One case this week makes the win column. InOhio v. Williamsthat state's supreme court examines whether certain modifications to the state's sentencing scheme may apply retroactively. Specifically before the Court was the issue of whethermodifications to the Ohio statute permitting a trial court to impanel a new jury to reconsider imposing a death sentence after a death sentence was vacated will apply retroactively.The Williams Court holds the new statute will not apply retroactively

Three criminal cases were granted certiorari this week including, one capital case. The questions in those cases are:

Will the Court further clarify the 1994 ruling inSimmonsv.South Carolinaon the right of an individual, seeking to avoid a death sentence, to have the jury instructed that it may consider a life sentence without parole? Is a defense lawyer ineffective for a failure to review prior convictions that counsel knows the prosecution will use to support a death sentence?Rompillav.Beard, 04-5462

May a habeas petition be considered filed on time in federal court if the one-year filing deadline has been suspended by pursuit of a post-conviction challenge in state court, even though the state challenge was denied because it was filed too late under state law?Pacev.DiGuglielmo, 03-9627.

If an individual is given an enhanced prison sentence in a federal case, based upon a prior state conviction, does the nullification of the state conviction compel a reduction of the federal sentence?Johnsonv.U.S., 03-9685.

This week's Focus section covers thepending issuesbefore the Court. The Court granted certiorari on just two additional criminal cases from the summer's filings, other than those as noted above,United States v. Booker & United States v. Fan, both of which deal with the federal sentencing guidelines and the impact of Blakely v. Washington. At this point in time it appears there will be approximately fifty (50) cert. denials in capital cases this Monday (depending on how broadly the Court holds in light of its pending cert list).

Finally, in a case where I have neither the Arkansas Supreme Court's opinion or an order, the execution of Rickey Dale Newman in Arkansas, scheduled for the night of September 28, appears to have been stayed. Newman had waived his appeals. Nevertheless, there is evidence that he may be mentally retarded.

As always, thanks for reading, - k

Archived on the internet athttp://capitaldefenseweekly.com/archives/040927.htm

EXECUTION INFORMATION

Since the last edition there have been the following executions in the United States:

September

30 David Hocker Alabama --- volunteer

Pending execution dates believed to be serious include:

October

5 Edward Green III Texas

6 Peter Miniel Texas

8 Sammy Perkins North Carolina

12 Donald Aldrich Texas

13 Adremy Dennis Ohio

20 Ricky Morrow Texas

22 Charles Roache North Carolina----volunteer

26 Dominique Green Texas

SUPREME COURT

See above

CAPITAL CASES (Favorable Disposition)

Ohio v. Williams, 103 Ohio St.3d 112, 814 N.E.2d 818, 2004-Ohio-4747 (Ohio 9/22/2004)Statute permitting a trial court to impanel a new jury to reconsider imposing a death sentence after a death sentence was vacated will not apply retroactively.

CAPITAL CASES (Other Than Favorable Disposition)

Kandies v. Polk, 2004 U.S. App. LEXIS 20113, 2004 WL 2137345 (4th Cir. 9/24/2004) Failure of defense counsel to retain a mitigation specialist held permissible and did not breach counsel's obligation to thoroughly investigate client's life history, even though the client had a his history of being sexually abused as a child. Failure of counsel, in the absence of a mitigation specialist, to inquire of his client concerning his history of being sexually abused did not violate Strickland. State court's holdings regarding Batson challenge were not objectively unreasonable.

Rutherford v. Crosby, 2004 U.S. App. LEXIS 20113, 2004 WL 2093447 (11th Cir. 9/21/2004) Petitioner loses even though the trial prosecutor failed to inform the defense of testimony of two witnesses as the prosecutor had no intent to provoke the defense into moving for a mistrial. Trial counsel's performance was not ineffective in the penalty phase.

Dickerson v. Mitchell, --- F.Supp.2d ----, 2004 WL 2098719 (N.D.Ohiio 9/202004) Habeas relief denied finding, in relevant part: (1) Ohio's death penalty practice is not so racially imbalanced as to violate McCleskey I; (2) Ohio's scheme does not violate the Fifth Amendment right to plead "not guilty" and the Sixth Amendment right to demand a jury trial; (3) jury waiver was knowing, voluntary, and intelligent; (4) no right to be informed that he could withdraw his prior jury trial waiver; (5) counsel's recommendation to waive jury following an ex parte conversation with the trial judge was not ineffective; and (6) counsel was not ineffective in the penalty phase.

Hernandez-Alberto v. Florida, 2004 WL 2109981 (Fla. 9/23/2004) Relief denied holding, in most relevant part, defendant competent to stand trial; trial court did not err in permitting appellant to go pro se & then not granting him after permitting him to proceed pro se; & failure to permit a PET scan of the defendant permissible.

Ohio v. Gumm, 103 Ohio St.3d 162, 814 N.E.2d 861, 2004 Ohio 4755 (Ohio 9/22/2004) Motion to reopen appeal to permit claim of ineffective assistance of appellate counsel to be raised denied as the motion was filed out of time. Note that this appears to be a minority appellate counsel on direct appeal remained on the case following the original appeal and that other most interpretations of the governing Rules & Canons of professional responsibility that do not permit counsel to raise IAC on themselves.

HOT LIST

Ohio v. Williams, 103 Ohio St.3d 112, 814 N.E.2d 818, 2004-Ohio-4747 (Ohio 9/22/2004)Statute permitting a trial court to impanel a new jury to reconsider imposing a death sentence after a death sentence was vacated will not apply retroactively.

{¶ 4} At the time Williams raped and murdered Gregory, however, this version of R.C. 2929.06 was not yet in effect, and the then current version did not permit impaneling a new jury to reconsider imposing a death sentence after the original death sentence was vacated for penalty-phase error. See 146 Ohio Laws, Part IV, 7820; State v. Penix Williams moved this court for reconsideration, arguing that current (1987), 32 Ohio St.3d 369, 513 N.E.2d 744.R.C. 2929.06 is inapplicable because he committed his crime before the statute's October 16, 1996 amendment permitting the impaneling of a new jury and the**820reimposition of the death sentence. See 146 Ohio Laws, Part VI, 10548, adding subsection R.C. 2929.06(A)(2), now (B). Moreover, he asserted that the prior version of R.C. 2929.06 controls, and thus he cannot be resentenced to death.

{¶ 5} On December 8, 2003, we granted Williams's motion for reconsideration and ordered briefing on the following question: "Following remand and a new penalty hearing, may a sentence of death be imposed upon the appellant under the current version of R.C. 2929.06, or does the version of R.C. 2929.06 in effect at the time of the offense, which would preclude a death sentence, apply upon remand of this case?" State v. Williams, 100 Ohio St.3d 1525, 2003-Ohio-6510, 800 N.E.2d 43.

{¶ 6} We now hold that current R.C. 2929.06 does not apply retroactively, and therefore the version of R.C. 2929.06 in effect at the time of Williams's offenses applies upon remand.

{¶ 7} A statute is retroactive if it penalizes conduct that occurred before its enactment. Retroactivity is unconstitutional if it " 'takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.' " Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106, 522 N.E.2d 489, quoting Cincinnati v. Seasongood (1889), 46 Ohio St. 296, 303, 21 N.E. 630.

{¶ 8} R.C. 1.48 provides: "A statute is presumed to be prospective in its operation unless expressly made retrospective." Thus, a statute may not be applied retroactively unless the court finds a "clearly expressed legislative intent" that the statute so apply. State v. Cook (1998), 83 Ohio St.3d 404, 410, 700 N.E.2d 570.

{¶ 9} Because the Revised Code is silent as to whether current R.C. 2929.06(B) applies retroactively, it applies only prospectively. Therefore, current R.C. 2929.06 is inapplicable for resentencing an offender whose offenses occurred prior*114to the statute's effective date of October 16, 1996. Rather, the law in effect at the time of the offenses applies.

{¶ 10} Nonetheless, amicus curiae the Franklin County Prosecuting Attorney invites us to overrule Penix, 32 Ohio St.3d 369, 513 N.E.2d 744, and hold that former R.C. 2929.06 would permit imposition of the death penalty upon remand. We decline.

{¶ 11} We recently held that a prior decision may be properly overruled "where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it." Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus. In light of this standard, we conclude that Penix cannot be properly overruled because, counter to amicus's arguments, it was not improperly decided and it does not defy practical workability.

{¶ 12} To support its argument that Penix was improperly decided, amicus cites Mast v. Doctor's Hosp. North (1976), 46 Ohio St.2d 539, 75 O.O.2d 556, 350 N.E.2d 429, in which we interpreted App.R. 12(D) to permit "retrial of only those issues, claims or defenses the original trial of which resulted in prejudicial error, and to allow issues tried free from error to stand." Id. at 541, 75 O.O.2d 556, 350 N.E.2d 429. Unlike Penix, however, Mast did not involve a statute that specifically required the acquiescence of a trial jury in**821order to impose particular consequences on the defendant. Therefore, we reject amicus's argument that reimposition of a death sentence on remand is authorized by App.R. 12(D).

{¶ 13} Amicus also asserts that Penix was wrongly decided because R.C. 2953.07(A) permits an appellate court to reverse a criminal judgment in part and to remand for the sole purpose of correcting an improperly imposed sentence. Penix, however, does not contradict R.C. 2953.07. Rather, Penix states that, in a capital case tried by jury, correction of the sentence on remand may not be accomplished by impaneling a new jury with the power to impose a new death sentence, because R.C. 2929.03 reserves that power to the trial jury. Id., 32 Ohio St.3d at 372, 513 N.E.2d 744. Therefore, we reject amicus's argument that reimposition of the death penalty on remand is authorized by R.C. 2953.07(A).

{¶ 14} Even were we persuaded that the Penix rule is unsound, the decision does not defy practical workability. Penix has created no confusion in the courts of Ohio, we fully explained our rationale, and it did not depart from precedent. Cf. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 51. Neither has Penix spawned a complex body of law characterized by "a patchwork of exceptions and limitations." Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 57. Its application is straightforward and its scope is clear:*115reimposition of the death penalty on remand is precluded in capital cases in which the defendant's aggravated-murder conviction has been affirmed, but the death sentence has been vacated on the ground of penalty-phase error. This simple rule applies to all cases in which the capital crime was committed before October 16, 1996, the effective date of the amendment to R.C. 2929.06 that permitted the death sentence to be reimposed on remand.

{¶ 15} We reaffirm Penix, and we hold that current R.C. 2929.06(B) may be applied prospectively only. Further, we remand this cause to the trial court for resentencing pursuant to the law that existed at the time of Williams's offenses. Accordingly, on remand the trial court shall, pursuant to former R.C. 2929.06(B), conduct a new sentencing hearing and choose from the life-sentencing options available in December 1995: life with parole eligibility after 20 full years or life with parole eligibility after 30 full years.

Judgment accordingly.

OTHER NOTABLE CASES

None noted

FOCUS

Cert list for the October 2004 term for criminal law related cases that wer granted cert through the end of the last term. Note that several additional cases have been added including the three cases listed above, as well as Booker/Fanfan(applicablility of Blakely to federal sentenc

Cert. Granted

Pasquantino v. U.S., No. 03-725

Cert. granted April 5, 2004; Question presented:

Whether the fraud statute, 18 U.S.C. 1343, prohibits schemes to use interstate wires in the U.S. to defraud a foreign government of tax revenue.

Case below: U.S. v. Pasquantino, 336 F.3d 321 (4th Cir. 2003).

Illinois v. Caballes, No. 03-923

Cert. granted April 5, 2004; Question presented:

Whether the use of drug-sniffing dogs during routine traffic stops is a search requiring “reasonable suspicion.”

Case below: Illinois v. Caballes, 802 N.E.2d 202 (Ill. S.Ct. 2003).

Small v. U.S., No. 03-750

Cert. granted March 29, 2004; Question presented:

Whether a conviction entered by the court of a foreign country triggers the application of 18 U.S.C. 922(g)(1), which prohibits felons “convicted in any court” from possessing firearms or ammunition.

Case below: U.S. v. Small, 333 F.3d 425 (3d Cir. 2003).

Florida v. Nixon, No. 03-931

Cert. granted March 1, 2004; Question presented

Was the respondent denied effective assistance of trial counsel when his attorney admitted guilt in a capital murder trial in hopes that his candor would persuade the jury to spare his client’s life?

Case below: Nixon v. State, 857 So.2d 172 (Fla. S.Ct. 2003).

Leocal v. Ashcroft, No. 03-583

Cert. granted February 23, 2004; Question presented:

Whether petitioner’s Florida conviction for driving under the influence resulting in bodily injury is a “crime of violence” under 18 U.S.C. 16(a) that renders petitioner removable under the immigration laws as an aggravated felon.

Case below: Le v. U.S. Attorney General, 196 F.3d 1352 (11th Cir. 1999)

Roper v. Simmons, No. 03-633

Cert. granted January 26, 2004; Question presented:

Whether executing an individual for a crime committed as a juvenile constitutes cruel and unusual punishment.

Case below: State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. S.Ct. 2003).

Kowalski v. Tesmer, No. 03-407

Cert. granted January 20, 2004; Questions presented:

(1) Whether 14th Amendment guarantees right to appointed appellate counsel in discretionary first appeal of indigent criminal defendant who pled guilty.

(2) Whether attorneys have third-party standing to raise this claim on behalf of future indigent criminal defendants when federal courts properly abstained from hearing claims of indigent criminal defendants themselves.

Case below: Tesmer v. Granholm, 333 F.3d 683 (6th Cir, 2003).

Goughnour v. Payton, 03-1039

Cert. granted May 24, 2004; Question presented:

Did the 9th Circuit violate 28 USC 2254(d) when it found the California Supreme Court objectively unreasonable in finding that the state’s “catch-all” mitigation instruction, which directs the jury to consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,” is constitutional as applied to post-crime mitigation evidence?

Case below: Payton v. Woodford, 346 F.3d 1204 (9th Cir. en banc 2003).

Smith v. Massachusetts, No. 03-8861

Cert. granted June 14, 2004; Question presented:

Whether the double jeopardy clause’s prohibition against successive prosecutions is violated where the trial judge unequivocally rules that the evidence is insufficient to support a finding of guilt, but later reverses her finding of not guilty?

Case below: 48 Mass. App. Ct. 166, 786 N.E.2d 977 (2003)

Howell v. Mississippi,No. 03-0560

Cert. granted June 28, 2004; Question presented:

Can a state court, consistent with the 8th and 14th amendments, refuse to instruct a jury in a death penalty case on at least one lesser included offense that is recognized in state law and supported by the evidence? (The Supreme Court added a second question: Was petitioner’s federal constitutional claim properly raised before the Mississippi Supreme Court for purposes of this Court’s jurisdiction under 28 U.S.C. 1257?)

Case below: 860 So. 2d 704 (Miss. 2003)

Rhines v. Weber, No. 03-9046

Cert. granted June 28, 2004; Question presented:

Can a federal court stay, or must it dismiss, a 28 U.S.C. 2254 petition for habeas corpus that includes both exhausted and unexhausted claims when the stay is necessary to permit the petitioner to exhaust claims in state court without having the petition barred by the one-year statute of limitations in the AEDPA?

Case below: 346 F.3d 799 (8th Cir. 2003)

Miller-El v. Dretke, No. 03-9659

Cert. granted June 28, 2004; Question presented:

Whether the Court of Appeals, in reinstating on remand from this Court its prior rejection of petitioner’s claim that the prosecution had purposefully excluded African-Americans from his jury in violation of Batson, so contravened this Court’s decision and analysis of the evidence in Miller-El v. Cockrell, 537 U.S. 322 (2003), that “an exercise of this Court’s supervisory powers” under Supreme Court Rule 10(a) is required to sustain the protections against invidious discrimination set forth in Batson and Miller-El and the safeguards against arbitrary fact-finding set forth in 28 U.S.C. 2254)d)(2) and (e)(1)?

Case below: 361 F.3d 849 (5th Cir. 2004)

Last updated07/09/2004 10:48 AM

FROM AROUND THE WEB

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

North Carolina Preparing to Execute Mentally Ill Man

Sammy Perkins is scheduled for execution in North Carolina on October 8, despite his mental illness and the fact that the jurors at his trial did not learn the extent of his disability. According to a press release from Perkins's attorneys:

"The jury never heard the full story of Sammy Perkins' mental disorder: A family history of psychiatric problems left its mark on Sammy Perkins. Several family members suffered from mental illnesses. In his late teens and early twenties, the time when bi-polar disorders are often discovered, Perkins was found ranting in public, sometimes completely naked. From a poor family, he was not able to get psychiatric help, treatment or medication. Bi-polar disorder, left untreated, is a debilitating mental illness, with wild mood swings, depression and manic highs during which the person can be out of touch with reality. As he self-medicated his moods and depression with cocaine, heroin and alcohol, the condition worsened. Myasthenia Gravis claimed Perkins as well. This autoimmune disease causes muscular weakness. Prescription Prednisone, given to Perkins to abate the symptoms, causes euphoria, hyperactivity and is highly addictive." (Press Release, Sept. 29, 2004, Attorneys Ed West: 910.254.4748 and Nora Hargrove: 910.763.7952). See Mental Illness.

Supreme Court to Hear Pennsylvania Death Penalty Case

The U.S. Supreme Court agreed Tuesday to hear a death row appeal from a Pennsylvania man who maintains that jurors at his trial should have been told that they had the option of sentencing him to life without parole instead of the death penalty. According to the brief filed on behalf of Ronald Rompilla, the jury asked several questions during his trial about Rompilla's "future dangerousness," yet were never told that if sentenced to prison he would never be eligible for later release. The jury then sentenced him to death. The U.S. Court of Appeals for the 3d Circuit ruled that jurors did not have to be given a special instruction. Rompilla was convicted of murder during a 1988 robbery in Allentown.

Rompilla also alleges that his public defenders presented inadequate evidence of his mental retardation and traumatic upbringing.

Most death penalty states offer life without parole, but only Pennsylvania and South Carolina have routinely declined to tell jurors that a defendant will not be released if sent to prison, according to Rompilla's brief. (Rompilla v. Beard, 04-5462, Associated Press, Sept. 28, 2004). See Life Without Parole; see also Supreme Court.

Arkansas Execution Stayed, Raising New Legal Questions

The execution of Rickey Dale Newman in Arkansas, scheduled for the night of September 28, was stayed by the state Supreme Court. Newman had waived his appeals. Nevertheless, there is evidence that he may be mentally retarded. The U.S. Supreme Court ruled in Atkins v. Virginia (2002) that people with mental retardation cannot be executed. Newman's case raises the question of whether a third party can intervene to request a stay of execution, even though the defendant does not want to appeal but is mentally retarded. (DPIC; also Arkansas Democrat Gazette, Sept. 29, 2004). See Mental Retardation.

Innocence Case Results in Prosecutor Reprimands

The North Carolina State bar has reprimanded two former assistant attorney generals for withholding evidence that could have prevented the wrongful conviction of Alan Gell, who was finally freed from death row in 2004 (pictured). The State Bar panel found that prosecutors David Hoke and Debra Graves failed to turn over evidence to Gell, did not adequately supervise the conduct of their chief investigator for the case, and brought the judicial system into disrepute by their conduct. Hoke and Graves received a written reprimand for their behavior, which the panel found to be unintentional. Gell, who spent nine years in jail and half of those on death row, won a new trial in 2002 on the basis of the withheld evidence. Among the evidence prosecutors failed to disclose were statements of people who saw the victim, Allen Ray Jenkins, alive after Gell had been jailed for vehicle theft and could not have committed the crime, as well as a taped conversation of the state's star witness saying she had to "make up a story" for police. With the new evidence that had surfaced, Gell's 2004 retrial ended in a quick acquittal. Hoke continues to serve as the No.2 state administrator in the state court system, and Graves now works as an assistant federal public defender. (News Observer, September 25, 2004). See Innocence.

NEW RESOURCE: Law Review Adresses "Who Deserves Death?"

Articles from a symposium entitled "Rethinking the Death Penalty: Can We Define Who Deserves Death?" can be found in the Fall 2003 edition of the Pace Law Review. The symposium, hosted by the Association of the Bar of the City of New York in May 2002, featured speakers Robert Blecker, Jeffrey Kirchmeier, the Honorable William Erlbaum, David Von Drehle, and Jeffrey Fagan. The speakers addressed the question of whether it is possible to limit the death penalty to the "worst of the worst" and, if so, who would fall into this category. The panel further examined whether such a limited use of the death penalty would be supportable morally, philosophically, and constitutionally. (24 Pace Law Review 107 (2003)) See Resources.

NEW RESOURCE: Address to the American Correctional Association on the Death Penalty

The American Correctional Association has recently published the proceedings of their 2003 Annual Conference in Nashville containing a presentation by DPIC Executive Director Richard Dieter on the death penalty. The text of the speech is available on DPIC's site, click here. The full publication is available from the ACA, and also contains remarks on the death penalty by Prof. John McAdams of Marquette. (The State of Corrections: 2003 Proceedings, ACA Annual Conferences, American Correctional Association (2004)). See also Resources.

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