Hot listed this week are two capital cases from Missouri,Missouri v. Discoll&Carter v. Bowersox. The Focus article this week is a quick review of selected portions of the US Code relating to capital murder & "terrorism."

The Missouri Supreme Court inDriscollexamines the holding in Dawson v. Delaware. Noting the interplay among propensity evidence, the First Amendment's right to association & the Sixth Amendment's right to a fair trial, the Driscoll Court holds the trial court erred in admitting evidence of membership in the Aryan Brotherhood in both phases of the trial. Withholding judgment on the issue of penalty phase error, the Court concludes that "though the evidence clearly constitutes a submissible case a reasonable juror could harbor reasonable doubt" as to guilt.

The Eight Circuit's decision inCarter v. Bowersoxis likewise positive. The Carter panel held that appellate counsel was ineffective for failing to raise a state law claim relating to penalty phase instruction error. Specifically, appellate counsel failed to raise claims relating to "the requirement that the jury be instructed to impose the death penalty only when they unanimously agree that it is warranted by aggravating circumstances plays an essential role in Missouri's capital sentencing scheme."

In way of friendly reminder, the Supreme Court's first day of the new term is October 1, 2001. Assuming the Court follows recent tradition, sometime between now & the First Monday in October the court will be handing down the cert granted list. The cert denied list will be handed down October 1. In light of the one year statue of limitations for the AEDPA & many state post-conviction rules/statutes, if you don't see your case cert granted either on the Supreme Court's web site (www.supremecourtus.gov) assume you have been denied & act accordingly to protect your client's interest. The next edition will run only after the Court announces the cert list.

Since the last edition the following people have been executed:

September 18 James Knox Texas

The remaining scheduled executions for September have been stayed.

HOT LIST CASES

Missouri v. Driscoll, 2001 Mo. LEXIS 75 (Mo 9/11/2001) Trial court errred in the admission of evidence relating to appellant's membership in the Aryan Brotehrhood during the guilt phase of the trial.

Whether the evidence was admissible in guilt phase is quite another question. The holding of Dawson -- that mere evidence of a defendant's membership in a racist prison gang is a First Amendment violation if not otherwise relevant -- appears equally applicable to guilt phase. Driscoll contends that the evidence [*10] was not otherwise relevant in guilt phase on the ground that it was pure propensity evidence designed "to portray Driscoll as a person of bad character." The state counters that the evidence was properly admitted to show Driscoll's motive -- that Driscoll killed to enhance his stature within the prison system -- and to rehabilitate state's witness Jenkins, whose credibility defense counsel called into question during cross-examination. The state concedes, however, that Jenkins' reference to Driscoll's statement that "you have to kill a black man to join" was inadmissible under any theory.

The law is well-settled that evidence of uncharged misconduct is inadmissible if it is offered for the purpose of showing a defendant's propensity to commit crimes. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). However, such evidence may be admitted if it is logically and legally relevant to establish the defendant's guilt of the crime charged. Id. Evidence is logically relevant if "it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial," but it is legally relevant only if "its probative value outweighs its [*11] prejudicial effect." Id. Ultimately, however, the admission or exclusion of evidence is a matter within the sound discretion of the trial court. Id.

Applying these principles, this Court concludes that the logical relevance of the Aryan Brotherhood evidence was tenuous at best and that the prejudicial effect of the evidence far outweighed its probative value so that it had no legal relevance. There was no indication that the riot and the murder were racially motivated, nor any other evidence that tied the Aryan Brotherhood or its tenets to the crimes. Furthermore, the argument that Driscoll's motive for killing Officer Jackson was to improve his standing among the inmates and enhance his status in the Aryan Brotherhood community was bare speculation. Tellingly, the state apparently had so little confidence in the motive argument that it made no attempt to introduce the evidence on direct examination.

On the other hand, the Aryan Brotherhood evidence enabled the state to portray Driscoll as a person of bad character who advocated violent "white power" racism and who chose to associate with an inmate gang professing that belief and whose "way of life" was to "kill and murder [*12] all the time." Evidence of this sort is exactly that which the rule against propensity evidence prohibits, and its admission in this case was an abuse of discretion.

As an alternative to motive, the state argues that the Aryan Brotherhood evidence was admissible to rehabilitate state's witness Jenkins, Driscoll's former cellmate, after he had been cross-examined by defense counsel. This argument is directly related to Driscoll's claim that the trial court erred in disallowing Driscoll's attempted waiver of cross-examination. Jenkins had died between the first trial and the second, and, as noted, the transcript of his testimony from the first trial was read into evidence. At the first trial, the Aryan Brotherhood evidence was not introduced until defense counsel opened the door on cross-examination by challenging Jenkins' credibility and, particularly, Jenkins' reluctance to come forward against Driscoll until weeks after the murder was committed. On redirect examination, the state then introduced the Aryan Brotherhood evidence to explain why Jenkins had not come forward with his testimony earlier. There is no dispute that for this limited purpose, the evidence was independently [*13] relevant and therefore admissible. In the second trial, Driscoll anticipated that the state would offer the transcript of Jenkins' testimony and asked the trial judge to excise those portions of the redirect examination relating to the Aryan Brotherhood evidence. When the judge refused, Driscoll announced that he was waiving cross-examination altogether. At that point, the judge disallowed the waiver and permitted the state to read the testimony in its entirety.

Neither party has cited cases on point with this unique fact situation, and we have found none. The cases cited relate instead to a defendant's partial waiver of cross-examination or request to excise prejudicial parts of the cross-examination. The holdings in these cases are that cross-examination must be read in its entirety to avoid confusion, but these holdings are not pertinent where there is an attempt to waive cross-examination in its entirety, which eliminates the possibility of confusion altogether. In addition, Driscoll misidentifies the issue by reference to the Sixth Amendment right to confront witnesses, even though the Sixth Amendment does not speak to any right not to confront witnesses. Driscoll's better [*14] argument, which he raises alternatively, is that he has a right to present his case according to his chosen trial strategy so long as he stays within the bounds of the rules of evidence and procedure. In this connection, it has long been held that cross-examination of the state's witnesses is always a strategic decision to be made at defendant's election. See Diaz v. United States, 223 U.S. 442, 451, 56 L. Ed. 500, 32 S. Ct. 250 (1912) (holding that defendant has the right to waive confrontation of a witness). See also 21A AM. JUR. 2D Criminal Law sec. 1183 (2000). As the state concedes, "if a witness testified in court and the opposing party chose not to cross-examine, there can be no doubt that the proponent of the witness could not conduct a redirect examination." See 1 JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE 119 (5th ed. 1999). The variation present in this case, however, as the state points out, is that the evidence consists of prior recorded testimony of an unavailable witness of whom the cross-examination and redirect examination had already occurred.

This argument would be more tenable had the testimony in question been admissible in the [*15] direct examination as well as redirect. That is not the case, of course, because the testimony was propensity evidence that for guilt phase purposes could only be admitted on redirect examination to rehabilitate the state's witness after cross-examination. In the absence of case law one way or the other, the defendant's right to present the case according to his chosen trial strategy, which is in the nature of a due process right, trumps the hardship to the state due to the fact that its witness was no longer available. Accordingly, it was an abuse of discretion to admit the Aryan Brotherhood evidence on redirect examination after the defendant's waiver of cross-examination.

Carter v. Bowersox, 2001 U.S. App. LEXIS 20146 (8th Cir 09/11/01) Failure of counsel to challenge an instructional error in a capital case regarding when a jury may impose the death penalty under state law constitutes ineffective assistance of counsel.

Here it is clear to us that the requirement that the jury be instructed to impose the death penalty only when they unanimously agree that it is warranted by aggravating circumstances plays an essential role in Missouri's capital sentencing scheme. This step "erects a barrier, in favor of the defendant, which must be surpassed before the jury can even begin to consider whether it should impose the death penalty under the specific facts of the defendant's case they are deciding. . . . The question whether mitigating circumstances exist does not logically present itself until the jury first finds the existence of at least one aggravating circumstance sufficient to warrant the death penalty." State v. Tokar, 918 S.W.2d 753, 771(Mo.) (en banc), cert. denied, 519 U.S. 933 (1996).

"[T]he order of proceedings [under Missouri's capital sentencing scheme] actually presents an advantage to the defendant by requiring the state to completely prove its aggravating case before allowing the jury to even consider application of the death penalty." State v. Simmons, 955 S.W.2d 729, 743 (Mo. 1997) (en banc), cert. denied, 522 U.S. 1129 (1998). Because the jury here was not given the instruction in question, petitioner was deprived of a state-created liberty interest without due process.

We find support for this application of Hicks in recent cases in our sister circuits. See Murtishaw v. Woodford, 255 F.3d 926, 969-70 (9th Cir. 2001) (erroneous instruction under state law that the jury "shall" return a death sentence if aggravation outweighed mitigation, when the statute did not so limit the jury's discretion, was an arbitrary deprivation of habeas petitioner's due process rights, under Hicks; error was not harmless due to "the jury's potential confusion over the exercise of its statutory discretion"); Rojem v. Gibson, 245 F.3d 1130 (10th Cir. 2001) (failure to give death-penalty weighing instruction, as provided for in state statute, violated due process under Hicks in that it deprived defendant of legitimate expectation under state law that he would receive the death penalty only if aggravating circumstances outweighed mitigating circumstances).

The State argues that, when the instructions are viewed as a whole, there was no due process violation. We cannot agree. Mentioning the second step of Missouri's sentencing scheme in the instruction on filling out the verdict form did not remedy the omission of an instruction on the second step. On the contrary, the verdict-form instruction could have served only to confuse the jury, because it referred the jury to an instruction on a completely separate aspect of the sentencing scheme.

We conclude that appellate counsel's performance was constitutionally deficient. Reasonably competent counsel would have discovered the instructional error and raised the due process claim on direct appeal. We recognize that an attorney can limit the appeal to those issues which he determines to have the highest likelihood of success. The presumption that counsel's failure to raise the due process claim was a tactical decision, however, is undermined by counsel's affidavit that the instructional error was simply overlooked. See Roe, 160 F.3d at 419 (affidavit by counsel that claim was omitted on appeal not as the result of a strategic decision, but as the result of oversight, negated presumption of competence).

With regard to the prejudice requirement for finding a violation of petitioner's Sixth Amendment right to effective counsel, it does not take speculation to find that there is a reasonable probability that the result of the sentencing phase would have been different had petitioner's jury been properly instructed. We know that one member of the jury at the penalty stage was at least uncertain of petitioner's guilt. Surely there is a reasonable probability that that juror would have decided the omitted second issue in favor of life. Had he done so, a life sentence would have been mandatory under Missouri law. Moreover, had appellate counsel raised the issue on direct appeal, there is a reasonable probability that the outcome of his appeal would have been different.

The State's argument that there is no federal constitutional right to have a jury determine the death penalty misses the mark. Here Missouri law grants a capital defendant the right not to be sentenced to death unless the jury, in the exercise of its discretion, unanimously finds that evidence of one or more aggravating circumstances warrants the death penalty. Petitioner had a legitimate expectation that he would be sentenced in accordance with this provision, an expectation of which he was erroneously deprived by the State.

We next consider the State's related argument that petitioner's due process rights were not violated because the jury did not ultimately pronounce sentence. According to the State, the trial court's instructional error was cured by the trial court in its role as final sentencer. As noted above, however, in this case there is a reasonable probability that had the jury been properly instructed, it would have sentenced petitioner to life imprisonment, and the question of punishment never would have reached the trial judge. Missouri law empowers a judge to select the death sentence only after the jury first unanimously finds that the defendant is eligible for the death penalty because there exists at least one aggravating circumstance, and that one or more aggravating circumstances warrant death.

We recognize that these questions arise in the special context of plain-error review. Under Mo. Sup. Ct. R. 29.12(b), "[p]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Further, under Rule 30.20,

[a]llegations of error that are not briefed or are not properly briefed on appeal shall not be considered by the appellate court except errors respecting the sufficiency of the information or indictment, verdict, judgment, or sentence. Whether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

It is of course for the Missouri Supreme Court to interpret and apply its own rules, and we have no power to redetermine questions of state law, including state procedural rules, as such. Missouri cases, however, lay emphasis on the question of whether a miscarriage of justice has occurred, see State v. Hall, 955 S.W.2d 198 (Mo. 1997) (en banc), cert. denied, 523 U.S. 1053 (1998) and this question, in turn, depends upon the plainness and gravity of the error and the consequences (here, the death of the petitioner) of failing to notice it.

Thus, the decision whether a miscarriage of justice has occurred depends in large part on one's view of the underlying questions of federal law, here, questions of ineffective assistance of counsel and due process. The plain-error issue, therefore, is not simply a state-law issue. Its resolution depends largely on the view one takes of federal law, and, for reasons we have explained in this opinion, we believe that denial of the motion to recall the mandate was based upon an unreasonable application of federal law, as exemplified by cases of the Supreme Court of the United States, primarily Hicks. An important part of the logical process by which juries in Missouri decide whether to impose the death penalty was omitted. We have held that this omission was a due-process violation. In our opinion, allowing petitioner to go to his death in this situation would be a manifest injustice. Compare Chambers v. Bowersox, 157 F.3d at 566-67. *fn6

In sum, petitioner had a state statutory right to have a jury consider whether circumstances in aggravation of punishment warranted the death penalty. By omitting an instruction on this issue, the trial court violated petitioner's right to due process of law. There is a reasonable likelihood that the result of the penalty phase would have been different had the jury been properly instructed. We agree with the District Court that the Missouri Supreme Court's decision to deny the motion to recall the mandate was an unreasonable application of Strickland and Hicks. Petitioner was denied his Sixth Amendment right and is entitled to habeas relief. This is so even in the plain-error context. To allow the sentence of death to be carried out when a crucial part of the procedure for choosing between life and death was omitted would be a manifest injustice.

Supreme Court

Bagley v. Byrd, 533 U.S.____(2001) A nasty dissent from denial of application to vacate a stay is noted by Chief Justice Rehnquist.

The Court of Appeals has stayed the execution of John Byrd without any explanation of a constitutional defect that would warrant the issuance of a stay by a federal court. The only opinion it has written convincingly concludes that there is no basis for a stay. The only reason the Court of Appeals has provided for granting the stay is to give "a panel member ... additional time to consider the matter." In extending the stay until October 8, 2001, the court provided no additional justification. Byrd surmises that the Court of Appeals extended the stay to October 8 "in order to consider John Byrd's Petition for Rehearing En Banc." Response to State's Application Seeking Lifting of Stay 4. But the Court of Appeals' order does not offer this as a reason for granting the stay; the order only adds that "the clerk of the court is directed to file and submit to the court any petition offered by a party seeking en banc review of the decision of the panel." In any event, en banc consideration would not warrant granting a stay until October 8. As Judge Batchelder points out in her opinion, under the Antiterrorism and Effective Death Penalty Act of 1996, the panel's decision denying Byrd's successive habeas application is not "permitted to be the subject of a petition for rehearing." No. 01-3927 (CA6, Sept. 10, 2001), p. 26 (citing 28 U. S. C. §2244(b)(3)(E)) (1994 ed., Supp. V). And even if Byrd could seek en banc review, the Court of Appeals would be able to rule on the petition well before October 8. Indeed, the Court of Appeals issued the stay on September 10, and by the very next day the court had considered and rejected a judge's request for en banc reconsideration of the stay order. That leaves the rationale that a panel member needed "additional time to consider the matter." Of course, however, the panel has already issued its opinion. Seeing no justification for the stay, I would grant the State's application to vacate the stay. See Bowersox v. Williams, 517 U. S. 345 (1996) (per curiam) ("[I]t is `particularly egregious' to enter a stay absent substantial grounds for relief " (citing Delo v. Blair, 509 U. S. 823 (1993) (per curiam)).

Capital Cases Relief Granted

See above

Capital Cases Relief Denied

Overton v. State, 2001 Fla. LEXIS 1808 (FL 9/13/2001)Relief denied on claims relating to [a] for cause challenges (views on the death penalty & knowledge of security restraints); [b] the discovery of certain documents from the Bode lab relating to the STR/DNA tests conducted in this case; [c] not appointing an additional defense expert to rebut the State's evidence relating to the presence of Nonoxynol-9 in the bedding found at the MacIvor hom; [d] denial of a mistrial after the prosecutor made statements during the State's rebuttal closing argument that the defense had requested only one Nonoxynol test, while the prosecution sought additional testing; [e]whether the trial court allowed the State to improperly bolster testimony hrough the alleged hearsay testimony of the prison chaplain; [f] whether the exclusion of evidence suggesting police motive for the planting of evidence was improperly excluded; [g] use of HAC as an aggravator was error; [h] whether the trial court erred in not instructing the jury that it should use great caution in relying on the informants' testimony; [i] whether the trial court erred in not considering certain available mitigation; & [j]sufficiency of the evidence and proportionality.

Remington v. Virginia, 2001 Va. LEXIS 107 (Va 9/14/2001) Relief denied(in what appears to have been a fairly creative & crafty brief)on claims relating to: [a]circuit court denial of discovery requests; [b]removal of two members of the jury panel from the venire because of their religious convictions; [c]defendant's motion to strike the Commonwealth's evidence on the basis that the evidence did not establish that he had inflicted the fatal wounds upon Parker; [d] failure to give the jury his "proffered instructions on the law of grades of homicide and of lesser-included offenses to capital murder when the evidence supported those instructions;" [e] sufficiency of evidence; [f]admitting the post-sentence report because the report did not contain a victim impact statement; [g] failure to give proffered instruction defiing 'probability,' thereby providingconstitutionally inadequate guidance to jurors on the critical sentencing issue of future dangerousness; [h] motion to impose a life sentence based upon mandatory proportionality principles; [i] the verdict form in the sentencing phase being defective for three reasons, the first of which is that the form did not specify clearly to the jury that it could find either or both aggravating factors and still impose a life sentence based on mitigation evidence. Second, it made no reference to the reasonable doubt standard by which such factors must be found; it thereby conflicted [with] instructions given to the jury. . . . Third, the verdict form in its final paragraph implied that, even if the Commonwealth failed to prove an aggravating factor, a life sentence could not be imposed unless there was some quantum of mitigating evidence in the case."; [j] absence from the courtroom during jury deliberations; [k] exclusion of victim's status as a lifer; and [l] issues relating to required statutory review.

Zirkle v. Virginia, 2001 Va. LEXIS 92 (Va 9/14/2001) Zirkle waived all appeals, but state law requires all death sentences to be reviewed to ensure conformity with constitutional & statutory norms. "The defendant’s death sentence was neither imposed under the influence of passion, prejudice, or any other arbitrary factor nor excessive or disproportionate to the penalties imposed in similar cases, considering both the crime and the defendant; accordingly, the Court declined to commute the defendant’s sentence to life imprisonment and affirmed the judgment of the circuit court."

Connor v. State, 2001 Fla. LEXIS 1750 (FL 9/6/2001) Relief denied on claims as to whether: "(1) the trial court erred in denying Connor's motion to suppress evidence; (2) the trial court erred in finding the avoid arrest aggravator; (3) the trial court erred in finding CCP; (4) the trial court erred in rejecting the statutory mitigators of extreme emotional disturbance and impaired capacity to appreciate the criminality of conduct; (5) the trial court erred in rejecting the statutory mitigator of no significant criminal history; and (6) the sentence of death is disproportionate."

Ford v. Florida, 2001 Fla. LEXIS 1809 (FL 9/13/2001) Relief denied on claims of: (1) Whether the prosecutor made improper comments during closing argument in the guilt phase; (2) whether the prosecutor asked an improper question concerning "flesh" on the defendant's knife; (3) whether the indictment adequately charged Ford with child abuse; (4) whether the prosecutor made improper comments during closing argument in the penalty phase; (5) whether the evidence of CCP was sufficient to submit this aggravator to the jury and to support the finding of this aggravator; (6) whether the trial court properly considered all the mitigating evidence.

In re Byrd, No. 01-3927 (6th Cir 09/11/01) Failure to include evidence in support of actual innocence in first pre-AEDPA habeas petition constitutes abuse of writ that will not bypass the gate-keeping functions prohibiting successive petition under the AEDPA.

Skillicorn v. Luebbers, No. 00-3891 (8th Cir 09/10/01)Chapter 154 of the AEDPA, 28 USC 2261, applies if a state has a mechanism for the "appointment, compensation, and payment" of competent counsel in death penalty cases in place on the date when post conviction counsel was appointed, not selected.

Patterson v. Virginia, 2001 Va. LEXIS 89 (Va 9/14/2001) Patterson waived all appeals, but state law requires all death sentences to be reviewed to ensure conformity with constitutional & statutory norms. "Upon a review of the record, the Court determined that the sentence had not been imposed "under the influence of passion, prejudice or any other arbitrary factor." The Court also concluded that, after comparing Patterson's case to others in which the predicate offense was rape and the sentence was imposed upon a finding of both aggravating factors, the sentence of death in this case was not "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Finding no other error or reason to set aside the sentence of death, the Supreme Court affirmed the trial court. "

Yarbrough v. Virginia, 2001 Va. LEXIS 112 (Va. 9/14/2001) Relief denied on resentencing appeal: (a) as the motion form mistrial on the Commonwealth's argument in closing was unduly tardy; (b) prospective jurors not removed on the basis of race ; and (c) the sentence of death was neither disproportionate or the result of passion.

Stevens v. State, 2001 Miss. LEXIS 234 (Miss 9/13/2001) Relief denied on claims of: [1] whether it was error for the court to deny benny joe stevens's motion for severance of the multiple counts in the indictment?; [2] whether it was error for the court to proceed under the indictment which constituted a violation of the double jeopardy doctrine and the "vagueness doctrine"?; [3] whether the state abused the right of peremptory challenge in this case under the principles of the batson case?; [4] whether the court violated the husband and wife privilege?; [5] whether it was error for the court to deny the testimony of the defense expert in the guilt phase of the trial on the issue of defendant's ability to form specific intent?; [6] whether the capital punishment scheme is unconstitutional?; [7] whether it was error for the court to deny stevens's motion to delay the sentencing phase?; [8] whether it was error for the court to deny stevens's motion for individual sequestered voir dire of juror panelists?; [9] whether an improper comment by the prosecutor served to inflame the jury?; [10] whether the verdicts of the jury were against the weight and sufficiency of the evidence?; [11] whether it was error to limit stevens' voir dire?; [12] whether it was error for the court to allow prejudicial hearsay testimony?; & [13] is the imposition of the death penalty excessive or disproportionate in this case?

Colorado v. Dunlap, 2001 Colo. LEXIS 757 (Colo. 9/10/2001) Relief denied on the appeal of "Dunlap's Crim. P. 35(b) motion [which] asserts that the sentence was excessive and unnecessary. Dunlap requested a hearing, at which he represented that he would present mitigation evidence and stated that he was "entitled to have the court re-consider the entirety of the sentencing considerations." Lastly, Dunlap requested an extension of time within which to supplement the record on matters of mitigation."

Delayed Publication Cases

No cases noted this week.

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

Sanna v. DiPaolo, No. 01-1008 (1st Cir 09/10/01) The constitution requires that defendants have an opportunity to fully and fairly litigate the issues, and does not grant federal court jurisdiction in cases where a habeas petitioner merely alleges that the state court came to the wrong result after a full and fair opportunity to litigate.

Ramirez v. Attorney General of the State of New York, No. 99-2047 (2nd Cir 09/10/01) Habeas petitioner's letter application to the New York Court of Appeals for leave to appeal for ineffective assistance of counsel under New York state law is sufficiently specific to alert that Court to the federal nature of petitioner's claim.

Jacobs v. Mohr, No. 99-3565 (6th Cir 09/10/01) State court of appeals remark on the trial court's failure to notify habeas petitioner of his right to appeal and his right to court appointed counsel does not suffice to meet the standard that petitioner "fairly presented" his Sixth Amendment claim regarding his counsel's failure to file an appeal.

Campbell v. Rice, No. 99-17311 (9th Cir 09/12/01) Prosecution of a drug offense against defense counsel required trial court to inquire whether there was a conflict of interest in defendant's representation where same prosecutor's office filed charges against the defendant and defense counsel.

Engberg v. Wyoming, No. 99-8092 (9th Cir 09/12/01) Even though state law required it to do so, the prosecution's failure to disclose a police attempt to hypnotize the government's main witness was not material error where the circumstantial evidence identifying defendant was overwhelming.

Focus

In light of the unspeakable horror of September 11, & the resulting 200+ detentions/arrests, for the next few weeks the Focus section will be examining federal capital & "terrorism" practice, the anti-terrorism provisions of the AEDPA & FISA, as well as other germane topics as primers & other information are located. For lack of a better name/url, information is being set up at http://www.capitaldefenseweekly.com/thetroubles.html.

• Death resulting from offenses involving transportation of explosives, destruction of government property, or destruction of property related to foreign or interstate commerce.18 U.S.C. 844(d), (f), (i)
• Destruction of aircraft, motor vehicles, or related facilities resulting in death.18 U.S.C.32,33,34
• Murder committed at an airport serving international civil aviation.18 U.S.C. 37
• Murder during a hostage taking.18 U.S.C. 1203
• Murder during a kidnapping.18 U.S.C. 1201
• Murder involved in a racketeering offense. 18 U.S.C. 1959
• Murder of a Federal judge or law enforcement official.18 U.S.C. 1114
• Use of a weapon of mass destruction resulting in death.18 U.S.C. 2332a
• Death resulting from aircraft piracy.49 U.S.C. 46502

Other Applicable Federal Statutes

U.S. Code - Title 18, Part I, Chapter 2Aircraft and Motor Vehicle Crimes

18 USC 3 Definitions

18 USC 32 Destruction of Aircraft or Aircraft Facilities

18 USC 34 Penalty When Death Results (Death Penalty or Life Imprisonment)

18 USC 35 Imparting Or Conveying False Information

18 USC 37 Violence At International Airports

U.S. Code - Title 18, Part I, Chapter 51Homicide

18 USC 1111 Murder

18 USC 1114 Protection of Officers and Employees of the United States

18 USC 1117 Conspiracy to Murder

U.S. Code - Title 18, Part I, Chapter 105Sabotage

18 USC 2151 Definitions

18 USC 2152 Fortifications, Harbor Defenses, Or Defensive Sea Areas

18 USC 2153 Destruction Of War Material, War Premises, Or War Utilities

18 USC 2154 Production Of Defective War Material, War Premises, Or War Utilities

18 USC 2155 Destruction Of National-Defense Materials, National-Defense Premises, Or National-Defense Utilities

18 USC 2156 Production Of Defective National-Defense Material, National-Defense Premises, Or National-Defense Utilities

U.S. Code - Title 18, Part I, Chapter 113BTerrorism

18 USC 2331 Definitions

18 USC 2332 Criminal Penalties

18 USC 2332a Use of Certain Weapons of Mass Descrution

18 USC 2332b Acts of Terrorism Transcending National Boundaries

18 USC 2332e Request for Military Assistance to Enforce Prohibition in Certain Emergencies

18 USC 2333 Civil Remedies

18 USC 2334 Jurisdiction and Venue

18 USC 2335 Limitation of Actions

18 USC 2336 Other Limitations

18 USC 2337 Suits Against Government Officials

18 USC 2338 Exclusive of Federal Jurisdiction

18 USC 2339A Providing material Support to Terrorists (Footnote)

18 USC 2339B Providing Material Support or Resources to Designated Organizations

U.S. Code - Title 18, Part II, Chapter 204Rewards for Information Concerning Terrorist Acts and Espionage

18 USC 2331 Definitions

18 USC 3072 Determination Of Entitlement; Maximum Amount; Presidential Approval; Conclusiveness

18 USC 3073 Protection Of Identity

18 USC 3074 Exception Of Governmental Officials

18 USC 3075 Authorization For Appropriations

18 USC 3076 Eligibility For Witness Security Program

18 USC 3077 Definitions

Chapter Notes

U.S. Code - Title 38, Part III, Chapter 43Employment and Reemployment Rights of Members of the Uniformed Services

SUBCHAPTER I GENERAL

Section 4301 Purposes; Sense Of Congress

Section 4302 Relation To Other Law And Plans Or Agreements

Section 4303 Definitions

Section 4304 Character Of Service

SUBCHAPTER II EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; PROHIBITIONS

Section 4311 Discrimination Against Persons Who Serve In The Uniformed Services And Acts Of Reprisal Prohibited

Section 4312 Reemployment Rights Of Persons Who Serve In The Uniformed Services

Section 4313 Reemployment Positions

Section 4314 Reemployment By The Federal Government

Section 4315 Reemployment By Certain Federal Agencies

Section 4316 Rights, Benefits, And Obligations Of Persons Absent From Employment For Service In A Uniformed Service

Section 4317 Health Plans

Section 4318 Employee Pension Benefit Plans

Section 4319 Employment And Reemployment Rights In Foreign Countries

Subchapter Notes

SUBCHAPTER III PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND INVESTIGATION

Section 4321 Assistance In Obtaining Reemployment Or Other Employment Rights Or Benefits

Section 4322 Enforcement Of Employment Or Reemployment Rights

Section 4323 Enforcement Of Rights With Respect To A State Or Private Employer

Section 4324 Enforcement Of Rights With Respect To Federal Executive Agencies

Section 4325 Enforcement Of Rights With Respect To Certain Federal Agencies

Section 4326 Conduct Of Investigation; Subpoenas

SUBCHAPTER IV MISCELLANEOUS PROVISIONS

Section 4331 Regulations

Section 4332 Reports

Section 4333 Outreach

U.S. Code - Title 49, Subtitle VII, Part A, Subpart III, Chapter 449Air Commerce - Security

49 USC 44901 Screening Passengers and Property

49 USC 44902 Refusal to Transport Passengers and Property

49 USC 44903 Air Transportation Security

49 USC 44904 Domestic Air Transportation System Security

49 USC 44905 Information About Threats to Civil Aviation

49 USC 44906 Foreign Air Carrier Security Programs

49 USC 44907 Security Standards at Foreign Airports

49 USC 44908 Travel Advisory and Suspension of Foreign Assistance

49 USC 449089 Passenger Manifests

49 USC 44910 Agreements on Aircraft Sabotage, Aircraft Hijacking, and Airport Security

49 USC 44911 Intelligence

49 USC 44912 Research and Development

49 USC 44913 Explosive Detection

49 USC 44914 Airport Construction Guidelines

49 USC 44915 Exemptions

49 USC 44916 Assessments and Evaluations

49 USC 44931 Director of Intelligence and Security

49 USC 44932 Assistant Administrator for Civil Aviation Security

49 USC 44933 Federal Security Managers

49 USC 44934 Foreign Security Liaison Officers

49 USC 44935 Employment Standards and Training

49 USC 44936 Employment Investigations and Restrictions

49 USC 44937 Prohibition on Transferring Duties and Powers

49 USC 44938 Reports

U.S. Code - Title 50, Chapter 33War Powers Resolution

50 USC 1542 Consultation; Initial And Regular Consultations

50 USC 1543 Reporting Requirement

50 USC 1544 Congressional Action

50 USC 1545 Congressional Priority Procedures For Joint Resolution or Bill

50 USC 1546 Congressional Priority Procedures For Concurrent Resolution

50 USC 1546a Expedited Procedures For Certain Joint Resolutions And Bills

50 USC 1547 Interpretation of Joint Resolution

50 USC 1548 Separability

Chapter Notes

U.S. Code - Title 50, Appendix, Section 501Soldiers' and Sailors' Civil Relief Act of 1940

50 App. USC 501 Soldiers' and Sailors' Civil Relief Act of 1940

Article I General Provisions

Article II General Relief

Article III Rent, Installment Contracts, Mortgages, Liens, Assignments, Leases

Article IV Insurance

Article V Taxes and Public Lands

Article VI Administrative Remedies

Article VII Further Relief

U.S. Securities and Exchange Commission (SEC)

Release No. 34-44791 Emergency Order: Issuer Repurchase of Securities

Release No. 25156 Mutual Fund Exemptive Order

Release No. 34-44797 Emergency Order: American Stock Exchange LLC

Release No. 33-8004 Interpretive Release on Auditor Assistance to Clients

Release No. 34-44803 Accelerated Approval of Proposed Rule Change: Temporary Use by Amex of NYSE Facilities

Release No. 34-44802 Accelerated Approval of Proposed Rule Changes: Temporary Trading of Amex Options on the Phlx to Respond to Market Developments

Release No. 34-44801 Accelerated Approval of CBOE Proposed Rule Change: Temporary Access of Amex Members to Respond to Market Developments

Release No. 34-44808 Notice of Immediate Effectiveness of CBOE Proposed Rule Change Regarding the Temporary Use by Amex of NYSE Facilities

New York Governor - Executive Order

Order Suspending Statute of Limitations on Civil, Criminal Proceedings; Deadlines For Appeals in New York State

Case Law

Pre-boarding Searches

El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999). An intrusive security search prior to an international air travel is not compensable under Article 17 of the Warsaw Convention.

United States v. Edwards, 498 F.2d 496, 500 (2nd Cir1974). "When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air."

International Search and Seizure

United States v. Verdugo-Urquidez, 94 U.S. 259 (1990). The Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country.

Terrorism

United States v. Mohammed A. Salameh et al. (World Trade Centers Bombing Trial I):

• U.S. Court of Appeals - 2nd CircuitAug 4, 1998

United States v. al-Mughassil (Khobar Towers):

• Indictment(PDF)

United States v. Abu Doha (LAX Millenium Bombing Case):

• Criminal Complaint(PDF) Jul 2, 2001

Indictment(PDF)

Errata

From theDeath Penalty Information Centerreports:

NEW RESOURCES: "Toward Greater Awareness: The American Bar Association Call for a Moratorium on Executions Gains Ground" - This new report issued by the American Bar Association's Section of Individual Rights and Responsibilities summarizes the legislative, judicial, and public policy developments that have occurred since the ABA's adoption of its death penalty moratorium resolution in February 1997. Read the report and the 1997 resolution. See also, studies on the death penalty.

New Voices: UNC Chancellor Encourages Death Penalty Debate

The new University of North Carolina Chancellor, James Moeser, urged the university to take on important social issues, including the death penalty. "How long will America be the last great nation of the developed world to practice capital punishment?" asked Moeser in his first "State of the University" address. (Durham Herald-Sun, 9/5/01) See also, New Voices.

Upcoming Events: Amnesty International's "National Weekend of Faith in Action

on the Death Penalty" will take place October 12-14, 2001.The program calls upon individuals of all faiths, local congregations, and national religious organizations to unite in action against the death penalty.The weekend is designed to promote healing for those victimized by acts of violence, to involve religious communities in the abolition movement, and to promote interfaith alliances in working against the death penalty throughout the year.For more information, visit the program's Web site. See also, Upcoming Events.

Support for Death Penalty Drops in Canada

A survey of Canadians found that 52.9% of respondents supported capital punishment, while 43% opposed it. This marks a significant shift in public opinion since 1995, when an Angus Ried poll found 69% supported reinstating the death penalty in Canada. The new poll also found that support for capital punishment dropped even further, to 37.6%, when respondents were offered the alternative sentence of life imprisonment without the possibility of parole. "It's a really important drop," said Jean-Marc Leger, head of the polling firm. "Canadians' perceptions of the death penalty have changed in the last few years." (Canada Press, 9/16/01) See also, public opinion and recent poll results.

"Capital Punishment in New York State: Statistics from Six Years of Representation" - this report by the New York Capital Defender Office provides statistics showing how the death penalty has been implemented in New York since its reinstatement in 1995. Among other statistics regarding race and geography, the report notes that although upstate counties experience approximately 19% of all homicides, they nonetheless account for 61% of all capital prosecutions. The report also states that 35% of all death notices were filed in 3 of the state's 62 counties. Read the report.

"Dying Twice: Conditions on New York's Death Row" - released by the Association of the Bar of the City of New York, it reports on the conditions of New York's death row at the Clinton Correctional facility. Read the report.

Nevada Legislature Committee to Study Death Penalty

An eight member committee was recently appointed to study Nevada's death penalty before the 2003 Legislative session opens. Headed by Assemblywoman Sheila Leslie, a death penalty opponent, the group was formed by the Legislative Commission. A study of the death penalty was ordered after a bill was introduced last session to abolish capital punishment. (Las Vegas Sun, 9/7/01) Currently, 9 states have commissioned studies on their death penalty systems. See also, proposed legislative changes.

Indiana Trial Court Rules Death Penalty Unconstitutional

A trial court judge in Indianapolis ruled that the state's death penalty statute was unconstitutional in light of a recent U.S. Supreme Court decision. Judge Grant W. Hawkins held that the state's statute effectively denied death row inmate Charles Barker his right to trial by jury, and dismissed the death penalty as a sentencing option at Barker's upcoming resentencing hearing.

Hawkins based his ruling on Apprendi v. New Jersey (530 U.S. 466 (2000)). In Apprendi, the U.S. Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

In Indiana, the jury makes an unbinding recommendation to the judge, who sentences the defendant. Judge Hawkins ruled that the Indiana statute violates Apprendi because it is possible that a judge could sentence an inmate to death even though a jury has failed to find, beyond a reasonable doubt, the existence of an aggravating factor. (Order on Supplemental Motion to Dismiss Death Penalty, September 10, 2001)

British Government To Challenge U.S. Use of the Death Penalty

The Foreign Office of the British Government is mounting a legal challenge against the U.S. in order to stop the executions of death row inmates Tracy Housel, on death row in Georgia, and Jackie Elliott, on death row in Texas. Both inmates have dual U.S. and British nationality, and the Foreign Office stated that it has serious concerns about the trials of both men and the quality of evidence used to convict them. Britain is considering taking the cases to the International Court of Justice in the Hague.A spokeswoman for the Foreign Office said government policy was to express Britain's "strong opposition to the death penalty and its imposition on British nationals."(The Independent 9/11/01) See also, foreign nationals and international death penalty.