Leading off this week is an odd case,Harry Mitts v. Bagley, from the Sixth Circuit. I call the case odd as the trial court's instruction the majority holds, required jurors to acquit Mr. Mitts of death before they could consider a lesser sentence. The panel holds that ”Beck [v. Alabama]compels that proper instructions must make clear that the jury does not have to complete its death deliberation before considering a life sentence." In the instant case, the jury instructions violated clearly established federal law by requiring that "a mandatory death penalty sentence [could] only be avoided by an acquittal before the jury has an opportunity to consider life imprisonment. " As such the majority grants relief.

DPIC lookstoward the new Supreme Court Term and notes three capital cases have been set for oral argument.On October 6 the Court will hearConnick v. Thompsonwhere the New Orleans Parish DA challenges an award of $14 million to John Thompson; the district attorney's office failed to train its lawyers about its discovery obligations under the federal constitution. "On October 13, the Court will hearSkinner v. Switzerto determine whether a Texas death row inmate's (Hank Skinner) request for DNA testing can be considered as a civil rights claim rather than as part of his death penalty appeal. Lower federal courts have been split on this issue.. . . Finally, on November 9, the high court will hearCullen v. Pinholster, reviewing a Ninth Circuit decision overturning Pinholster's death sentence because of ineffectiveness of counsel."Skinnerappears to be the likeliest "win."

Texas Monthly's new editions features the Anthony Graves case in two articles whose titles says it all:Reasonable DoubtandInnocence Lost.A recent John Grisham OpEd in the Washington Post notesTeresa Lewis Didn't Pull the Trigger. Why Is She on Death Row? Ajudge has "haltedthe scheduled Sept. 16 execution of a Kentucky man convicted of a 1987 murder and kidnapping and barred the state from carrying out any other executions because of questions about the state's lethal injection process." Finally, for those who practice in such realms, the last ditch efforts on behalf of Cal Brown to prevent his killing by the State of Washington arehere&here.

As we go to "press" lawyers forGregory Wilson, who has received a stay from a trial court in Kentucky, are battling for Greg's ;fie in a case scheduled to resolve no later than midnight Thursday.

Since the last edition, Holly Wood was killed by the State of Alabama and Cal Brown by the State of Washington.

Pending Executions

September

15 Kevin Keith* (Ohio)(commuted)

16 Gregory Wilson* (Ky) (currently stayed)

21 Brandon Rhode (Ga)

23 Teresa Lewis* (Va)

28 Galle Owens (Tenn)(commuted)

29 Albert Brown (Cal) (currently enjoined)

October

6 Michael Benge* (Ohio)

14 Gayland Bradford* (Tex)

14 Donald Wackerly II* (Okla)

16 Jeffrey Matthews* (Okla)

20 Roderick Nunley* (Mo)

21 Larry Wooten* (Tex)

Executions

September

9 Holly Wood* (Ala)

10 Cal Brown* (Wash)

* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may erroneously exclude some dates [ via DPIC]

Week of September 6, 2010:In Favor of the Accused or Condemned(initial list)

• Harry Mitts v. Bagley, 2010 U.S. App. LEXIS 18736; 2010 FED App. 0291P (6th Cir 9/8/2010) ”Beckcompels that proper instructions must make clear that the jury does not have to complete its death deliberation before considering a life sentence, Mitts’ due process rights were violated. UnderBeck, a jury instruction violates due process if it requires a mandatory death penalty sentence that can only be avoided by an acquittal before the jury has an opportunity to consider life imprisonment. Accordingly, the holding of the Supreme Court of Ohio was contrary to clearly established federal law as determined by the Supreme Court of the United States in Beck v. Alabama,”

Week ofSeptember 6, 2010:In Favor of the Prosecution or Warden(initial list)

• Felix Rocha v. Thaler, 2010 U.S. App. LEXIS 18970 (5th Cir 9/9/2010) (dissent) Relief denied, on materiality grounds, relating to aBrady claim where one “of the officers who had testified at his trial, Jaime Escalante, had a disciplinary record and was romantically involved with the sister of the lone eyewitness, Reynaldo Munoz.” COA denied on claims relating to “whether he is entitled to review on the merits of his punishment-phase ineffective assistance of counsel claim underWiggins v. Smith; and whether the state violated an individually-enforceable right under the Vienna Convention by failing to inform Rocha that he was entitled, as a Mexican citizen, to contact his country’s consulate. ” Dissent focuses on the rather tortured denial the majority gives to the COA application on theWigginsclaim. Note the procedural default issue in this case, to be blunt, lost me, but appears to be a new bar as the dissent suggests.
• Havey Lee Heishman v. Ayers, 2010 U.S. App. LEXIS 18744 (9th Cir 9/8/2010) ”The prosecution lies, cheats, and evades the Constitution — withholding evidence of a star witness having sex with law enforcement, getting a break on misdemeanor charges, police reports on thefts, and funds for upkeep during trial. But hey, concluded the 9th Circuit, the cross examine at trial was pretty good, and there was no evidence because the petitioner was really really bad, convicted of murdering one of his rape victims to prevent her from testifying. The 9th Circuit also finds that mitigation started a mere two months before trial was excusable under the 1980′s standards, and was not ineffective. The 9th Circuit finally upholds the district court’s denial of expanding the record to include a mitigation expert’s report of petitioner’s childhood abuse. The failure of counsel, or experts, to uncover such abuse was not by itself IAC. Concurring, Silverman emphasizes the interplay between FRE 703 (experts) and evidence relied upon by the expert to render her opinion. In this case, the issue was whether the petitioner’s assertion of childhood abuse becomes evidence and part of the record. The petitioner is the only one who was a witness to the abuse, but he never testified, nor submitted a declaration. FRE 703 permits experts to render opinions based on hearsay so long as it is the type of evidence usually relied upon by those working in the field. The Rule, though, does not perform evidentiary alchemy and transfer inadmissible hearsay into admissible evidence; it is only the expert’s opinion that becomes admissible. The district court did not err in denying the petition.” [Jon Sands @ the Ninth Circuit Blog]
• Benny Joe Stevens v. Epps, 2010 U.S. App. LEXIS 18696 (5th Cir 9/7/2010) Relief underBatsondenied where the State struck a prospective juror claiming, when challenged, the juror was inattentive. Attempts to expand the COA “to include his claim that he was denied his right to due process because, although counsel was appointed to represent him in state post-conviction proceedings, as is his right under Mississippi law, that representation was so extremely deficient that he was denied the possibility of meaningful relief” likewise denied.
• Robert Simon, Jr. v. Epps, 2010 U.S. App. LEXIS 18784 (5th Cir 9/7/2010) (unpublished) Relief denied on “whether Simon’s trial counsel was ineffective in failing to investigate his history of familial abuse and present that history as mitigation evidence at sentencing.. . . We find remand for an evidentiary hearing unnecessary because, even accepting all allegations in the affidavits submitted by Simon as true, we cannot grant relief.”
• Ex parte Jamie Ray Mills, 2010 Ala. LEXIS 157 (Ala 9/3/2010) Relief denied on claims relating to the failure to charge lesser included counts; admissibility of expert’s “conclusions at trial as to the causes of the victims’ deaths;” “admission of several items seized from the trunk of his vehicle as well as the admission of forensic-testing results related to those items;” and the trial court erred in “instructing the jury as to aggravating circumstances and mitigating circumstances.”

Week ofAugust 30, 2010:In Favor of the Accused or Condemned

• In re Edward Patrick Morgan, 2010 Cal. LEXIS 8305 (Cal. 8/30/2010) (concur/dissent) "Because of a shortage of qualified counsel, the California Supreme Court granted capital inmate's motion to defer a decision on his cursory habeas petition until counsel was appointed and until that attorney had a reasonable opportunity to investigate matters that might lead to additional claims for relief, to be presented in an amended petition." [via Lexisone]
• In re Samuel Zamudio Jimenez, 2010 Cal. LEXIS 8303, August 30, 2010 (Cal. 8/30/2010) (concur/dissent) "Petitioner, a capital inmate, was allowed to file a cursory one-claim habeas petition, where petitioner had to wait eight and one-half years for counsel's appointment. Departure from general requirement that a habeas petitioner had to raise all claims in a single unamended petition was appropriate under the extraordinary circumstances presented." [via Lexisone]

Week ofAugust 30, 2010:In Favor of the Prosecution or Warden

• Donald Ray Middlebrooks v. Bell, 2010 U.S. App. LEXIS 18233; 2010 FED App. 0281P (6th Cir. 9/1/2010) Relief denied "with respect to seven issues in three categories: (1) ineffective assistance of counsel due to (a) failure to investigate and present mitigating evidence of brain damage, (b) failure to investigate and present mitigating evidence of physical and sexual abuse, (c) failure to prepare adequately for the testimony of a mental-health expert witness, and (d) failure to investigate and present mitigating evidence of the relative dominance of a co-defendant; (2) violation of the Confrontation Clause based on the trial court’s refusal to grant Middlebrooks’s counsel access to a prosecution witness’s hospital records; and (3) prosecutorial misconduct based on the statements during closing argument that (a) the victim’s family wanted the jury to return a verdict of death, and (b) the Bible teaches that the death penalty is the appropriate punishment for murder." "Denial of habeas relief was affirmed. Counsel made strategic decision not to investigate and present further evidence of codefendant's dominant role in murder as counsel was concerned about provoking harmful testimony from him. Trial court's failure to order disclosure of witness's hospital records did not violate inmate's confrontation rights." [via Lexisone]
• Kevin Keith v. Bobby, 2010 U.S. App. LEXIS 18135; 2010 FED App. 0273P (6th Cir. 8/31/2010) "Because an inmate's Fed. R. Civ. P. 59(e) (2009) motion for reconsideration of a transfer of his 28 U.S.C.S. § 2244 petition to the appellate court was filed over 6 months after the transfer order entered, it was untimely; the date of the transfer order, not the appellate court's ruling, that governed, thus, denying reconsideration was affirmed." [via Lexisone]
• Charles Walton Wright v. Bell, 2010 U.S. App. LEXIS 18139; 2010 FED App. 0274P (6th Cir. 8/31/2010) Relief denied on "(1) whether the trial court's admission of a medical examiner's testimony speculating about the sequence in which the two victims were killed denied Wright a fundamentally fair trial; (2) whether trial counsel provided effective assistance at trial and sentencing; (3) whether the prosecution offered Wright a life sentence in exchange for a guilty plea and, if so, did such an offer constitute relevant mitigating evidence; and (4) whether certain of the claims raised in Wright's amended habeas petition were procedurally defaulted" "Denial of habeas relief was affirmed. The admission of the medical examiner's testimony at the sentencing phase of the trial speculating about the sequence in which the two victims were killed was harmless because, under the aggravating circumstance found by the jury, the sequence of the murders did not matter." [via Lexisone]
• Dennis McGuire v. Ohio, 2010 U.S. App. LEXIS 18137; 2010 FED App. 0277P (6th Cir. 8/31/2010) Relief deneid as state court's conclusions were not unreasonable "that (1) the trial court properly excluded certain hearsay by the victim's husband, (2) appellate counsel was not ineffective in failing to challenge the omission of a catch-all mitigation factor from the jury instructions, and (3) sufficient evidence supports the jury's guilty verdict for rape. The district court properly rejected each of these arguments and denied habeas relief." "Independent reweighing of aggravating circumstances and mitigating factors by state supreme court cured any error, assuming there was constitutional error, involving omission of a catch-all mitigation factor from the jury instructions at sentencing and the inmate's counsel's failure to challenge that omission before the Court of Appeals of Ohio." [via Lexisone]
• Gregory Wilson v. Rees, 2010 U.S. App. LEXIS 18455; 2010 FED App. 0287P (6th Cir. 9/3/2010) Relief denied on lethal injection challenge as time barred under Circuit precedent.

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