Crim. App. 1980) (opinion on rehearing), cert. denied, 454 U.S. 899, 70 L. Ed. 2d 215, 102 S. Ct. 400 (1981); Granviel, 552 S.W.2d at 123. Appellant's admitted anger and his urge to "lash out" is indicative of deliberateness. The evidence that he sexually assaulted Sims, tied her up, and stabbed her numerous times after he tied her hands behind her back also demonstrates deliberate conduct. Further, the evidence shows that appellant may have come armed to the crime scene. Appellant [*12] could not remember whether or not he brought the knife with him and the knife was never found.

Garcia v. Texas, 2001 Tex. Crim. App. LEXIS 75 (Tex Crim App 10/3/2001) Use of race in the determination of future dangerousness is not constitutional error, defense counsel's exploration of topic on cross-examination is likewise not error. The questions at issue:

Q: What about whether or not someone is black, white, Hispanic? Does that play a role?

A: The race plays a role in that the - among dangerous people, minority people are overrepresented in this population. And, so, blacks and Hispanics are overrepresented in the - in the dangerous - so-called dangerous population. . . .

Q: Now, are these - are some of these factors eliminated in a prison environment?

A: Most of these factors are either eliminated or kept to a minimum, reduced to a minimum within the prison setting. Those factors that are biographical [biological?] are, of course, not eliminated, your gender and your race.

Dawson v. State, 2001 Ga. LEXIS 785 (GA 10/5/2001) Major win for the Southern Center for Human Rights as the Georgia Supreme Court execution via electrocution is a barbarism unfit of the new millenia in light of evolving standards of decency. (Excerpt below is not for the squeamish).

The people of Georgia, through their elected representatives, have chosen electrocution as the method of executing persons sentenced to death for capital offenses committed before May 1, 2000. Ga. L. 2000, p. 947, § 1. See O.C.G.A. § 17-10-38. We operate from the presumption that this method of execution is constitutional. See Miller v. State, 266 Ga. 850 (2) (472 S.E.2d 74) (1996) (statutes [*5] are presumed constitutional). That presumption of constitutionality, however, cannot prevail when a statute manifestly infringes upon a constitutional provision or violates the rights of the people. Id. Thus, the mere fact that the Legislature has spoken on the issue of the method of execution does not preclude or in any manner limit this Court's evaluation of the selected method to determine whether it comports with the constitutional prohibition against cruel and unusual punishment. See Lambeth v. State, 257 Ga. 15, 16 (354 S.E.2d 144) (1987). See also Weems v. United States, 217 U.S. 349, 379 (30 SC 544, 54 LE 793) (1910) (legislatively-prescribed punishments "have no limitation ... but constitutional ones, and what those are the judiciary must judge").

Similarly, prior rulings by this Court regarding the constitutionality of the use of electrocution cannot be deemed determinative of the issue. This Court has acknowledged that "whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the '"evolving standards of decency that mark the progress of a maturing society."' [Cit.]" Fleming v. Zant, supra, 259 Ga. at 689 [*6] (1). As noted by the United States Supreme Court in addressing the scope of the Eighth Amendment's prohibition against cruel and unusual punishments,"if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the Stuarts, or to prevent only an exact repetition of history." Weems v. U. S., supra, 217 U.S. at 373.

Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be.

In O.C.G.A. § 17-10-38, as amended, the Legislature also contemplated "what may be," id., when [*7] it recognized the possibility that this Court would find unconstitutional its retention of electrocution as the method of executing persons sentenced to death for capital offenses committed before that statute's effective date. In anticipation of such a ruling and with full awareness of the disfavor into which death by electrocution has fallen, n1 the Legislature made express provisions in the uncodified section of O.C.G.A. § 17-10-38. It specifically stated thatit is the further intention of the General Assembly that persons sentenced to death for crimes committed prior to the effective date of this Act be executed by lethal injection if the Supreme Court of the United States declares [*8] that electrocution violates the Constitution of the United States or if the Supreme Court of Georgia declares that electrocution violates the Constitution of the United States or the Constitution of Georgia.

Ga. L. 2000, p. 947, § 1. See also id. at § 6, holding that lethal injection shall apply to persons sentenced to death for crimes committed prior to May 1, 2000 in the event electrocution is declared unconstitutional by this Court or the U.S. Supreme Court. Compare Ohio Rev. Code Ann. § 2949.22 (E) (providing in regard to the amendment allowing condemned prisoners to elect lethal injection that "no change in the law made by this amendment constitutes a declaration by or belief of the general assembly that execution of a death sentence by electrocution is a cruel and unusual punishment proscribed by the Ohio Constitution or the United States Constitution").

Our reevaluation of the constitutionality of electrocution as a method of execution in Georgia is influenced greatly by the enactment of the amended version of O.C.G.A. § 17-10-38. That statute represents "the clearest and most objective evidence of how contemporary society views a particular [*9] punishment" inasmuch as that significant change in the law "amounts to evidence of the shifting or evolution of the societal consensus." Fleming v. Zant, supra, 259 Ga. at 689-690 (3). We note that while several death penalty cases have come before this Court since this significant change in the law, those cases have failed to offer the Court an opportunity to consider the question of the continued constitutionality of electrocution on the footing presented by the case before us now. Several recent cases challenging electrocution involved motions which were unsupported by admissible evidence or which proffered evidence that was not actually made part of the record placed before this Court. See, e.g., Colwell v. State, 273 Ga. 634, 640 (6) (544 S.E.2d 120) (2001) ("in the absence of admissible evidence demanding a different result, the trial court did not err in declining to declare execution by electrocution unconstitutional"); Esposito v. State, 273 Ga. 183, (3) (b) (538 S.E.2d 55) (2000). But see Heidler v. State, 273 Ga. 54 (25) (537 S.E.2d 44) (2000) (declining to reverse where the trial court denied [*10] a request for an evidentiary hearing prior to April 27, 2000). In many of the recent cases, however, the issue of electrocution was not raised on appeal, had been waived at trial, or was procedurally barred. See Presnell v. State, Ga. (Case No. S01P0590, decided July 16, 2001); Fults v. State, 274 Ga. 82 ( 548 S.E.2d 315 ) (2001) (issue not raised); Butts v. State, 273 Ga. 760 (31) (546 S.E.2d 472) (2001); Head v. Carr, 273 Ga. 613 (2) (544 S.E.2d 409) (2001); Davis v. Turpin, 273 Ga. 244 (1) (539 S.E.2d 129) (2000); Jones v. State, 273 Ga. 231 (539 S.E.2d 154) (2000). In contrast to those earlier cases, the consolidated appeals in this case involve evidence which was both admitted by the two trial courts and considered by those courts in light of the recent legislative changes in Georgia's death penalty laws. Accordingly, we consider the issue to be properly before this Court and ready for review.

4. (a) The trial court in Moore's case had before it testimony from defense experts, State experts, electrocution survivors, and prison officials, as well as autopsy reports prepared by the State after [*11] Georgia executions, audiotapes archiving Georgia executions, post-mortem photographs of persons executed in Georgia, and Georgia protocols for execution by electrocution and by lethal injection. A defense expert testified that there is a possibility, even a likelihood, that Georgia's electric chair does not produce instantaneous unconsciousness. He asserted that although very high voltage is applied in the first two portions of the three-stage, two-minute electrocution process, the brain is shielded from much of the electricity by the skull. The defense expert further claimed that the alternating current used in electrocutions could repetitively activate the brain, causing the perception of excruciating pain and a sense of extreme horror. Another defense expert testified that the two high-voltage portions of the electrocution process, which last a total of eleven seconds, would induce cardiac standstill but that the third, low-voltage portion of the electrocution process, which lasts 109 seconds, might fail to produce its designed effect of inducing ventricular fibrillation in half of all executions.

In two instances documented by prison officials as a record of Georgia executions, [*12] a second two-minute cycle of electricity was required due to life signs exhibited by the prisoner. In one case, breathing was observed during the five-minute "cooling off" period following the initial two-minute application of electricity, thus requiring the application of another two-minute cycle of electricity. In another case, the prisoner was observed bobbing his head from side to side during both the low-voltage portion of the first two-minute electrocution cycle and the five-minute lapse period that followed. n2 The physicians who examined the prisoner during the first five-minute lapse period determined that he was still breathing. Although the prisoner stopped moving his head when the second cycle of electricity was initiated, the head movements resumed and he appeared to be breathing during both the final portion of the second electrocution cycle and during the first two minutes of the second cooling-off period.

The autopsy reports and autopsy photographs prepared as part of the State's execution protocol establish that some degree of burning of the prisoner's body is present in every electrocution. n3 The autopsy reports contain repeated comments to the effect that the burns found on the deceased prisoners are "characteristic" or "typical" of injuries observed in previous executions, and there are references to blisters and burn marks observed on other places on the bodies. The autopsies also reference the sloughing or "slippage" of a large portion of the scalp and the skin at the back of the head and also on the legs caused by the execution.

The State presented expert testimony suggesting that Georgia's electrocution [*14] protocol results in immediate unconsciousness upon the initial application of electricity and that this unconsciousness continues throughout the execution process. Two of the State's experts testified that, while cardiac functioning is affected by the electricity, the primary mechanism of death in Georgia executions by electrocution is the "denaturing" or cooking of the brain from the heat created by the passing of electricity through the electrical resistance of the brain tissue. n4 One expert testified about post-execution tests which showed that the brain reached temperatures between 135 to 145 degrees Fahrenheit. The other expert acknowledged that a person might retain sufficient functioning in the deepest part of the brain that controls basic life functions to continue some breathing or agonal gasps after the two-minute cycle of electricity has ended. The State adduced testimony from a victim of a lightening strike and a victim of an accidental electrocution that suggested those non-lethal electrocutions had been painless at the moment they occurred. The State also presented testimony from witnesses to several Georgia executions who saw prisoners during electrocutions clenching [*15] fists, tightening muscles, and straining involuntarily against the restraints. No evidence was presented which indicated that a Georgia execution has yet involved the sparks, flames, and smoke that have plagued executions by electrocution outside of Georgia. See Jones v. Butterworth, 701 So. 2d 76, 86-87 (II) (Fla. 1997) ( Shaw, J., dissenting); Buenoano v. State, 565 So. 2d 309, 310-311, 314 (Fla. 1990) (per curiam).

The trial court in Moore's case, confronted with conflicting expert testimony, was unable to conclude whether or not execution by electrocution inflicts conscious suffering. It found instead that "all the evidence is subject to conjecture and speculation."

(b) The trial court in Dawson's case agreed to consider transcripts, [*16] depositions, affidavits, and documentary materials copied from other cases in Georgia wherein challenges to electrocution had been raised. The court also considered audiotapes archiving Georgia executions. The State declined the trial court's invitation to present evidence in Dawson's case, relying, instead, solely upon this Court's previous decisions on the constitutionality of execution by electrocution. Based on the evidence before it, the trial court found that electrocution involves lingering death, bodily mutilation and physical violence indicative of inhumanity and barbarity. After the court had issued its ruling on electrocution, the State raised a number of objections to the materials considered by the trial court and sought to introduce its own evidence. The State raises similar objections before this Court in this interim review. However, we do not reach those objections because, in this Court's view, the materials in the Dawson record are merely cumulative to the evidence and testimony in Moore's case upon which this Court more directly relies.

5. The United States Supreme Court has recognized that punishment is cruel and unusual when it unnecessarily involves "something [*17] more than the mere extinguishment of life." In re Kemmler, 136 U.S. 436, 447 (10 SC 930, 34 LE 519) (1890). "The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (67 SC 374, 91 LE 422) (1947) (plurality opinion). This Court relied upon the Federal standard for examining a punishment when addressing a challenge under the Georgia Constitution in Fleming v. Zant, supra, 259 Ga. at 689 (3). We held therein that a punishment is cruel and unusual if it "makes no measurable contribution to accepted goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering." (Citations and punctuation omitted.) Id.

Based on the findings made in these consolidated cases and giving greater weight to the Moore court because it found in favor of the constitutionality of death by electrocution, the evidence establishes that it is not possible to determine conclusively whether unnecessary pain is inflicted in the execution of the death sentence. The absence of a conclusive [*18] finding of conscious pain does not conclude our review, however, since under Georgia's standard our focus is not limited to the issue of the unnecessary conscious pain suffered by the condemned prisoner. Compare Fierro v. Gomez, 77 F.3d 301 (B) (2) (9th Cir. 1996), vacated on other grounds, Gomez v. Fierro, 519 U.S. 918 (117 SC 285, 136 L. Ed. 2d 204) (1996); Campbell v. Wood, 18 F.3d 662, 681 (VII) (B) (1) (9th Cir. 1994). Such a limited focus would lead to the abhorrent situation where a condemned prisoner could be burned at the stake or crucified as long as he or she were rendered incapable by medication of consciously experiencing the pain, even though such punishments have long been recognized as "manifestly cruel and unusual." In re Kemmler, supra, 136 U.S. at 446.

We cannot ignore the cruelty inherent in punishments that unnecessarily mutilate or disfigure the condemned prisoner's body or the unusualness that mutilation creates in light of viable alternatives which minimize or eliminate the pain and/or mutilation. Although the Fourth Circuit Court of Appeals has posited that the "existence and adoption of [*19] more humane methods [of execution] does not automatically render a contested method cruel and unusual," (emphasis supplied), Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995), the fact that a method involving less pain and mutilation exists and that many states have moved to that method because it is perceived to be a more humane manner of execution, id. at 1338 fn. 16, clearly must play an important factor in the determination whether an older method is cruel and unusual punishment. Comparison with existing methods is thus required to determine whether or not a punishment involves the "unnecessary cruelty" forbidden by both the Eighth Amendment, In re Kemmler, supra, 136 U.S. at 447, and the Georgia Constitution, since it is not possible to determine whether a punishment has been "reduced, as nearly as possible, to no more than that of death itself," (emphasis supplied), Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. at 474 (Burton, J., dissenting), without comparing the punishment to other available methods to ascertain what currently is possible.

The evidence adduced in the record in Moore reveals [*20] uncontrovertedly that the bodies of condemned prisoners in Georgia are mutilated during the electrocution process. n5 This applies whether or not the electrocution protocols are correctly followed and the electrocution equipment functions properly. The autopsy reports show that the bodies are burned and blistered with frequent skin slippage from the process, and the State's experts concur that the brains of the condemned prisoners are destroyed in a process that cooks them at temperatures between 135 and 145 degrees Fahrenheit. This evidence, gathered by the State's own agents or acknowledged by the State's own experts, establishes the mutilating effects of electrocution. This is in contrast with evidence before the Moore trial court regarding death by lethal injection n6 which was shown to involve a minimally intrusive procedure which does not produce the mutilation which is a necessary by-product of death by electrocution.

Based on this evidence of the electrocution process and comparing that process with lethal injection, a method of execution the Legislature has now made available in this State, we conclude that death by electrocution involves more than the "mere extinguishment of life," In re Kemmler, supra, 136 U.S. at 447, and inflicts purposeless physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment. Fleming v. Zant, supra, 259 Ga. at 689 (3). Accordingly, we hold that death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment in Art. I, Sec. I, Par. XV of the Georgia Constitution.

While cognizant of Justice Frankfurter's admonition that judges must "be on guard [*22] against finding in personal disapproval a reflection of more or less prevailing condemnation," Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. at 471 (Frankfurter, J., concurring), this Court's determination that electrocution is a cruel and unusual method of punishment is founded securely upon clear and objective evidence in the form of our State Legislature's action in totally abolishing electrocution as a method of extinguishing the life of those individuals condemned to death upon their conviction for capital offenses committed after May 1, 2000. The Legislature's adoption of lethal injection as the exclusive method for executing the death penalty in Georgia reflects societal consensus that the "science of the present day" has provided a less painful, less barbarous means for taking the life of condemned prisoners. See In re Kemmler, supra, 136 U.S. at 444. This action by our State Legislature in totally abolishing electrocution as a future method of execution in this State constitutes the "clearest and most objective evidence" of a prevailing condemnation by the people of Georgia of that particular punishment. See Fleming v. Zant, supra, 259 Ga. at 689 [*23] (3). .

Supreme Court

No cases noted.

Positive Capital Case Results

Stallworth v. State, No. CR-98-0366 (Ala.Crim.App. 09/28/2001) Remand ordered as the trial court "failed to indicate in its sentencing order 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;" to add to its weighing tehe additional aggravating circumstance that "[t]heapital offense was committed by a person under sentence of imprisonment" as Stallworth was on parol; to state" in its sentencing order specific findings as to the existence or nonexistence of any non-statutory mitigating circumstances;" and "to make specific findings of fact, in both sentencing orders, as to why the murders were "especially, heinous, atrocious, or cruel" as compared to other capital murders."

Capital Cases Relief Denied

Carroll v. State, No. CR-97-1019 (Ala.Crim.App. 09/28/2001) Trial court's reasons for judicial override to death found sufficent in light of Alabam's governing standard, Ex parte Taylor.

State v. Powers, No. W1999-02348-CCA-R3-DD (Tenn.Crim.App. 09/28/2001) In relevant part relief denied on " the following issues: (1) whether the evidence identifying him as the perpetrator is sufficient; (2) whether a variance between the indictment and the proof at trial is material and prejudicial; (3) whether the trial court had jurisdiction over the crimes; (4) whether the Defendant's wife's testimony should have been suppressed pursuant to the marital communications privilege; (5) whether the trial court erred in refusing to admit evidence in support of a third-party defense; (6) whether the trial court erred in admitting a lay witness's testimony identifying photographs as being of the Defendant; and (7) whether the trial court erred in admitting a deposition taken in Mississippi by a Tennessee notary public. The Defendant challenges the imposition of the death sentence on the following grounds: (1) whether the trial court erred in admitting the facts underlying the Defendant's prior felonies; (2) whether the Defendant's prior felonies were violent within the meaning of the statutory aggravating circumstance; (3) whether the evidence is sufficient to support the jury's finding that the Defendant committed the murder to avoid his arrest and/or prosecution; (4) whether the trial court erred in refusing to admit evidence of the victim's bad character; and (5) whether Tennessee's death penalty scheme is constitutional. "

Ohio v. Coley, 2001 Ohio LEXIS 2589, 93 Ohio St. 3d 253 (Ohio 10/3/2001) Releif denied on claims relating to: pretiral publicity; joining for trial, over defense objection, unrelated offenses; nondisclosure of grand jury minutes;sufficiency of the evidence; double jeopardy; admitting gruesome photographs; guilt-phase jury instructions contained various deficiencies; jury instructions shifted "the burden of proof from the state by instructing the jury to deliberate on the innocence of the accused;" an "unconstitutional, conclusive presumption of themens reaelement from the use of a deadly weapon;" guilt-phase reasonable doubt instruction; AND "the jury's discretion was improperly guided" because the jury was not told exactly "what trial evidence was relevant to the weighing process."

Ohio v. Hartman, 2001 Ohio LEXIS 2594, 93 Ohio St. 3d 274 (Ohio 10/3/2001) Relief denied on claims relating to: sufficiency of the evidence for the aggravated felony murder, the capital specification, and the separately charged kidnapping offense, all on the basis that the state had failed to prove kidnapping; the trial court erred in admitting "other acts" evidence; admission of digitally enhanced fingerprint evidence; trial court should not have allowed four of the state's expert witnesses to testify because the court failed to make a threshold determination concerning their qualifications; trial court erred in admitting gruesome photographs of the victim, since the prejudicial effect outweighed their probative value; trial court erred in failing to instruct the jury that they must find that he purposely removed or restrained the decedent;trial court erred in instructing the jury to "weigh against the aggravating circumstances the nature and circumstances of the offense; several instances of prosecutorial misconduct, & ineffective assistance of counsel for failing to adequately voir dire, object, & use DNA, amongst other claims.

Rhode v. State, 2001 Ga. LEXIS 760 (GA 10/1/2001) The Supreme Court found that the trial court did not abuse its discretion by limiting voir dire and making a thorough examination of each perspective juror. The Supreme Court found no merit in Rhode's other assertions of error in the jury selection process. The Supreme court found that the trial court correctly denied Rhode's motion to suppress evidence and statements obtained during non-custodial interviews at his residence. "We find nothing to contradict the State's evidence showing that Rhode's statements were voluntary and that he never requested an attorney or wished to remain silent." The Court also found that photographs of the crime scenes were properly admitted. The Court found that a jury instruction was not warranted because Rhode claimed that Steven Moss charged at him upon witnessing the murder of his children. Two confessions to crimes that Moss committed while a juvenile were properly admitted during the sentencing phase because he and his mother were advised of his Miranda rights and agreed to the interview. The Court found no merit in Rhode's other contentions of error during the sentencing phase of his trial. Rhode filed a motion to have execution by electrocution declared unconstitutional. The Supreme Court found that since no evidence was presented to support his claim, the motion was properly denied.

Mobley v. Head, 2001 U.S. App. LEXIS 21492 (11th Cir 10/4/2001) Relief denied on claims of "(1) whether Mobley was denied effective assistance of counsel through his attorney's use of a "genetic deficiency" defense, and (2) whether Mobley was denied due process and effective assistance of counsel because the Georgia Supreme Court's opinion in Sabel v. State, 248 Ga. 10, 282 S.E.2d 61 (Ga. 1981), requiring the defense to turn over all expert opinions, including those that the defense does not intend to use at trial, had a chilling effect on his counsel that prevented him from retaining experts to develop mitigating psychiatric testimony." The claims were denied on the merits, for the former, and on procedural bar for the latter.

McPherson v. State, 2001 Ga. LEXIS 763 (GA 10/1/2001) The Supreme Court found that the evidence was sufficient to enable a rational trier of fact to find proof beyond a reasonable doubt that McPherson was guilty of the crimes against Ms. Ratliff. The trial court issued a gag order in July 1998. In September 1998, the district attorney in a speech to the Rotary Club stated that three recent Floyd County murders were "violent to the extreme, definitely death penalty type cases." In an interview in January 1999, the district attorney attributed several recent murders to drugs. The local newspaper ran an article about this interview that included a discussion of McPherson's case and several other cases. "There was no evidence that the district attorney had specifically mentioned McPherson's case, and the trial court ruled that the newspaper article and Rotary Club speech were too far removed from the time of the trial to possibly taint the jury pool. McPherson's trial did not take place until September 2000, about 20 months after the news article. We conclude that the trial court did not err, because there was not any valid basis for disqualifying the district attorney or any evidence that the trial setting was made inherently prejudicial," wrote Justice Carley.

Taylor v. State, 2001 Ga. LEXIS 776 (10/1/2001) Capital case pre-trial suppression hearing concluding:

Taylor's videotaped statement shows that she made an unambiguous request for counsel during her interview, we conclude that her statement must be suppressed. We reject, however, her contention that the officers induced her to confess by holding out a hope of benefit [*2] and affirm the trial court's ruling that her statement was voluntary under O.C.G.A. § 24-3-50. Although we find that the evidence is too speculative to conclude that the police would have inevitably discovered the murder weapon without Taylor's statement, we nevertheless hold that the gun is admissible because the "fruit" of a Miranda n1 violation is not subject to the exclusionary rule under Georgia law.

Nance v. State, 2001 Ga. LEXIS 764 (GA 10/1/2001) Retrial of penalty phase permissible as "Appellant's conviction was reversed due to trial error rather than evidentiary insufficiency, and the defense was not goaded into making a motion for mistrial."

Delayed Publication /Amended Opinion

No cases noted.

Other Notable Cases(As reported by Findlaw , and other sources)

United States v. Singeltary, No. 00-3850 (3rd Cir 10/02/2001) The U.S. Supreme Court's decisions in United States v. Morrison, 529 US 598 (2000) and Jones v. United States, 529 US 848 (2000) do not render unconstitutional the felon-in-possession statute, 18 USC 922(g)(1) for lack of a substantial effect upon interstate commerce.

Weinberger v. United States, No. 99-4553 (6th Cir 10/05/2001) For sentencing purposes, tax evasion and the offense that generated the unreported income are not always grouped together, especially where the fraud counts and the tax count consisted of different elements, affected different victims, and involved different criminal conduct.

Jarrett v. United States, No. 00-3213 (8th Cir 10/02/2001) Apprendi does not apply retroactively on collateral review.

Bryson v. United States, No. 00-3394 (8th Cir 10/03/2001) Failure to cite to the record and filing brief with conclusory statements alleging ineffective assistance of counsel warrants summary dismissal of claim.

Jihad v. Hvass, No. 00-3114(8th Cir 10/05/2001) Equitable tolling under 28 USC 2244(d)(2) does not exclude the time prior to the application of properly filing the state application for relief when the prisoner is allegedly "diligently pursuing" state remedies.

United States v. Weaver, No. 00-3064 (DC 10/05/2001) Even though petitioner established both the existence of a conflict and resulting prejudice, reversal is unwarranted where the prejudice was limited to the period during which the conflict existed and did not affect the guilty plea entered more than a year before the conflict arose.

Focus

This week's Focus is a recent article on mitigation entitled: "Fetal Alcohol Syndrome Evidence As Mitigation in Death Penalty Cases"by the legendary Michael Mears, Director,The Multi-County Public Defender Office.

A recent search for decisions from the Georgia Supreme Court that include references to "Fetal Alcohol Syndrome" evidence produced references only in cases dealing with Department of Family and Children Services and child deprivation! Those of us charged with the responsibility of presenting mitigating evidence in death penalty cases must do a better job of looking for, and using, evidence of our clients’ pre-natal exposure to alcohol.

What the mother drinks, the unborn fetus drinks! Alcohol that the pregnant mother consumes goes directly to the developing fetus at the same level of concentration. If the mother’s blood alcohol level is 0.2 so is the baby’s. However, since the mother is much larger, her mature liver acts to detoxify the alcohol. The fetus is smaller and its liver is not yet mature and so, while the mother might stay drunk for several hours, the developing fetus can stay drunk for three to four days and in the process causing permanent damage to the developing brain. This is known as Fetal Alcohol Syndrome.

Once the brain is damaged, it is permanent. Fetal Alcohol Syndrome does not go away once the affected person reaches adulthood! Most of the pre-natal exposure to alcohol damage that occurs in the brain is a result of the brain tissue not moving and growing where it should. Thus, some areas of the brain are not as developed and are underdeveloped. Since brain tissue does not regenerate, this damage to the brain is permanent. Alcohol in a pregnant woman’s bloodstream circulates to the fetus by crossing the placenta. There, the alcohol interferes with the ability of the fetus to receive sufficient oxygen and nourishment for normal cell development in the brain and other body organs. There is a myth that only an alcoholic mother puts her unborn child at risk but even social drinking effects fetal brain development. The Surgeon General’s Office has reported that drinking 1 to 2 drinks per day can produce an increase in miscarriages, stillbirths, low birth weight, and behavior abnormalities in an infant which can persist throughout adulthood.

Knowledge concerning brain damage as a result of a pregnant mother’s use of alcohol is not new. Dietary laws from the days of Moses recognized that pregnant women should "drink no wine nor strong drink, and eat no unclean food." Judges 13.7. Aristotle said, "Foolish, drunken, and hare-brained women most often bring forth children like unto themselves, morose and languid." It was seen even in early Greece that women who were alcoholic had children who appeared sullen, rather than full of play and joy. In England in the Eighteenth century, physicians were extremely concerned at the high number of children being born who were mentally retarded or stillborn. The English Parliament imposed a high tax on gin and the number of people who could afford to drink it was dramatically reduced. Within a year or so, the number of children born mentally retarded and the number of infants who died before their first birthday fell dramatically.

A combination of factors determines whether a child exposed to a mother’s alcohol consumption will suffer from Fetal Alcohol Syndrome. The first factor is the genetic makeup of the mother and the fetus. Research has shown that some particular ethnic groups do not make enough of a particular enzyme necessary to effectuate the complete breakdown of alcohol in the liver. These individuals would be at a great genetic risk of passing on Fetal Alcohol Syndrome to the fetus. The mother’s general nutritional status and physical well-being also plays a significant role in determining whether her child will be affected by pre-natal exposure to alcohol. Investigation of the mother’s life history is absolutely necessary in order to determine whether your client’s development has been arrested or retarded as a result of his or her mother’s use of alcohol during pregnancy.

Frequently, we as defense counsel make the mistake of discounting the possibility of the existence of Fetal Alcohol Syndrome based upon the non-existence of physical characteristics. Those of us who only cursorily look at this issue have relied upon the widely reported physical manifestations of the existence of these conditions, i.e. "eyes widely spaced; nose often shortened and upturned, the area between the bottom of the nose and upper lip is elongated and flat; upper lip is thin; the ears low-set and rotated to the back of the head; teeth misshapen and misplaced." A superficial look at the literature would have us discount the need for further investigation in the absence of these physical characteristics. This could be a fatal mistake for the client of a death penalty defense attorney!

In addition to the physical characteristics which might indicate this condition, we should also look to see if the following indicators were present in our client’s infancy: an exaggerated startle response in infancy and childhood, temper tantrums, hyperactivity, distractibility and attention deficits, impulsiveness, poor abstracting abilities, poor social skills. Obviously, every client who has exhibited these characteristics cannot be diagnosed with the condition. However, defense counsel must be alert to the need to conduct an extensive investigation into the client’s mother’s drinking habits during pregnancy.

Defense counsel in death penalty cases must be conversant with the signs and effects of Fetal Alcohol Syndrome. The first step is to develop an acquaintance with the literature available on the subject. The second step is to actively investigate the lifestyle of the client’s parents, particularly, the client’s mother. Every attorney who assumes the responsibility for telling his client’s story to a jury that will decide whether or not to sentence that client to death must be prepared to tell ALL of the client’s story. We must continually remind ourselves that our clients’ stories begin before they were ever born.

The following books and material will provide defense counsel with an excellent overview of this subject.

Kleinfeld & Wescott, Editors, Fantastic Antone Succeeds! Experiences in Educating Children with Fetal Alcohol Syndrome (1993). University of Alaska Press, PO Box 756240 Fairbanks, AK 99775

Streissguth, Ann and Jonathan Kanter, Editors, The Challenge of Fetal Alcohol Syndrome: Overcoming Secondary Disabilities (1997), University of Washington Press, P.O. Box 50096, Seattle, WA 98145-5096.

Streissguth Ann, Ph.D. and Paul H. Brookes, Fetal Alcohol Syndrome: A Guide for Families and Communities (1997), Publishing Company, P.O. Box 10624, Baltimore, MD 21285

Streissguth, Ann, H.M. Barr, J. Kogan, and F.L. Bookstein, Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) (1996) Final Report to the Centers for Disease Control and Prevention. University of Washington. University of Washington School of Medicine, Fetal Alcohol and Drug Unit, 180 Nickerson, Suite 309, Seattle, Washington 98109

Stratton, Howe & Battaglia, Editors, Fetal Alcohol Syndrome: Diagnosis, Epidemiology, Prevention, and Treatment, (1996). The Institute of Medicine Report National Academy Press, 2101 Constitution Avenue NW, Lock Box 285, Washington, D.C.

Errata

TheDeath Penalty Information Centerreports:

Clemency Was Not Always So Rare in North Carolina

Prior to North Carolina Governor Easley's decision to grant clemency to Robert Bacon, Jr., (see below), only three North Carolina death row inmates in nearly a quarter of a century had their sentences reduced to life in prison by the state's governor. The use of clemency was not always so uncommon. A recent article by Gene R. Nichol, Dean at the University of North Carolina School of Law, noted that between 1909 and 1930, 46 percent of those receiving the death penalty in North Carolina had their sentences commuted to life. From 1909 to 1970, 358 prisoners were executed and 236 (40 percent) had their sentences limited. High rates of clemency (1:1) were maintained from the mid-50s to 1970, even though juries had been given more discretion to reject the harshest sanction. (News and Observer, op-ed, 10/10/01) Another execution (David Ward) is scheduled in North Carlina for tomorrow (Oct. 12). See also, clemency.

DNA Tests Lead Mississippi Coroner to Reopen Death Row Inmate's Case

The case against Mississippi death row inmate Kennedy Brewer is being re-investigated after DNA tests performed earlier this year showed that semen removed from the victim's body did not match Brewer's. Brewer was convicted and sentenced to death in 1995 for the rape and murder of the three-year-old daughter of his girlfriend, Gloria Jackson. The coroner received a certified letter from Jackson authorizing him to reopen the case. District Attorney Forrest Allgood said that the new DNA evidence has made a new trial likely. (Associated Press, 10/5/01) See also, Innocence.

UPCOMING EVENTS: Southern Center for Human Rights 25th Annual Awards DinnerOn October 18th, the Southern Center for Human Rights will celebrate its 25th Anniversary with its Annual Frederick Douglass Awards Dinner in Washington, DC. The Center, headed by Stephen Bright who recently argued the Georgia electrocution case leading to the state's banning of the electric chair (see below), works to preserve the rights of poor people facing the death penalty or confined to prisons and jails. This year's Awards Dinner will feature a keynote address by the Honorable John Lewis (D-Georgia), and will honor The American Bar Association's Section of Individual Rights and Responsibilities, former ABA President Martha Barnett, public interest attorney Stephen F. Hanlon, and death penalty activist Bud Welch. For more information, see the Southern Center for Human Rights's Web site. See also Upcoming Events.

Frederick Douglass

NEW VOICES: "The old priorities do not work"

In his dissent in a recent case regarding fairness of the death penalty in Illinois (see below), state Supreme Court Chief Justice Moses Harrison II stated:

If the capital punishment debacle of the last few years has taught us anything, however, it is that adherence to the formal process, as it existed under the old law, can produce results that seem rational but are, in fact, completely unreliable.

. . . Our tolerance for prosecutorial gamesmanship and professional incompetence has evaporated. From now on, the success of prosecutors will be gauged by how well they cooperate in the search for truth and justice, not by the number of convictions they secure. It cannot be any other way. The old priorities do not work. When convictions are prized above justice, innocent men are sentenced to die. It has happened too often in Illinois. It must stop. (People v. Hickey, 2001 Ill. LEXIS 108, Harrison, C.J., dissenting)

Read the entire opinion and dissent (includes the new court rules). See also, New Voices.

Georgia Supreme Court Strikes Down Electric Chair

On October 5, 2001, Georgia's highest court held that use of the electric chair was cruel and unusual punishment in violation of the state constitution. In the 4-3 decision, the court stated that electrocution "inflicts purposeless physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment." Last year, the state passed legislation making lethal injection the method of execution for those convicted after enactment of the statute, but did not authorize the change in method for those convicted before its enactment. With the court's ruling, lethal injection becomes the state's sole method. (Associated Press, 10/5/01)

Currently, 11 states allow the use of the electric chair, but only Alabama and Nebraska use electrocution as their sole method of execution. See also, the "Execution Tapes" recorded by the Georgia Department of Corrections, which narrate the executions of inmates in the electric chair, and methods of execution.

Oklahoma Investigates Another Government Forensic Expert for Misconduct

The Oklahoma State Bureau of Investigation is reviewing the work of former agency serologist Kenneth Ede after a recent DNA test contradicted testimony he gave in a 1983 murder trial. In the 1983 case against Albert Brown, Ede testified that a hair sample found on the victim's body matched Brown's. However, recent DNA tests show that the hair was not Brown's. Ede has been criticized by the courts regarding his testimony, including work done on 2 death penalty cases.The courts said Ede overstepped his bounds and misrepresented his qualifications. The OSBI will start reviewing the 371 cases Ede worked on, once it completes its investigation of cases in which former Oklahoma City police chemist Joyce Gilchrist (see below) was involved. (The Oklahoman, 10/3/01) See also, Innocence.

DPIC Thurgood Marshall Journalism Awards Ceremony The Death Penalty Information Center honored an exceptional eight-part series titled "Judgment Day" by John Shiffman of The Tennessean and the critically-acclaimed radio program "Witness to an Execution" by producers David Isay and Stacy Abramson of Sound Portraits Productions during its Fifth Annual Thurgood Marshall Journalism Awards at the National Press Club in Washington, DC. Also recognized at the September 26 luncheon event were the outstanding career achievements of Pulitzer Prize-winning columnist Jim Dwyer of The New York Times. For more information about the awards ceremony, see Thurgood Marshall Journalism Awards.

Fifth Annual Thurgood Marshall Journalism Award Winners

David Isay, Jim Dwyer, and John Shiffman (click to enlarge)

U.S. Differences with Europe on Death Penalty Could Impede Progress on Terrorism

The U.S. may have to agree that it will not pursue the death penalty against suspected terrorists in order to have them extradited from Europe. In the next few weeks, European Union leaders will meet with U.S. officials to decide on extradition procedures for those suspected of the U.S. terrorist attacks on September 11. In the past, European countries, which oppose capital punishment, have refused to extradite criminals to the U.S. unless U.S. officials stipulate that the death penalty will not be sought. Several European Union ministers have asked for a new comprehensive agreement that would address the issue of capital punishment. (USA Today, 10/3/01) See also, International Death Penalty.