In this issue, covering decisions from September 15th through the 28th, the sole Hot List case comes from the Eighth Circuit. InBrown v. Luebbers a split panel tosses a death sentence for the exclusion of mitigation evidence in the penalty phase. Specifically, what was excluded from evidence was a letter from the Petitioner's brother (then serving in Operation Desert Shield) begging for mercy. Finding error under Lockett v. Ohio, the panel grants penalty relief.

Other cases of special note include Pennsylvania v. Cuevas where the state supreme court holds that merely being a buyer doesn't qualify as an aggravator under that state's murder in relationship to drug activity aggravator. The Arizona Supreme Court in Arizona v. Sansing held that judge only sentencing in violation of Ring was harmless in that case beyond a reasonable doubt. In what appears to have been a highly racially charged trial, the Alabama Court of Criminal Appeals denied relief in Gavin v. Alabama on a large litany of claims relating to the use of race to exclude people of color from serving on grand and petit juries in the 9th Judicial District. The Nebraska Supreme Court in Lotter v. Nebraska has denied a request for DNA testing that may have teneded to exculpate him. Lastly, one of my first post-law school clients lost in the Sixth Circuit on a grab bag of issues in Bowling v. Parker including suppression of evidence that another person may have committed the crime.

From the US Supreme Court three important cert grants are noted. In Beard v. Banks the issue on which cert was granted consisted of whether the Supreme Court's decision in Mills v. Maryland constitutes a new rule of law under Teague v. Lane (the cert. petition is here.) In Smith v. Dretke the Court granted cert on the Fifth Circuit's "nexus" requirement for Texas mitigation; specifically the question granted cert was "Did the Court of Appeals misapply Penry v. Johnson, 532 U.S. 782 (2001), by imposing a requirement that evidence demonstrate a 'uniquely severe permanent handicap' in order for a Texas capital murder defendant to claim that a 'nullification' instruction was improper?" (the cert. petition is here). In Yarborough v. Alavardo the Court granted cert on whether a special standard determines whether juveniles are "in custody" for purposes of Miranda v. Arizona (cert petition is here). (Thanks to SCOTUS Blog for the updates). The Focus section this week examines the current crop of cert grants.

Republicans and Democrats in Congress have agreed upon a compromise version of the Innocence Protection Act which with a little luck will be law in the next few months. The Judge presiding over the trial of Zacarias Moussaoui has decided pn sanctions for the Government's refusal to allow Moussaoui to interview 3 al Qaeda witnesses who may have exculpatory information: the Government can't seek the death penalty (order / motions). (Thanks to TalkLeft for the updates).

Just quick note about a new law review article entitled "Ideological Voting on Federal Court of Appeals: A Preliminary Investigation." The article concludes by looking at voting records in death penalty cases that a judges political affiliation (or more precisely put, party affiliation of the nominating president) has a direct correlation to the probability that a judge will vote for death in a capital case with republicans dramatically more likely to vote to kill than democrats. Interestingly, party affiliation appears to have had no substantial effect in noncapital criminal cases

Please note my schedule between now and December 1 is hatefully hectic between trials and personal engagements, please forgive any delays in publication in advance. - karl

EXECUTION INFORMATION

SUPREME COURT

Three cert grants noted:

Smith v. Dretke, 02-11309 (cert. granted September 30, 2003)

(case below: (5th Cir.)) (cert petition)

Question presented

"Did the Court of Appeals misapply Penry v. Johnson, 532 U.S. 782 (2001), by imposing a requirement that evidence demonstrate a 'uniquely severe permanent handicap' in order for a Texas capital murder defendant to claim that a 'nullification' instruction was improper?"

Beard v. Banks , 02-1603 (cert. granted September 30, 2003)

(case below: 316 F.3d 228 (3rd Cir.)(cert petition)

Questions presented:

(1) Does this court’s decision in Mills v. Maryland, 486 U.S. 367 (1988), constitute new rule of law that cannot be applied retroactively to award sentencing relief to prisoner whose conviction became final before Mills was announced? (2) If Mills applies retroactively, where state supreme court has rejected Mills challenge because neither trial court’s instructions nor verdict form advised jury that it must be unanimous as to existence of mitigating circumstances and, to contrary, made clear that unanimity was required only to find aggravating circumstances and to impose sentence of death, is that decision reasonable application of this court’s precedent?

Yarborough v. Alvarado, 02-1684 (cert. granted September 30, 2003)

(case below: (9th Cir.)) (cert petition)

Questions Presented:

Cert granted on whether a special standard determines whether juveniles are "in custody" for purposes of Miranda v. Arizona. (Exact question unavailable)

HOT LIST

Brown v. Luebbers, 2003 U.S. App. LEXIS 19427 (8th Cir 9/19/2003) (dissent) Death sentence tossed for the exclusion of mitigation evidence in the penalty phase.

We have said enough, so far, to reject all of the contentions that would invalidate Brown's conviction. We have also rejected all but one of his arguments concerning the penalty phase. It remains to discuss the remaining point, which in our opinion has merit. We think the trial court violated petitioner's rights under the Eighth Amendment and under the Due Process Clause of the Fourteenth Amendment by excluding a letter written by Mr. Brown's brother, Darius Q. Turner, who was on active duty in the United States Army serving in the Middle East as part of Operation Desert Shield. Petitioner wished to present the letter to the jury as mitigation evidence. The letter cast petitioner in a much more positive light than did the State of Missouri's account of him. Among [*35] other things, the letter indicated that, as a child, petitioner had been very protective of his little brother and his friends. The letter also indicated that petitioner continued to mean a great deal to his brother -- in fact, that petitioner meant more to his brother than did other family members. This letter had the potential to sway the jury because it cast petitioner in such a positive light and showed the continuing positive impact that his life could have if preserved. The trial court excluded the letter on the ground that it was hearsay.

Petitioner alleges that the exclusion of the letter violated his constitutional rights under the Eighth and Fourteenth Amendments. This question should be decided under pre-AEDPA standards. In considering this claim, the Missouri Supreme Court primarily addressed the question of state-evidentiary law, only noting at the very end of its discussion that the letters "exclusion does not in the context of this case seem prejudicial." Brown, 998 S.W.2d at 550. It seems, then, that the federal constitutional question was not fully "adjudicated on the merits in state court proceedings." 28 U.S.C. § 2254(d). [*36] In these circumstances, it seems appropriate that we not apply the standards of § 2254 as amended by AEDPA, because there is no apparent state-court adjudication to which to apply them. See Robinson v. Crist, 278 F.3d 862, 865 (8th Cir. 2002) ("because this claim apparently was not adjudicated by the [state] court, we likely should apply the pre-AEDPA standard of review."). Indeed, the District Court considered the constitutional question on the merits.

We understand Mr. Brown's claim as relying upon both the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. In Lockett v. Ohio and later cases, the Supreme Court established that the Eighth Amendment guarantees a capital defendant the right to introduce all relevant mitigating evidence in the penalty phase. Thus, the Court noted that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) [*37] (plurality opinion) (emphasis in original); see also Eddings v. Oklahoma, 455 U.S. 104, 110, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). The Supreme Court has also held that the Due Process Clause requires that a state's rules of evidence not be applied mechanically when doing so would preclude the defendant from introducing highly relevant evidence at the penalty phase. Thus, the exclusion of hearsay testimony at the penalty phase of a death-penalty case violates the Due Process Clause of the Fourteenth Amendment where "the excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability." Green v. Georgia, 442 U.S. 95, 97, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1979) (citations omitted) (per curiam).

In Mr. Brown's case there was no reason to doubt the reliability of the letter from his brother. The letter's return address was to "SFC Darius Q. Turner, HLM 801st MAINT BN, 101st ABN DIV (AASLT), APO NY 09309." The letter's postmark indicates that it was sent from the United States Army. Indeed, the trial judge did not doubt the letter's authenticity: "I have no problem [*38] with the authenticity of it except that it's just not admissible even if this was an affidavit." Tr. 2443. Because "substantial reasons existed to assume [the letter's] reliability," Green, 442 U.S. at 97, due process required its admission if it was highly relevant to a critical issue. In our estimation, the letter was highly relevant, as it cast Mr. Brown in a positive light and attested to his continued importance to his brother, who was an active-duty Army sergeant. Was exclusion of the letter sufficiently prejudicial to warrant vacation of Mr. Brown's sentence? We think the answer is yes. Mr. Brown's claim relies upon both the generalized or undifferentiated Due Process Clause and the Eighth Amendment. Both the Supreme Court and this Court have held that a Lockett claim is reversible error unless the error can be said to be "harmless." See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 399, 95 L. Ed. 2d 347, 107 S. Ct. 1821 (1987); Skipper v. South Carolina, 476 U.S. 1, 7-8, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986); Sweet v. Delo, 125 F.3d 1144, 1158 (8th Cir. 1997).

The exclusion of Mr. Turner's letter was [*39] not harmless. The critical issue in the penalty phase of Mr. Brown's trial was his character. The evidence presented by the State of Missouri was aimed at convincing the jury that petitioner was a bad person. Petitioner's attorneys, on the other hand, attempted to prove that although he had committed bad acts, he was a man whose life was worth saving. Mr. Turner's letter seems highly relevant in itself, and it would have been even more compelling than the other mitigation evidence because of its source -- a member of the armed services on active duty in time of war. Mr. Turner's status as a soldier would have been especially forceful in this case because the trial judge had repeatedly lauded the soldiers serving in the Middle East. The judge had at various times said all of the following to the jury:There is nothing more important than . . . what our fellows and ladies are doing over in the Gulf right now, fighting for this country.

* * *

I suppose that there is only one type of service that a citizen can render to his government or to society above jury duty is that which is now being enacted in the Gulf area, war, that's the highest duty that a citizen owes to his [*40] country.

* * *

It's a vital service that you perform. Only one transcends it, only one is greater than that and that's what's happening over there in the Gulf. Serving your country in times of conflict and things of that nature is the only service a citizen can perform that is greater than serving on jury duty.

* * *

When you stop to consider that we have a lot of men in the Gulf area that I suppose if they had their druthers they would rather not be there and the sacrifices they're making, ours pales very, very badly in comparison.

* * *

Ladies and gentlemen of the jury, I know we will all keep our troops in the Persian Gulf in mind when we say our prayers. Tr. at 875, 996, 1144, 1632, and 1642.

These tributes would have made the plea for mercy from Mr. Brown's brother resonate forcefully with the jury. If there is any doubt that the exclusion of the letter would have prejudiced Mr. Brown in a normal case, the trial judge's repeated references to the importance of the service of the troops remove that doubt from our minds. We hold that the exclusion of Mr. Turner's letter violated Mr. Brown's rights under the Eighth and Fourteenth Amendments and that [*41] the exclusion was not harmless.

CAPITAL CASES (Favorable Disposition)

Pennsylvania v. Cuevas, 2003 Pa. LEXIS 1735 (PA 9/24/2003) Sentence vacated and remanded as the evidence was insufficient to prove one of two aggravators (murder in relationship to drug activity).

Arizona v. Nordstrom, 2003 Ariz. LEXIS 126 (AZ 9/24/2003) Ring error not harmless beyond a reasonable doubt.

Louisiana v. Carmouche, 2003 La. LEXIS 2584 (LA 9/26/2003) Remand ordered for a mental retardation "Atkins" hearing

Arizona v. Rutledge, 2003 Ariz. LEXIS 124 (AZ 9/17/2003) Ring error not harmless beyond a reasonable doubt.

Arizona v. Prasertphong, 2003 Ariz. LEXIS 122 (AZ 9/15/2003) Ring error not harmless beyond a reasonable doubt.

Fudge v. Arkansas, 2003 Ark. LEXIS 486 (Ark 9/25/2003) Trial court's order denying post-conviction relief does comply with Rule 37.5 relating to detailed orders in capital post-conviction cases. Specifically "[o]f the issues pursued by Fudge on appeal, the trial court's order does not contain specific written findings of fact and conclusions of law on three of those issues."

CAPITAL CASES (Unfavorable Disposition)

Bowling v. Parker, 2003 U.S. App. LEXIS 19184 (6th Cir 9/16/2003)(former client) Loss on a grab bag of issues including suppression of evidence that another person may have committed the crime and filing an amended state petition out of time.

Zeigler v. Crosby, 2003 U.S. App. LEXIS 19456 (11th Cir 9/19/2003) Relief denied on claims of prosecutorial misconduct, juror misconduct, ineffective assistance of counsel and alleged errors in re-sentencing.

Pondexter v. Dretke, 2003 U.S. App. LEXIS 19154 (5th Cir 9/16/2003) District court's habeas grant reversed on the issue of trial counsel rendered ineffective assistance by failing to consult with and offer the testimony of a pathologist during the guilt-innocence phase of trial.

Lotter v. Nebraska, 2003 Neb. LEXIS 155 (Neb 9/26/2003) "The DNA testing requested by Lotter could not result in noncumulative, exculpatory evidence relevant to Lotter’s claim that he was wrongfully convicted or sentenced."

Tennessee v. Carter, 2003 Tenn. LEXIS 843 (Tenn 9/18/2003) ) Relief denied on issues relating to: "(1) whether the trial court abused its discretion in admitting photographs of the victims' bodies; (2) whether the trial court committed reversible error in excluding certain mitigating evidence; (3) whether the admission of victim impact evidence violated the constitutional provisions against ex post facto laws; and (4) all other issues mandated by Tennessee Code Annotated section 39-13-206(c)(1)."

Simon v. Mississippi, 2003 Miss. LEXIS 447 (Miss 9/18/2003) Post-conviction petition denied almost solely on grounds of procedural bar save a for a Brady violation which appears to have been a merits rejection.

Arizona v. Sansing, 2003 Ariz. LEXIS 125 (AZ 9/24/2003) Ring error harmless beyond a reasonable doubt.

Pennsylvania v. Champney, 2003 Pa. LEXIS 1735 (PA 9/24/2003) Relief denied on claims relating to sufficiency; knowing use of perjured testimony; Giglio/Brady; failure to file a Bill of Particulars; failure to appoint co-counsel; trial court's failure to grant a witness use immunity; and admission of certain inculpatory statements.

Anderson v. Florida, 2003 Fla. LEXIS 1622 (FL 9/25/2003) Relief denied on "claims that : (1) the trial court erred in finding CCP as an aggravating circumstance; (2) the trial court erred in finding pecuniary gain as an aggravating circumstance; (3) the death penalty is disproportionate; (4) the trial court erred in considering and weighing mitigating evidence; (5) the trial court erred in allowing testimony with respect to blood stain pattern analysis; (6) the trial court erred in denying Anderson's motion to suppress; (7) the trial court erred in admitting photographs of victim Marisha Scott; (8) the cumulative effect of an improper comment by a forensic serologist and an improper comment by the prosecutor in closing argument violated Anderson's right to a fair trial; (9) Florida's death penalty scheme is unconstitutional in light of the Supreme Court's decision in Apprendi v. New Jersey."

Griffin v. Florida, 2003 Fla. LEXIS 1621 (FL 9/25/2003) Relief denied on claims including ineffective assistance of counsel relating to failure to adequately present mitigation evidence; guilt phase ineffectiveness including concession of guilt of aggravators, pretrial publicity, constructive absence during certain phases of the trial and underfunding / overtaxing of CCRC resulted in representation below the level a capital client is due.

Boyd v. Alabama, 2003 Ala. Crim. App. LEXIS 265 (Ala. Crim. App. 9/26/2003) Relief denied, most notably on claims including IAC on both guilt and penalty, Ring, and Atkins.

West v. Alabama, 2003 Ala. Crim. App. LEXIS 250 (Ala. Crim. App. 9/26/2003) Two year statute of limitations imposed under Amendments to Court Rule 32 is retroactively applicable; West is time barred from filing a Rule 32 petition.

Davis v. Alabama, 2003 Ala. Crim. App. LEXIS 247 (Ala. Crim. App. 9/26/2003) Two year statute of limitations imposed under Amendments to Court Rule 32 is retroactively applicable; Davis is time barred from filing a Rule 32 petition.

Gavin v. Alabama, 2003 Ala. Crim. App. LEXIS 262 (Ala. Crim. App. 9/26/2003) Relief denied on claims including racial bias in the grand jury process (including capital indictments in the ninth judicial circuit are returned in an arbitrary, capricious, or discriminatory manner); systemic elimination of African-Americans from grand-jury and petit-jury venires in Cherokee County; race based peremptory strikes; pretrial publicity; failure to remove trial counsel upon request; certain evidentiary issues; one-man lineup; comments on silence; Brady; Ring; and the trial court’s findings concerning the aggravating and mitigating circumstances.

Slaton v. Alabama, 2003 Ala. Crim. App. LEXIS 243 (Ala. Crim. App. 9/26/2003) Relief denied on claims including that Alabama's indigent defense system is constitutionally inadequate and that trial counsel were ineffective for (1)

having a conflict of interest while representing him; (2) not applying for youthful-offender status; (3) not objecting to conduct by the prosecutor that Slaton says constituted misconduct; (4) not presenting adequate mental-health evidence to support his plea of not guilty by reason of mental disease or defect; (5) during the guilt phase of his trial for not requesting a jury instruction on felony murder as a lesser-included offense of capital murder; and, (6) failing to prepare and present certain mitigation evidence.

OTHER CASES OF NOTE

McNeil v. Middleton, No. 01-56565 (9th Cir 9/22/03) Erroneous "imperfect self-defense" instruction deprived petitioner of in this murder prosecution of her chosen defense by requiring that her fear be reasonable.

United States v. Bridges, No. 01-30316 (9th Cir 9/24/2003) Search warrant's failure to specify what criminal activity was being investigated, or suspected of having been perpetrated, renders its legitimacy constitutionally defective.

http://capdefnet.org/hat/contents/recent_filing/4_recent_filings_and_actions_in_the_supreme_court.htm

FOCUS

Cases noted to date for the pending Supreme Court term include (from CapDefNet & the SCOTUS Blog):

Smith v. Dretke, 02-11309 (cert. granted September 30, 2003)

(case below: (5th Cir.)) (cert petition)

Question presented

"Did the Court of Appeals misapply Penry v. Johnson, 532 U.S. 782 (2001), by imposing a requirement that evidence demonstrate a 'uniquely severe permanent handicap' in order for a Texas capital murder defendant to claim that a 'nullification' instruction was improper?"

Beard v. Banks , 02-1603 (cert. granted September 30, 2003)

(case below: 316 F.3d 228 (3rd Cir.)(cert petition)

Questions presented:

(1) Does this court’s decision in Mills v. Maryland, 486 U.S. 367 (1988), constitute new rule of law that cannot be applied retroactively to award sentencing relief to prisoner whose conviction became final before Mills was announced? (2) If Mills applies retroactively, where state supreme court has rejected Mills challenge because neither trial court’s instructions nor verdict form advised jury that it must be unanimous as to existence of mitigating circumstances and, to contrary, made clear that unanimity was required only to find aggravating circumstances and to impose sentence of death, is that decision reasonable application of this court’s precedent?

Banks v. Cockrell, 02-8286 (cert. granted April 21, 2003)

( click here to view decision below)

Cert was granted limited to the following three questions:

1. Did the Fifth Circuit commit legal error in rejecting Banks' Brady claim — that the prosecution suppressed material witness impeachment evidence that prejudiced him in the penalty phase of his trial — on the grounds that:

(a) the evidence supporting the claim was procedurally defaulted, notwithstanding the fact that, like in Strickler v. Greene, 527 U.S. 263 (1999), there was no reasonable basis for concluding that counsel for Banks could have discovered the suppressed evidence prior to or during the trial or state post-conviction proceedings; and

(b) the suppressed evidence was immaterial to Banks' death sentence, where the panel neglected to consider that the trial prosecutors viewed the evidence to be of "utmost importance" to showing a capital sentence was appropriate?

2. Did the Fifth Circuit act contrary to Strickland v. Washington, 466 U.S. 668 (1984) and Williams v. Taylor, 529 U.S. 362 (2000), where it weighed each item of mitigating evidence separately and concluded that no single category would have brought a different result at sentencing without weighing the impact of the evidence collectively?

3. Did the Fifth Circuit act contrary to Harris v. Nelson, 394 U.S. 286 (1969) and Withrow v. Williams, 507 U.S. 680 (1993) in holding that Fed. R. Civ. P. 15(b) does not apply to habeas proceedings because "evidentiary hearings" in those proceedings are not similar to civil "trials"?

Click here to view Banks' petition for writ of certiorari.

Baldwin v. Reese , 02-964 (cert. granted May 27, 2003)

(case below: 282 F.3d 1184 (9th Cir.))

Question presented:

Does state prisoner "alert" state's highest court that he is raising federal claim, as required by doctrine of exhaustion of remedies, when - in that court - he neither cites specific provision of federal constitution nor cites at least one authority that has decided claim on federal basis?

Castro v. United States, 02-6683 (cert granted January 27, 2003)

Questions Presented:

(1) When a U.S. District Court re-characterizes a pro-se federal prisoner's first post conviction motion as a habeas petition under 28 U.S.C. § 2255, does such re-characterization make the prisoner's subsequent attempt to file a §2255 petition a "second or successive petition" within the purview of the Antiterrorism and Effective Death Penalty Act (AEDPA)? (2) Does the Supreme Court have jurisdiction to review the 11th Circuit's decision affirming the dismissal of a §2255 petition for writ of habeas corpus as second or successive?

The second question was added by the Supreme Court when it granted the certiorari petition.

Muhammad v. Close, 02-9065 (cert. granted June 16, 2003)

Questions presented:

(1) Must plaintiff who wishes to bring 42 U.S.C. 1983 suit challenging only conditions, rather than fact or duration, of his confinement satisfy favorable termination requirement of Heck v. Humphrey? (2) May prison inmate who has been, but is no longer, in administrative segregation bring § 1983 suit challenging conditions of his confinement (i.e., his prior placement in administrative segregation) without first satisfying favorable termination requirement of Heck v. Humphrey?

Crawford v. Washington, 02-9410 (cert. granted June 9, 2003)

Questions Presented:

(1) Whether the Confrontation Clause of the Sixth Amendment permits the admission against a criminal defendant of a custodial statement by a potential accomplice on the ground that parts of the statement .interlock. with the defendant’s custodial statement. (2) Whether this Court should reevaluate Confrontation Clause framework established in Ohio v. Roberts, 448 U.S. 56 (1980), and hold that the Clause unequivocally prohibits the admission of out-of- court statements insofar as they are contained in testimonial materials, such as tape-recorded custodial statements.

Missouri v. Seibert, 02-1371 (cert. granted May 19, 2003)

Questions Presented:

Is the rule "that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights after he has been given the requisite Miranda warnings," Oregon v. Elstad, 470 U.S. 298, 318 (1985), abrogated when the initial failure to give the Miranda warnings was intentional?

United States v. Patane, 02-1183 (cert. granted April 21, 2003)

(case below: 304 F.3d 1013 (10th Cir.))

Questions Presented:

Whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), requires the suppression of physical evidence derived from the suspect's unwarned but voluntary statement?

Arizona v. Gant, 02-1019 (cert. granted April 21, 2003)

(case below: 43 P.3d 188 (Az.))

Questions Presented:

When police arrest the recent occupant of a vehicle outside the vehicle, are they precluded from searching the vehicle pursuant to New York v. Belton unless the arrestee was actually or constructively aware of the police before getting out of the vehicle?

Maryland v. Pringle, 02-0809 (cert granted March 24, 2003)

Questions Presented:

Where drugs and a roll of cash are found in the passenger compartment of a car with multiple occupants, and all deny ownership, does the 4th Amendment prohibit a police officer form arresting the occupants of the car?

Fellers v. United States, 02-6320 (Cert granted March 10, 2003)

(lower court opinion: 285 F.3d 721 (8th Cir. 2002))

Questions Presented:

(1) Did the 8th Circuit err when it concluded that Feller's 6th Amendment right to counsel under Massiah v. United States, 377 U.S. 201 (1964), was not violated because he was not interrogated by government agents when the proper standard under Supreme Court precedent is whether the the government agents deliberately elicited information from him? (2) Should second statements, preceded by Miranda warnings, have been suppressed as fruits of an illegal post-indictment interview without the presence of counsel, under this Court's decisions in Nix v. Williams, 467 U.S. 431 (1984), and Brown v. Illinois, 422 U.S. 590 (1975)?

United States v. Banks, 02-473 (cert. granted Feb. 24, 2003)

(case below: 282 F.3d 699 (9th Cir.))

Questions Presented:

Did law enforcement officers executing warrant to search for illegal drugs violate Fourth Amendment and 18 U.S.C. § 3109, thereby requiring suppression of evidence, when they forcibly entered small apartment in middle of afternoon 15-20 seconds after knocking and announcing their presence?

Yarborough v. Alvarado, 02-1684 (cert. granted September 30, 2003)

(case below: (9th Cir.)) ( cert petition)

Questions Presented:

Cert granted on whether a special standard determines whether juveniles are "in custody" for purposes of Miranda v. Arizona. (Exact question unavailable)

OTHER RESOURCES

The Daily Blog noted this week (http://capitaldefenseweekly.com/blognews.html):

More on politics and the death penalty

Just a quick note about a new law review article entitled " Ideological Voting on Federal Court of Appeals: A Preliminary Investigation." The article concludes by looking at voting records in death penalty cases that a judges political affiliation (or more precisely put, party affiliation of the nominating president) has a direct correlation to the probability that a judge will vote for death in a capital case with republicans dramatically more likely to vote to kill than democrats. Interestingly, party affiliation appears to have had no substantial effect in noncapital criminal cases.

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

DPIC Announces New Searchable Database

The Death Penalty Information Center has added a new and versatile feature to its extensive Web site. Users may now search a fully functional "Executions Database" for detailed information on all executions in the United States in the modern era, 1977 to the present. The database enables users to search by year, by state, by race of defendant and victim, and by many other categories. For example, you can now find a list of all the executions in Texas involving white defendants, or a list of all the executions by electrocution since 1990. We believe this feature will be very useful, particularly to journalists, attorneys, students, and other researchers. To use this new database, visit http://www.deathpenaltyinfo.org/executions.php

Congressional Leaders Reach Consensus on DNA Legislation

A broad bi-partisan coalition of House and Senate lawmakers has introduced legislation to establish a five-year, $1 billion initiative to ensure DNA testing for death row inmates who claim innocence. The "Advancing Justice Through DNA Technology Bill," supported by House Judiciary Chairman F. James Sensenbrenner and Senate Judiciary Chairman Orrin Hatch, includes an Innocence Protection Act (IPA) provision aimed at reducing the risk of wrongful convictions. Under this portion of the bill, all states applying for IPA grant funding must provide death row inmates with access to DNA testing. (Associated Press, September 30, 2003) Additional funding is available to establish training services for lawyers assigned to capital cases, to increase the maximum amount of compensation for federal inmates who were wrongfully convicted, and to establish in-state DNA Testing Programs, which are named in honor of Kirk Bloodsworth, the first death row inmate exonerated by DNA evidence. Learn more about this bill. See Innocence.

Florida Supreme Court Suspends DNA Deadline

By a vote of 4-3, the Florida Supreme Court has set aside an October 1st deadline for inmates to request DNA testing of evidence that could prove their innocence. The justices suspended the deadline while they consider the inmates' challenge to the rule's constitutionality. Arguments in the case are slated for November 7, 2003. According to the law that established the deadline, if inmates convicted prior to 2001 fail to file for testing before October 1, 2003, DNA evidence in their cases may be destroyed. (Associated Press, September 30, 2003) Read the Court Order. See Innocence.

Support for Death Penalty in North Carolina Drops Below 50%

A recent North Carolina public opinion poll conducted for The News & Observer found that only 49% of voters polled approve of executions for those convicted of first-degree murder while 42% favor life in prison without parole as the punishment. Nine percent were unsure. The same poll registered 40% of respondents in support of a moratorium on executions and 53% in opposition to halting executions for two years while the state studies and fixes possible flaws in its death penalty system. State Representative Paul Luebke, who supports a moratorium, noted, "It's clear that support for the death penalty is not that strong in North Carolina." The North Carolina Senate in April approved a two-year moratorium bill, which the House will consider in May 2004. (The News & Observer, September 19, 2003) See Public Opinion.

Extraordinary Representation Needed to Free Death Row Inmate

The Philadelphia law firm of Morgan Lewis recently celebrated the exoneration of John Thompson, who spent 18 years on Louisiana's death row before two of the firm's partners helped to win his freedom. Firm partners J. Gordon Cooney Jr. and Michael L. Banks provided Thompson with pro bono services that cost the firm $1.7 million in legal work and expenses over a 15-year period and involved 90 lawyers and support staff. According to the city's bar association, there is a massive need for additional lawyers to do more. Sharon Browning, executive director of the bar association's Volunteers for Indigent Defense, said, "I can't even begin to tell you how vast the need is. It's huge. The overwhelming majority of people who are poor have no access to the legal system - none." Even with the extraordinary representation by Morgan Lewis, Thompson came close to execution in 1999 until a piece of evidence was discovered that had been withheld from the defense in 1985. (Philadelphia Inquirer) See DPIC's report With Justice for Few: The Growing Crisis in Death Penalty Representation.

Idaho Counties Struggle With Costs of the Death Penalty

Despite assistance from the county-supported statewide Capital Crimes Defense Fund, local officials in several Idaho counties are troubled by the economic burden of prosecuting death penalty cases. They are also concerned about a recent federal appellate court ruling that could overturn all existing state death sentences because Idaho's sentencing procedures were deemed unconstitutional. Cassia County Commissioner Paul Christensen said that in addition to the millions of dollars spent to secure death penalty sentences, it will cost the county an estimated $200,000 each to pursue reimposition of the death penalty in those cases affected by the federal ruling. He said that it costs Idaho taxpayers about $1 million to imprison somebody for life, but a death penalty case may cost five times that. "I think people need to realize the impact it has on our state taxpayers," said Christensen. Lemhi County Commissioner Robert Cope reported that his county of 7,700 residents could not afford to prosecute a death penalty case even with financial help from the state, and in 1990, Lewis County had to borrow money to pursue a capital conviction. (Idaho Statesman, September 19, 2003) See Costs.

Former FBI Director Calls For Broader Access to DNA Testing

Former FBI Director William Sessions recently called on prosecutors and law enforcement officials to support broader access to DNA testing to address growing concerns about innocence. Sessions' comments in an op-ed in The Washington Post came just weeks after Kirk Bloodsworth, the nation's first death row inmate to be freed based on DNA testing, was informed that Baltimore County authorities had genetically linked another suspect to the crime using DNA evidence. Sessions stated:

[W]ith 137 post-conviction DNA exonerations now on the books in the United States, I am increasingly concerned about recent news stories that suggest a growing resistance on the part of prosecutors across the country to allow post-conviction DNA testing, even in cases where there is strong evidence of innocence.

The Bloodsworth case vividly demonstrates the need for law enforcement officials to join advocates for the innocent in seeking DNA testing where it previously was unavailable. The phenomenal scientific potential of this evidence should be championed by law enforcement officials, whose principal interest has always been to protect the innocent as they try to apprehend the guilty.

(Washington Post, September 21, 2003) See Innocence.

Fewer Death Sentences Sought in New York

Eight years after the death penalty was reinstated in New York, the number of death sentences sought by prosecutors has sharply declined. According to the New York Capital Defender Office, the number of death penalty notices filed has dropped from a record-high 14 in 1998 to just two so far in 2003. Howard R. Relin, a long-time district attorney in Rochester and death penalty supporter, noted: "D.A.'s are being more and more careful in making that determination. There's a sense of realism that has set in to prosecutors around New York State, as a result of the jury verdicts we have seen throughout the state." Richard Brown, the Queens district attorney, added that prosecutors have come to understand that the suffering of murder victims' relatives is often prolonged in death penalty cases because of the years of legal warfare and that capital cases are a drain on prosecutors' time and budgets. He stated, "Particularly at a time of fiscal crisis, it is very difficult to justify taking experienced prosecutors away from handling other violent felonies." Death sentencing has also been declining in other states around the country. (New York Times, September 21, 2003) See New York and Life Without Parole.

NEW VOICES: Prosecutor Criticizes Federal Government's Decision to Seek Death Penalty

After U.S. Attorney General John Ashcroft authorized a federal death penalty prosecution against two Massachusetts men accused of a gang murder, the local Suffolk County District Attorney, Daniel F. Conley, objected to using capital punishment to end urban violence, stating, "I do not believe the death penalty is a deterrent or appropriate punishment for inner-city homicide. The death penalty runs counter to the strategies for preventing and prosecuting urban crime -- which include sensitivity to the neighborhoods we serve -- that have proven successful in Boston over the last decade." Conley plans to personally appeal to Attorney General Ashcroft to drop the death penalty prosecution against the defendants. Carrie Gethers, the victim's grandmother, has also announced that she does not support the federal government's decision to seek the death penalty. She stated, "It won't do anybody any good. . . I don't see any use for that anymore. I'm not a murderer. Not me. I won't say yes to that. He's gone. It hurts, but this won't bring him back." (Boston Globe, September 19, 2003). See New Voices and Federal Death Penalty.

Editorial Decries Virginia's Juvenile Death Penalty Law

The Washington Post recently responded to Judge Jane Marum Roush's decision allowing Virginia to seek the death penalty for Lee Boyd Malvo despite treaties forbidding such a sentence for juveniles. The paper's editorial noted that while the judge's decision may be legally correct, it "does not render Virginia's (juvenile death penalty) policy any less abhorrent." The editorial went on to state:

Virginia's juvenile death penalty should not be abolished by a judge because the French object to it. But we hope that someday soon it will be abolished by the General Assembly because Virginians object to it -- and in that regard, international opinion is one factor worthy of consideration. . . .

[W]hatever one thinks of capital punishment, it ought not be applied to children, whose personalities and capacities for judgment are not yet fully formed. Government takes on, in general, a protective role with respect to children -- one that sometimes restricts their liberty and the liberty of adults in dealing with them, by way of keeping them safe. It is an abdication of that protective role for state governments, even in prosecuting terrible crimes, to respond to youth crime by seeking execution. To sentence someone to die for a crime committed as a child, one has to believe that -- in the long natural life the defendant would otherwise have before him -- meaningful change and some measure of redemption are either impossible or unimportant.

(Washington Post, September 19, 2003). See Juvenile Death Penalty.

North Carolina Panel Urges Improved Lineup Procedures to Protect Innocent

In an effort to prevent wrongful convictions and ensure accurate eyewitness identification, the North Carolina Actual Innocence Commission has recommended new procedures for state law enforcement agencies. The commission was formed by state Supreme Court Justice Beverly Lake and is comprised of judges, police, prosecutors, defense attorneys and others. Among the recommendations were policy changes requiring police to show eyewitnesses lineup participants one at a time in live lineups or photos, instead of revealing them as a group, to ensure that the witnesses evaluate each person individually, instead of comparing them. In addition, the commission recommended that police officers in charge of the lineup not know which participant is the suspect to avoid the potential of pressuring the witness or providing helpful hints. (Associated Press, September 13, 2003). See Innocence.

Poll Reveals that Carolinians Favor Death Penalty Moratorium

An August 2003 Charlotte Observer/NBC-6 poll revealed that nearly half of those surveyed in North and South Carolina say the states should pause executions until the death penalty system is deemed fair. Of the 908 respondents, 48% voiced support for a moratorium on executions and 41% were opposed. While men were about equally split on the question, 50% of women favored a moratorium and 35% opposed it. Among African American respondents, 67% favored a moratorium, while 42% of white respondents said that they would support halting executions. (Charlotte Observer, September 13, 2003) See Public Opinion.

TalkLeft notes: (http://talkleft.com)

Caring About Prison Rape

Excellent article in Slate today about why no one really cares about prison rape. The authors note that the recent Prison Rape Elimination Act that passed Congress merely provides for a study on the issue--not to do anything about it. The authors, have some suggestions:

Perhaps while this federal study is under way, there are other, more honest ways of acknowledging what the American prison system has created. Perhaps every sentencing judge should require that a defendant headed for prison be given extensive "pre-rape counseling" in the hope that he or she can take some small personal steps to reduce the risk of attack. Or perhaps we could require judges to demand data about the differential risks of rape and assault for different types of prisoners in different prisons and begin to factor such data into any sentence. "You committed murder, so let's send you somewhere where you're really likely to be raped." In that way we will be at least as brutally honest with ourselves as we are literally brutal with our prisoners.

9th Cir. Invalidates Compelled DNA Databank Testing

More good news: The 9th Circuit rules for prisoner privacy over the FBI's DNA databank program:

A 3-year-old law that requires federal prisoners to give blood samples for the FBI's DNA database was declared unconstitutional Thursday by a federal appeals court.

The 9th U.S. Circuit Court of Appeals ruled that requiring the blood samples amounts to an illegal invasion of privacy because they are taken without legal suspicion that the convicts were involved in other crimes.

The San Francisco-based court, the first federal appeals court to address the federal DNA Analysis Backlog Elimination Act, said that is a violation of inmates' Fourth Amendment rights against illegal searches.

Maybe now more of that $545 million earmarked for the backlog of DNA testing of unsolved crimes in the Bush-backed Debbie Smith Act can go to testing prisoners with innocence claims under the Innocence Protection portion of the new Advancing Justice Through DNA Technology Act introduced in Congress yesterday.

Judge Bars Death Penalty in Moussaoui Case

Yes!

The Judge presiding over the trial of Zacarias Moussaoui has decided on sanctions for the Government as a result of its refusal to comply with her order to allow Moussaoui to interview 3 al Qaeda witnesses who may have exculpatory information about his participation or lack of participation in the 9/11 attacks: the Government can't seek the death penalty.

A U.S. federal judge on Thursday barred the government from seeking the death penalty for terrorism suspect Zacarias Moussaoui, inflicting a major defeat on the government for refusing to let the defendant question three al-Qaida prisoners.

She said the government's notice of intent to seek a death sentence must be stricken and prosecutors cannot present any evidence or argument that the defendant was involved in, or had knowledge of, planning the Sept. 11 attacks.

This is way better for Moussaoui than dismissing all charges as the Government had wanted. Had all charges been dismissed, the Government, if it lost the appeal, most likely would have decided to try Moussaoui in a secret miltary tribunal proceeding.

With the case still alive, and the Government not prohibited from going forward on all counts at trial and getting a life verdict, we think Ashcroft and Rumsfeld would face far too much criticism if they moved Moussaoui's case to a tribunal just to be able to execute him.

Judge Brinkema's order today will be stayed so the Government can appeal. We think they face a tougher battle on appeal since it is up to the Judge to decide on sanctions, and since she didn't pick the most serious sanction, dismissal, the appeals court will be hard pressed to say she abused her discretion.

Since last September, we've been suggesting:

Maybe a compromise could be worked out where the Government drops the death penalty request against Moussaoui if Moussaoui pleads and agrees to a life sentence thereby avoiding the need to call Binalshibh at all.

Whatever happens, it should occur publicly. The Government should not be allowed to hide behind a veil of secrecy in this case as it has with Padilla and Hamdi and the other so called "enemy combatants."

All of our Moussaoui coverage can be found here.

Innoc. Protection Act to Be Introduced

Republicans and Democrats in Congress have agreed upon a compromise version of the Innocence Protection Act. It will be introduced today, along with a "Debbie Smith Act", in a bill called the Advancing Justice Through DNA Technology Act. While $1 billion has been earmarked for the bill, it's important to note that $745 million goes to the Debbie Smith Act for DNA testing of old rape kits. There's a big backlog of those and Bush wants to get them entered into the Central DNA database. The remaining $245 million will be split among other things like free DNA testing to inmates with innocence claims, provided they meet certain criteria, grants to states to use for training lawyers in capital cases, increasing compensation limits for federal death row inmates who have been wrongfully imprisoned, and perhaps some others. A portion of the $245 will also go to states to help them pay for the added DNA testing.

The bills introduced in 2000 and 2001 had stronger protections for the innocent and for those facing capital trials. If you would like to compare them, here is S. 2073, the Innocence Protection Act introduced in Feb. 2000, and here is S. 486, the 2001 version of the Bill.

The final bill will be out sometime Wednesday, and we'll link to it when we come across it.

The current bill will lack some of the important features of its predecessors, but it is still a bill worth pushing for. While not a solution, it's a welcome step in the right direction.

Also, credit where credit is due: Rep. Bill Delahunt (D-MA) and Sen. Patrick Lehay (D-VT) worked tirelessly to get this legislation passed for five years. With over 265 sponsors in the last Congress, some Republicans wouldn't budge and stymied the whole deal. After lengthy negotiations with Sensenbrenner and Hatch, some of the more vocal opponents of the bill, a deal was hammered out. It's as good as it's gonna get right now, and its worthy of support. It's also just a beginning. We have nothing but praise for those who worked so hard on behalf of the innocent imprisoned to get this through.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).

SUBSCRIBING & ARCHIVES

Capital Defense Weekly is published forty (40) times (or so) a year with the archives accessible from the pull down bar located at http://capitaldefenseweekly.com/index.html.