Three capital cases are reported this week. A split Fourth Circuit panel in Mickens v. Taylor, grants relief as trial counsel labored under an actual conflict of interest that adversely affected his representation. A split panel of the Sixth Circuit in Rahman v. Bell, divides bitterly on how much penalty phase investigation is enough to meet the requirements of Strickland. Finally, in Clark v. Johnson, a Fifth Circuit panel approves of a classic prosecutorial flip-flop of changing the theory of the evidenceto argue greater culpability of different defendants in different trials.

Supreme Court

A gentle reminder that next Monday is the first Monday in October, so-called "bloody Monday" as the Court routinely denies over 100 capital cases in one day. Updates will go out as warranted.

Capital Cases

Rahman v. Bell,No. 98-6568 (6th Cir. 09/13/2000) "The district court granted the writ on Petitioner's claim of ineffective assistance of counsel at the sentencing stage due to counsel's failure to present mitigating evidence despite its availability. However, the district court denied Petitioner's claim of ineffective assistance of counsel at the guilt stage, holding that although the performance of Barrett and Camp was deficient, Petitioner suffered no prejudice thereby. Abdur'Rahman v. Bell, 999 F.Supp. 1073 (M.D. Tenn. 1998)."

Recognizing that in a habeas case a district court has the inherent authority to order an evidentiary hearing to settle disputed issues of material fact obviously raises the issue of how any evidence received by the district court is to be considered if the court holds that the presumption of correctness under § 2254(d) applies. The post-conviction trial court concluded that Petitioner's trial counsel's performance was deficient during the sentencing phase due to the failure to investigate and obtain information about Petitioner's background and mental health. However, it went on to hold that Petitioner suffered no prejudice at the sentencing stage because the evidence that he would have offered to support a finding of mitigating circumstances was both helpful and harmful and that it would not have been a prudent strategy to present the evidence. The Tennessee Court of Criminal Appeals affirmed that decision. See Jones, 1995 WL 75427, at *2. The State argues that in the absence of the evidence presented at the evidentiary hearing below, the state court findings of fact show deficient performance on the part of Petitioner's trial counsel, but do not show any prejudice from that deficient performance. Petitioner responds by arguing that the state court findings of fact do show that he was prejudiced by trial counsel's deficient performance.

Stricklandset forth the test for determining when the ineffective assistance of counsel so prejudices a defendant that his sentence must be set aside. First, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance of counsel under the Constitution." Strickland, 466 U.S. at 692. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.at 694. Additionally,

[w]hen a defendant challenges a death sentence . . . the question is whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

Id.at 695. Finally, "[w]hen a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had 'substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless. And, the petitioner must win." O'Neal v. McAninch, 513 U.S. 432, 436 (1995).

Of course, as stated above, the prejudice prong of the Stricklandtest is a mixed question of law and fact that is reviewed de novo. (4)Nevertheless, the state court findings of fact should be accorded the presumption of correctness under § 2254(d). The post-conviction trial court held that Petitioner's trial counsel had failed to adequately investigate Petitioner's background and mental history, making the factual findings set forth above in the process. Based upon these findings of fact, the post-conviction trial court found that Petitioner did not suffer any prejudice from the deficient performance, a holding that the Tennessee Court of Criminal Appeals affirmed:

If the trial attorneys had investigated further, they would have found that the appellant had a long history of violent behavior and anti-social personality disorders. We agree with the trial judge's finding that trial counsel were ineffective in failing to further investigate the background of the accused under the circumstances, but we also agree with Mr. Barrett's testimony and the trial judge's conclusion that it probably would not have been the most prudent trial strategy to use proof of appellant's history of violent behavior and anti-social personality disorders at either the guilt or innocence phase or at the sentencing phase of the trial. As the Supreme Court of the United States noted in Strickland v. Washington, 466 U.S. 668, 700 (1984), "Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed." Indeed proof of the appellant's psychological history in all probability would not have changed the result, especially in light of appellant's conviction of prior malicious killing while in a federal penitentiary and the other aggravating factors. A decision of counsel relating to a choice of trial or appellate strategy, even if it were proven improvident, could not form the basis for an ineffective assistance of counsel claim.

Jones,1995 WL 75427, at *2.

Petitioner argues that this conclusion was in error, citing Lockett v. Ohio, 438 U.S. 586, 604 (1978), for the proposition that the capital sentencer may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence of less than death." Id.Petitioner's reliance upon Lockettis misplaced as it involved the presentation of evidence of mitigating circumstances that was deemed not to fit within Ohio's narrow death penalty statute. See id.at 594-95. In the instance case, Petitioner did not "proffer" any evidence that the jury was precluded from considering. Petitioner also relies upon Glenn v. Tate, 71 F.3d 1204, 1211 (6th Cir. 1995), for the proposition that "[o]ur sister circuits have had no difficulty in finding prejudice in sentencing proceedings where counsel failed to present pertinent evidence of mental history and mental capacity." Id.

Petitioner did not suffer prejudice sufficient to create a reasonable probability that the sentencing jury would have concluded that the balance of aggravating and mitigating factors did not warrant death. We reach this conclusion even considering the evidence presented at the evidentiary hearing below. When a district court in a habeas case orders an evidentiary hearing to settle disputed issues of material fact pursuant to its inherent authority to do so, that evidence could be offered for a variety of purposes, though the most common presumably would be to rebut the presumption of correctness accorded to state court findings of fact. See Groseclose v. Bell, 130 F.3d 1161, 1163-64 (6th Cir. 1997) (stating that "federal courts must defer to state court factual findings, according a presumption of correctness that the petitioner may rebut only with clear and convincing evidence."). However, in the instant case, the additional evidence and factual findings made by the district court do not contradict the factual findings made by the post-conviction trial court. CompareAbdur'Rahman, 999 F.Supp. at 1093, with id.at 1094-1102. Instead, the additional evidence seems to merely supplement the factual findings made by the post-conviction trial court. See Pollinzi v. Estelle, 628 F.2d 417, 418 (5th Cir. 1980) (allowing evidence obtained at an evidentiary hearing to supplement the trial transcript and record).

Even considering the supplemental evidence heard by the district court and outlined in its opinion, Petitioner did not suffer prejudice at the sentencing phase due to his trial counsel's deficient performance. While it is true that much of the supplemental evidence contains mitigating evidence that a sentencer might find to be compelling, the same evidence likewise has aspects that would be compelling evidence of aggravating circumstances. In particular, the supplemental evidence contained a description of Petitioner's motive for killing a fellow prison inmate and a history of violent character traits. Therefore, we agree with the post-conviction trial court and the Tennessee Court of Criminal Appeals that because the mitigating evidence that could have been introduced also contained harmful information, Petitioner did not suffer prejudice sufficient to create a reasonable probability that the sentencing jury would have concluded that the balance of aggravating and mitigating factors did not warrant death. Thus, the decision of the district court that Petitioner was prejudiced at the sentencing stage due to his counsel's deficient performance is reversed.

Clark v. Johnson, No. 00-40061 (5th Cir. 09/12/2000) "Clark seeks a COA from this court on five constitutional issues: (1) the prosecution's violation of Clark's right to due process of law by its failure to disclose to Clark's trial counsel favorable, material evidence as required by Brady v. Maryland, 373 U.S. 83 (1963); (2) the violation of Clark's Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment resulting from the prosecution's inconsistent argument in a subsequent related trial as to the identity of the shooter and the state trial court's jury instructions, which permitted a capital murder conviction and a sentence of death without a finding that Clark was the actual killer, had attempted to kill, or had intended that a human life be taken; (3) the violation of Clark's due process rights resulting from the trial court's failure to instruct the jury that Clark would be ineligible for parole for thirty-five years if sentenced to life imprisonment; (4) the denial of effective assistance as guaranteed by the Sixth and Fourteenth Amendments at a critical stage during Clark's direct appeal that precluded him from seeking a rehearing in the Court of Criminal Appeals and a petition for writ of certiorari to the United States Supreme Court; and (5) the denial of effective assistance of counsel at the punishment stage of the capital murder trial during which Clark's counsel presented no favorable evidence despite its availability, in violation of the Sixth and Fourteenth Amendments. Clark additionally challenges the federal district court's refusal to permit discovery or to hold an evidentiary hearing to determine the validity of Clark's claim of a Brady violation and of ineffective assistance of counsel at the punishment stage."

InBrady v. Maryland, the Supreme Court held that a prosecutor must disclose evidence to a criminal defendant if that evidence is favorable to the defendant and material to the defendant's guilt or punishment. 373 U.S. at 87. The Supreme Court has found evidence material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."United States v. Bagley, 473 U.S. 667, 682 (1985). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict of confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of trial.'"Kyle v. Whitley, 514 U.S. 419, 434 (1995) (citingBagley, 473 U.S. at 678).

Clark maintains that during his capital murder trial the state prosecutor argued that Clark had shot Cari Crews and Jesus Garza, whereas at the subsequent trial of Clark's co-defendant, James Brown, the prosecutor argued that Brown was the lone triggerman in the murders. Allegedly, the prosecutor's arguments at the Clark trial were based upon the testimony of Dr. John Kristofferson, Brown's orthopedic surgeon, who opined that Brown, due to the seriousness of a gunshot wound accidentally inflicted prior to the murders, was not likely able to walk or stand at the time Crews and Garza were killed. This testimony, in conjunction with the expert testimony from the autopsy physician, Dr. Marc Krouse, as to the muzzle-to-wound distance and entry wound location regarding Garza indicating that the shotgun was fired while being held parallel to the front of Garza's torso, allowed the prosecutor to argue that Clark was the triggerman since Brown was injured too severely to load the shotgun and because "it wasn't just somebody laying on the ground, aiming a shotgun at somebody and shooting them." (1)

Later, at Brown's trial, the prosecution argued that Brown was the triggerman in both murders. This argument was again based in part upon expert testimony given by the autopsy physician, Dr. Marc Krouse, concerning the muzzle-to-wound distance with respect to Jesus Garza. Clark argues that in Brown's trial Dr. Krouse's opinion of the muzzle-to-wound distance was "manicured" or revised to "just a few inches" instead of "a couple of feet" as he had testified in Clark's trial. Clark argues that the difference between the versions of Dr. Krouse's expert opinions was material and favorable to his defense, but was not available to his trial counsel for use at his trial. According to Clark, had this evidence been available to him, he too could have advanced the same argument in his trial that the prosecution advanced subsequently in Brown's trial:

Whoever shot Garza right here in the left side of the jaw, whoever shot him had that gun three or four inches below his chin. This gun is some 24 inches long. You heard testimony to that. Where does that put the trigger? That's the kind of awkward position for someone facing Jesus [Garza] to pull the trigger and shoot him here. What is that consistent with? What this wound and this shotgun are consistent with is that the shooter is sitting. And either Jesus was standing over him posing a threat, or Jesus was as Brown said, lying unconscious on the ground, and the shooter sitting on the ground shot him there. That's what the physical evidence tells you.

The district court rejected Clark's argument, concluding that (1) Dr. Krouse's testimony in both trials was essentially consistent, i.e., in both cases he in effect testified that Garza was killed by a shot fired a short distance from his head ("a couple of feet" in Clark's trial and "just a few inches" in Brown's trial) and therefore did not suggest a suppression of evidence; and (2) that, assuming Dr. Krouse's testimony was significantly inconsistent with respect to Garza's fatal wound, that inconsistency would not have tended to exculpate Clark from the crime of which he was convicted - the capital murder of Cari Crews.

We cannot say that the district court erred in either finding. We find that Clark has failed to state aBradyclaim as he has failed to show suppression and materiality. Clark has presented no proof of suppression. "[C]losing arguments are not evidence. Moreover, a prosecutor can make inconsistent arguments at the separate trials of codefendants without violating the due process clause."Beathard v. Johnson, 177 F.3d 340, 348 (5thCir. 1999). There is also no proof that the prosecution suppressed any evidence regarding Dr. Krouse's testimony because the testimony was not markedly different in the two trials. Moreover, Clark fails to demonstrate materiality because as the prosecutor's argument in Brown's case indicates, a muzzle-to-wound distance regarding Garza of "just a few inches" does not make it any more likely that Garza was killed by a shot from a sitting rather than a standing position. Accordingly, Clark has failed to make a substantial showing of the denial of a constitutional right with respect to his claim of aBradyviolation.

Mickens v. Taylor, No. 00-4 (4th Cir. 09/14/2000) "Mickens argues that either of the following two circumstances mandates an award of the writ on conflict grounds: (1) the state court failed to inquire into Saunders' conflict of interest when it knew or should have known that a conflict existed, and (2) Saunders labored under an actual conflict of interest that adversely affected his representation. He has shown that (1) the state judge failed to inquire into an apparent conflict that she knew or reasonably should have known existed, (2) he did not waive any conflict, and (3) his lawyer, Saunders, had an actual conflict of interest"

Mickens' first conflict argument is that he must be retried for the following reason: the state judge who appointed Saunders to represent him on the capital murder charge conducted no inquiry even though the judge knew or should have known that Saunders' back-to-back representation of the murder victim and the accused would present a conflict. As a general rule, to establish ineffective assistance of counsel, a petitioner must show (1) objectively unreasonable performance and (2) prejudice. See Strickland v. Washington , 466 U.S. 668, 687 (1984). A different test applies when there is a conflict of interest claim: "In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Sullivan, 446 U.S. at 348. As we have said, "[w]hen counsel for a defendant in a criminal case has an actual conflict of interest . . . and the conflict adversely affects counsel's performance in the defense of the defendant, prejudice to the defense is presumed and a new trial must be ordered." United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991) (citing Sullivan, 446 U.S. at 348-50).

There is a circumstance where a showing of adverse effect is not required, according to Wood v. Georgia, 450 U.S. 260 (1981). We have described that circumstance as follows: "In Wood v. Georgia, the Court flatly stated that a conflict situation which is not addressed by the trial court requires reversal . . . `when the trial court has failed to make an inquiry even though it knows or reasonably should know that a particular conflict exists.'" Tatum , 943 F.2d at 379 (emphasis added, internal citation omitted) (quoting Wood , 450 U.S. at 272 n.18 (internal quotation marks omitted)). The Supreme Court decided Wood on conflict of interest grounds even though neither party had raised the conflict issue. See Wood, 450 U.S. at 265 n.4. The Court concluded that "the record . . . demonstrate[d] that the possibility of a conflict of interest was sufficiently apparent at the time of the [probation] revocation hearing to impose upon the[state] court a duty to inquire further." Id. at 272. However, the Supreme Court could not "determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument." Id. Accordingly, the Court ordered that the case be returned to the state trial court for "a hearing to determine whether the conflict of interest that th[e] record strongly suggest[ed] actually existed at the time of the probation revocation or earlier." Id. at 273. Significantly, the Wood Court only asked the state court to determine whether there was an actual conflict; it did not require an additional finding of adverse effect. The Supreme Court specifically instructed the state court that if it found "an actual conflict of interest" and "no valid waiver of the right to independent counsel," "it must hold a new . . . hearing that is untainted by a legal representative serving conflicting interests." Id. at 273-74. Accordingly, to prevail under Wood a petitioner must establish that (1) the trial court failed to inquire even though it knew or reasonably should have known about an apparent conflict, see id. at 272; Tatum, 943 F.2d at 379, (2) there"was no valid waiver of the right to independent counsel," Wood, 450 U.S. at 274, and (3) counsel had "an actual conflict of interest," id. at 273. Under Wood once a petitioner makes this showing, prejudice is presumed, and the petitioner is entitled to a new trial with conflict-free counsel. See id. at 273-74.

Wood places a special responsibility on trial courts to police situations that present apparent conflicts. As we have said, "[w]hen the risk of a conflict of interest is brought to the attention of the trial court . . . the court has the responsibility to investigate further, to advise the defendant personally, and to receive a knowing waiver if that is the expressed wish of the defendant." Tatum, 942 F.3d at 379. If a court fails to initiate an inquiry when it knew or reasonably should have known of an apparent conflict, it has not carried out its responsibility. Careful attention to conflicts is essential to protecting a defendant's Sixth Amendment right to counsel: "`Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. . . . The trial court should protect the right of an accused to have the assistance of counsel.'" Holloway v. Arkansas, 435 U.S. 475, 484 (1978) (quoting Glasser v. United States, 315 U.S. 60, 71 (1942)), quoted in Tatum, 942 F.3d at 379. This includes protecting the defendant's right to a lawyer who is free of conflicts. A trial judge's immediate attention to obvious conflicts is also important to maintain the integrity of, and public respect for, the justice system. See Wheat v. United States, 486 U.S. 153, 160 (1988) (noting that "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them"). Wood supports these principles by encouraging (in a practical way) trial judges to deal promptly with apparent conflicts: the case dispenses with the requirement to show adverse effect when a judge should have inquired, yet failed to do so, thus making it somewhat easier to obtain a new trial. 1 Mickens meets the Wood test. First, the district court concluded that Judge Foster "knew, or should have know[n]" of the "apparent possible conflict." Mickens, 74 F. Supp. 2d at 613-15. On April 3, 1992, Judge Foster dismissed the charges against Timothy Hall due to his death by making a handwritten order on his individual docket sheet. That single-paged docket sheet identified Saunders as Hall's lawyer. "[T]he next business day, Judge Foster appointed Saunders to represent Mickens in the capital murder of Hall." Id. at 614. In addition to these circumstances, "[t]he heinous nature of the crime and the publicity it received make it difficult to accept that the connection would have escaped Judge Foster's notice." Id. And, "the judge was no doubt aware that Mickens faced charges as to which it might be necessary to counter `evidence about the victim and about the impact of the murder on the victim's family,' at least at the penalty phase of the case." Id. (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). These facts and circumstances are sufficient to show that Judge Foster knew or should have known of the apparent conflict. 2 Mickens also did not waive his right to conflict-free counsel. Since he was never informed of the conflict of interest, he had no opportunity to either consider the conflict or to knowingly and intelligently waive his rights. As we discuss next, Mickens establishes an actual conflict of interest. 3 We begin our analysis of the actual conflict issue by considering Mickens' challenge to the test used by the district court. The district court used a modified version of a test for actual conflict developed by the Eleventh Circuit in Freund v. Butterworth , 165 F.3d 839 (11th Cir.) (en banc), cert. denied, 120 S. Ct. 57 (1999). Freund distinguishes between cases of successive representation (such as Mickens') and cases of simultaneous or multiple representation. The Freund decision requires the petitioner to satisfy a tougher test in a successive representation case: such a petitioner"must show that either (1) counsel's earlier representation . . . was substantially and particularly related to counsel's later representation of petitioner, or (2) counsel actually learned particular confidential information during the prior representation . . . that was relevant to petitioner's later case." Freund, 165 F.3d at 859 (internal quotation marks, emphasis, and alterations omitted). Moreover, proof of either of these elements may not be enough, and the petitioner may be called upon to introduce "other proof of inconsistent interests." Id. (internal quotation marks omitted). Recognizing that neither the Supreme Court nor we have ever restricted proof of a conflict to the"two [Freund] scenarios," the district court did modify the test to allow Mickens to meet his burden "through other proof of inconsistent interests . . . if the interests actually diverged." Mickens, 74 F. Supp. 2d at 603 (internal quotation marks omitted).

Even though the district court's modification arguably broadens the Freund test, we decline to adopt that test, even as modified. Neither the Supreme Court nor this court has ever held that a stricter test should apply to a case of successive representation. In our most recent opinion involving successive representation, Burket v. Angelone, 208 F.3d 172 (4th Cir.), cert. denied, 120 S. Ct. 2761 (2000), we neither mentioned Freund nor indicated that successive representation cases should be treated any differently than cases of multiple representation. Instead, Burket reaffirmed that a variety of conflicting interests may infect a lawyer's representation:

Counsel's "representation of conflicting interests, however, is not always as apparent as when he formally represents two parties who have hostile interests. He may harbor substantial personal interests which conflict with the clear objective of his representation of the client, or his continuing duty to former clients may interfere with his consideration of all facts and options for his current client."

Burket, 208 F.3d at 185 (quoting Tatum , 943 F.2d at 376). To determine whether Sullivan's "actual conflict" requirement is met, we have formulated the following test: "To establish an actual conflict of interest, the petitioner must show that his interests`diverge[d] with respect to a material factual or legal issue or to a course of action.'" Williams, 146 F.3d at 212 (quoting Sullivan, 446 U.S. at 356 n.3 (Marshall, J., concurring in part and dissenting in part)). See also Gilbert v. Moore, 134 F.3d 642, 652 (4th Cir.) (stating same test), cert. denied, 525 U.S. 840 (1998). We adhere to our existing test.

Mickens contends that Saunders labored under one or more actual conflicts of interest. Mickens begins by arguing that his interests diverged from Saunders' because Saunders had a significant personal stake in not revealing his prior representation of Hall. The district court rejected this claim on the basis of Saunders' statements that he saw no conflict of interest and that as far as he was concerned his representation of Hall "[e]nded when I walked into the courtroom and they told me he was dead and the case was gone." We conclude that the district court erred. To begin with, the district court decided to put great weight on Saunders' testimony based on our observation in United States v. Young, 644 F.2d 1008 (4th Cir. 1981), that a court "accords great weight to a lawyer's perception of a conflict" when evaluating a conflicts claim. 644 F.2d at 1014. However, the district court did not consider our next crucial statement that "courts necessarily rely in large measure upon the good faith and good judgment of defense counsel in determining whether an actual conflict of interest exists." Id. (internal quotation marks omitted). The difficulty with placing "great weight" on Saunders' testimony that he did not see a conflict is that the district court repeatedly found that Saunders did not exercise good judgment. See, e.g., Mickens, 74 F. Supp. 2d at 605 (noting that Saunders' view that he had no continuing allegiance to Hall was "remarkably wrong"); id. at 606 (noting that Saunders' failure to disclose his prior representation of Hall was"inexcusable"); id. at 612 n.20 (finding that Saunders' testimony that"he assumed that [his co-counsel] (and everyone else) knew that he had represented Hall . . . lacks evidentiary support and . . . borders on the absurd"); id. at 612 (finding that Saunders had a "myopic view of the potential conflicts and [an] utter insensitivity to the ethical issues raised by the facts"); id. at 605 (stating that "the evidence shows that, regrettably, Saunders never struggled with the ethical issues"); id. at 611 (concluding that Saunders' reasons for failing to pursue investigative leads "are not defensible"). In situations such as this where a lawyer fails to exercise good judgment, courts do not hesitate to disregard a lawyer's testimony that he did not perceive a conflict of interest. SeeUnited States v. Swartz, 975 F.2d 1042, 1046-48 (4th Cir. 1992) (rejecting lawyer's statement that he had "[n]o conflict whatsoever" in representing two defendants in same case); Hoffman v. Leeke, 903 F.2d 280, 286 (4th Cir. 1990) (rejecting lawyer's testimony that "he saw no conflict of interest because he thought [his two clients in the same criminal case] would testify to substantially the same facts"); cf.Wheat, 486 U.S. at 163 (holding that a court may disqualify a lawyer who is willing to accept a client's waiver of a conflict of interest and observing "that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information [about potential problems] to them"). Thus, Young does not establish a rule that courts must always accord great weight to a lawyer's perception about whether an actual conflict exists. Rather, when it is clear that the lawyer lacks good faith or good judgment, his testimony may be disregarded, or at least not be given "great weight." Here, we are not suggesting that Saunders' testimony should have been rejected, but it was certainly not entitled to great weight in light of the district court's several findings that confirmed Saunders' poor judgment.

In any event, because the district court took Saunders' testimony as truthful, so do we. Still, his testimony -taken at whatever weight -does not undermine Mickens' argument that there was an actual conflict. As we have repeatedly recognized, a lawyer's personal interests may "conflict with the clear objective of his representation of the client." Burket, 208 F.3d at 185 (quoting Tatum, 943 F.2d at 376). See also Fields, 956 F.2d at 1298-99 (noting that petitioner arguably demonstrated a conflict when his interests diverged from his lawyer's "interest in protecting his own professional reputation and goodstanding"); United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992). When Saunders undertook the representation of Mickens, it was clearly established that "[d]efense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises." Sullivan, 446 U.S. at 346. See also Va. Code Prof'l Responsibility DR5-105(A) (Michie 1992). And, the Virginia Code of Professional Responsibility (as it was called at the time of Mickens' trial) provided that a lawyer had the duty to "explain any circumstances that might cause a client to question his undivided loyalty." Va. Code Prof'l Responsibility EC 5-19 (Michie 1992). As the district court found, "Saunders' representation of the murder victim, at the time of the murder, is undoubtedly a circumstance `that might cause a client to question his undivided loyalty.'" Mickens, F. Supp. 2d at 601. Regardless of whether Saunders believed he could ethically represent Mickens, he was also required to "defer to a client who [held] the contrary belief [by] withdraw[ing] from representation of that client." Va. Code Prof'l Responsibility EC 5-19 (Michie 1992). Saunders thus had the duty to inform both Mickens and the court of the prior representation of Hall. If Mickens had objected, Saunders had a related duty to withdraw.

Once Saunders proceeded with the representation of Mickens in these circumstances, he was potentially subject to disciplinary proceedings, which gave rise to an interest in protecting his professional reputation. In other words, Saunders had an interest in preventing his representation of Hall from coming to light. This interest diverged from Mickens' interest in learning about the earlier representation and in making sure he (Mickens) received conflict-free representation. Saunders was thus caught in an actual conflict. See Fields, 956 F.2d at 1298-99 (recognizing potential conflict when client's interest required lawyer "to confess his own negligence or incompetence," but ultimately rejecting claim because once lawyer "frankly admitted [his errors] in open court," "any conflict that might have stemmed from [the lawyer's] interest in protecting his professional standing evaporated"); cf. United States v. Iorizzo, 786 F.2d 52, 58 (2d Cir. 1986) (holding that defendant established conflict of interest claim when lawyer, "solely to protect" his own interest in his professional reputation, decided to forego cross-examination of witness that lawyer had previously represented); Government of the Virgin Islands v. Zepp, 748 F.2d 125, 136 (3d Cir. 1984) (holding that an actual conflict existed when defendant's interests diverged from trial counsel's personal interest in avoiding potential criminal and disciplinary charges for destroying evidence in defendant's case). Saunders' testimony that he did not perceive a conflict may speak to whether the conflict caused an adverse effect, but it does not negate the reality of an actual conflict.

Mickens next contends that an actual conflict existed because Saunders could not investigate Hall, using the confidential information he learned from the young man, without violating the ethical duties that he (Saunders) owed to Hall, his former client. Saunders had a duty to preserve Hall's secrets and confidences even though his employment as Hall's lawyer had ended. See Va. Code Prof'l Responsibility DR 4-101, EC 4-6 (Michie 1992). The Supreme Court has recently reaffirmed the common law rule that a lawyer's duty to protect his client's confidences continues after the client's death. See Swidler & Berlin v. United States, 524 U.S. 399, 410-11 (1998). Saunders also had a duty to zealously represent Mickens. See Va. Code Prof'l Responsibility DR 7-101 (Michie 1992). In representing Mickens, Saunders could not pull his punches in order to protect what he knew about Hall.

The district court applied the Freund test to reject Mickens' conflicts claim on the ground that "Saunders did not learn any confidential information from Hall that was relevant to Mickens' defense either on the merits or at sentencing." Mickens, 74 F. Supp. 2d at 606 (emphasis omitted). The district court erred as a matter of law because it focused too narrowly in describing the circumstance (defense on the merits or at sentencing) where confidential information might be relevant or useful. We have held that an actual conflict can also arise at the investigation and plea negotiation stages of a representation. SeeBurket, 208 F.3d at 185 ("`[A] failure to act on behalf of a client before trial has representational significance.'" (quoting Tatum, 943 F.2d at 376)); Magini, 973 F.2d at 263 ("A conflict which causes counsel to fail to explore possible plea negotiations may implicate the Sixth Amendment right to counsel."). The proper inquiry, therefore, is whether Saunders' interest (or duty) in maintaining Hall's secrets and confidences diverged from Mickens' interest in pursuing a course of action, specifically, a reasonable pretrial investigation. See Wil-liams, 146 F.3d at 212. Here, the divergence of interests was sufficient to create a second actual conflict.

The district court found that Saunders learned the following information through his representation of Hall: "(a) Hall had been charged with carrying a concealed weapon at the intersection of 27th Street and Marshall in Newport News; (b) Hall's mother had pressed charges against him for assault . . .; and (c) Hall was not living with his mother at the time of his death." Mickens , 74 F. Supp. 2d at 606. The district court also found that Saunders met with Hall for fifteen to thirty minutes and that they discussed "the circumstances surrounding each of the charged crimes." Id. at 599. Finally, the district court acknowledged that Saunders obtained confidential information from Hall. Id. at 606. Saunders thus learned"confidences" and "secrets" in his representation of Hall that he (Saunders) was bound not to reveal. See Va. Code Prof'l Responsibility DR 4-101 (Michie 1992); Com-monwealth v. Edwards, 370 S.E.2d 296, 301 (Va. 1988). Moreover, under Virginia law even the charges against Hall were confidential because they were in Hall's juvenile court records which cannot be opened to those outside the juvenile court system without a court order. See Va. Stat. Ann. § 16.1-305.

Juxtaposed to Saunders' duty to remain loyal to Hall by maintaining his confidences and secrets was a duty he owed to his new client, Mickens. As illustrated by the American Bar Association's standards, Saunders had the duty to conduct a thorough pretrial investigation for Mickens: "Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." ABA Standards for Criminal Justice Standard 4-4.1(a) (3d ed. 1993). The Supreme Court and our circuit have recognized the ABA standards as "guides to determining what is reasonable." Strick-land, 466 U.S. at 688, quoted in Jones v. Murray, 947 F.2d 1106, 1110 (4th Cir. 1991). Saunders did not investigate (or attempt to develop) any negative information about Hall, the victim of the crime Mickens allegedly committed. Yet the circumstances of this crime (murder and sodomy) suggested that some consideration had to be given to investigating the character and background of the victim. There were no witnesses to Hall's murder, which occurred in a secluded area that was a "known gathering place for homosexuals," Mickens, 74 F. Supp. 2d at 607. Saunders knew from his representation of Hall that Hall had some tendency to violence or aggressiveness and that for some reason he was no longer living at home, despite his young age. This information, together with the notable location of Hall's murder, at least suggested an investigation into whether consent to the sodomy and self-defense to the murder might be defenses or statutory mitigators. In other words, the negative information Saunders had about Hall had the potential to lead to information about the circumstances of the crime. Indeed, the district court recognized that "a reasonable investigation would have included an examination of Hall's past." Id. at 610. Nevertheless, the district court did not see a problem. The court concluded that the confidential information Saunders had about Hall did not create an actual conflict because it "was irrelevant to Mickens' defense" since he denied committing the crime. Id. at 606. This analysis misses the mark because a lawyer has an initial duty to investigate and to make his own, independent appraisal of the case. See ABA Standards for Criminal Justice Standard 4-4.1(a). Of course, obvious avenues of investigation do not always lead to relevant evidence or viable defenses. The point is that reasonable areas of investigation must be considered and pursued. Because of Saunders' duty to protect Hall's secrets and confidences, he could not even consider an investigation that was suggested by the circumstances. See Tatum, 943 F.2d at 376 (noting that actual conflict exists when lawyer's "continuing duty to former client[ ] . . . interfere[s] with his consideration of all facts and options for his current client") (emphasis added). We recognize that in its adverse effect inquiry the district court "credit[ed] Saunders' testimony that he did not refrain from taking any actions for Mickens because of his earlier representation of Hall." Mickens, 74 F. Supp. 2d at 612. But that begs the question whether Saunders had an actual conflict in the first place. Saunders' testimony that there was no adverse effect does not address whether Mickens' interests diverged from Saunders' interests in protecting Hall's confidences. Saunders had an actual conflict because he could not even consider an investigation into Hall's character or background, using as a starting point the information he had about the circumstances of the crimes charged against Hall.

Saunders' duty to conduct a reasonable investigation created still another conflicting interest. Because this was a capital case, there was a good chance that someone from the victim's family (perhaps Hall's mother) would testify during the penalty phase. See Va. Stat. Ann. § 19.2-264.4 (Michie 1992); Payne v. Tennessee, 501 U.S. 808, 827 (1991); Mickens, 74 F. Supp. 2d at 614. Again, there is a duty to "explore all avenues leading to facts relevant to . . . the penalty." ABA Standards for Criminal Justice Standard 4-4.1(a). Surely this would require defense counsel to consider investigating the victim's relationship with key family members, especially (in this case) the victim's mother since the victim was a juvenile. Here, Saunders, while he represented Hall, learned something about his relationship with his mother and about the fact that he no longer lived at home. In particular, Saunders learned about the circumstances leading to the charge that Hall had "grabbed [his mother] by the arms and shoved her to the ground" shortly before his death. Mickens, 74 F. Supp. 2d at 599. This confidential or secret information that Saunders had about some aspects of Hall's relationship with his mother also created a conflict: Saunders' interest in preserving Hall's confidences diverged from Mickens' interest in having Saunders consider an investigation into Hall's relationship with his mother. In sum, Mickens must be afforded a new trial because of the conflict of interest problem. He has shown that (1) the state judge failed to inquire into an apparent conflict that she knew or reasonably should have known existed, (2) he did not waive any conflict, and (3) his lawyer, Saunders, had an actual conflict of interest. This is sufficient under Wood v. Georgia to establish the merits of his claim that he was deprived of his Sixth Amendment right to representation that is free of conflicts of interest. Prejudice is therefore presumed, and Mickens is entitled to a new trial. 4

Habeas Cases

Scott v. Johnson, No. 99-10414 (5th Cir. 09/11/2000) "Scott argues that he is entitled to equitable tolling. Equitable tolling is appropriate in "rare and exceptional circumstances." Fisher v. Johnson, 174 F.3d 710, 712 (5th Cir. 1999). He claims that the state created an impediment to his filing a state habeas application because the state (1) confiscated his legal materials on August 5, 1996, and (2) the legal library was inadequate. Scott admits, however, that such impediments were removed as of February 25, 1997, which is approximately six months prior to the expiration of the limitation period. Accordingly, these arguments do not establish that Scott is entitled to equitable tolling."

Anderson v. Cowan, No. 99-3485 (7th Cir. 09/15/2000) "The district court denied his habeas petition but granted a certificate of appealability on the issue of whether Mr. Anderson's Confrontation Clause rights had been violated under Bruton v. United States, 391 U.S. 123 (1968). The district court refused to issue a certificate with respect to Mr. Anderson's remaining two issues: whether he received ineffective assistance of counsel and whether he is entitled to a Batson hearing. For the reasons set forth in the following opinion, we affirm the judgment of the district court."

Wyzykowski v. Department of Corrections, No. 98-4971 (11th Cir. 09/11/2000) "Wyzykowski "claim[s] that he was denied his Sixth Amendment right to effective assistance of counsel. In particular, he claimed that his counsel failed to investigate the case properly before advising him to plead guilty to second degree murder. In addition, Wyzykowski claimed that he was actually innocent of second degree murder because the victim actually started the fight with him; of first degree premeditated murder because he was too intoxicated to form the requisite intent and again because the victim started the fight; of first degree felony-murder because he was not guilty of attempted burglary; and of attempted burglary because the shoes he allegedly attempted to burgle were actually his own shoes, he lacked the capacity due to intoxication to form the requisite specific intent for burglary, and there is no evidence that he entered the dwelling to commit a crime. The new evidence for these claims is Wyzykowski's detailed statements regarding the events that led to Butterworth's death." Remand for for further factual development."

Wims v. United States, No. 99-2210 (2d Cir. 09/14/2000) "This appeal presents a question concerning the proper application of the one-year statute of limitations governing federal habeas corpus relief pursuant to 28 U.S.C. § 2255. We hold that § 2255(4) establishes the date on which the limitations period begins to run; that date is determined by when "the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Id. (emphasis added). This is so, moreover, regardless of whether petitioner actually discovers the relevant facts at a later date. Because, instead, the United States District Court for the Western District of New York (Larimer, Chief Judge) erroneously decided this case on the basis of whether appellant failed, through lack of due diligence, to discover the relevant facts until more than a year after his conviction became final, we vacate its decision dismissing the instant petition as time barred." (no link)

Robinson v. LaFleur, No. 99-3143 (8th Cir. 09/13/2000) "Robinson filed his § 2254 petition in September 1998, claiming (1) counsel was ineffective for failing to communicate plea offers, properly investigate powder burns on Robinson's hands, properly cross-examine the medical examiner, present evidence regarding the victim, or adequately object to the admission of Robinson's post-arrest statements; (2) the evidence at trial was insufficient to convict him; and (3) his due process rights were violated by the trial court's exclusion of certain evidence and erroneous instructions to the jury. The magistrate recommended that the petition be denied. The district court, after de novo review, adopted the magistrate's report and recommendation."

Robertson v. Morgan, No. 98-4150 (6th Cir. 09/14/2000) "Double jeopardy can be a concern if a defendant is adjudicated once for an offense at the juvenile level and again as an adult for the same offense. That did not happen here. The elements comprising the offenses of felonious assault and aggravated robbery in Ohio are distinct. The amenability issue was only litigated once, and there was sufficient evidence in the record to support binding over Robertson for adjudication as an adult. For these reasons, the judgment of the district court denying defendant's petition for habeas relief is AFFIRMED."

Wheeler v. Jones, No. 99-1008 (6th Cir. 09/11/2000). "The district court denied Wheeler's petition, finding that his conviction had become final in 1971, thus preventing him from taking advantage of the new rule announced eight years later in Sandstrom. See Teague v. Lane, 489 U.S. 288, 310 (1989) (holding that new rules of criminal procedure cannot be applied retroactively except in very limited circumstances). For the reasons set forth below, we AFFIRM the judgment of the district court."

Cunningham v. Gates, No. 98-55108 (9th Cir. 09/15/2000) "Excessive force shooting case. The shooting officers, the police commissioners, and the supervising officers, in the majority, not entitled to summary judgment , nonshooting parties, the council members, the City attorneys, and Captain Daniel Koenig however, are entitledto summary judgment."

Vasquez v. Strack, No. 98-2590 (2d Cir. 09/14/2000) "On appeal, Vasquez argues, inter alia, that (1) the court below incorrectly interpreted the standard by which federal courts must review state court judgments under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d)(1), as requiring deference to state court interpretations of Supreme Court precedent; *fn1 and (2) that under any interpretation of § 2254(d)(1), the Supreme Court's decision in Wardius v. Oregon, 412 U.S. 470 (1973), compels a finding that he was deprived of due process and a fair trial because the prosecution withheld reciprocal notice of its alibi rebuttal witness to his substantial prejudice. Respondents argue, inter alia, that the district court properly interpreted § 2254(d)(1) to bar relief and that regardless of how § 2254 is interpreted, Vasquez is barred from relief under Teague v. Lane, 489 U.S. 288, 315-16 (1989), because he seeks to establish a new rule of constitutional criminal procedure.

We held the disposition of this case pending the Supreme Court's decision in Williams v. Taylor, 120 S. Ct. 1495 (2000), which resolved much of the debate over the interpretation of § 2254(d)(1). In light of Williams, we hold that § 2254(d)(1) bars relief in this case because the federal law that Vasquez argues should apply to his case was not "clearly established . . . as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Accordingly, we affirm."

Dubria v. Smith, No. 98-55914 (9th Cir. 09/11/2000)(en banc) "Dubria claims constitutional error from the admission of the unredacted tape and transcript of his New Jersey interview by police detectives. During this interview, the detectives, in particular Detective Detar, challenged Dubria about his explanation of the events and repeatedly told him that no judge or jury would believe him if he stuck to his story. The state claims that Dubria procedurally defaulted on this issue by failing to make a contemporaneous objection at trial. The state also argues in the alternative that, even if there is no procedural bar, the district court did not commit error in admitting the unredacted tapes."

Valverde v. Stinson, No. 98-2404 (2d Cir. 09/11/2000) "Appeal from a judgment of the United States District Court for the Eastern District of New York dismissing as untimely a habeas corpus petition filed pursuant to 28 U.S.C. § 2254 on May 6, 1997. We vacate and remand for the district court to develop further the facts relevant to the petitioner's claim that a corrections officer prevented him from filing the petition on time by confiscating his legal papers shortly before the limitations period expired."

Herrera v. Lemaster, No. 98-2060 (10th Cir. 09/14/2000) "Petitioner appeals the district court's denial of habeas relief, see 28 U.S.C. § 2254, from his New Mexico convictions for first degree murder and aggravated assault with a firearm. We granted petitioner's request for the issuance of a certificate of appealability, see id. § 2253(c), on his claim that the New Mexico Supreme Court erred in determining that the trial court's admission of evidence seized in violation of the Fourth Amendment was harmless error, see State v. Herrera, 694 P.2d 510, 514 (N.M. 1985).*fn1 On appeal, petitioner contends the district court erred by affording a presumption of correctness to the state court's harmless error analysis and in denying federal habeas relief on this claim without first reviewing the state court record. We agree, and remand to the district court so it can review the state court record in the first instance under the proper standard."

United States v. Sumne, No. 99-10523 (9th Cir. 09/12/2000) "Thomas Alan Sumner appeals from the order of the district court denying his motion to expunge his twenty-six-year-old conviction for the unlawful possession of narcotics and to order the Government to remove all records of his arrest and conviction from its central files. The district court denied the motion after concluding that Sumner did not satisfy the criteria for having his criminal record expunged under the Federal Youth Corrections Act (the "FYCA"), 18 U.S.C. S 5010(a),*fn2 and that it lacked jurisdiction to expunge his record. We have appellate jurisdiction pursuant to 28 U.S.C. S 1291. We affirm, because we conclude that the district court correctly determined that it lacked jurisdiction to consider the merits of Sumner's motion."

Vincent v. Seabold, No. 98-6457 (6th Cir. 09/13/2000) "Vincent first asserts that the trial court violated his Sixth Amendment right to confrontation when it allowed Detective Gaddie of the Kentucky State Police to testify as to post-arrest, custodial hearsay statements made by former co-defendant Kinser. . .Vincent asserts that the trial court also violated his Sixth Amendment right to confrontation when it allowed Tammy Seabolt Shephard to testify that a year or two following the crime, Defendant Johnson told her that he had not murdered Hayes, but that it was Vincent and Kinser."

Montoya v. Johnson, No. 99-50190 (5th Cir. 09/14/2000) "At most, this was a close case for the Texas Court of Criminal Appeals, sitting on habeas review, to determine whether the state sentencing court adequately had explained the terms of the agreement to defeat Montoya's dual claims of unknowing plea and prejudice by ineffective assistance of counsel. The closeness of that case, however, makes plain the path we must take on federal habeas review pursuant to AEDPA--that is, deference to the state court's reasonable application of clearly established federal law as determined by the Supreme Court. The federal district court may have regretted its decision to sentence Montoya consecutively with the state sentence, but federal habeas review is not an appropriate remedy, for this petition requests a degree of interference with the state criminal justice system that AEDPA expressly forbids."

Rowe v. Lemaster, No. 99-2273 (10th Cir. 09/13/2000) "We must decide whether the interval between successive state habeas proceedings is excluded from the limitations period when the second state petition is designated, but never formally approved, as an amendment to the first. We review the legal questions raised here de novo. See Adams v. LeMaster, ___ F.3d ___, 2000 WL 1174646, at *2 (10th Cir. Aug. 18, 2000) (No. 99-2348). For reasons stated below, we hold that the hiatus between petitioner's state habeas efforts is not excluded from the limitations period and, accordingly, affirm the district court's dismissal of this proceeding under § 2241(d)(1)."

Isham v. Randle, No. 99-3412 (6th Cir. 09/13/2000) "Defendant appeals the judgment of the district court dismissing his habeas corpus petition as untimely under 28 U.S.C. § 2244(d)(1). Defendant argues that, pursuant to § 2244(d)(2), the time during which his Ohio R. App. P. 26(B) application was pending, as well as the time during which he could have potentially petitioned the United States Supreme Court for a writ of certiorari, should have stayed § 2244(d)(1)'s one year limitations period. In order for defendant's habeas corpus petition to be timely, defendant would have to prevail on both of these arguments. Because we conclude that the one year limitations period is not tolled during the ninety days in which defendant could have petitioned the United States Supreme Court for a writ of certiorari, we decline to consider defendant's argument concerning his Ohio R. App. P. 26(B) application and AFFIRM the district court's dismissal of defendant's petition as untimely."

Section 1983 & Related Filings

Jacobs v. West Feliciana Sheriff's Department, No. 99-30185 (5th Cir. 09/13/2000) "[T]his section 1983 claim brought by the sons of a woman who committed suicide as a pretrial detainee in a Louisiana jail, Defendants-Appellants, West Feliciana Sheriff Bill Daniel, Deputy Earl Reech, and Deputy Wayne Rabalais have filed this interlocutory appeal from the denial of their motion for summary judgment based on qualified immunity. For the reasons discussed below, we dismiss this appeal as it relates to claims against Sheriff Daniel in his official capacity, we affirm the denial of qualified immunity for Sheriff Daniel and Deputy Reech, and we reverse the denial of qualified immunity for Deputy Rabalais."

InDepth Features

To return next week.

Errata

From the Death Penalty Information Center reports:

States Without the Death Penalty Have Better Record on Homicide Rates

A new survey by the New York Times found that states without the death penalty have lower homicide rates than states with the death penalty. The Times reports that ten of the twelve states without the death penalty have homicide rates below the national average, whereas half of the states with the death penalty have homicide rates above. During the last 20 years, the homicide rate in states with the death penalty has been 48% - 101% higher than in states without the death penalty. "I think Michigan made a wise decision 150 years ago," said the state's governor, John Engler, a Republican, referring to the state's abolition of the death penalty in 1846. "We're pretty proud of the fact that we don't have the death penalty." (New York Times, 9/22/00) See also, states with and without the death penalty , murder rates by state 1995-1998, and deterrence.

A Story of Mental Retardation and the Death Penalty; Accomplice Served Less than 6 Years

Lorenza Norwood, whose IQ measures in the 60s, was sentenced to death for the murder of a convenience store clerk in 1993 in North Carolina. Norwood's accomplice, Herbert Joyner, refused to talk to the police, hired his own lawyer, accepted a plea, and was sentenced to 15 years imprisonment, of which he served less than six. Norwood, on the other hand, was defended by court-appointed attorneys after having already talked to the police.

Norwood was born two months pre-mature. He failed the first grade. When he was 30, he was out of work. When he came up 20 cents short in buying a bottle of wine, he got into an argument with a store clerk. The clerk hit him with a baseball bat and chased him from the store. Later, Norwood returned to the store with Joyner, a man with a long criminal record who urged Norwood to take revenge. The clerk died from a fire started by Norwood and Joyner.

The U.S. Supreme Court has ruled that the death penalty should be reserved for the most heinous crimes and the most culpable criminals. "To permit the execution of a person with mental retardation," says Jim Ellis, a national expert on mental retardation and a professor at the University of New Mexico, "requires concluding that such an individual is both in the bottom 2 percent of the population in intelligence and also in the top 1 or 2 percent of the population in his appreciation and understanding of the wrongfulness of his actions." (Charlotte Observer, 9/14/00) See also, Mental Retardation

Inadequate Representation Cited in Carolinas Cases

The Charlotte Observer cited the following cases to illustrate the problem with the Carolinas' low standards for capital defense lawyers:

Lawyer Newton Pough mistakenly called his client, Sterling Spann, by the wrong name some 20 times during his 1982 trial. On appeal, Spann's new attorney pointed out evidence that suggested a serial killer actually may have killed Spann's alleged victim. Upon reviewing this evidence, the South Carolina Supreme Court ordered a new trial, and Spann was released.

Michael McDougall was represented by an attorney who "acted unethically or even criminally," according to a Charlotte judge. On appeal, McDougall maintained that his attorney, Jerry Paul, furnished him with drugs, lied about his qualifications, and solicited false testimony. Because McDougall could not prove that Paul's behavior affected the jury verdict, his appeal was denied, and he was executed in 1991. Paul was later disbarred.

Thomas Jack Brown's capital defense attorney, Ertle Chavis, spent less than 40 hours preparing for trial and did not talk to key witnesses. A judge cited 36 ways Chavis failed his client. Brown's death sentence was later overturned.

(Charlotte Observer, 9/10/00)

Poll Reveals Support for Death Penalty Reform

A bi-partisan group of Senators and Representatives released the results of a poll by Peter Hart Research and American Viewpoint showing:

64% of Americans support a moratorium on executions until issues of fairness in capital punishment can be resolved

89% support providing access to DNA evidence in capital cases

83% support providing qualified, experienced attorneys in capital cases

55% said it is not enough to require DNA testing without ensuring access to competent counsel

(The Justice Project, Press Release, 9/14/00) See also, Public Opinion

North Carolinians Support Moratorium

The North Carolina Academy of Trial Lawyers called for a halt to executions until questions about the fairness of capital punishment could be resolved. The academy recently released a poll that found only 2 in 5 North Carolina voters are confident that the death penalty is applied fairly. The poll found that 59% favored a moratorium on executions until issues concerning fairness could be studied. (Charlotte Observer, 9/13/00)

Defense Challenges Drug and Alcohol Addicted Attorney

Texas death row inmate Joe Lee Guy is appealing his conviction because his trial attorney, Richard Wardroup, was "in the throes of drug and alcohol addiction," and had been "suspended from the practice of law no fewer than 5 times." Guy's petition also included statements from every member of Guy's trial team swearing that Wardroup was using drugs and alcohol during the trial and some stated that he had trouble staying awake in court following drinking binges.

A former employee of the attorney, Regina Young, said that she "personally participated in cocaine use with Mr. Wardroup while in transit to Plainview" during Guy's trial. "During the guilt/innocence portion of trial, I attended court on approximately 3 days," Young said, "Mr. Wardroup and I did approximately 3 to 4 lines of cocaine each while driving from Lubbock to Plainview on one of those mornings." At one point, Wardroup was unable to file an appeal for Guy because his law license was under suspension.

Guy and two others were convicted of the 1993 robbery and shooting of a Plainview, Texas grocer. However, despite reports that Guy served as the lookout and was not the triggerman, only Guy was sentenced to death. (Lubbock Avalanche-Journal, 9/10/00)

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

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List owner: capitaldefense-owner@onelist.comAsalways, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.

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