Leading off the list this week is another access to DNA testing case from Texas,Dinkins v. Texas. InDinkinsthe Court of Criminal Appeals has denied, yet again, another DNA request basing its decision on counsel's putative inartful pleading as the basis of the denial of testing.

The Eleventh Circuit inBrownlee v. Haleyhas granted penalty phase relief to an Alabama death row inmate. Of note in theBrownleedecision is that the basis of the grant was on trial counsel's ineffectiveness in front of the penalty phase jury. "[T]he jury was asked to decide Virgil Brownlee's fate without hearing anything about his borderline mental retardation, his schizotypal personality disorder, his antisocial personality disorder, his many drug and alcohol dependencies, or his history of seizures." Finally, the Court notes that the ineffectiveness was prejudicial even though juries in Alabama make only an advisory opinion to the trial court and do not render a sentence.

The Third Circuit inMarshall v. Hendrickshas remanded the case that many court observers thought would lead New Jersey's first execution in forty years. TheMarshallpanel holds, most notably, that the reasonableness of the state's ineffective assistance of counsel analysis can not be discerned due to the lack of an evidentiary hearing.

In the last of the "Hot List" cases, the Ninth Circuit a split en banc court inValerio v. Bayerexamines the issue of appellate fact finding in jury trials. TheValerioCourt holds that when the penalty phase fact finder is a jury and not a judge such appellate fact-finding to cure an error caused by an unconstitutionally vague jury instruction is impermissible.

In other cases of note this week, the Arkansas Supreme Court has offered a spate of favorable orders --Howell v. Arkansas("complete record"),Echols v. Arkansas(stay of appellate proceedings) &Newman v. Arkansas, (waiver of direct appeal) -- that may be of some interest to those who handle direct appeals. The Florida Supreme Court inSheppard & White v. City of Jacksonvilleweighs in on attorney compensation in capital cases with plenty of very helpful language about payment that can readily find its way into motions and/or briefs. The Ninth Circuit inWilliams v. Woodford, has denied Nobel Prize nominee "Tookie" Williams relief, but takes a highly unusual step in stopping just short of outright calling forTookie'spardon.

In other news, the impact of Ring v. Arizona continues to be felt, with Ring having called into question about 1/3rd of all the death penalty statutes in the country. Delaware has reportedly, as of last Friday, stayed all capital trials in the state pending a determination of that state's statute under Ring. New Jersey, likewise, has reportedly stayed all capital prosecutions in that state pending the state supreme court's determination of whether Ring requires the grand jury's indictment to contain all aggravating circumstances -- note, however, that the stay in at least one capital prosecution has been lifted, the trial Thomas Koskovitch, but that may be due to pending retirement of the trial judge in that case. The Death Penalty Information Center, is intensely tracking these developments, http://www.deathpenaltyinfo.org/Ring.html,

Finally, this coming Tuesday Rex Mays is scheduled to be the 800th person executed since the resumption of the death penalty in this country. It was twenty years from the execution of Gary Gilmore to Flint Hunt, who was number 400. It has been just five years from Mr. Hunt to Mr. Mays.

Execution Information

Since the last edition the following have been executed:

September

13 Michael Passaro South Carolina----volunteer

17 Jessie Patrick Texas

18 Ronald Shamburger Texas

The following executions dates for the next few weeks that are considered serious:*

September

24 Rex Mays Texas

25 Calvin King Texas

25 Robert Buell Ohio

October

1 James Powell Texas

2 Rigoberto Velasco Florida--for. nat'l, volunteer

9 Aileen Wournos Florida--female, volunteer

17 Donald Dallas Alabama

HOT LIST

Dinkins v. Texas, 2002 Tex. Crim. App. LEXIS 157 (Tex. Crim. App. 9/11/2002) Request for potential exculpatory DNA test denied as Appellant failed to properly plead his request.

On November 9, 2001, the convicting court conducted a hearing on appellant's Chapter 64 motion. In support of his motion, appellant introduced a report from Dr. Robert Benjamin, an associate professor of biological sciences at the University of North Texas. In his report, Dr. Benjamin explained that a number of items exist for which DNA testing "should still be possible and for which successful typing would provide probative information with regard to [appellant's] case." These items are a bloody dish rag, unidentified "assorted swabs," bloody eyeglasses, three carpet samples, and appellant's pants. Appellant also argued that since he satisfied the requirements of Article 64.01, n3 the court should order DNA testing. Appellant explained that once he obtained the test results, he would then be able to determine whether he could argue to the court that he met the requirements of Article 64.03(a)(2)(A). n4 The convicting court denied appellant's motion.

In a single point of error, appellant claims that the convicting court erroneously denied his statutory right to DNA testing. Specifically, appellant challenges the convicting court's order in which the following findings were made:

1. [Appellant] has failed [*5] to show that there is biological material that requires testing for reasons that are of a nature such that the interests of justice require it.

2. The court finds that the [appellant] has not shown by a preponderance of the evidence that a reasonable probability exists that the [appellant] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

3. The court finds under Chapter 64 of the Texas Code of Criminal Procedure and the facts of this case that no DNA testing of biological material is required.

Appellant contends that since he demonstrated that no testing was performed of evidence containing biological material, and that "today's science would provide a more probative result," the convicting court erred in concluding that he has failed to show that there is biological material that requires testing. We do not find that the record supports appellant's claims.

Article 64.01 provides that a convicted person may submit a motion to the convicting court requesting DNA testing of evidence containing biological material that was in the State's possession during trial. The motion must be accompanied by an affidavit sworn to by [*6] the convicted person, containing statements of fact in support of the motion. For evidence that was not previously subjected to DNA testing, the convicted person must demonstrate in his or her motion that: (1) DNA testing was not available; (2) DNA testing was available but not technologically capable of providing probative results; or (3) through no fault of the convicted person, the evidence was not tested but requires testing in order to satisfy the interests of justice. When requesting testing for evidence that was previously subjected to DNA testing, the convicted person must demonstrate that the evidence containing biological material can be "subjected to testing with newer techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test." Tex. Code Crim. Proc. Ann. art. 64.01(b)(2).

Appellant has failed to meet the requirements of Article 64.01. First, it should be noted that we are not entirely clear as to what evidence appellant wants tested. While in his original motion he requested testing of a pair of jeans, the report by Dr. Benjamin, which was submitted by appellant [*7] in support of his motion, also listed a number of other items. Appellant has never explained the discrepancy between his original motion and Dr. Benjamin's report.

Moreover, although in his motion appellant claimed that the jeans were never submitted for DNA testing and that means of testing that were available during his trial are now outdated, he did not provide statements of fact in support of these claims. Dr. Benjamin's report likewise failed to provide facts in support of appellant's claims. After providing a list of the evidence that should be submitted for testing, Dr. Benjamin concluded his report by stating the following:

At the time of the original trial (1989), several types of DNA testing were available through a somewhat limited number of laboratories. These included RFLP and a very early form of PCR-based testing. Although I would have recommended pursuing those tests at the time, today's PCR-based tests are far more sensitive and much better for dealing with mixed samples than the early "dot strip" tests. Mitochondrial DNA testing is also now available for hair shafts and highly degraded samples. This was not available at the time of the original trial.

While [*8] in his report Dr. Benjamin made general statements about the type of DNA testing that was available at the time of appellant's trial, he failed to specifically address the issue of whether at the time of appellant's trial the type of DNA testing necessary to test appellant's jeans was capable of providing probative results. Because appellant has failed to provide facts in support of his motion, we cannot say that the convicting court erroneously determined that appellant failed to show the existence of evidence containing biological material that should be subjected to DNA testing.

Appellant further claims that the convicting court erred in requiring him to show that a reasonable probability exists that he would not have been prosecuted if exculpatory results had been obtained through DNA testing. Specifically, appellant argues that "an interpretive analysis of [Article 64.03(a)(2)(A)] lends more credence to the idea that a convicted person should be allowed the testing before required to make this argument [or] an assumption that the State would be fair and not prosecute a defendant in light of exculpatory evidence... ."

Appellant ignores the plain language of Article 64.03. [*9] Article 64.03(a)(2)(A) directs a convicting court to order DNA testing of evidence containing biological material only if a convicted person establishes by a preponderance of the evidence that there is a reasonable probability that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. A trial court is never required to grant a convicted person's request for testing absent such a showing.

Because appellant has failed to satisfy the requirements of Chapter 64, we hold that the convicting court did not erroneously deny his request for DNA testing. Accordingly, the judgment of the convicting court is affirmed.

Brownlee v. Haley, 2002 U.S. App. LEXIS 19069 (11th Cir 9/16/2002) "Brownlee plainly received ineffective assistance of counsel at sentencing in light of his attorneys' failure to investigate, obtain, or present to the jury any evidence in mitigation of the death penalty, violating the Sixth Amendment to the Constitution."

If counsel had exercised Brownlee's right to present all relevant and competent mitigating evidence, the jury would have heard compelling evidence addressing two statutory mitigating circumstances -- that the crime "was committed while the defendant was under the influence of extreme mental or emotional disturbance," Ala. Code. § 13A-5-51(2), and that "the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired," id. § 13A-5-51(6) -- as well as several significant non-statutory mitigating factors, see id. § 13A-5-52.

These factors are amply supported by evidence of Brownlee's borderline mental retardation, serious psychiatric illnesses, and extensive drug abuse, particularly on the night in question. In testimony uncontradicted by the State, Dr. Beidleman explained [*78] that Brownlee had an IQ score "in the range of 67, 68, 75." He characterized Brownlee as borderline mentally retarded and said that his "limited intellectual resources" left him "right on the borderline between having severe social and occupational impairment . . . and being able to cope in a sort of mildly adaptive manner, right on the edge." According to Dr. Beidleman, Brownlee's substantial intellectual limitations were compounded by a variety of significant psychiatric disorders, including schizotypal personality disorder, antisocial personality disorder, various drug dependencies, and seizure disorder or epilepsy. As described by Dr. Beidleman, these disorders were real and substantial. Schizotypal personality disorder, for example, is marked by thought disturbance, paranoid ideation, and excessive social anxiety. Moreover, Brownlee's frequent seizures, as described by his sisters and neighbor, included terrifying episodes in which he would lose consciousness, cause significant damage to his surroundings and his own body, and fall to the floor convulsing, with his mouth foaming, his eyes rolling back in his head, and his tongue in danger of being swallowed. One episode even involved [*79] Brownlee's effort to jump out the window of a second-story apartment.

At the Rule 32 proceeding, Dr. Beidleman explained that the combination of Brownlee's limited intellectual functioning and psychiatric disorders left him with "diminished capacity." Particularly if Brownlee had been using drugs before going to Jodie's Lounge, n20 Dr. Beidleman testified that Brownlee would have been "significantly impaired" as a result of his various disorders at the time of the crime, and "he would have [had] difficulty guiding his actions and might have [had] difficulty conforming his behavior." Dr. Beidleman discussed Brownlee's impairments in these terms:

Well, certainly I think you have to first examine his intellectual level, he's operating with very diminished intellectual capacity, if the prison records and my evaluations are accurate, he certainly doesn't function with more than 75 IQ points. Based on that alone, you expect diminished judgment, poor social intelligence. When you add the factors of drug and alcohol abuse and perhaps extreme levels of both, it is hard to tell for sure, but if he was abusing those substances, they would have an accumulative effect on these other [*80] disorders.

Dr. Beidleman further explained that, because of his substantial intellectual limitations and psychiatric illnesses, Brownlee differed markedly from other individuals who drank alcohol or used drugs. Addressing counsel, he explained, "if you drank sufficiently to be impaired, you still have the pluses . . . of being highly intelligent, having some social control over your behavior and not having the existence of any present psychiatric disorders, like his personality disorder." Brownlee, on the other hand, lacked any of these "pluses."

Our confidence in the advisory sentencing verdict is undermined because the jury did not hear any of this significant testimony. First, but for counsel's unprofessional errors in failing to present Dr. Beidleman's diagnoses [*81] and the supporting evidence to the jury, there is a reasonable probability that the combination of Brownlee's serious psychiatric disorders and his drug use would have supported a finding that the crime was committed "under the influence of extreme mental or emotional disturbance." Ala. Code § 13A-5-51(2). As Dr. Beidleman explained, Brownlee suffered from various disturbances and psychiatric disorders even when he was not abusing drugs, and his disorders included seizures in which he would do harm to himself and engage in other uncontrollable behavior. Once drugs were taken, Brownlee likely experienced an "extreme mental or emotional disturbance" under § 13A-5-51(2). See McNabb v. State, 2002 Ala. Crim. App. LEXIS 33 (Ala. Crim. App. 2002) (discussing court's finding of statutory mitigation based on defendant's voluntary cocaine use and resulting "cocaine paranoia").

Also under the Alabama statute, there is a reasonable probability that, but for counsel's unprofessional errors, the jury would have found that "the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was [*82] substantially impaired." Ala. Code § 13A-5-51(6). According to Dr. Beidleman, Brownlee's capacity was diminished by his limited intellectual functioning and psychiatric disorders alone. Drug or alcohol use on the day of the crime would have substantially aggravated these pre-existing limitations. Although the drug use, standing alone, would not have qualified Brownlee for the mitigating circumstance under § 13A-5-51(6), see Ferguson v. State, 814 So. 2d 925, 964 (Ala. Crim. App. 2000), the jury could have found this statutory mitigator if Brownlee's "level of intoxication was so great that his ability to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired," id. n21 Further, while substantial evidence showed that Brownlee had a limited ability to control his actions or judge right and wrong as a result of his psychiatric disorders, intellectual impairments, and drug abuse, none of this evidence was presented to the jury due to counsel's deficient performance.

Our confidence is further undermined because, in addition to the statutory mitigating circumstances, there is a reasonable probability that the jury would have found non-statutory mitigating circumstances to exist. Most importantly, we believe that the jury could have found a mitigating circumstance based on Brownlee's borderline intellectual functioning and psychiatric disorders, which, again, included schizotypal personality disorder, antisocial personality disorder, multiple drug dependencies, and a violent seizure disorder or epilepsy. See, e.g., Smith v. State, 2002 Ala. Crim. App. LEXIS 26 (Ala. Crim. App. 2002) (listing defendant Willie Smith's "verbal I.Q. of 75, classified as the borderline range between mild retardation and low-average intelligence" as a "properly found" mitigating factor); Smith v. State, 2001 Ala. Crim. App. LEXIS 176 (Ala. Crim. App. 2001) (listing defendant Jerry Smith's borderline mental retardation as properly found mitigating factor); Clisby v. State, 456 So. 2d 99, 102 (Ala. Crim. App. 1983) (holding that evidence of psychiatric disorders such as antisocial personality [*84] "must be considered as relevant mitigating evidence") (emphasis in original).

Evidence of Brownlee's severe intellectual limitations is particularly significant in light of the United States Supreme Court's recent holding in Atkins v. Virginia, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002), that the Eighth Amendment categorically prohibits the execution of mentally retarded individuals. As the Supreme Court explained, mental retardation is generally defined as having an IQ below 70, 122 S. Ct. at 2245, accompanied by "significant limitations in adaptive skills such as communication, self-care, and self-direction that become manifest before age 18," 122 S. Ct. at 2250. An individual who is mentally retarded has a "diminished capacity to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." Id. (footnote omitted). In Atkins, the Supreme Court said that even though the deficiencies faced by mentally retarded individuals "do not warrant an exemption [*85] from criminal sanctions, . . . they do diminish their personal culpability." 122 S. Ct. at 2250-51. As a result, the Court held that "the mentally retarded should be categorically excluded from execution" because they are less deserving of society's ultimate retribution and less susceptible to the deterrent effects of the death penalty. 122 S. Ct. at 2251. The Court also noted that, for a variety of reasons, "mentally retarded defendants in the aggregate face a special risk of wrongful execution." 122 S. Ct. at 2252. Thus, under Atkins, a mentally retarded individual cannot be executed even if a jury has found multiple aggravating circumstances to exist.

In this case, Brownlee's trial lawyers had their client examined by only one clinical psychologist. This examination took place only after the trial judge suggested that counsel contact Dr. Beidleman, and, notably, only after the jury phase of the sentencing process was completed. Based on Dr. Beidleman's testimony alone, which included evidence that Brownlee's IQ was "in the range of 67, 68, 75," there is a reasonable probability that the jury [*86] would have found that Brownlee suffered from mild or borderline mental retardation, or that a non-statutory mitigating circumstance existed. Indeed, it is abundantly clear that an individual "right on the edge" of mental retardation suffers some of the same limitations of reasoning, understanding, and impulse control as those described by the Supreme Court in Atkins. Counsel's failure to investigate this issue at all or to present any of this evidence seriously undermines our confidence in the application of the death sentence.

We cannot say with certainty what the jury would have done if they had heard the substantial mitigating evidence in this case. What we can say is that our confidence in the jury's balancing of the aggravating and mitigating circumstances, and its resulting recommendation of death, has been substantially undermined as a result of counsel's failure to present to the jury any of the powerful mitigating evidence that was available. Our concerns are exacerbated in light of lingering questions about the strength of the case against Brownlee, including whether or not he fired the fatal shot killing Dodd, which hinged entirely on the testimony of Goodgame. Unlike [*87] Goodgame, Brownlee was not identified by any of the witnesses as being in the bar during the robbery, and no forensic evidence linked him to the crime. Moreover, nobody, not even Goodgame, claimed to have seen Brownlee shoot Dodd. In addition, much of Goodgame's testimony was contradicted by Warren and Jones, and all three witnesses who implicated Brownlee in the crime admitted to using drugs, including cocaine and "T's and blues," extensively on the night in question. Although there was sufficient evidence to convict Brownlee beyond a reasonable doubt, in light of the many evidential weaknesses linking Brownlee to the murder (including the absence of any eyewitness identification or scientific evidence and the many material inconsistencies in the accounts of Goodgame, Warren, and Jones), the substantial mitigating evidence never presented to the jury looms still larger in the calculus.

As we have observed before, "the primary purpose of the penalty phase is to insure that the sentence is individualized by focusing [on] the particularized characteristics of the defendant. By failing to provide such evidence to the jury, though readily available, trial counsel's deficient performance [*88] prejudice[s a petitioner's] ability to receive an individualized sentence." Cunningham v. Zant, 928 F.2d 1006, 1019 (11th Cir. 1991) (citations omitted). In this case, counsel's absolute failure to investigate, obtain, or present any evidence, let alone the powerful, concrete, and specific mitigating evidence that was available, prevented the jurors from hearing anything at all about the defendant before them. An individualized sentence, as required by the law, was therefore impossible. Instead, the jury was asked to decide Virgil Brownlee's fate without hearing anything about his borderline mental retardation, his schizotypal personality disorder, his antisocial personality disorder, his many drug and alcohol dependencies, or his history of seizures.

As in Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999), another case in which counsel's failure to present adequate mitigating evidence to the jury was deemed prejudicial, we believe that counsel's ineffectiveness in fact

precipitated a 'breakdown in the adversarial process.' The jury was called upon to determine whether a man whom they did not know would live or die; they were not presented [*89] with the particularized circumstances of his past and of his actions on the day of the crime that would have allowed them fairly to balance the seriousness of his transgressions with the conditions of his life. Had they been able to do so, we believe that it is at least reasonably probable that the jury would have returned a sentence other than death.

177 F.3d at 1204. Quite simply, our confidence is undermined because there is a reasonable probability that the jury would have recommended a life sentence if it had heard all of the powerful mitigating evidence that could have been presented. The result of Brownlee's sentencing proceeding is "unreliable," and, on this incomplete record, the imposition of a death sentence is "fundamentally unfair." Strickland, 466 U.S. at 700, 104 S. Ct. at 2071. This finding of prejudice, coupled with the uncontested finding of deficient performance, establishes Brownlee's Sixth Amendment claim of ineffective assistance of counsel at sentencing.

Marshall v. Hendricks, 2002 U.S. App. LEXIS 18693 (3rd Cir 9/11/2002) In a thorough and detailed analysis of the role of evidentiary hearings in determining the "reasonableness" of a state court proceeding on ineffectiveness, a unanimous panel remands for an evidentiary hearing.

We have stated that the New Jersey Supreme Court unreasonably determined the underlying facts. But [*214] that error was not detected by the District Court when it denied Marshall's habeas petition. The District Court refused to allow Marshall to depose Zeitz to develop his ineffectiveness claim, reasoning that "even looking at petitioner's most disturbing suggestion, that Zeitz failed to sufficiently investigate and prepare for petitioner's penalty phase, petitioner has not pointed to specifics or explained precisely how deposing Mr. Zeitz would allow him to succeed in proving such a Strickland violation." Marshall III, 103 F. Supp. 2d at 767. The District Court further stated that it "agrees with the New Jersey Supreme Court that because Mr. Zeitz consistently consulted with petitioner throughout the penalty phase and because his request does not specify what he hopes to find by deposing Mr. Zeitz, this Court is unwilling to second-guess Mr. Zeitz's strategic decisions." Id. The Court treated the request to depose Zeitz as a discovery request, and concluded that the "full evidentiary hearing" sought by Marshall on both the Brady and Strickland claims was not required, because "none of the Townsend factors requiring an evidentiary hearing are applicable here, and all of petitioner's [*215] claims were fully and fairly developed during the state court proceedings." Id. at 772.

At the end of the day, our ruling is that the District Court erred in concluding that the State's application of Strickland was reasonable. We conclude that the District Court could not make that determination without conducting an evidentiary hearing to explore the claimed ineffectiveness of counsel. We note the possibility that after the District Court holds the evidentiary hearing it may conclude that under Strickland counsel was not ineffective or Marshall was not prejudiced such that the New Jersey Supreme Court's ruling would stand. If, on the other hand, the hearing reveals facts to suggest the conclusion that the two prong Strickland test has been satisfied, the writ should thereupon issue, conditioned on a new sentencing phase. Therefore, it is not only appropriate for the District Court to hold the evidentiary hearing on remand, it is essential to its proper consideration of the New Jersey Supreme Court ruling under Strickland. We note that our sister courts of appeals have likewise remanded for further factual development when the record has been inadequate to make a proper [*216] legal determination of a claim raised on habeas appeal post-AEDPA, in some instances expressly requiring an evidentiary hearing, and in others merely noting its availability as a tool for the district court to use in its development of the record. See, e.g., Newell v. Hanks, 283 F.3d 827, 838 (7th Cir. 2002); Greer v. Mitchell, 264 F.3d 663, 669 (6th Cir. 2001); United States v. Johnson, 256 F.3d 895, 898 (9th Cir. 2001) (en banc); Valverde v. Stinson, 224 F.3d 129, 135 (2d Cir. 2000). We conclude that a District Court hearing is essential, and remand for a new ruling by the District Court as to Strickland based upon a complete record.

Valerio v. Bayer, 2002 U.S. App. LEXIS 19168 (9/17/2002 9th Cir) (en banc) (dissent) Walton v. Arizona "does not allow a state appellate court to apply a narrowing construction to an unconstitutional instruction, and to engage in de novo fact-finding, when the penaltyphase fact finder has been a jury. We therefore conclude that the Nevada Supreme Court's de novo fact-finding under Walton did not - because it could not - cure the error caused by the unconstitutionally vague jury instruction."

Because the depravity of mind aggravatingcircumstance instruction, as given to Valerio's jury, was unconstitutionally vague under Godfrey, see 446 U.S. at 427-30; see also Deutscher, 884 F.2d at 1162-63; McKenna, 65 F.3d at 1489, the use of that instruction at Valerio's sentencing was contrary to clearly established law as determined by the United States Supreme Court. [*28] See 28 U.S.C. § 2254(d)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted ... unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.").

When a state trial court sentences a defendant to death based in part on an unconstitutionally vague aggravating circumstance, the state appellate court may affirm the sentence in three ways. First, it can find the error harmless under Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Under Chapman, the state appellate court can affirm if it finds beyond a reasonable doubt that the same result would have been obtained without relying on the unconstitutional aggravating circumstance. See Clemons v. Mississippi, 494 U.S. 738, 752-53, 108 L. Ed. 2d 725, 110 S. Ct. 1441 (1990) (approving Chapman harmless error analysis as method for curing unconstitutional jury instruction). Second, a state appellate [*29] court can cure the error by the method approved in two cases decided the same day, Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), and Lewis v. Jeffers, 497 U.S. 764, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990). (For ease of discussion, we refer to this method as a Walton analysis.) In a Walton analysis, a state appellate court provides a narrowed construction of the unconstitutional aggravating circumstance, and then itself performs a de novo evaluation of the evidence to determine if the aggravating circumstance exists. n6 As the Court wrote in Walton, "a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined." 497 U.S. at 654. As it elaborated in Jeffers, "a state court's finding of an aggravating circumstance in a particular case" is "a de novo finding by an appellate court" that the fact of the aggravating circumstance exists. 497 U.S. at 783.

In performing a Walton analysis, the state appellate court is not reviewing a lower court finding for correctness; it is, instead, acting as a primary factfinder. A Walton analysis is available not only when the trial judge knows, or is presumed to know, the narrowing construction. See Walton, 497 U.S. at 653. It is also available when the "trial judge fails to apply the narrowing construction or applies an improper construction." Id. at 653-54. The Supreme Court has applied a Walton analysis only in Walton and Jeffers. In both of these cases, the penalty-phase factfinder at trial was a judge. The Supreme Court has never applied, or approved, a Walton analysis where the factfinder was a jury.

Third, a state appellate court can cure a penalty-phase instructional error by "reweighing" aggravating and mitigating circumstances under Clemons, 494 U.S. at 748. If the appellate court does not use a Walton analysis to find the existence of an aggravating circumstance that had been found at trial under an erroneous standard, that aggravating circumstance cannot be relied upon, in any respect, to affirm a death [*31] sentence. But under Clemons, a state appellate court may nonetheless affirm the death sentence by disregarding the aggravating circumstance found under an invalid instruction, and then reweighing the remaining valid aggravating and mitigating circumstances.

Reweighing under Clemons differs significantly from a Walton analysis. Under Clemons, the state appellate court reweighs aggravating and mitigating circumstances that have already been found by a jury to exist. The appellate court does no independent factfinding, but rather relies on facts already found by the jury. That is, under Clemons, the appellate court evaluates and "reweighs" the aggravating and mitigating circumstances, but it does not independently determine whether those circumstances exist. Under Walton, by contrast, the appellate court applies a narrowing construction and then does its own independent de novo factfinding to determine whether the evidence supports the existence of one or more aggravating circumstances under the narrowed construction. Further, a Clemons reweighing is performed when the penalty-phase factfinder was a jury. See Clemons, 494 U.S. at 745 ("Nothing [*32] in the Sixth Amendment as construed by our prior decisions indicates that a defendant's right to a jury trial would be infringed where an appellate court invalidates one of two or more aggravated circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence."). Under Walton, by contrast, appellate court factfinding is done only when the factfinder was a judge. n7

In reviewing the state district court's denial of Valerio's post-conviction petition, [*33] the Nevada Supreme Court in this case did not perform a harmless-error analysis under Chapman. Nor did it reweigh under Clemons. Rather, it affirmed the sentence by applying a narrowed construction and engaging in de novo factfinding under Walton. We must decide whether the Nevada Supreme Court thereby succeeded in curing the unconstitutionally vague jury instruction. For two independently sufficient reasons, we conclude that it did not.

1. Walton Appellate Factfinding is Not Available When the Penalty-Phase Factfinder was a Jury

The Supreme Court has approved Walton appellate court factfinding only in cases in which the factfinder during the penalty-phase trial was a judge. See Walton; see also Lewis v. Jeffers, 497 U.S. 764, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990). The Court has never applied Walton to cases in which the factfinders were juries. Indeed, the Court explicitly stated in Walton that its reasoning did not apply to jury cases. The petitioner-defendant in Walton had argued under the reasoning of Maynard v. Cartwright and Godfrey v. Georgia that the unconstitutionally vague aggravating circumstance applied [*34] by the trial judge in his case required that the death sentence be vacated. In both Maynard and Godfrey, the Supreme Court had reversed death sentences outright because of unconstitutionally vague aggravating circumstances contained in jury instructions. However, the Supreme Court in Walton found Maynard and Godfrey not controlling because the death sentences in those cases had been imposed by juries. It wrote:

When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge.

Walton, 497 U.S. at 653 (emphasis added).

The Nevada Supreme Court itself now agrees that the Walton appellate factfinding procedure is not available when the penalty-phase factfinder was a jury. In Valerio's case, the Nevada Supreme Court applied a Walton analysis (although without invoking Walton [*35] by name) to apply the narrowing construction supplied by Robins and to find the facts de novo. But in a later case, Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (Nev. 1994) (per curiam), abrogated in part on other grounds by Pellegrini v. State, 117 Nev. ___, 34 P. 3d 519 (Nev. 2001), the Nevada Supreme Court held that the Walton procedure could not be applied in Nevada because juries are the penaltyphase factfinders in that state. It wrote:

Although the Court [in Walton] upheld the imposition of the death penalty, Walton is factually distinguishable from the present case. In Walton, the death sentence was imposed by a trial judge, who is presumed to know the law and to apply it in a constitutional manner. By contrast, in this case, the death sentence was imposed by a jury.

Id. at 562-63.

We agree with the Nevada Supreme Court's holding in Pertgen. Walton does not allow a state appellate court to apply a narrowing construction to an unconstitutional instruction, and to engage in de novo factfinding, when the penaltyphase factfinder has been a jury. We therefore conclude that the Nevada [*36] Supreme Court's de novo factfinding under Walton did not - because it could not - cure the error caused by the unconstitutionally vague jury instruction.

2. The Nevada Supreme Court Did Not Provide "Close Appellate Scrutiny"

Even if we assume that Walton could have been used to cure an unconstitutionally vague aggravating-circumstance jury instruction, the Nevada Supreme Court did not fulfill its responsibilities under Walton. The Supreme Court has emphasized that a state appellate court must engage in "close appellate scrutiny" when affirming a death verdict where an unconstitutionally vague aggravating circumstance was applied at trial, and the Nevada Supreme Court did not provide such scrutiny.

A state appellate court cannot "affirm a district court without a thorough analysis of the role an invalid aggravating factor played in the sentencing process." Stringer v. Black, 503 U.S. 222, 230, 117 L. Ed. 2d 367, 112 S. Ct. 1130 (1992). In Clemons v. Mississippi the Supreme Court could not be sure that the state Supreme Court had performed a proper reweighing or had conducted an appropriate harmless-error analysis, and it refused to accept that [*37] court's "cryptic holding." 494 U.S. at 753. In Sochor v. Florida, 504 U.S. 527, 540, 119 L. Ed. 2d 326, 112 S. Ct. 2114 (1992), the Supreme Court noted that while it did not require a "particular formulaic indication" that the state appellate court had performed constitutional harmless error analysis, it could not accept "allusions by citation" that stopped "far short of clarity." According to the Supreme Court in Stringer, "we require close appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases." 503 U.S. at 230 (citing cases) (emphasis added); see also Jeffers v. Lewis, 38 F.3d 411, 414 (9th Cir. 1994) (en banc) ("Close state appellate scrutiny is required.") (emphasis added).

We therefore examine the decision of the Nevada Supreme Court in this case to determine whether it gave the required "close appellate scrutiny" to the "import and effect of [the] invalid aggravating factor" in this case. Stringer, 503 U.S. at 230; Jeffers, 38 F.3d at 414. [*38] In the context of this case, we must determine whether the Nevada Supreme Court actually performed the analysis contemplated by Walton. That analysis requires two steps. First, the state appellate court must provide a constitutionally adequate narrowing construction to the unconstitutionally vague aggravating circumstance. Second, the appellate court must make an independent, de novo determination of whether the evidence introduced at trial proves the existence of the narrowed aggravating circumstance. See Walton, 497 U.S. at 645-46, 654.

The Nevada Supreme Court performed the first step in Robins, by construing the depravity of mind instruction to require "torture, mutilation, or other serious and depraved physical abuse beyond the act of killing itself." The Nevada Supreme Court then purported to perform the second step when it applied that narrowed construction to Valerio's case. See order, quoted supra, p. 18. However, it is apparent from its order that the Nevada Supreme Court did not properly perform the second step of its Walton analysis. The court recited accurately the narrowing Robins construction. But it is clear from the face [*39] of the order that the court's evaluation of the evidence under the narrowed instruction did not meet the United States Supreme Court's standard of "close appellate scrutiny."

First, the Nevada Supreme Court stated that it "agreed" with the state district court that the murder involved "torture (or serious physical abuse)" and that it was "satisfied" that the evidence showed that there was "torture and/or physical abuse" (emphases added). We conclude, from the use of the word "or" and the phrase "and/or," that the Nevada Supreme Court may have meant to do no more than to agree with the district court's finding of torture. Agreement with the state district court on torture was a clearly insufficient basis upon which to affirm the conviction. Robins had narrowed the definition of "torture" by adding the qualification that any torture had to be "beyond the act of killing itself." However, the district court had not applied that limiting language in finding that there had been torture; rather, it had mischaracterized Robins as "reaffirming" the constitutionality of the depravity of mind instruction as it had been given. (Although it is not strictly relevant to our analysis, [*40] we also note that the prosecutor conceded in his closing argument to the jury that there had not been torture. Thus, it is less than clear that the evidence supported a finding of torture, even in the unqualified sense of the word.)

Second, the Nevada Supreme Court's phrase "serious physical abuse" is taken from the longer formulation in Robins ("serious and depraved physical abuse beyond the act of killing itself"). The state district court had not found serious physical abuse. Indeed, it had not mentioned physical abuse, serious or otherwise. Because the state district court had made no such finding, there was nothing in that court's order with respect to "serious physical abuse" with which the Nevada Supreme Court could have agreed.

Third, the Nevada Supreme Court stated that, as it viewed the evidence, the victim "died not from one wound but from all the wounds combined." This view of the evidence is inconsistent with the court's application of the narrowed version of the instruction that it was purporting to apply. As noted above, Robins requires that there be "serious and depraved physical abuse beyond the act of killing itself " (emphasis added). If, as the [*41] Nevada Supreme Court believed, the victim died from all the wounds combined, the wounds did not constitute abuse beyond the act of killing itself.

We therefore conclude that the Nevada Supreme Court did not engage in the "close appellate scrutiny" required by Stringer and Jeffers, and that its analysis under Walton did not cure the erroneous jury instruction, even if it could have done so.

SUPREME COURT

The Court is in summer recess.

CAPITAL CASES (Favorable Disposition)

Howell v. Arkansas, 2002 Ark. LEXIS 436 (Ark 9/12/2002) On direct appeal state supreme court clarifies state statute regarding the requirements for a "complete record."

Echols v. Arkansas, 2002 Ark. LEXIS 438 (Ark 9/12/2002) In one of the country's more controversial cases (Echols is one of the so-called "West Memphis Three"), state supreme court grants a stay of appellate proceedings so that DNA testing may be completed.

Newman v. Arkansas, 2002 Ark. LEXIS 433 (Ark 9/12/2002) An appellant under state law from a sentence of death may not waive his appeal.

Sheppard & White v. City of Jacksonville, 2002 Fla. LEXIS 1876 (FL 9/12/2002) Reviewing the payment of capital appellate counsel, the Florida Supreme Court clarifies what rates of compensation are permissible. Noting the severe hardship its ruling may have, Florida Supreme Court approves payments as low as $40/hour for attorneys fees under the rules of one district and $100/hour for attorneys in other districts. The opinion is replete, however, with good language about payment of counsel.

In Re: Plaintiff: Colorado v. Harlan, 2002 Colo. LEXIS 817 (Colo 9/16/2002) Post-conviction trial court erred in concluding that a defendant's request for the appointment of alternative defense counsel to investigate ineffective assistance of previous counsel created an actual or potential conflict of interest with that previous counsel.

CAPITAL CASES (Unfavorable Disposition)

Williams v. Woodford, 2002 U.S. App. LEXIS 18527 (9th Cir 9/10/2002) Relief denied on a potpourri of claims including: (A) Batson; (B) shackling and excessive security; (C) claims of coerced testimony; (D) Brady; (E) Messiah; (F) competency at trial; (G) tainted jury pool due to statements made by the appellant at trial that were heard by the jury but not the court; (H) permissibility of the "lingering doubt" defense in the penalty phase; and, (I) District court lacked jurisdiction to examine Rule 60(B) motion. Note that the panel in a highly unusual move concludes by stopping just short of asking for a commutation of Mr. Williams

Emmett v. Virginia, 2002 Va. LEXIS 102 (VA 9/13/2002) Appellant waived his right to appeal and hence underlying guilt phase errors can not serve as a basis for a proportionality challenge.

Morrissette v. Virginia, 2002 Va. LEXIS 100 (VA 9/13/2002) Appellant was not denied his right to a speedy trial. Jury selection did not violate Wittherspoon v. Illinois & Morgan v. Illinois. Conviction for rape (an aggravator) was supported by sufficient evidence to sustain the jury's verdict.

Turner v. Texas, 2002 Tex. Crim. App. LEXIS 153 (Tex. Crim. App. 9/11/2002) Relief denied most notably on claims relating to whether: (A) trial counsel was ineffective for not objecting to the prosecution's voir dire comments to several veniremembers and eventual jurors that the jury could not consider a life-sentenced appellant's parole eligibility because of possible future legislative changes to the parole laws; (B) prosecutorial comments were also "fundamental error" because they denied him a fair punishment hearing under the Eighth and Fourteenth Amendments & (C) the trial court's parole law jury instruction denied him a fair punishment hearing because it instructed the jury that it could not consider a life-sentenced appellant's parole eligibility.

Hayes v. Texas, 2002 Tex. Crim. App. LEXIS 154 (Tex. Crim. App. 9/11/2002) No error on challenges to sufficiency, penalty phase Brady evidence, and the admission of certain purportedly inflammatory photographs.

Reyes v. Texas, 2002 Tex. Crim. App. LEXIS 156 (Tex. Crim. App. 9/11/2002) Relief denied on claims relating to sufficiency of the evidence, admission of certain hearsay statements, limitations placed on mitigating evidence, and the state's death penalty statute as applied fails to sufficiently narrow the class of death eligible homicides.

Johnson v. Cockrell, 2002 U.S. App. LEXIS 19110 (5th Cir 9/17/2002) COA & relief denied most notably on whether trial counsel was not ineffective during the punishment phase when they failed to investigate and produce available mitigating evidence of Johnson's organic brain impairment, physical and sexual abuse as a child, alcoholism, drug use, and an exceptionally unhappy and unstable childhood as the evidence was 'double edge' as to the question of future dangerousness.

Shere v. Moore, 2002 Fla. LEXIS 1875 (FL 9/12/2002) (Dissent) "Shere argues appellate counsel was ineffective for failing to raise the following issues on appeal: (1) whether the State's improper remarks and biblical references during the penalty phase rendered Shere's death sentence unreliable and in violation of his constitutional rights; (2) whether Shere's death sentence was disproportionate, especially when considered in conjunction with the life sentence received by the codefendant, Demo; and (3) whether the trial court failed to find the statutory mitigator of no significant prior criminal history. Shere also asserts that his constitutional right to be free of cruel and unusual punishment will be violated if he is executed as he is incompetent and hence ineligible for execution."

Brewer v. Anderson, 2002 U.S. App. LEXIS 18717 (6th Cir 9/10/2002) (unpublished) Relief denied on claims relating to: (1) the admission of victim impact testimony; (2) the exclusion of letters containing mitigating statements about his character from the presentence report; and (3) denial of effective assistance of counsel on failing to object and failing to investigate.

Jackson v. Mullin, 2002 U.S. App. LEXIS 19164 (10 Cir 9/16/2002) (unpublished) Claims denied relating to: (A) failure to give proffered instructions on voluntary intoxication; and (B) failing to permit voir dire to find if any of the potential jurors harbored hostility toward his diminished capacity/voluntary intoxication defense

United States v. Church, 2002 U.S. Dist. LEXIS 16696 (W.D. VA 9/5/2002) Defendant's motion denied on claim "that the death penalty may not be sought because 21 U.S.C.A. § 848 (West 1999)--the death penalty statute in this case--does not contemplate grand jury involvement in the death penalty charging process; that Ring and its antecedent Supreme Court cases require such involvement; and that only Congress may act to 'cure the problem'."

OTHER NOTABLE CASES

None noted this week.

FOCUS

The Focus section will return next week

OTHER RESOURCES:

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

New Jersey Attorney General, Lawyers Seek Freeze of Capital Cases

New Jersey defense attorneys, with the support of the state's attorney general and prosecutors, are seeking a statewide freeze of capital cases until the New Jersey Supreme Court can assess the state's death penalty laws as they relate to the U.S. Supreme Court's ruling in Ring v. Arizona. In a letter sent to the New Jersey Supreme Court, Assistant Attorney General Peter Harvey stated that the Supreme Court's ruling in Ring is of "such tremendous statewide import" that all capital trials should be stayed until the matter is addressed. In Ring, the U.S. Supreme Court held that a death sentence violates a defendant's constitutional right to a trial by jury when the necessary aggravating factors must be determined by a judge rather than a jury. Defense attorneys have also argued that Ringapplies to grand jury indictments in jurisdictions that require them, such as New Jersey. (New Jersey Law Journal, September 16, 2002) Read the article. See also, DPIC's Ring v. Arizona Web page. Note: On Sept. 17, the N.J. Supreme Court lifted a stay in the case of Thomas Koskovitch, thereby allowing his capital trial to continue.

Mother Jones Profiles Growing Moratorium Movement

Mother Jones magazine features an article with the caption, "Small Town Justice - It's not just Berkeley and Cambridge. Now some Southern towns are joining the call for a moratorium on the death penalty." The piece examines why 19 North Carolina municipalities, including some of the state's most conservative communities, have demanded a stop to all executions until officials devise a fair and impartial system to administer the death penalty. The author notes, "In rural towns like Winfall and major cities like Charlotte, Republicans have joined Democrats and whites have joined blacks to form moratorium majorities." The September/October Mother Jones featuring this article is now available on newsstands. (Mother Jones, September/October 2002).

Delaware Court Halts Death Penalty Trials

The President Judge of Delaware's Superior Court has halted all capital murder trials and sentencings until the state's Supreme Court can consider the constitutionality of the Delaware's death penalty. The court will review the Delaware cases and a new state law as they relate to the U.S. Supreme Court's June ruling in Ring v. Arizona. In Ring, the Supreme Court held that a death sentence violates a defendant's constitutional right to a trial by jury when the necessary aggravating factors must be determined by a judge rather than a jury. Prior to Ring, Delaware jurors served in an advisory role during capital cases, but state law now gives jurors sole authority to decide death eligibility. (Associated Press, September 13, 2002) See also, DPIC's Ring v. Arizona Web page.

Mississippi Death Row Inmate May Be Cleared by DNA Evidence

For the first time in Mississippi, a death row inmate has been granted a new trial based on DNA evidence. DNA samples in the case of Kennedy Brewer, who was convicted in 1995 of the murder of his live-in girlfriend's young daughter, were tested last May and the tests determined that the samples did not match those taken from Brewer, but instead contained the DNA of two unknown suspects. District Attorney Forrest Allgood reopened the investigation into the case after the DNA results were released and noted, "If you follow the law on newly discovered evidence, it would be possibly something that could change the jury's verdict." The new trial is set to start in February 2003. (Clarion-Ledger, September 11, 2002). See also, Innocence.

If you have found this e-zine useful you might want to visit:www.lidab.com(Louisiana's public defender),probono.net(ABA) &www.capdefnet.org(federal defender). These other resources have many prepackaged motions and law guides dealing with death penalty issue.Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects atnewsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised).