Capital Defense Weekly, September 13, 2004
Two state post-conviction matters from the east coast lead off this week,Pennsylvania v. Malloy &Van Dohlen v. South Carolina. The respective state supreme courts granted relief in those cases in light of trial counsel's falure to adequately prepare and present mitigation evidence in the penalty phases of those trials.
Elsewhere, a split panel of the Eighth Circuit held inClemons v. Luebbersthat Clemons' claim of being denied a fair jury under Witherspoon v. Illinois (a claim on which the district court had granted relief) was procedurally defaulted and hence he should die for his counsel's mistakes. The Sixth Circuit denied relief in Workman v. Summers in an unpublished opinion concerning clemency proceedings; note, however, that Mr. Workman's pending execution date has been stayed by the federal district court on a Rule 60(b) motion relating apprently to actual innocence, more on this next edition.
Tech & scheduling issues delayed this edition, my apologies. Scheduling issues here remain tight, however the next few editions should go out on time, assuming the technical issues have been resolved. - k
EXECUTION INFORMATION
Since the last edition there have been the following executions in the United States:
September
9 James Edward Reid Virginia
Pending execution dates believed to be serious include:
September
21 Andrew Flores Texas
22 Philip Workman Tennessee
28 Ricky Dale Newman Arkansas----volunteer
30 David Hocker Alabama --- volunteer
October5 Edward Green III Texas
<>6 Peter Miniel Texas
8 Sammy Perkins North Carolina
12 Donald Aldrich Texas
13 Adremy Dennis Ohio
20 Ricky Morrow Texas
22 Charles Roache North Carolina----volunteer
26 Dominique Green Texas
SUPREME COURT
No cases noted
CAPITAL CASES (Favorable Disposition)
Pennsylvania v. Malloy, 2004 WL 1946291, 2004 Pa. LEXIS 2047 (Pa 9/1/2004) Counsel's failure to adequately investigate and present mitigating evidence warrants resentencing.
Pennsylvania v. D'Amato, 2004 WL 1950256; 2004 Pa. LEXIS 2054 (PA 9/2/2004) Remand ordered for a hearing on recanting witness.
Van Dohlen v. South Carolina, 2004 S.C. LEXIS 203 (SC 8/30/2004) Relief granted on trial counsel's ineffective assistance of counsel for failure to present evidence of major mental illness.
Sherman v. McDaniel, 2004 WL 1949647 (D.Nev. 8/30/2004) Leave granted to conduct limited discovery.
CAPITAL CASES (Other Than Favorable Disposition)
Cameron v. Dretke, 2004 U.S. App. LEXIS 18357 (5th Cir 8/31/2004) Relief denied due to "overwhelming" evidence on claims including "that trial counsel was ineffective for numerous reasons; that trial counsel was rendered ineffective due to a conflict of interest; and that he was deprived of the favorable testimony of Jonathan Moore."
Workman v. Summers, 2004 U.S. App. LEXIS 19104 (6th Cir 8/31/2004) (unpublished) Relief denied on "§1983 complaint, alleging that: 1) the defendants fabricated and presented false evidence during his state clemency proceedings; 2) the Tennessee Attorney General improperly advised the TBPP concerning his clemency request while simultaneously preparing the case against commuting Workman's sentence; 3) Workman was entitled to heightened protections under the Eighth Amendment because he presented evidence of his innocence; and 4) the defendants conspired to deprive him of a fair clemency hearing in violation of 42 U.S.C. § 1985(3)." (The federal district court has subesequently granted a Rule 60(b) stay - to be covered next edition.)
Clemons v. Luebbers, 2004 U.S. App. LEXIS 18985 (8th Cir 9/9/2004) (dissent) Lower court's grant of relief reversed due to procedural default on Petitioner's claim to the right to a fair jury under Witherspoon v. Illinois, (holding that a death sentence was unconstitutional under the Sixth and Fourteenth Amendments when a veniremember was excluded for cause after simply voicing general conscientious or religious objections to the death penalty).
Woods v. Alabama, 2004 Ala. Crime. App. LEIS 164; 2004 WL1909291 (Ala.Crim.App. 8/27/2004) (dissent) Relief denied, most notably, holding that a finding of no plain error on direct appeal precludes a finding of prejudice under Strickland, that there is a seemingly heightened pleading standard used in this matter, and that trial court did not abuse its discretion when it failed to permit amendment.
McManus v. Indiana, 2004 Ind. LEXIS 780 (Ind 8/31/2004) Relief denied on claims relating to the constitutionality of the Indiana scheme post-Apprendi, fitness to stand trial; statements by the prosecution's mental health expert regarding moral culpability in the penalty phase, as well as claims relating to appellant's mental status during the trial -- "(1) that the trial court erred by denying his motion for mistrial because the change in his anti-depressant and the subsequent administration of various drugs rendered him incompetent, (2) that the State was obligated to disclose exculpatory evidence about the medications, and (3) that the trial court erred in refusing to admit a news article discussing jurors' impressions of his demeanor during trial."
Thompson v.Kentucky, 2004 Ky. LEXIS 195; 2004 WL 1906848 (Ky 8/26/2004) Relief denied on a litany of claims including those relating to competency, evidenitary issues (refusal to allow certain testimony, crime scene photos, admission of certain testimony from a prior trial, blood splatter, as well as statements & items seized from appellant), failure to permit retraction of guilty plea, validity of the guilty plea, use of heinousness as an aggravator; Appellant's prior capital conviction being improperly used as an aggravator; failing to direct a verdict for failure to prove all elements of the aggravators; jury sentencing over defense bjection, prosecutorial misconduct, mostly unpreserved jury instructions, juror life/death qualifications, double jeopardy, failure of the sentencing courts to use non-statutory mitigators and proportionality review.
Lott v. Oklahoma, 2004 Okla. Crim. App. LEXIS 31; 2004 OK CR 27 (Okla Crim App 9/9/2004) Relief denied on claims including speedy trial, failure to sever the two murder charges and try him separately for each capital offense
Tennessee v. Leach, 2004 Tenn. LEXIS 741 (Tenn 9/8/2004) Relief denied on claims including: "1) whether the evidence is insufficient to support convictions for premeditated murder and felony murder; 2) whether the trial court erred in prohibiting Leach from presenting a witness to discredit the testimony of Joseph Walker; 3) whether the trial court committed reversible error in instructing the jury to consider evidence of Leach's attack on Dorianne Brown to "complete the story"; 4) whether the death penalty is precluded in this case under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because aggravating circumstances were not set out in the indictment; and 5) whether the sentences of death are disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1)."
HOT LIST
Pennsylvania v. Malloy, 2004 WL 1946291, 2004 Pa. LEXIS 2047 (Pa 9/1/2004) Counsel's failure to adequately investigate and present mitigating evidence warrants resentencing.
Appellant claims that trial counsel was ineffective for failing to investigate and present mitigation evidence at the penalty phase. More specifically, appellant argues that counsel failed to investigate his background, failed to contact any of appellant's family members, and failed to present any character witnesses or, indeed, other mitigation testimony at the penalty phase. Appellant argues that the evidence that trial counsel should have presented would have been admissible under 42 Pa.C.S. § 9711(e)(8): "any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense." [FN12]
It is well-established that "[c]ounsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary." Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 735 (2000), cert. denied, 502 U.S. 1102, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992) (citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)). Similarly, "our principal concern in deciding whether [counsel] exercised 'reasonable professional judgmen[t]' is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [appellant's] background was itself reasonable." See Wiggins v. Smith, 539 U.S. 510, ----, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (emphasis in original) (citing Strickland, supra).
The question of capital counsel's duty respecting the investigation and preparation of mitigation evidence has been further explicated in the United States Supreme Court's recent decisions in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) and Wiggins v. Smith, supra. In Williams, trial counsel failed to begin preparation for the penalty phase until one week before trial began. Additionally, trial counsel failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' horrific childhood. [FN13] Additionally, the evidence would have demonstrated, inter alia, that Williams was "borderline mentally retarded," that Williams had received commendations while in prison for helping to crack a prison drug ring and returning a guard's wallet, and that Williams received a carpentry degree while in prison. Trial counsel did not investigate Williams' childhood because they incorrectly thought that state law prevented access to such records, not because of any strategic decision. See Williams, 529 U.S. at 395-96, 120 S.Ct. at 1514-15. On this record, the Court found that the state trial judge, in reviewing the claim during the state habeas corpus proceedings, did not err in finding that counsel was ineffective.
In Wiggins, counsel's investigation drew from: (1) tests of Wiggins by a psychologist finding that Wiggins had difficulty coping with difficult situations and had features of a personality disorder; (2) a written Presentence Investigation ("PSI") describing Wiggins' "misery as a youth" and observing that he spent most of his life in foster care; and (3) records from the Baltimore City Department of Social Services ("DSS") documenting Wiggins' placement in the state's foster care system. 539 U.S. at ----, 123 S.Ct. at 2536. Counsel decided not to expand their investigation beyond the PSI and DSS records and failed to commission a social history report, despite receiving funds for one from the local Public Defender's Association. The Supreme Court found that trial counsels' failure to follow-up and investigate these leads was objectively unreasonable. In so holding, the Court noted that trial counsel did not have a strategic basis for failing to investigate this potential mitigation evidence, but rather, their failure was a result of simple inattention. See id. at ----, 123 S.Ct. at 2537.
To determine whether counsel in the case sub judice was ineffective we start with a review of the investigation that counsel performed and the mitigation evidence he presented. See Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 72 (2003). The record, which includes counsel's testimony at the remand hearing, reveals that counsel conducted little investigation to prepare for the penalty phase. At the remand hearing, counsel was questioned regarding whether appellant was correct in remembering that counsel only visited him once while he was at York County Prison. In response, counsel stated "He may be. I can't say he is wrong." N.T. 10/23/01 at 38. In fact, counsel's time sheets--which were submitted to York County for reimbursement purposes--reflect that he only met with appellant at York County prison twice prior to trial for one and one-half hours for the first visit and two and one-half hours for the second visit, including travel time. Further, at the evidentiary hearing, counsel testified as follows:
Q: Did you at any time apply to the judge to have co-counsel appointed to at least help you with the death penalty phase of this case?
A: No.
Q: Did you at any time ask the Court for a death penalty investigator?
A: No, not specifically, no.
Q: Do you recall what you did in regards to the death penalty phase of this case and I am asking about your preparation?
A: In preparation not, quite honestly, not a lot. There wasn't a lot that I had.
N.T. 10/23/01 at 38. Additionally, the trial court asked counsel if he had ever sat down with appellant and discussed the availability of mitigation witnesses/evidence at the penalty phase, and the relevance of family testimony and information about his background for penalty phase purposes. Counsel responded, "I don't recall doing that." N.T. 10/23/01 at 43. It is apparent from this record that counsel undertook little or no affirmative effort aimed at the penalty phase of the trial.
Although counsel engaged in little or no investigation, and introduced no testimonial evidence in mitigation at the penalty phase, he did argue two record-based mitigation factors to the jury--(1) appellant's age at the time of the murder, which was stipulated as twenty; and (2) that appellant acted at the substantial direction of another. N.T. 3/23/00 at 857-59. Appellant argues, however, that had counsel conducted a proper investigation, additional and important mitigation evidence concerning appellant's character and background would have been discovered. Specifically, appellant emphasizes evidence from the remand hearing to the effect that: (1) he suffered an abusive childhood at the hands of his mother and her boyfriend, including that the boyfriend burned his hand so severely that he still bears the scars; (2) he was removed to the care of his grandmother after his drug-addicted mother abandoned him; and (3) he was later institutionalized at age 12 by New York's Bureau of Child Welfare because his grandmother was unable to control him. N.T. 10/23/01 at 18-19. Appellant's mother, aunts and grandmother could have testified to these facts. Appellant admits that he never told trial counsel this information, but explained that counsel never asked about his background. Id. at 19-20.
The fact that there was mitigation evidence available concerning appellant's childhood was later corroborated in a presentence investigation report where the interviewer, Donna Becker, spoke to appellant's aunt, Royce Malloy. Id. at 27. Appellant's aunt stated that appellant was a good child and may have had a different life if only one of his parents had taken an interest in him. Additionally, Ms. Malloy stated that appellant was arrested at an early age, that appellant may have been abused by his stepfather at the age of 10, that appellant's mother and father had substance abuse problems, and that appellant was placed in a group home by juvenile authorities from ages 12 to 15. Id. at 27-28.
The Commonwealth argues that appellant's proffer below did not establish a reasonable probability that the result of the penalty phase would have been different. Confining itself to a prejudice argument, the Commonwealth apparently concedes that appellant has satisfied the performance prong of the Strickland/Pierce test. In the Commonwealth's view, the two "strongest" mitigators in appellant's favor--his age and the alleged duress under which he acted--were argued to the jury, which rejected them. In a brief ipse dixit, the Commonwealth concludes that, since the jury rejected the proffered mitigators, they probably would have rejected the undiscovered affirmative mitigation evidence concerning appellant's background as well.
The trial court's analysis of the claim is not much more illuminating than the Commonwealth's. In finding that counsel was not ineffective the remand court noted that it had conducted a colloquy with appellant at appellant's sentencing at which appellant stated that he had made an informed decision not to testify at the penalty phase, and that there was nothing that he wanted his lawyer to do that counsel failed to pursue. From this exchange, the trial court concluded that trial counsel "prepared for the death penalty phase in accordance with the wishes of his client." See Trial Court Supp. Op. at 3.
Neither the Commonwealth's nor the trial court's analysis is persuasive. The fact that the jury rejected certain proffered mitigators--mitigators supported by a brief argument--does not mean that a full preparation of other relevant mitigation evidence might not have changed the result. Moreover, it is not self-evident that the proffered mitigators are objectively "stronger" than evidence of appellant's background. Counsel's duty encompasses pursuit of all statutory mitigators of which he is aware or reasonably should be aware, unless there is some objective, reasonable ground not to pursue the circumstance (such as when it might open the door to harmful evidence). Finally, we note that this was a close case in terms of the penalty. The Commonwealth proved a single aggravating circumstance. Counsel's task (at that phase) was to attempt to convince at least one member of the jury that there was at least one mitigating circumstance which should be accepted and weighed against the aggravator. We cannot simply assume, as the Commonwealth would have us do, that all of the jurors would have rejected any proffered mitigator merely because they rejected other mitigators which were very briefly argued.
The trial court's analysis likewise does not justify its denial of relief. The fact that appellant was satisfied with his counsel at the sentencing hearing colloquy in no way proves that trial counsel's investigation and performance satisfied Sixth Amendment standards. Appellant is not a lawyer, nor was he in a position to know whether his counsel had performed competently. The measure of effectiveness is not whether one's client appeared satisfied at the time. A client is entitled to trust in the fact that his attorney will know what investigation to undertake, what leads to pursue, and what evidence to look for. It is one thing for a client to fail to cooperate when asked pertinent questions. But it is quite another if the lawyer either fails to realize, or realizes but fails to pursue, a course of investigation which the Sixth Amendment objectively dictates.
Nevertheless, appellant did prove that there were certain factors in his background which were easily discoverable and which could have been forwarded in mitigation had counsel undertaken even a minimal investigation. Additionally, counsel's overall "preparation" for the penalty phase was clearly lacking, as it consisted of minimal meetings prior to trial with no follow up and no production of testimonial evidence at the penalty phase. The onus is not upon a criminal defendant to identify what types of evidence may be relevant and require development and pursuit. Counsel's duty is to discover such evidence through his own efforts, including pointed questioning of his client. Accordingly, appellant's claim of trial counsel ineffectiveness has arguable merit. See, e.g., The fact that neither the Commonwealth nor the court below articulated a persuasive basis to uphold the denial of relief does not mean that appellant sustained his burden of proving counsel ineffective, of course. Nevertheless, we have little difficulty concluding that appellant has proved the performance prong of Strickland (arguable merit and lack of reasonable basis in Pennsylvania parlance). We recognize that the evidence presented by appellant at the evidentiary hearing was not so strong as the foregone "smoking gun" mitigation evidence at issue in Williams and, to a lesser extent, Wiggins.Fears, 836 A.2d at 72-73 (ineffectiveness claim had arguable merit where trial counsel failed to investigate potential psychiatric evidence); Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 326-27 (2001) (Saylor, J., concurring) (claim of ineffectiveness had arguable merit where trial counsel conceded that he failed to investigate basic areas of potential mitigation).
(citing It is well-settled that the reasonableness of a failure to investigate and present certain mitigation evidence can depend upon the information given to counsel by the defendant in the course of counsel's investigation. See Commonwealth v. Williams, 577 Pa. 473, 846 A.2d 105, 113 (2004); Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 45 (2002)Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334, 340-41 (1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1465, 143 L.Ed.2d 550 (1999)); Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 383 (1986). "Thus, assuming a reasonable investigation, where there is no notice to counsel of particular mitigating evidence, he cannot be held ineffective of failing to pursue it." Basemore, 744 A.2d at 735 (citing Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 238 (1998)). However, it is also settled that "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Wiggins, 539 U.S. at ----, 123 S.Ct. at 2539 (quoting Strickland 466 U.S. at 690-91, 104 S.Ct. at 2066).
In this case, it is clear that the failure of counsel to pursue mitigation evidence of his client's background was not based upon strategy or any other objectively reasonable factors. The testimony at the remand hearing demonstrated that counsel failed to so much as conduct a cursory review of appellant's background. This is not a case where trial counsel had attempted to elicit relevant mitigation information from his client and family members, only to have childhood abuse, family problems, or other potential mitigation evidence within their knowledge not be mentioned. Contrast Bond, 819 A.2d at 47 (noting that trial counsel met with appellant and family members on numerous occasions and they failed to reveal childhood trauma to trial counsel). Indeed, the testimony below suggests that counsel did not pursue this tactic at all:
Q: Did you ever sit down with him and, you know, say if we get to the point where they are seeking the death penalty against you, we ought to try to get some people in to say good things about you. Is your mother around, is your grandmother around, do you have any other relatives to come down here and say you are a nice guy or you were a nice guy and give us some more background?
Did you ever talk to him at all about witnesses like that?
A: I don't recall doing that.
N.T. 10/23/01 at 43. Counsel's inaction was not caused by appellant and his family's failure to cooperate and supply such information. Although counsel cannot be ineffective for failing to investigate evidence which he had no reason to know existed, counsel still has an obligation to conduct a reasonable investigation to uncover such information.
We now turn to whether trial counsel's deficient performance resulted in actual prejudice to appellant. To demonstrate prejudice, appellant must show that there is a reasonable probability that, but for trial counsel's errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Additionally, "[i]n assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins, 539 U.S. at ----, 123 S.Ct. at 2542. presented at the penalty hearing had trial counsel properly investigated such evidence. Thus, in considering whether appellant was prejudiced we must consider not only the evidence and argument presented at the penalty phase, but also the evidence and argument that would have beenSee Wiggins, 539 U.S. at ----, 123 S.Ct. at 2543 (citing Williams, 529 U.S. at 397-98, 120 S.Ct. at 1515).
As noted above, the Commonwealth pursued a single aggravating circumstance at the penalty phase--that appellant committed the murder in the perpetration of a felony, namely kidnapping. In assessing prejudice, that single aggravating circumstance must be contrasted with the two mitigating circumstances actually presented as well as the mitigating circumstance that counsel should have pursued--that appellant had been abandoned by his mother at a young age, abused by his mother's boyfriend at the age of 10, that his mother and father had a substance abuse problem and that he was institutionalized from the age of 12 until he was 15. Although we recognize that the unpursued evidence in this case is not the strongest, we further note that trial counsel's presentation at the penalty phase included no affirmative evidence at all, but only a brief argument and a stipulation. Such a performance, which was not motivated by any strategic decision, left the jury with a dry assessment of appellant's individual circumstances. In short, it is not just the failure to present evidence of appellant's background which concerns us, but the fact that the failure occurred in a case where there was little effort to personalize appellant for the jury. Indeed, personalizing appellant's background may have made one or more of the jurors more likely to accept the other mitigating circumstances which were pursued. We are satisfied that it is probable that at least one juror would have accepted at least one mitigating circumstance and found that it outweighed the Commonwealth's single aggravating circumstance. Thus, had the jury heard testimony and been able to consider all of the mitigation evidence and argument together, there is a reasonable probability that at least one juror would have struck a different balance and voted not to impose the death penalty. See, e.g., Wiggins, 539 U.S. at ----, 123 S.Ct. 2527, 2543, 156 L.Ed.2d 471. Accordingly, we agree with appellant that he was denied the effective assistance of counsel. As a result, appellant's death sentence is vacated and we remand this matter to the trial court for a new penalty hearing.
Van Dohlen v. South Carolina, 2004 S.C. LEXIS 203 (SC 8/30/2004) Relief granted on trial counsel's ineffective assistance of counsel for failure to present evidence of major mental illness.
During the penalty phase of the trial, witnesses testified Petitioner had been a good husband, married for seventeen years; a good father, with four children ages two through fourteen; and a dependable, likeable employee of grocery stores and pawnshops. Petitioner grew up in a very poor family and had been physically abused and emotionally neglected as a child. He had no prior criminal record. The violent murder was completely unexpected and out of character for a man who had never displayed violent tendencies.
Witnesses testified Petitioner’s personality and demeanor underwent a dramatic change when – about two weeks before Victim’s murder – Petitioner’s brother was murdered by the brother’s father-in-law. Petitioner became withdrawn, irritable, and depressed. He began abusing alcohol and Valium, an anti-anxiety medication.
At trial during the penalty phase, Dr. Michael Lampkin, a psychiatrist, testified Petitioner at the time of the murder suffered from “adjustment reaction with mixed features of emotions and conduct,” as well as pathological intoxication from the abuse of alcohol and Valium. Adjustment reaction is a disorder in which a person’s expression of grief exceeds what is normally expected. It is generally easily treatable and lasts no longer than three months. On cross-examination, Lampkin testified Petitioner did not have a chronic mental illness and did not dispute the solicitor’s assertion that adjustment reaction disorder was “pretty small potatoes” in the spectrum of mental illnesses.
In the penalty phase closing arguments, the solicitor argued Petitioner did not suffer from any mental or emotional disturbance and that the murder was committed in “cold premeditation.” The solicitor contended, “His brother Bill dying, a less than perfect childhood, vagaries, ups and downs of life that we all suffer. His own witness, Dr. Lampkin, said adjustment reaction as he called it, the stress. Divorce could bring it on, business problems can bring it on. These are things every person goes through. He could provide not one bit of excuse.”
At the PCR hearing, Lampkin testified that if he had been provided with additional medical and psychiatric records that existed and were available before the trial, he would have diagnosed Petitioner as suffering at the time of the murder from “major depressive episodes with severe symptoms of anxiety and possible prepsychotic features,” plus alcohol and Valium abuse.
Dr. Lampkin identified six items that changed his opinion: (1) the MMPI test [1] administered to Petitioner in 1990 while at the William S. Hall Psychiatric Institute, a state hospital; (2) Petitioner’s complete medical record from his four months at the Hall Institute, including nurses’ notes with numerous references to Petitioner’s depressed state, impaired memory, isolation, and hopelessness; (3) the medical records of Petitioner’s father indicating he suffered from chronic depression and thus providing a genetic basis for Petitioner’s chronic depression; (4) the medical records of Petitioner’s brother, John, who attempted suicide shortly before Petitioner’s trial, providing additional proof of a genetic predisposition for mental disorders; (5) an MCMI test [2] administered to Petitioner in 1990 by Dr. Harold Morgan at the Hall Institute, revealing elevated scores for anxiety, depression, and delusional disorders; and (6) Petitioner’s records prepared in 1990 by Dr. Don Hinnant, a psychologist, which revealed symptoms of major depression. All the records were potentially available to Petitioner’s attorneys and expert witnesses before his trial in 1991.
Louisa Storen, a social worker who testified at trial about Petitioner’s background and family, testified at the PCR hearing she asked Lampkin to review Petitioner’s case shortly before trial to ensure she had not overlooked important issues. Storen provided a mostly oral summary of Petitioner’s medical records and background to Lampkin. Storen did not expect Lampkin to testify at trial and, in a meeting lasting no more than thirty minutes, “what I remember was talking very fast, telegraphically trying to give him a bunch of information in a short period of time before he saw [Petitioner].”
At the PCR hearing, Dr. John DeWitt, a forensic psychiatrist, testified he treated Petitioner for 3½ years beginning in August 1991, examining Petitioner fifty-two times. Petitioner suffered from a major mental illness at the time of Victim’s murder – severe depression with psychotic and suicidal tendencies. Petitioner’s mental condition in May 1990 was far more serious than the usually short-lived adjustment reaction disorder with which he was diagnosed.
Further, DeWitt testified Petitioner’s severe depression was a condition to which he was predisposed by a family history of mental illness and alcohol or drug abuse, as well as a physically abusive childhood. The condition likely began in earnest when Petitioner was diagnosed with cancer in the 1980s. It was exacerbated by the suicide of his father in 1981, the murder of his brother two weeks before Victim’s murder, and Petitioner’s attempts at self-medication with alcohol and Valium. Severe depression can cause unpredictable, irrational, and chaotic behavior in people who never have exhibited such behavior, with personality and lifestyle changes so drastic it is “almost as if they had a brain transplant.” Petitioner suffered a mental or emotional disturbance at the time of Victim’s murder, and due to his altered mental state “[the murder] was not a volitional thing but out of his conscious awareness or control.”
Petitioner contends his trial attorneys were ineffective in failing to adequately prepare and present evidence in the penalty phase of the trial that he suffered from severe, chronic depression, a major mental illness, at the time of the murder. The attorneys failed to provide to Lampkin medical records and relevant information that existed before trial. If they had done so, Lampkin would have reached the proper diagnosis and been able to correctly explain to jurors Petitioner’s mental state and inability to control his actions on the date of the murder. There is a reasonable probability this information could prompt the jury to recommend a sentence of life in prison rather than death. Petitioner relies in part on Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
The State contends the PCR judge correctly denied relief to Petitioner because his trial attorneys’ investigation and preparation of evidence on Petitioner’s mental state were sufficient to meet the Strickland standard. The State asserts Petitioner’s attorneys presented extensive evidence of his mental and psychological state, distinguishing this case from Wiggins, supra.
We conclude Petitioner’s case is sufficiently analogous to Wiggins to rely on it in reaching our decision, although counsel in Petitioner’s case was more diligent than counsel in Wiggins in presenting an accurate picture of Petitioner’s mental state. In Wiggins, the United States Supreme Court found the defendant’s attorneys in a capital case were ineffective in failing to expand their investigation of the defendant’s background beyond cursory reports in order to present compelling mitigating evidence on the defendant’s behalf during the penalty phase of the trial. An adequate investigation would have revealed crucial facts about the defendant’s “severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother,” the “physical torment, sexual molestation, and repeated rape during his subsequent years in foster care,” the time he spent homeless, and his diminished mental capacity. Wiggins, 539 U.S. at ___, 123 S.Ct. at 2542, 156 L.Ed.2d at 493.
While Strickland does not require counsel investigate every conceivable line of mitigating evidence or require the submission of such evidence in every case, “strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgment support the limitations on investigation. . . . A decision not to investigate thus must be directly assessed for reasonableness in all the circumstances.” Wiggins, 539 U.S. at ___, 123 S.Ct. at 2541, 156 L.Ed.2d at 492 (quoting Strickland, supra). The Supreme Court held the defendant had proven prejudice because there is a reasonable probability at least one juror would have struck a different balance and returned with a different sentence had the jury been confronted with the considerable mitigating evidence. Id. at ___, 123 S.Ct. at 2543, 156 L.Ed.2d at 495; see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (defendant’s attorneys were ineffective in failing to investigate and present substantial mitigating evidence during penalty phase of capital case, including description of abuse and neglect during defendant’s early childhood and testimony he was borderline mentally retarded; counsel’s error prejudiced defendant because omitted evidence might have influenced jury’s appraisal of defendant’s moral culpability).
Petitioner has proved error and prejudice under the Strickland standard. Petitioner has demonstrated his attorneys erred in failing to adequately investigate and prepare expert testimony about his mental condition as it existed at the time of the murder. While the attorneys exerted some effort, according to the testimony of Lampkin and DeWitt at the PCR hearing, it was insufficient. The absence of crucial medical records and related information which existed at the time of Petitioner’s trial prevented Lampkin from conveying an accurate diagnosis and explanation of Petitioner’s mental condition to the sentencing jury.
Furthermore, Petitioner has shown prejudice. There is a reasonable probability the outcome of the trial might have been different had the jury heard the available information about Petitioner’s mental condition as it existed at the time of the murder. The PCR judge’s decision is not supported by evidence of probative value
OTHER NOTABLE CASES
LaGandaon v. Ashcroft, 2004 U.S. App. LEXIS 18990 (9th Cir 9/9/2004) Examination of the legal question, "how long is a year?"
Freshwater v. Tennessee, 2004 Tenn. Crim. App. LEXIS 741 (Tenn Crim App 9/1/2004) Remand ordered under the Workman doctrine for a hearing on this 35 year old case on whether "there is a 'reasonable probability' that the newly discovered evidence may have resulted in a different judgment if the evidence had been admitted at the previous trial" and "that she 'was without fault' in failing to present the newly discovered evidence at the appropriate time, she will be entitled to a new trial."
FOCUS
Returning soon
FROM AROUND THE WEB
The Death Penalty Information Center(Deathpenaltyinfo.org) notes:
NEW VOICES: Many Call For A More Thorough Review of the Death Penalty in NY
New York Assembly Speaker Sheldon Silver, a long time supporter of capital punishment, called for New York's legislature to step back and more thoroughly review the state's death penalty system, which has not resulted in any executions and has cost the state more than $170 million in the last decade. Speaker Silver said that his chamber would not follow the lead of the state Senate, which passed an amendment to fix the state's death penalty law without hearings. "After 10 years of having the death penalty, and very limited ... attempts to use it and enforce it, I think we should look at the whole thing." Silver said. Senator Seymour Lachman, a Democrat from Brooklyn who is not opposed to the death penalty, said: "Why are we rushing? There have been no public hearings, there has been inadequate public review, the [district attorneys] of New York have not been involved, the major religious organizations of the state are opposed to this, and yet we haven't brought them into the process." Marguerite Marsh of Guilderland, NY, whose daughter was murdered in the late 1990s, does not want to see her daughter's killer executed. She said "I hope they take their time and really debate this....I feel more peaceful about it knowing I didn't put him to death." (Albany Times Union, Sept. 15, 2004). See New Voices..
RESOURCES: Bloodsworth--The True Story of the First Death Row Inmate Exonerated by DNA
A new biography by Tim Junkin entitled Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA recounts the events that led first to the conviction and death sentence, and then to the freeing of Kirk Bloodsworth for the murder of a nine-year-old girl in Maryland. Sister Helen Prejean, author of Dead Man Walking describes the book as "Chilling, heartbreaking, and ultimately inspiring." Scott Turow says: "Bloodsworth is a tale of courage and determination in the face of the law's worst nightmare--the execution of an innocent man." Senator Patrick Leahy calls Bloodsworth "a powerful indictment of the a death penalty system that is fundamentally broken." (Algonquin Books, 2004). See Innocence.
DPIC RELEASING NEW REPORT ON INNOCENCE
The Death Penatly Information Center has issued a new report, Innocence and the Crisis in the American Death Penalty, cataloging 116 cases of former death row inmates who have been exonerated in 25 states since 1973. The report also notes that as the number of innocent people freed from death row has risen and become more public in recent years, there has been a dramatic drop in death sentences around the country. The number of death sentences, which have been steadily dropping since 1998, are now about 50% less than they were in the late 1990s. DPIC uses the objective standards of the justice system in determining whether a case should be included in its innocence list. (N.Y. Times, Sept. 15, 2004). See "From DPIC" on the Center's home page; see also Innocence.
NEW VOICES: Lead Prosecutor Questions Value of Death Penalty
Thomas F. Kelaher, the new president of the County Prosecutors Association of New Jersey, said that it is time to start rethinking the use of the death penalty in the state. Although Kelaher is a supporter of the death penalty, he noted: "If the death penalty hasn't been used in 20 years, society should ask if it should be continued. It was supposed to act as a deterrent. If it hasn't been used in 20 years, you really can't say it's a deterrent." Kelaher expressed concern about the recent number of high-profile cases in which defendants have been sentenced to death around the country only to be freed after DNA tests proved their innocence. He was also troubled by the high costs of capital punishment. (Asbury Park Press, Sept. 11, 2004). See New Voices; see also DPIC's report On the Front Line: Law Enforcement Views on the Death Penalty.
NEW RESOURCE: DePaul University's Race to Execution Symposium
Presentations at DePaul University's symposium on Race and the Death Penalty were recently published in the university’s Law Review. National experts examined statistical evidence and attitudes regarding race discrimination in the capital punishment system. A keynote address was delivered by Bryan Stevenson, Director of the Equal Justice Initiative in Alabama, and former Governor George Ryan gave the closing remarks. To read DPIC's summary of the articles click here. To obtain the entire volume of the law review, see the university's Web site at: http://www.law.depaul.edu/current_students/student_orgs/lawdlr/ . See also Race.
Innocence Protection Legislation Delayed in Senate Judiciary
Despite broad bipartisan Congressional support for the Advancing Justice Through DNA Technology Act, which includes the "Innocence Protection Act" (IPA) to help states pay for the costs of post-conviction DNA testing, the Senate Judiciary Committee has delayed action on the bill. Kirk Bloodsworth (pictured), whose name accompanies the IPA, urged Congress to act: "Nobody should have to wait for justice. I struggled for nearly 20 years to clear my name. This legislation will prevent innocent people from ending up on death row, and it will ensure that the truly guilty are caught. Congress should pass this legislation and prevent more stories like mine." Bloodsworth was the first person in the nation to be freed from death row on the basis of DNA evidence.
The legislation passed the House with overwhelming support by a vote of 357-67 in November 2003. Since then, it has stalled in the Senate due to what Senator Patrick Leahy calls "needless delays." Some critics have said the bill would result in unneccessary appeals and undermine the death penalty system. But Senator Leahy, ranking minority leader of the Judiciary Committee and a co-sponsor of the bill, said, "We have wasted a lot of time in reporting this bill out of committee. Every day that the bill is stalled is another day that rape kits go untested for lack of funds; another day that inmates with colorable claims of innocence are denied access to DNA evidence that could set them free and put the real criminals behind bars." The Committee is expected to continue its consideration of the bill on September 14th. (The Washington Post, September 10, 2004). See Innocence.
Federal Judge Vacates One of California's Oldest Death Sentences
A federal judge has overturned one of California's oldest death sentences based on his finding that the 1979 trial of Earl Lloyd Jackson was tainted by unreliable jailhouse informants and poor representation. "The special circumstance finding and the death sentences in this case rest on an evidentiary foundation constructed largely from the false testimony of two jailhouse informants," wrote U.S. District Judge Edward Rafeedie in his ruling. Rafeedie further found a "dereliction of duty" by prosecutors and Jackson's defense attorney, noting that prosecutors allowed two jailhouse informants to lie to the jury about favorable deals they received in exchange for their testimony, and that Jackson's attorney failed to put on any defense during the penalty phase of the trial. This is the 6th death sentence to be overturned in California this year, and more than 85 cases have been reversed by the state or federal courts since 1987. Jackson, who has been on California's death row longer than all but 3 of the more than 620 prisoners awaiting execution, remains in prison for the crime. (Knight Ridder Tribune, September 9, 2004) See Representation and Sentencing.
Cincinnati Center Launches "Innocence Week"
The University of Cincinnati's Center for Law and Justice will be inaugurating its Innocence Week beginning September 14th. The week of activities centered on wrongful convictions will include a presentation by Scott Hornoff, a police officer from Rhode Island who was wrongly convicted of murder before being freed on the basis of DNA, presentations by DNA expert Barry Scheck, and performances of the award-winning play The Exonerated. The Center for Law and Justice is best known for launching the Ohio Innocence Project in 2003. The project seeks to exonerate wrongly imprisoned inmates by using new information and technologies such as DNA identification. "The Innocence Project is truly a passion we have. When you are of (financial) means, you can hire careful representation. But when you are poor or not knowledgeable about the law, you are not represented as well," said Lois Rosenthal, who along with her husband have made significant contributions to the Justice Center. (Cincinnati Enquirer, September 7, 2004) See Innocence.
Broken System: Error Found in Three-Quarters of New Jersey Death Cases
Of the 63 death sentences handed down since New Jersey reinstated capital punishment in 1982, 47 have been overturned, including that of Robert Marshall, whose death sentence was reversed on April 8th by a federal court. Marshall had been on New Jersey's death row longer than any other inmate prior to the vacating of his sentence. New Jersey has not carried out an execution since bringing back the death penalty. It currently has 11 inmates on death row, and no executions are scheduled at this time. (Asbury Park Press, September 7, 2004) See Death Row; also see DPIC's Summary of Prof. Liebman's Report on the national "Broken System".
New Resource: Bureau of Justice Statistics Sourcebook
The Bureau of Justice Statistics' Sourcebook of Criminal Justice Statistics 2002 contains its latest catalog of data on crime, the administration of justice, and public attitudes toward criminal justice issues such as the death penalty. For example, a growing number of Americans support the sentence of life without parole over the death penalty. In 1985, a Gallup Poll found that 34% of those polled favored life in prison without parole. This latest edition of the Sourcebook shows that by 2001 the number of respondents favoring life without parole had climbed to 44% (and higher since then). The support for life without parole is even stronger among black respondents (73%), respondents holding college post-graduate degrees (62%), and those who identify themselves as Democrats (60%). The Sourcebook also revealed an increase in the number of Hispanic inmates on death row in the United States. With an increase recorded each year between 1996 and 2001, the population has grown from 8.8% to 11.2%. The Sourcebook is updated as new data becomes available and may be found online at http://www.albany.edu/sourcebook. (Bureau of Justice Statistics Sourcebook of Criminal Justice Statistics 2002-(published 2003; contains some 2003 data; cost $9)). See Life Without Parole, Race, and Resources.
Judge Stays Workman Execution, Doubts About Case Remain
A federal judge in Memphis has blocked the execution of Philip Workman (pictured), a Tennessee man who has been on death row for more than 20 years despite evidence that he did not shoot the victim who was killed. Workman's execution, scheduled for September 22, was delayed pending the results of a federal review of another Tennessee case that could affect Workman's latest appeals. (New Channel 5 News in Tennessee, September 2, 2004).
Workman was convicted in 1981 of the murder of police officer Ronald Oliver during the course of a Memphis robbery. Workman has never denied his participation in the robbery, but has maintained that he did not fire the shot that fatally wounded Oliver. Since Workman's trial, the state's key witness in the case has recanted his testimony, saying he had lied on the stand. In addition, ballistics evidence has cast doubt on the assertion that Workman's gun was the weapon used to murder Oliver. Based on this evidence, five of the jurors who sentenced Workman to die have since signed affidavits stating they would not have sentenced Workman to death had they heard all of the evidence that emerged following his conviction. When the Tennessee Supreme Court rejected Workman's most recent appeal, Justice Adolpho Birch issued a strong dissent that noted: "(T)he gravity of this case and the strength of my conviction concerning this case drive my response...under any analysis, the new-discovered proof that an 'eyewitness' no longer claimed to have seen Workman shoot the officer, and that the wound causing death was inconsistent with the type of wound which would have been caused by a bullet matching Workman's gun, mandates a conclusion that the evidence may have resulted in a different judgment." Workman's execution date was the fifth date he has faced during his years on death row. A reprieve was granted for his last scheduled execution because the medical examiner in Workman's case had been indicted for faking that he had been abducted by supporters of Workman. Among those endorsing clemency for Workman are Oliver's daughter and the former prosecutor of Shelby County, where Workman was tried and convicted. The former prosecutor has also donated his services as lead counsel for Workman's clemency bid. (See DPIC Press Release, September 15, 2003).
NEW RESOURCE: Law Review Features Wrongful Conviction Symposium
The Summer 2004 Drake Law Review includes articles based on a recent Symposium on Wrongful Convictions featuring some of the nation's leading experts on innocence and the death penalty. The articles provide a detailed overview of the issue of innocence and examine wrongful convictions from a number of persectives, including the role of criminal case review in correcting miscarriages of justice, the need to record police interrogations, the impact of innocence on victims' family members, and compensating those who were wrongly imprisoned. In addition, the symposium highlighted the work of the death penalty commissions in Illinois and North Carolina. Among those featured are Hugo Bedau, Michael Radelet, Thomas Sullivan, and Steven Drizin. (Drake Law Review, Summer 2004) See Innocence and Law Reviews.
California Senate Establishes Criminal Justice Study Commission
By a vote of 23-12, the California Senate passed a resolution establishing the California Commission on the Fair Administration of Justice, a panel of experts who will investigate the state's criminal justice system and present a series of recommendations to the legislature and governor based on their findings. Members of the panel will be appointed by the Senate Committee on Rules and will be charged with holding a series of meetings and public hearings to determine why innocent individuals have been wrongly convicted in the state and what safeguards should be put into place to improve the current policies. The panel will review existing data and research about California's justice system and will solicit further comment from scholars, judges, prosecutors, law enforcement, public and private defense attorneys, elected officials, victims' family members, and other experts. The Senate-imposed deadline for recommendations from the panel is December 31, 2007. The formation of the Commission comes in the wake of a series of reports and developments drawing attention to the flaws in California's criminal justice system in general, and its death penalty system in particular. A 2003 review of California's capital punishment system in the Santa Clara Law Review identified more than 80 flaws, including a lack of independent DNA review for prisoners with innocence claims, a lack of training for homicide detectives and lawyers regarding the unreliability of "jailhouse snitches," and the failure to establish state-wide qualifications, education and training for judges and lawyers handling capital cases. (See California Senate Resolution No. 44 and Press Release from California's Death Penalty Focus, August 31, 2004) See Innocence and Studies.
NEW VOICES: Time to Re-Think the Death Penalty
An op-ed in Oregon's Albany Democrat Herald called on the state to re-think its reliance on the death penalty:
20 years after voters in Oregon reinstated the death penalty, it is time to take a dispassionate look and conclude that it hasn't done much good. In the general election of 1984, Oregon voters overwhelmingly called for the death penalty to be resumed. 2 initiatives were on the ballot that year. One, calling for capital punishment or mandatory life sentences for aggravated murder, passed by 893,818 to 296,988. A companion measure, exempting the death penalty from the provision in the state constitution against cruel and vindictive punishment, passed by 653,009 to 521,687.
One of the main arguments was that once killers were executed, we could be sure that they would never do any more harm.
The justification - prevention of additional killings - has not worked out in practice. For one thing, the death penalty does not apply to ordinary 1st-time murder convictions. For another, the judicial system has failed to live up to the intention expressed by the voters. For countless legal and procedural reasons, the system has so far failed to carry out the mandate of 1984. And the pace of murders in Oregon has been roughly the same since the 1970s - 100 or more a year.
The rate per 100,000 has declined as the population increased, perhaps because of Measure 11, which put people in prison for violent crimes well short of murder, rather than letting them off on probation.
There have been 2 executions since the death penalty went back on the books. In both cases, the condemned men refused to participate in appeals; they wanted to be executed. The system works when murderers want the state to help them end their incarceration. It does not work when the criminals refuse to consent to be put to death, which is most of the time.
29 men were on Oregon's death row as of last spring, some for as long as 16 years. One of those who had been there the longest, since 1988, had just had his conviction overturned for the third time, and his case was sent back to the trial court for another penalty phase.
Death penalty cases are more expensive and take longer than other murder cases. Typically the defendant gets 2 expert attorneys appointed for him rather than 1. And there are 2 trials in each case, one to determine guilt, the other to set the penalty.
Summing up: Executions have been all but non-existent. Even so, death penalty cases cost more. The existence of the penalty has not deterred murders. Lifelong prison terms have the same result as executions in keeping the public safe.
It's not that repeat murderers don't deserve the death penalty. They do. But the existence of the penalty in Oregon is not doing anything except to cause expense and delays. It's time to let it go.
We don't even need a constitutional change, which is unlikely anyway. All we need is prosecutors making up their mind to seek true-life sentences instead.
(Hasso Hering, Albany Democrat-Herald, August 29, 2004) (emphasis added). See Costs, Deterrence, and Life Without Parole. See also, Editorials.
Discovery of Lost Evidence Is the Latest Embarrassment for Nation's Leading Death Penalty JurisdictionThe discovery of 280 unopened and mislabeled boxes of evidence found in the Houston Crime Lab's property room could impact as many as 8,000 cases, including many cases where defendants have sought evidence to prove their innocence. Investigators began sorting through the boxes this month, finding an array of evidence that ranged from a fetus and human body parts to clothes and a bag of Cheetos. Although the boxes were located nearly a year ago, the cataloging of their contents has just begun and could take up to a year to complete. Some of the evidence may be linked to the 379 cases in which prisoners convicted in Harris County have requested the retesting of DNA evidence to establish their innocence. If new evidence in these cases is found, prosecutors will have to go back to court and admit that some of the evidence previously determined to be lost or destroyed is available after all. District Attorney Chuck Rosenthal is now seeking a full-scale independent investigation of the lab, an action he had previously resisted. Houston Mayor Bill White noted, "It's hard to get away from the fact that sloppiness in anything of this matter is inexcusable." Barry Scheck of the New York City-based Innocence Project added, "This is in a league by itself...(it's) unparalleled in the Houston police lab's legacy of fraud, incompetence, and confusion." The Crime Lab's toxicology division, which tested DNA, blood and hair evidence, was shut down in January 2003 for poor work habits and inaccurate findings determined by an unskilled staff. The investigation of that department has led to at least one exoneration on the basis of DNA evidence retesting. (New York Times and Houston Chronicle, August 27, 2004). The discovery of this lost evidence is the latest development in an on-going investigation of the Houston Crime Lab and Police Department in Harris County, Texas, the nation's leading jurisdiction in executions. See Innocence.
Brutalization Effect: Children Die Imitating Recent Execution in India
In the two weeks since India's first hanging in 13 years, two children have died and a third young boy was nearly killed as a result of imitating the highly publicized execution. A 14-year-old boy died after he tied one end of a rope around his neck and swung the other end on a ceiling fan in his home to re-enact the execution. The boy's father said that his son was very curious about the nation's first execution and had closely followed the days leading up to it by watching news accounts. The second child to die, a 12-year-old girl from West Bengal, accidentally killed herself when she tried to demonstrate for her younger brother how the execution was conducted. A third 10-year-old West Bengal victim nearly died as he and his friends acted out the execution, taking roles as the defendant, the hangman, a doctor, and the prison warden. (Reuters, August 25, 2004) See International Death Penalty and Deterrence.
Life Sentences Given in Four States
Death sentences have declined across the country. The following four cases are recent illustrations of this trend:
In Cook County, Illinois, a judge sentenced Ronald Hinton to life without parole, citing abuse in the defendant’s background and his remorse for the crimes. Hinton admitted to three murders. (Chicago Tribune, August 25, 2004).
In Butler County, Ohio, a three-judge panel sentenced Tom West to life without parole for a shooting spree at a trucking company in which two people were killed and three others wounded. Costs of the trial, the agreement of the victims’ families, and the defendant’s mental illness were cited as reasons for the plea agreement. (Cincinnati Enquirer, August 24, 2004).
In Crown Point, Indiana, Stephen Richards pleaded guilty and will be sentenced to life without parole for the shotgun slaying of two people over a sack of coins. Victims’ family members agreed to the plea arrangement. (NWITimes.com, August 24, 2004 (Munster Times)).
In San Mateo, California, prosecutors announced that they would not seek the death penalty against Seti Scanlan despite Scanlan’s begging the jury to sentence him to death. Prosecutors cited costs and the uncertainty of getting a death verdict. A victims’ family member was quoted as agreeing with the decision. (See above, San Jose Mercury News, August 24, 2004). See Sentencing, Life Without Parole, and Victims.
Prosecutors Offer a Variety of Reasons for Foregoing Death Penalty
The San Mateo County District Attorney's Office reflected on a number of factors in deciding to forego seeking a death sentence for Seti Christopher Scanlan, whose first trial ended in a mistrial after he took the stand and begged jurors to sentence him to death. Prosecutors are now seeking a sentence of life in prison for Scanlan after concluding that "it was not reasonably likely that we would get a jury that would deliver the death penalty." The case has already cost taxpayers more than half a million dollars and that number would have doubled if prosecutors had chosen to seek a capital conviction during the second trial. Deputy District Attorney Steve Wagstaffe noted that even if a jury were to sentence Scanlan to death, years of subsequent appeals would cost taxpayers millions more. The decision to seek life effectively ends the case against Scanlan, who has admitted to killing a Burlingame bank manager. He will be sentenced to seven life sentences and possibly another 90 years on September 20, 2004. David Martel, whose wife was murdered by Scanlan, concurred in the decision not to seek death: "Scanlan has one very dark future. He won't know what it's like to live in freedom. It's gone, and it should be," he said. (Mercury News, August 24, 2004). See Costs, Victims, and Life Without Parole.
NEW RESOURCE: Scientific American Looks at Crime Rates
In his Scientific American magazine article entitled, "The Case of the Unsolved Crime Decline," criminologist Richard Rosenfeld examines why U.S. crime rates dropped more than 40% in the 1990's and what lessons current policy-makers can learn from this decline. Rosenfeld provides an overview and evaluation of previous research showing a link in the crime rate decline and factors such as changes in demographics, law-enforcement practices, economic conditions, incarceration rates, domestic violence and firearm policies, and the use of guns by young drug dealers. He concludes that while each of these may have contributed toward the decline in serious violent and property crime rates, some of the policies also produced unintended policy effects that could have been avoided if research-based policy experiments had been conducted. For example, stiffer sentences for adult drug offenders, a policy designed to deter crime, may actually facilitate the criminal careers and shorten the lives of the youthful drug sellers who take their place. Based on his research, Rosenfeld provides three lessons that he believes society can draw that may help anticipate and even head off the next crime rate rise. These lessons include dividing crime trends into their component parts, looking for unintended policy effects and engaging in research-based policy experiments before new programs are implemented. (Scientific American, February 2004) See Deterrence. See also, Resources.
Broad Spectrum of Citizens Seeks Clemency in Upcoming Texas Execution
A broad spectrum of the public is seeking clemency for Texas death row inmate James Allridge, who is scheduled to be executed on Thursday, August 26th. Among those pointing to Allridge's rehabilitation as the basis for mercy are four of the original jurors in his trial, two former death row prison guards, a retired prison system administrator, a Fort Worth city councilman, one of Allridge's former employers, and murder victims' family members. The supporters state that since Aldridge arrived on death row in 1987, his remorse for the murder of Brian Clendennen has led him to strive for redemption, and his behavior has become a model for others on death row.
Former death row guards pointed out that Allridge has made the unit a safer place and that he has used his intellectual skills to teach others in prison to read and write. Allridge has also become an accomplished painter whose art has been displayed throughout the nation and internationally.
Jurors in the case said that they were not presented with important mitigating evidence during his trial and that this information could have led to a sentencing recommendation of life in prison. The jurors say that defense attorneys failed to adequately present evidence about Allridge's troubled relationship with his family, especially his naive desire to please an older brother who was a career criminal. This omission kept jurors from accurately evaluating Allridge's future dangerousness, a determination that Texas uses as the primary basis for a recommendation of death.
The Texas Board of Pardons and Paroles has received over 120 requests for clemency in capital cases and has recommended clemency to the Governor on only few occasions. Of the three clemency recommendations sent this year to Governor Rick Perry, he has granted only one, and that was on the basis of the defendant's mental retardation.
Critics of the Texas death penalty system state that it's ironic that the state's capital punishment system permits juries to recommend death based on a future dangerousness determination gleaned from "every bad thing you've ever done," but fails to take into account the acts of redemption and rehabilitation during the clemency process. They point to the words of Charles Aycock, a former president of the State Bar Association and a member of the Texas Board of Pardons and Paroles, who has stated, "Clemency is not about a rigid legal standard - or even a legal standard capable of articulation. Rather, it is about mercy." The Board of Pardons and Paroles will consider Allridge's clemency request on Monday, August 23rd. (Austin Chronicle, August 20, 2004) (UPDATE: Allridge was executed by the state of Texas on August 26, 2004.) See Clemency.
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