This week's edition examines the opinion of the Tenth Circuit in United States v. McVeigh which upheld the conviction and death sentence in one of the most infamous trials since the founding of the Republic. Excerpts from McVeigh's appellate brief are the topic of "In Depth" this week

In Focus

United States v. McVeigh Tenth Circuit denies relief of "the grounds that (A) pre-trial publicity unfairly prejudiced him, (B) juror misconduct precluded his right to a fair trial, (C) the district court erred by excluding evidence that someone else may have been guilty, (D) the district court improperly instructed the jury on the charged offenses, (E) the district court erred by admitting victim impact testimony during the guilt phase of trial, (F) the district court did not allow him to conduct adequate voir dire to discover juror bias as to sentencing, (G) the district court erred by excluding mitigating evidence during the penalty phase that someone else may have been involved in the bombing, (H) the district court erred by excluding mitigating evidence during the penalty phase showing the reasonableness of McVeigh's beliefs with regard to events at the Branch Davidian compound in Waco, Texas, and (I) the victim impact testimony admitted during the penalty phase produced a sentence based on emotion rather than reason." Areas of special note that are common in non-federal capital cases & cases not with such bizarre (for lack of a better word) issues relating to the nature of the crime, include the "life qualifying" of jurors and two sections on what is and is not a mitigating factor:

On the "life qualifying" of the jury pool under Witherspoon & Morgan, the panel held:

As discussed above, Morgan does not require courts to allow questions regarding the evidence expected to be presented during the guilt phase of the trial. Further, we have held that Morgan does not require a court to allow questions regarding how a juror would vote during the penalty phase if presented with specific mitigating factors. See Sellers, 135 F.3d at 1341-42; McCullah, 76 F.3d at 1114. Other courts have issued similar rulings, holding that Morgan does not require questioning about specific mitigating or aggravating factors. See United States v. Tipton, 90 F.3d 861, 879 (4th Cir. 1996), cert. denied, 117 S. Ct. 2414 (1997); People v. Jackson, 695 N.E.2d 391, 407 (Ill. 1998); Evans v. State, 637 A.2d 117, 124-25 (Md. 1994); Holland v. State, 705 So.2d 307, 338-39 (Miss. 1997), petition for cert. filed (U.S. Apr. 13, 1998) (No. 97-8681); Witter v. State, 921 P.2d 886, 891-92 (Nev. 1996), cert. denied, 117 S. Ct. 1708 (1997); State v. Fletcher, 500 S.E.2d 668, 679 (N.C. 1998); State v. Wilson, 659 N.E.2d 292, 300-01 (Ohio), cert. denied, 117 S. Ct. 129 (1996); State v. Hill, 501 S.E.2d 122, 127 (S.C. 1998). In fact, some of these courts have held that such questions not only are not required by Morgan, but are also simply improper. See Evans, 637 A.2d at 125 (explaining why 'stake-out' questions are impermissible); Witter, 921 P.2d at 892 (same); Fletcher, 500 S.E.2d at 679 (same).

Like the general Morgan question discussed above, the questions McVeigh attempted to ask jurors 3 and 5, and the question subject to the continuing objection beginning with juror 6, went beyond the scope of Morgan. Essentially, the questions were designed to ascertain whether the jurors felt that the circumstances of the bombing were so aggravating that no mitigating factor could compensate. Thus, these were case-specific questions seeking to determine what prospective jurors thought of the death penalty in regards to this particular case, rather than the jurors' core value system regarding imposition of the death penalty. Morgan, however, is designed to illuminate a juror's basic beliefs "regardless of the facts and circumstances of conviction," Morgan, 504 U.S. at 735, not to allow defendants to pre-determine jurors' views of the appropriate punishment for the particular crime charged. Morgan does not require that the questions at issue be asked.

As to "lesser role" as mitigation, the panel holds:

It has been the law of the land for more than twenty years that a capital defendant is constitutionally entitled to present any aspect of his character, record, or offense in mitigation of his culpability for the crime. In Woodson v. North Carolina, a controlling plurality of the Supreme Court held that "in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion) (citation omitted). Another plurality of the Court reiterated this view in Lockett, holding that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604. And finally, in Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987), a unanimous Court held that its prior case law renders unconstitutional any death penalty procedure that prevents a capital sentencer from considering nonstatutory mitigating factors.

Congress recognized the import of this case law when it drafted the Federal Death Penalty Act, including the catch-all mitigating category under § 3592(a)(8). Any contention that the "minor participation" mitigating factor in § 3592(a)(3) precludes a mitigation claim based on evidence of a "lesser role" in the offense ignores the plain language of § 3592(a)(8). Any other conclusion would run afoul of the precept in Lockett that a capital defendant is constitutionally entitled to offer in mitigation any aspect of his character, record, or offense. See Lockett, 438 U.S. at 604.

As to proffered testimony concerning Waco:

Having determined that the proffered Waco evidence unknown to McVeigh at the time of the bombing was not in and of itself a mitigating factor, we must next determine whether it was nonetheless relevant to an enumerated mitigating factor, and whether the district court thereby abused its discretion in disallowing it. Two Supreme Court cases are somewhat instructive on this point. First, in Skipper v. South Carolina, 476 U.S. 1 (1986), the trial court denied the defendant's request to present evidence to the jury as to his good behavior in jail during the time before trial as relevant mitigating evidence. The Supreme Court held that this was reversible error because "a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination." Id. at 7. Under Skipper, any evidence that tends to shed light on the defendant's character is relevant mitigating evidence, and the defendant must be allowed to present it to the jury. See id. at 8; see also Dutton v. Brown, 812 F.2d 593, 601-02 (10th Cir. 1987) (en banc) (mother's proffered testimony as to defendant's family background, medical history, education, and personality traits relevant to defendant's character). Second, in Simmons v. South Carolina, 512 U.S. 154, 163-64, 168-69 (1994) (plurality opinion), the Supreme Court concluded that relevant penalty stage evidence included evidence that the defendant would be ineligible for parole if given a life sentence, once the government put at issue the defendant's future dangerousness.

Taken together, Skipper and Simmons stand for the proposition that proffered evidence is relevant to death penalty sentencing if (1) it is probative of an enumerated mitigating factor, especially some aspect of the defendant's character, or (2) it is offered in rebuttal to an evidentiary showing made by the prosecution in support of conviction or an aggravating factor. The second prong is supported by the Court's recent opinion in O'Dell v. Netherland, 117 S. Ct. 1969, 1973-74 (1997), in which the Court examined Simmons and reiterated the Simmons rule that the prosecution's showing of a defendant's future dangerousness gives rise to a due process right to "deny or explain" that showing. The objective Waco evidence proffered by McVeigh has no relevance to any aspect of McVeigh's character, or record, or the circumstances of the crime, or any other enumerated mitigating factor. Information about what actually happened at Waco and the opinion of experts, including experts working for the government, that the government mishandled the siege sheds no light on McVeigh's character, his record, or the circumstances of his crime, to the extent that the information was not within McVeigh's knowledge at the time of the bombing. Thus, the district court did not err in excluding such evidence.

McVeigh brief links can be found at: Brief for McVeighBrief for the United States

Capital Cases

United States v. McVeigh (see above)

Gibbs v. Johnson Fifth Circuit denies relief on Brady claims and on claims relating to a federal evidentiary hearing and discovery. Claiming habeas counsel is guilty of "plead now, prove later" the panel holds

Gibbs contends that state and federal courts refused to allow discovery in support of his habeas petitions contrary to principles announced in Bracy v. Gramley, 117 S. Ct. 1793 (1997). Bracy did not lower the gate to discovery in habeas cases. Rather, the Court applied the standards of Harris v. Nelson, 394 U.S. 286 (1969), that "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is...entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry." Harris, 394 U.S. at 299, quoted in Bracy, 117 S. Ct. at 1799. Rule 6[a], Rules Governing Sec. 2254 Cases requires a demonstration of 'good cause.' Harris led to the adoption of Rule 6, and the rule was meant to be consistent with it, as Chief Justice Rehnquist pointed out in Bracy. Id. at 1799. He also accented that Bracy had made "specific allegations" and that the "scope and extent of such discovery is a matter confided to the discretion of the District Court." Id. . . .

The state habeas court held that specific instances of Styles' alleged misconduct were inadmissible under Texas law. As a federal court in a habeas review of a state court conviction, we cannot review state rulings on state law that do not present a federal constitutional question. And the nuances of state rules for impeaching a witness by prior acts of misconduct do not do so.

Gibbs had the full opportunity to cross examine Styles at the suppression hearing. As for a possible claim that Gibbs's counsel was ineffective, his defense counsel asserted in affidavits that they knew of allegations concerning Styles in the Brandley case [a widely reported case of a prisoner ultimately released from the Texas prison system], but any misconduct would not have been admissible.

Gibbs's claim ultimately rests on an expansive reading of Bracy that we cannot embrace. He argues that it is no answer that the discovery venture rests on speculation, because the purpose of discovery is just that -- to discover. The argument continues that while reports about Ranger Styles were public, the defense needed to nail down witnesses and documents for trial. To what end, however, Gibbs does not fully answer. The best offered explanation is a possible development of opinion testimony regarding reputation for truthfulness or evidence that Styles was guilty of misconduct in other cases. That speculation about evidence found by the state court to be likely inadmissible is not enough - at least not for us to find an abuse of discretion. In sum, we agree with the district court that Gibbs did not make the kind of particularized allegations or showing demanded by Bracy. This judgment call by the district court falls well within its discretion, given the deference it is due.

Chaney v. Stewart Ninth Circuit, in denying relief focuses on "on the constitutional parameters of a state's duty to provide psychiatric testing and expert assistance when a criminal defendant raises mental defect as a defense or mitigating factor." The most relevant portions of the opinion covering this most common of areas:

Did Chaney suffer a due process violation when denied expert psychiatric-neurological assistance at sentencing?

[2] A more troubling question is presented by the state trial court's refusal to appoint a defense-requested expert for the sentencing phase of Chaney's trial. The initial request was very close in time to the start of trial, and the state court was concerned with the safety implications involved in allowing the testing. Whether or not those concerns continued, Chaney still must establish that his constitutional rights were violated. Chaney presents two arguments to establish that they were. First, he relies on the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68 (1985). Ake held that a state must provide indigent criminal defendants with expert psychiatric assistance if the defendant's mental condition is a significant factor at trial to satisfy Fourteenth Amendment due process requirements. See id. at 83. But Ake was not the law when Chaney was convicted and as such is a "new rule " that cannot be applied on collateral review under Teague v. Lane, 48 U.S. 288 (1989).3 While Teague does recognize certain exceptions, none apply here.

[3] Second, Chaney argues that Arizona has created a liberty interest in the provision of state-paid psychiatric assistance to indigent criminal defendants in the sentencing phase. Ariz. Rev. Stat. 13-4013(B) provides:

When a person is charged with a capital offense the court . . . shall upon application of the defendant and a showing that the defendant is financially unable to pay for such services, appoint such . . . expert witnesses as are reasonably necessary adequately to present his defense at trial and at any subsequent proceeding.

Chaney argues that the word "shall" creates a due process liberty interest in the experts he sought for the sentencing phase of his murder trial. A "negative implication from mandatory language" in a statute does not necessarily create a protected interest. Sandin v. Conner, 515 U.S. 472, 483 -84 (1995) (disapproving of Hewitt v. Helms, 459 U.S. 460 (1983)). State law may create a liberty interest when it protects an individual against arbitrary action of government. See Wolff v. McDonnell, 418 U.S. 539, 558 (1974); Picray v. Sealock, 138 F.3d 767, 770 (9th Cir. 1998). Procedural requirements do not create a liberty interest unless they cause a "significant substantive reduction" in decision-making, see Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984), or create an imperative that mandates action unless certain clearly-defined exceptions are found to apply, see Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 844 (9th Cir. 1985) (noting that the Ninth Circuit endorses a restrictive interpretation of Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979)).

[4] Chaney argues that the appointment of experts in capital cases is mandatory in Arizona, citing Arizona v. Tison, 633 P.2d 335 (Ariz.), cert. denied, 459 U.S. 882 (1981). Tison upheld the denial of a defense request for the appointment of an expert to conduct a public opinion survey to assist in jury selection in a highly publicized criminal trial, but noted that "constitutional considerations" might mandate the appoint- ment of an expert whose findings might have some bearing on the ultimate question of guilt or innocence. See id. at 342.

[5] Arizona cases discussing the meaning of Section 13- 4013(B), however, do not suggest that appointment and expenditure is mandatory. See, e.g., Arizona v. Clabourne, 690 P.2d 54, 61 (Ariz. 1984); Arizona v. Gretzler, 612 P.2d 1023, 1053 (Ariz. 1980). To the contrary, they hold the trial court has broad discretion to determine whether reasonable necessity has been demonstrated. See Arizona v. Williams, 904 P.2d 437, 450 (Ariz. 1995) (abuse of discretion only if denial of appointment substantially prejudiced the defendant); Clabourne, 690 P.2d at 61 (same).

Habeas

Harris v. Warden Fifth Circuit denies relief on claims of :" (1) an erroneous jury instruction deprived him of due process and (2) trial counsel's failure to object to the erroneous instruction and failure to correctly present the issue to the jury constituted ineffective assistance of counsel."

Holman v. Wilson Third Circuit, refusing to define the contours of the AEDPA , refuses relief on Brady and related claims.

Gray Bey v. US Seventh Circuit denies assertion his "conviction violated his Sixth Amendment right to effective assistance of counsel because his attorney in the fifteen codefendant trial matter entitled United States v. Goines labored under an actual conflict of interest that adversely affected her performance at trial."

Jenkins v. Nelson Seventh Circuit reverses habeas that had been granted on "jury instructions on felony murder violated Jenkins' right to due process because they did not include a causation element. Additionally, the court found that trial counsel's failure to object to the erroneous felony murder instructions deprived Jenkins of the effective assistance of counsel."

Prisoner's Rights and Police Misconduct Cases

Orr v Hank" Sixth Circuit examines Bureau of Prisons drug abuse treatment credits.

Farver v. Vilches Eighth Circuit holds plaintiff failed to prove claim of retaliatory reassignment in this prisoner's rights action.

Bishop v. Lewis Ninth circuit examines retroactivity and exhaustion of administrative remedies under the PLRA

Farver v. Filches Eighth Circuit holds plaintiff failed to prove claim of retaliatory reassignment.

Lawson v. United States Eighth Circuit holds Lawson failed to present his challenges to the Parole Commission's decision to the district court and thus failed to preserve them for review; district court cannot review whether the Parole Commission's finding is supported by substantial evidence.

Federal Criminal Cases of Note

United States v. Harris The Ninth Circuit in an unusually blunt opinion calls for execuvie clemency for two inmates, not so that they may go free, but so that they may serve a sentence that the District Court found just. The panel also calls for reform of mandatory minimum rules.

Other Views

LJX, as always the best legal read on the web at http://www.ljx.com, reviews criminal cases, some of which are covered here, some not. Check to see how the case reviews appearing this week and last compare:

. . . THE SUA SPONTE duty to instruct on lesser, necessarily included defenses extends to every theory of such an offense that finds rational support in the evidence, the Supreme Court of California ruled Aug. 31. People v. Breverman, S058721. Reversing the judgment of the court of appeal, the high court held that "California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence." Justice Marvin R. Baxter noted that this includes the obligation to instruct on every supportable theory, not merely the theory which has the strongest evidentiary support or on which the defendant has openly relied. The court concluded further, however, that reversal for failure to instruct is not warranted unless an examination of the entire cause, including the evidence, discloses that the error produced a miscarriage of justice. Reversing that part of a prior decision, the court said that the test is not met unless it appears reasonably probable that the defendant would have achieved a more favorable result had the error not occurred. In another case decided the same day, People v. Birks, S057191, the court held that a trial court need not instruct on lesser-related offenses, even at the defendant's request, and generally may not do so. . . .

HAVING A PRISONER visibly shackled in front of a jury violates his right to a fair trial, the 9th U.S. Circuit Court of Appeals held Sept. 3. Rhoden v. Rowland, 96-56421. Affirming, Judge Mary M. Schroeder wrote, "Due process was denied when the trial court ordered [the prisoner] shackled during his trial without a proper determination of the need for shackles." . . . Judge Schroeder disagreed and, citing federal case law, she stated, "We are aware of no cases holding that constitutional error in shackling a criminal defendant may be harmless when the shackles were visible to the jury during the criminal trial....The district court found that several of the jurors actually saw the shackles during the trial. Indeed, the jurors remembered the shackles even though the hearing was six years after the trial.". . . .

In Depth

This week "In Depth" covers the McVeigh appeal and the Brief for McVeigh (on brief: Rob Nigh & Dick Burr) focusing attention on the issue of what is a mitigator:

Whether a trial court's exclusion of evidence proffered by a capital defendant in mitigation of punishment violates the provisions of 18 U.S.C. § 3593(c) and/or the Eighth presents a mixed question of fact and law. This Court reviews mixed questions "under the clearly erroneous or de novo standard, depending on whether the mixed question involves primarily a factual inquiry or the consideration of legal principles." TA \s "Armstrong " \c 1 \l "Armstrong v. Commissioner, 15 F.3d 970, 973 (10th Cir. 1994)" TA \s "Armstrong" \c 0 Armstrong v. Commissioner, 15 F.3d 970, 973 (10th Cir. 1994). The issue raised by these two claims is whether the proffered information is "relevant to a mitigating factor." 18 U.S.C. § 3593(c); Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986) (holding that sentencer may not be precluded from considering any information that might serve "as a basis for a sentence less than death"). This question, which is analogous to a determination of whether withheld evidence is material under Brady v. Maryland, 373 U.S. 83 (1963), primarily involves the consideration of Eighth Amendment principles and calls for de novo review. See United States v. Molina, 75 F.3d 600 (10th Cir.) cert. denied, 116 S.Ct. 2510 (1996).

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The expansiveness of this provision tracks the teachings of the Supreme Court's Eighth Amendment decision that a capital sentencer may not be precluded from considering any relevant information that may form a basis for a sentence less than death. Also in keeping with the Eighth Amendment principle that a capital sentencer should be as fully informed as possible when deciding whether or not to impose the penalty of death, Congress chose the word "information" instead of "evidence" and rejected the rules of evidence as a guide for determining admissibility in a capital sentencing trial. See Green v. Georgia, 442 U.S. 95 (1979) (the exclusion of testimony, at a capital sentencing trial, concerning an admission of guilt by the defendant's cohort based on a "mechanistic" application of the hearsay rule violated due process); Chaney v. Brown, 730 F.2d 1334, 1352-57 (10th Cir. ) cert. denied, 469 U.S. 1090) 1984) (holding that withheld FBI interview reports which supported an inference that others were involved in the murders and that Chaney may not have killed the victims and may not have been present when they were killed were admissible at the penalty phase of the trial without the testimony of the witnesses who were interviewed).

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The exclusion of the proffered information from the penalty phase of Mr. McVeigh's trial precluded consideration by his jury of relevant information which could have provided a basis for a sentence less than death, and the resulting death sentence is violation of the Eighth Amendment. See Lockett v. Ohio, 438 U.S. 586 (1978); and Eddings v. Oklahoma, 455 U.S. 104 (1982) and this Court's decision in Chaney v. Brown, 730 F.2d at 1052. In Chaney, the Tenth Circuit vacated a death sentence on the grounds that certain FBI reports that had been withheld from the defense were relevant to the circumstances of the offense because they "lend[] support to Chaney's argument in the penalty phase of his trial that others were involved in the crime and that he was not present when the murders occurred." Chaney, 730 F.2d at 1354. In Chaney, the information supported an inference that others were involved in the crime because the FBI report contained a witness statement that another man was present with the defendant who, at the moment of the crime, the government had placed more than 100 miles away. Id. The Tenth Circuit reasoned that the statement in the FBI report was relevant to the critical issue in the punishment phase — whether Chaney acted alone. Id. at 1353.

With the proffered evidence in this case, the defense could have argued credibly that those most responsible for the Oklahoma City bombing were members of well-organized, paramilitary, white supremacist groups with longstanding plans for organized violence against the government, rather than a single individual whose anger toward and fear of the government had been recently ignited by the excesses of government agents at Waco. The defense could have argued as well that these longstanding neo-Nazi organizations were able to prey on the fear and isolation of Timothy McVeigh and take advantage of his outrage over the Waco siege as well as his courage, determination, patriotism and other character traits that made him an excellent soldier. By utilizing someone like Mr. McVeigh, who was openly hostile to the federal government as a result of Waco, but who had no formal ties to any neo-Nazi, paramilitary or organized anti-government groups, as a patsy, those who were truly responsible for the bombing would be able to deflect attention and suspicion away from themselves and onto two angry and isolated ex-soldiers. This evidence and argument would have provided a mitigating explanation for the otherwise inexplicable transformation of Mr. McVeigh from the thoughtful, responsible, and playful person described by Mr. McVeigh's childhood friends, teachers, and family, as well as the soldiers who ate, slept and fought with him, to someone who appeared bent upon destruction. It would have required the jury to consider the relative culpability of people who instigated and planned the bombing behind the scenes -- people whose lives have been dedicated to destruction of the federal government because of virulent racial hatred and belief in white supremacy -- and a person whose life had only recently, out of understandable concern for the abuses of federal law enforcement agents, taken a turn from fervent, dedicated support of the federal government. Because Mr. McVeigh was sentenced by a jury that was precluded from considering this evidence and these arguments, his unconstitutional death sentence must be vacated.

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1. Standard of Review

Whether a trial court's exclusion of evidence proffered by a capital defendant in mitigation of punishment violates due process and the Eighth Amendments presents a mixed question of fact and law. This Court reviews mixed questions "under the clearly erroneous or de novo standard, depending on whether the mixed question involves primarily a factual inquiry or the consideration of legal principles." TA \s "Armstrong " \c 1 \l "Armstrong v. Commissioner, 15 F.3d 970, 973 (10th Cir. 1994)" TA \s "Armstrong" \c 0 Armstrong v. Commissioner, 15 F.3d 970, 973 (10th Cir. 1994). As with the previous issue, the question raised is whether the proffered information is "relevant to a mitigating factor." 18 U.S.C. § 3593(c). This question, which is analogous to a determination of whether withheld evidence is material under Brady v. Maryland, 373 U.S. 83 (1963), primarily involves the consideration of Eighth Amendment principles and calls for de novo review. See United States v. Molina, 75 F.3d 600 (10th Cir.) cert. denied, 116 S.Ct. 2510 (1996).

2. A Court May Not Preclude The Capital Sentencer's Consideration Of Any Information Proffered By A Defendant In Support Of A Sentence Less Than Death, Particulary When That Information Is Response To Evidence And Argument Presented By The Government.

A capital sentencer may not be precluded from considering any information that might serve "as a basis for a sentence less than death". Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986). In Skipper v. South Carolina, the Supreme Court held that evidence of good behavior in jail was "relevant evidence in mitigation of punishment even though it did not "relate specifically to petitioner's culpability for the crime...". In the context of the Eighth Amendment, any information relevant to sentencing is mitigating if it may provide a basis for a sentence less than death. Id. See also Dutton v. Brown, 812 F.2d 593 (10th Cir.) cert. denied sub nom. Dutton v. Maynard, 484 U.S. 836, 870 (1987).

As discussed in the previous argument, Section 3593(c), Title 18, U.S.C., which controls capital sentencing proceedings reinforces these Eighth Amendment principles: "[t]he defendant may present any information relevant to a mitigating factor." The only restriction imposed on the admissibility of information proffered by a defendant is that "information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id. When information proffered in mitigation of punishment is responsive to the government's case, the defendant's right to have it considered by the jury is particularly compelling. "It is ... the elemental due process requirement that a defendant not be sentenced to death 'on the basis of information which he had no opportunity to deny or explain.'Gardner v. Florida, 430 U.S. 349 (1977)." Skipper v. South Carolina, 476 U.S. at 10 (Powell, concurring). In Gardner v. Florida, 430 U.S. 349 (1977). In Gardner, the sentencing judge considered a presentence report without permitting the defendant to see the report. The Court concluded that due process was violated because Gardner's death sentence was based in part, "on information which he had no opportunity to deny or explain." Gardner, 430 U.S. at 362 (opinion of Stevens).

In Skipper v. South Carolina, the Supreme Court concluded that the trial court's exclusion of evidence that Skipper behaved well in jail while awaiting trial violated the Eighth Amendment and vacated his death sentence. The majority along with Justice Powell, who concurred in the Court's judgment, also concluded that Skipper's death sentence also violated due process. Id. at 5, n.1 & 9. During cross-examination of Skipper, the prosecution elicited testimony that he had "kicked the bars of his cell following his arrest." In closing, the prosecutor argued that Skipper "was likely to commit violent crimes in prison if allowed to live." referring to Skipper's testimony on cross-examination. Id. at 9. As Justice Powell observed, "Petitioner had offered evidence that would undermine this line of argument," and it was excluded. Id at 10, "As in Gardner, [Skipper] was not permitted to 'deny or explain' evidence on which his death sentence may, in part, have rested [and the] error was aggravated by the prosecutor's closing argument..." Id. "Therefore, petitioner's death sentence violates the rule in Gardner. Id. at 11.

Under the circumstances of this case, Mr. McVeigh was entitled to respond to the government's evidence and argument concerning his alleged motive in a way that tended to undermine aggravating aspects of that evidence and argument. The trial court's exclusion of evidence concerning the government's conduct at Waco and the reasonableness of Mr. McVeigh's conclusions about that conduct prevented him from doing that.

Update on previous stories

Last week offered a brief reading list on the death penalty, here are two more pieces to add to the reading from this year on the subject (one of which is already sitting in my "to read" bag for an upcoming cross-country flight):

1. Cook, K. J. 1998. Divided Passions: Public Opinions on Abortion

and the Death Penalty. Boston: Northeastern University Press.

2. Cook, K. J. 1998. "A Passion to Punish: Abortion Opponents who Favor the Death Penalty." in JUSTICE QUARTERLY 15: 329-346.

Call for Briefs

Sandy Hausler is currently attempting to get briefs to put on the ABA system. If you are in Florida, California or Texas and have any briefs that you think might be useful to include on the system, or know of someone who please contact "Sanford Hausler" .

Parting note

Due to a problem with archiving recent editions on the website, the archiving of older newsletters has been temporarily suspended.

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

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