Capital Defense Weekly, September 30, 2002

By Capital Defense Newsletter
Sep 30, 2002

Two cases are noted as unduly hot in this edition and several more as very positive. The hot listed cases reflect the precarious nature of the death penalty in the closing months of 2002 and may reflect a growing unease in the lower federal courts of the overly broad use of the death penalty as currently practiced.

The Eleventh Circuit inBradley v. Pryorhas held that access to DNA evidence under Section 1983 does not constitute a habeas proceeding. The net effect ofBradleyis to give valuable ammunition to those seeking to get access to DNA evidence but who have been denied state law. The decision in Bradley immediately sets up a conflict on the issue as the Fourth Circuit has recently reached the opposite conclusion, hence making it ripe for Supreme Court review.

In the second hot listed case,United States v. Fell, Judge Sessions becomes the second federal district court judge in the Second Circuit to strike the federal death penalty in the case before him as unconstitutional. This time the reason for finding the federal statute unconstitutional deals with the burden of proof required for aggravators under the Sixth Amendment. The language is strong and clear, "[i]f the death penalty is to be part of our system of justice, due process of law and the fair-trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected." The federal death penalty does not meet these arduous requirements Judge Sessions finds.

The growing federal unease can also be found in a recent speech noted by the Death Penalty Information Center. Former Chief Judge of the Sixth Circuit, Gilbert Merritt said in Nashville before a group of state and federal judges, that capital punishment is "by far the most difficult, time-consuming, frustrating, and critical joint problem (judges) have to grapple with on a daily basis." Merritt noted that, despite the intense scrutiny of death penalty cases, he has reviewed two cases in which he has "serious doubts" the right man was sentenced to death. He described Tennessee's death penalty system as "still broken" and stated that other judicial issues "pale in comparison." The reliability of that system has been muddied by passion, politics, "extremely zealous" prosecutors, and a lack of training for defense attorneys, he said.

The Supreme Court has added another capital case to their docket, this time looking at the question of whether a "McFarland"/§ 848 petition meets the AEDPA's one year filing requirement in Woodford v. Garceau. The Focus section returns this week and examines the upcoming Supreme Court docket, save Woodford v. Garceau.

Several favorable decisions are also noted. The Northern District of Illinois inU.S. ex rel. Madej v. Schomig, in dicta has provided some great language on the Vienna Convention, as well as that the Ring & Atkins are "watershed" cases within the meaning of Rule 59(e) of the Federal Rules of Civil Procedure. In Alabama a long litany of cases have had favorable rulings in this edition including: Ex parte Taurus Carroll (jury override); Ex parte Andy Dwight Pierce (ineffectiveness relating to jury's contact with sheriff); and Ex parte Jimmy Lee Brooks (judicial recusal since he may be a witness).

Finally, please note, over the next few weeks, as it has been the last few weeks, the schedule for the weekly will be abnormally erratic due to my own schedule currently being in chaos. Every attempt will be made to get it out weekly, even it means, as this edition, a few days late. - k

Execution Information

Since the last edition the following have been executed:

September
24 Rex Mays Texas (800th execution)
25 Calvin King Texas
25 Robert Buell Ohio
October
1 James Powell Texas
2 Rigoberto Velasco Florida--for. nat'l, volunteer

The following cases have been stayed:

October
9 Aileen Wournos Florida (Gubernatorial stay for competency concerns subject to lifting on no notice)

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

October
9 Aileen Wournos Florida--female, volunteer
17 Donald Dallas Alabama
23 William R. Jones Missouri

HOT LIST

Bradley v. Pryor, 2002 U.S. App. LEXIS 19951 (11th Cir 09/23/2002) (concurrence) DNA testing suit under 42 U.S.C. section 1983 action seeking access to evidence believed to be in the state's possession permitted to proceed.

The magistrate judge recommended dismissing Bradley's § 1983 action, concluding that because Bradley was seeking evidence that might eventually exonerate him, his suit was the "functional equivalent" of a second habeas petition, over which the district court could not exercise jurisdiction because it did not satisfy the procedural prerequisites of 28 U.S.C. § 2244. The magistrate also denied Bradley's motion for discovery. The district court adopted the magistrate's report and recommendation in its entirety and dismissed the action. The court then issued a certificate of appealability on the sole question now before us n2:
Whether a 42 U.S.C. § 1983 action initiated by a state prisoner sentenced to death which seeks to compel the state to produce physical evidence for DNA testing and/or to account for such evidence for the purpose of later asserting a claim of actual innocence or a due process claim under Brady v. Maryland, [373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963),] or Arizona v. Youngblood, [488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988),] is the "functional equivalent" [*5] of a petition for federal habeas corpus.
We review de novo the dismissal of an action for lack of subject matter jurisdiction. Carter v. Rodgers, 220 F.3d 1249, 1252 n.3 (11th Cir. 2000).
DISCUSSION
The Supreme Court first considered the potential overlap between § 1983 actions and habeas corpus petitions in Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), and held that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks [*6] immediate or speedier release. Id. at 487-90. Later, in Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), the Court considered under what circumstances an action for damages pursuant to § 1983--in other words, in which the relief requested does not involve immediate or speedier release--will not lie and must instead be brought as a habeas petition. Sharpening the formula it applied in Preiser, the Court explained that the decisive issue is "whether a judgement in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . ." Id. at 487. If it would, the Court held that the § 1983 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. "But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Id. (emphasis in original).
Bradley argues that his § 1983 suit should be allowed to [*7] proceed because success in his suit will not demonstrate the invalidity of his conviction or sentence. We agree. Bradley seeks access, for the purpose of DNA testing, to evidence that he believes is in the State's possession. He prevails in this lawsuit once he has access to that evidence or an accounting for its absence. Nothing in that result necessarily demonstrates or even implies that his conviction is invalid. As Bradley points out, it is possible that the evidence will not exculpate him, or the proof will show that any unavailable evidence was lost innocently. In that case, he would have no grounds subsequently to pursue a challenge to his conviction or sentence. But even if the evidence, after testing, permits Bradley to challenge his sentence, that challenge is no part of his § 1983 suit. He would have to initiate an entirely different lawsuit, alleging an entirely different constitutional violation, in order to demonstrate that his conviction and sentence are invalid.
The State argues that the only reason Bradley wishes to test the evidence is to mount a subsequent challenge to his conviction and sentence, and that his § 1983 suit is therefore the functional equivalent [*8] of a habeas corpus proceeding. That argument finds support in a recent Fourth Circuit decision holding that, in a suit to produce evidence for DNA testing, the fact that the plaintiff intends to use the results of the DNA testing to undermine his conviction means that, under Heck, the evidence is properly sought in a habeas corpus proceeding rather than in a suit pursuant to § 1983. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002). However, one member of the Harvey panel disagreed with that argument, and pointed out--correctly, in our view--that a plaintiff's successful effort to obtain evidence for DNA testing does not necessarily imply that his conviction and sentence are invalid:
In this proceeding, Harvey seeks access to the biological evidence held by the Commonwealth's Attorney, and his suit, if successful, would merely result in the Commonwealth's Attorney making the evidence available to him. That act alone--providing Harvey with access to the biological evidence relating to his rape conviction--does not "necessarily imply" the invalidity of Harvey's conviction or sentence. [Heck,] 512 U.S. at 487. Although Harvey might [*9] use the evidence, at some future date, to initiate a separate action challenging his conviction, future exculpation is not a necessary implication of Harvey's claim in this case.
278 Fed. 3d 370, 382-83 (King, J., concurring in part). Moreover, although a subsequent change in state law permitted Harvey to obtain the evidence he sought, Judge Luttig wrote in his concurrence to the denial of rehearing en banc that, were the federal proceedings not rendered moot by the change in state law, he would have voted to hear the case en banc to correct a "fairly clear[]" error in the panel opinion. Harvey v. Horan, 285 F.3d 298, 307 (4th Cir. 2002) (Luttig, J., respecting the denial of rehearing on banc). Judge Luttig wrote:
I do not believe it even arguable that a post-conviction action merely to permit access to evidence for the purpose of STR DNA testing "necessarily implies" invalidity of the underlying conviction. Indeed, such necessarily implies nothing at all about the plaintiff's conviction. It certainly implies nothing more (and arguably it implies a good deal less) than does an assertion of constitutional right to material and exculpatory information producible [*10] under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), which has never been thought necessarily to imply the invalidity of the underlying conviction. The results of any DNA tests that are eventually performed may be inconclusive, they may be insufficiently exculpatory, or they may even be inculpatory. That these scientific possibilities exist, in and of itself, suffices to establish that the asserted right of mere access is not a direct, or for that matter even an indirect, attack on one's conviction or sentence. But if this were not enough to establish the point, then it should be that, in order to overturn a conviction based on exculpatory evidence that might appear from any DNA testing, the petitioner would have to initiate an entirely separate action at some future date, in which he would have to argue for his release upon the basis of a separate constitutional violation altogether.
285 Fed. 3d 298, 308. For the reasons expressed by Judges King and Luttig, we disagree with the Fourth Circuit panel that Heck does not permit a § 1983 suit for the production of evidence for the purpose of DNA testing. On the contrary, Heck explicitly [*11] authorizes a § 1983 action that does not "necessarily imply" the invalidity of the plaintiff's conviction, see Heck, 512 U.S. at 487, and it is clear to us that Bradley's suit does not "necessarily imply" that his conviction is invalid.
The State also contends that a number of Eleventh Circuit decisions support its position that Bradley's suit may proceed only as a habeas corpus petition. First, it notes that in Felker v. Turpin, 101 F.3d 95 (11th Cir. 1996), and Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997), we held that § 1983 challenges to the constitutionality of electrocution as a means of execution were the "functional equivalent" to a petition for habeas corpus and were therefore subject to the procedural requirements governing second or successive petitions. The State argues that these cases cannot be distinguished from the present one, because just as the evidence might not exculpate Bradley, the plaintiffs in those cases "may not have been given relief," "depending on the district court's rulings and the evidence presented in support of the Eighth Amendment claims." But Alabama is simply pointing out that the plaintiffs [*12] might have been unsuccessful in their lawsuits, a consideration that is plainly irrelevant under Heck. Again, Heck states that the relevant inquiry is "whether a judgement in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . ." 512 U.S. at 487 (emphasis added). Obviously, if the plaintiff loses, the validity of the conviction or sentence has not been called into question. But Heck would be meaningless if the possibility that the plaintiff might lose his § 1983 suit were sufficient to establish that the suit does not necessarily imply the invalidity of the conviction or sentence. That is why the Heck inquiry considers the effect on the conviction and sentence if the plaintiff is successful. If the Felker and Hill plaintiffs were successful--in other words, if the court determined that electrocution was an unconstitutional means of execution--it would "necessarily imply" the invalidity of their sentences of death by electrocution. Accordingly, under Heck, a § 1983 suit does not lie in those cases. But as previously discussed, if Bradley is successful in his lawsuit, his conviction and sentence [*13] will not be called into question, since the only thing he will have secured is access to evidence.
The other case cited by the State is similarly distinguishable. In Abella v. Rubino, 63 F.3d 1063 (11th Cir. 1995), the plaintiff argued that the defendants "knowingly and willfully conspired to convict him falsely by fabricating testimony and other evidence against him . . . ." Id. at 1064. We held that, under Heck, the action did not lie because "judgment in favor of Abella on these claims [that the defendants unconstitutionally conspired to convict him of crimes he did not commit] 'would necessarily imply the invalidity of his conviction.'" Id. at 1065 (quoting Heck, 512 U.S. at 487). By contrast, Alabama cannot show in this case that judgment in favor of Bradley would necessarily imply the invalidity of his conviction.
We note again that Bradley's suit seeks only the production of evidence. There has been no discovery regarding the State's claim that certain items of evidence are missing, but in any event, that claim does not alter the nature of Bradley's suit. We therefore reverse the decision of the district [*14] court and remand for further proceedings.

United States v. Fell, 01-CR-12-01 (Vt DC 9/24/2002) Striking down the federal penalty statute under Ring/Apprendi as incompatible with the Sixth Amendment.

When Congress enacted the FDPA it could not have anticipated that death-eligibility factors would be regarded as the functional equivalent of elements. Consequently it specified an evidentiary standard and a burden of proof it undoubtedly thought would provide more procedural protection than the usual sentencing proceeding. See United States v. Allen, 247 F.3d 741, 759-60 (8th Cir. 2001) (relaxed evidentiary standard works to defendant’s advantage in helping to prove mitigating factors and to disprove aggravating factors, rejecting facial challenge to FDPA’s relaxed evidentiary standard), vacated by 122 S. Ct. 2653 (2002). Courts are able to try and sentence 21 U.S.C. § 841 offenders without offending the Constitution because the statute’s silence is not inconsistent with treating drug type and quantity as an element to be tried and proven to a jury beyond a reasonable doubt and on the basis of admissible evidence. See United States v. McAllister, 272 F.3d 228, 233 (4th Cir. 2001). Section 3593(c) is not silent however; its relaxed evidentiary standard requirement is inconsistent with treating the death eligibilityfactors as elements.
Congress has the power to prescribe what evidence is to be received in the courts of the United States, Tot v. United States, 319 U.S. 463, 467 (1943), consistent with the commands of the Constitution. The Due Process Clause sets limits upon that Congressional power, however. See id. “Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized intorules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard [persons] from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.” Brinegar v. United States, 338 U.S. 160, 174 (1949).
The full panoply of criminal trial rights may not be appropriate at all phases of a capital sentencing, given the mandate to fashion an individualized sentence, based on a broad range of information. But recognition that the death-eligibility factors are the functional equivalents of elements of the capital offense necessitates recognition that the fundamental rights of confrontation and cross-examination and an evidentiary standard consistent with the adversarial nature of the proceeding must be afforded in the death-eligibility determination.
Congress has explicitly and unambiguously provided that the Federal Rules of Evidence do not apply in § 3593 hearings, and thus by necessary implication that a defendant does not have confrontation or cross-examination rights at a capital sentencing proceeding. This is not a situation where a Constitutional question can be avoided by adopting one of two plausible constructions. Cf. Jones, 526 U.S. at 239-40. This is not a situation where the Court can correct a gap or a Congressional oversight, can state, in effect, if Congress had known that the death-eligibility factors were the functional equivalent of elements, Congress would have ensured that the rules of evidence applied. Given the fact that Congress has spoken on the issue, the Court is not permitted to fashion its own evidentiary rules for the eligibility portion of a capital sentencing proceeding in defiance of the Congressional mandate. The FDPA “cannot be saved by judicial reconstruction.” United States v. Jackson, 390 U.S. 570, 585 (1968).
The task of designing a constitutional capital sentencing scheme is the task of legislatures, not judges.
[T]he Bill of Rights safeguards . . . are the very vitals of a sound constitutional legal system designed to protect and safeguard the most cherished liberties of a free people. These safeguards were written into our Constitution not by judges but by Constitution makers. Freedom in this Nation will be far less secure the very moment that it is decided that judges can determine which of these safeguards ‘should’ or ‘should not be imposed.’”
In re Gault, 387 U.S. 1, 62-63 (1967) (Black, J. concurring).
The Court concludes that the FDPA, which bases a finding of eligibility for imposition of the death penalty on information that is not subject to the Sixth Amendment’s guarantees of confrontation and cross-examination, nor to rules of evidentiary admissibility guaranteed by the Due Process Clause to factfinding involving offense elements, is unconstitutional.
VII. Conclusion
The Jones, Apprendi, Ring trilogy forces the examination of the death-eligibility determination in a new light. Congress has provided that such fundamental safeguards as the right to notice, to a unanimous jury determination, and to proof beyond a reasonable doubt apply to the mental culpability and statutory aggravating factors that would justify the imposition of a sentence of death. The Supreme Court has instructed that these factors are the functional equivalents of elements of a capital offense.
The instant case raises the next issue implicated by the Apprendi-Ring logic: what other fundamental safeguards are affected by the new understanding of these factors as the functional equivalents of elements? This Court must respond that because these factors are the functional equivalents of elements of a capital offense, a defendant is entitled, under the Due Process Clause and the Sixth Amendment, to confront and cross-examine adverse witnesses, and to require that these facts be proven by admissible evidence. Otherwise, the death-eligibility determination factors would stand alone as the only elements of any federal criminal offense that can be proven under a relaxed evidentiary standard, one that would even condone the use of unreliable hearsay.
When Congress enacted the FDPA, it could not have anticipated that death-eligibility factors would be regarded as the functional equivalent of elements. Consequently it specified an evidentiary standard and a burden of proof it undoubtedly thought would provide more procedural protection than offered in the usual sentencing proceeding. It is inconceivable to this Court that Congress could have intended instead to provide less protection in a capital proceeding than in a non-capital proceeding to the factual determination of an essential element of an offense.
The Apprendi-Ring decisions command this result. Apprendi’s “constitutional protection[] of surpassing importance: the proscription of any deprivation of liberty without due process of law,” see Apprendi, 530 U.S. at 476 (citation and internal quotation marks omitted), is a flimsy shield if notice and the government’s reasonable doubt burden are shackled to proof by unreliable and otherwise untested evidence.
Capital punishment is under siege. Justice Breyer has recently observed “the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to incapacitate offenders, or to rehabilitate criminals.” Ring, 122 S. Ct. at 2446 (Breyer, J. concurring); see also United States v. Quinones, 196 F. Supp. 2d 416, 420 (S.D.N.Y. 2002)(“[w]e now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency”). Congress is charged with the responsibility of deciding whether capital punishment is a part of our federal law. If capital punishment is to be a part of our federal law, Congress must also determine the procedure by which the death penalty is to be imposed, consistent with Constitutional standards. Courts cannot, and should not, rewrite an unambiguous Congressional directive regarding this process.
If the death penalty is to be part of our system of justice, due process of law and the fair-trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected. To relax those standards invites abuse, and significantly undermines the reliability of decisions to impose the death penalty.

SUPREME COURT

Woodford v. Garceau, 01-1682; Decision below: 275 F.3d 769 (9th Cir. 2001)

In Lindh v. Murphy , 521 U.S. 320 (1997), this Court held that the Antiterrorism and Effective Death Penalty Act (AEPDA) (28 U.S.C. 2241, et seq.) did not apply to cases which commenced prior to the AEDPA's April 24, 1996, effective date. The circuits are split as to when a capital case commences for purposes of triggering the AEDPA. With one exception, all the circuits to consider the issue have found the AEDPA applies if the actual petition was filed on or after the AEDPA's effective date. However, in the Ninth Circuit, the AEDPA does not apply to a federal petition filed on or after April 24, 1996, if motions for appointment of counsel and stay of execution were filed before that date. Calderon v. United States District Court (Kelly) , 163 F.3d 530 (9th Cir. 1998) (en banc). What is the correct trigger event for application of the AEDPA in capital cases?

Massaro v. United States, 01-1559; Decision below: unreported trial order

Is federal defendant whose new appellate counsel failed to raise claim of ineffective assistance of trial counsel on direct appeal procedurally barred from asserting that constitutional claim of error under 28 U.S.C. s 2255?

CAPITAL CASES (Favorable Disposition)

U.S. ex rel. Gregory Madej v. James M. Schomig, 1:98-cv-1866 Doc. No. 124 (ND IL 9/24/2002) Relief granted on trial counsel's ineffectiveness in the penalty phase. In dicta court note that the Vienna Convention may require relief as well, and that any right that protocol is an individual right following the decision by the International Court of Justice in Germany (LaGrand) v. United States. Finally the Madej Court, again in dicta, finds that the Ring & Atkins are "watershed" cases within the meaning of Rule 59(e) of the Federal Rules of Civil Procedure.

Chambers v. Pennsylvania, 2002 Pa. LEXIS 2013 (9/26/2002) Penalty phase jury instructions held impermissible under Mills v. Maryland.

Ex parte Taurus Carroll, 2002 Ala. LEXIS 285 (AL 9/20/2002) "Because of Carroll's age at the time of the offense, his lack of a significant criminal history, and the recommendation of the victim's family that he be sentenced to life imprisonment without parole, the jury's 10-2 recommendation that he not be sentenced to death tips the scales in favor of following the jury's recommendation."

Ex parte Andy Dwight Pierce; (In re: Andy Dwight Pierce v. State of Alabama) 2002 Ala. LEXIS 288 (AL 9/20/2002) (dissents) Relief granted on claim of ineffective assistance of counsel as Pierce's attorney knew or should have known of the sheriff's contact with the jury during the trial.

Ex parte Antaun Hails (In re: State of Alabama v. Antuan Shamer Hails), 2002 Ala. Crim. App. LEXIS 194 (Ala. Crim. App 9/27/2002) Remand ordered for bail hearing in this capital case.

Ex parte Jimmy Lee Brooks, Jr.; (In re: State of Alabama v. Jimmy Lee Brooks, Jr.); Ex parte Michael David Carruth; (In re: State of Alabama v. Michael David Carruth), 2002 Ala. Crim. App. LEXIS 218 (Ala Crim App 9/27/2002) Recusal granted in mandamus action as the trial judge may be called as witness. Specifically, the trial judge signed a search warrant at issue in the trial and the authenticity of his signature may be challenged.

Mobley v. Head, 2002 U.S. App. LEXIS 19595 (FL 9/18/2002) Stay granted on the issue of the "Supreme Court's forthcoming decision in Abdur'Raham v. Bell, 152 L. Ed. 2d 620, 122 S. Ct. 1605 (2002) (granting certiorari to consider whether every Rule 60(b) motion constitutes a prohibited "second or successive" habeas petition as a matter of law)" which will be dispositive of the issues before the court.

Amendments to Florida Rule of Criminal Procedure 3.851(h), 2002 Fla. LEXIS 1883 (FL 9/19/2002) Relevant rules of court governing post-conviction proceedings amended to "judicial assignment after a death warrant is issued, scheduling and time restraints, venue, content of the postconviction motion, case management conferences, presence of the defendant at hearings, court reporting, preparation of orders, and the transmittal of the record to this Court."

CAPITAL CASES (Unfavorable Disposition)

Ortiz v. Texas, 2002 Tex. Crim. App. LEXIS 185 (Tex Crim App 9/25/2002) (concurrence) Relief denied, most notably, on claims of insufficiency of the evidence, meaning of the aggravating terms relating to retaliation against prospective witnesses, and concerns over jury selection under Witt.

Reid v. Taylor, 2002 U.S. Dist. LEXIS 17862 (WD VA 8/19/2002) Petitioner held to have understood impact of "Alford" plea after an evidentiary hearing on the issue.

Tennessee v. Austin, 2002 Tenn. LEXIS 400 (Tenn 9/16/2002) (dissent) Claims relating to, chiefly, the exclusion of mitigating evidence and introduction of victim impact evidence denied.

Johnson v. Moore, 2002 Fla. LEXIS 1886 (FL 9/26/2002) Relief denied primarily on claims relating to appellate ineffectiveness.

Ward v. Arkansas, 2002 Ark. LEXIS 450 (Ark 9/19/2002) Relief denied on claims relating ineffective counsel "(1) in failing to object to the hearsay testimony of a prosecution witness; and (2) in failing to seek the recusal of the trial judge."

Woods v. Cockrell, 2002 U.S. App. LEXIS 20197 (5th Cir 9/24/2002) Woods loses on claims relating whether: (1) "the standard of review used by the Texas Court of Criminal Appeals when reviewing the sufficiency of the evidence relating to the jury's determination of the special issue of future dangerousness, and whether its refusal to review the trial jury's determination of the sufficiency of mitigating evidence at all, violates constitutional due process and equal protection;" and (2)" whether the Texas trial court, upheld by the appellate court, erred in refusing to instruct the jury pursuant to Simmons v. South Carolina"

Drumheller v. Pennsylvania, 2002 Fla. LEXIS 1886 (PA 9/20/2002) Relief denied on issues pertaining to: (1) denial of a request for a change of venue or venire; (2) admission, where the underlying crime relates to domestic violence turned lethal, of past incidents of abuse & a prior drug arrest; (3) sufficiency; and (4) definition of "grave risk of death" aggravator.

Finney v. Florida, 2002 Fla. LEXIS 1888 (FL 9/26/2002) Finney loses on claims relating to: " (1) the circuit court erred in summarily denying Finney's rule 3.850 claims; (2) the circuit court erred in summarily denying Finney's claim that trial counsel was ineffective in failing to object to certain prosecutorial comments; (3) the circuit court erred in summarily denying Finney's claim that trial counsel was ineffective in failing to adequately question prospective jurors; (4) the circuit court erred in summarily denying Finney's claim that trial counsel was ineffective in failing to object to the excusal of certain jurors; (5) the circuit court erred in summarily denying Finney's claim that trial counsel was ineffective in failing to present additional mitigating evidence; (6) the circuit court erred in summarily denying Finney's claim that trial counsel was ineffective in failing to provide the defense mental health expert with adequate background information; (7) the circuit court erred in summarily denying Finney's claim that trial counsel was ineffective in failing to retain an expert to testify concerning the crime scene; (8) the circuit court erred in failing to ensure that postconviction counsel rendered effective performance; (9) Florida's capital sentencing scheme is unconstitutional; (10) Finney's trial was fraught with error; (11) Finney is innocent of the death penalty. "

Ohio v. Sneed, 2002 Ohio LEXIS 2239; 96 Ohio St. 3d 348; 2002 Ohio 4768;774 N.E.2d 1216 (Ohio 9/25/2002) Motion to reopen appeal to raise several claims of appellate ineffectiveness denied.

Ohio v. Woodard, 2002 Ohio LEXIS 2244; 96 Ohio St. 3d 344; 2002 Ohio 4767; 774 N.E.2d 1213 (Ohio 9/25/2002) Motion to reopen appeal to raise several claims of appellate ineffectiveness denied.

United States v. Regan, 2002 U.S. Dist. LEXIS 17408 (ED VA 9/10/2002) Defendant not entitled to evidence of the comparative "damage assessments" of others who had been accused of espionage but where the death penalty was not sought by the United States."

United States v. Regan, 2002 U.S. Dist. LEXIS 17392 (ED VA 9/10/2002)18 U.S.C. § 794(a) is not unconstitutionally vague under either the Eighth Amendment or the Due Process Clause of the Fifth Amendment.

United States v. Regan, 2002 U.S. Dist. LEXIS 17388 (ED VA 9/10/2002) Motion to strike death penalty on basis of comparative harm of acts of espionage overruled.

OTHER NOTABLE CASES

McQuillon v. Duncan, No. 00-55182 (9th Cir 9/25/2002) Revocation of parole eligibility unsupported by "some evidence" where a subsequent parole hearing simply concluded that the date set was inappropriate when, its opinion, the prior hearing didn't use certain factors that the subsequent board felt should have been used.

In re the Termination of Parental Rights as to Q.L.R., 2002 Nev. LEXIS 77,*;118 Nev. Adv. Op. No. 63 (Nev 9/18/2002) Terminantion of parental rights improper merely because the person is incarcerated.

Haley v. Cockrell, No. 01-41389(09/27/2002) Actual innocence exception applies to non-capital sentencing procedures involving a career or habitual felony offender, and where requirements of the Texas habitual felony offender statute have not been satisfied, habeas relief was properly granted.

FOCUS

This week edition covers the upcoming Supreme Court term. Four capital cases are so far set to be argued in the coming term with handful of other criminal matters set for the docket as well. The Oyez Project of Northwestern University notes the following on the three upcoming death penalty cases:

Miller-El, Thomas v. Cockrell, Janie, Dir., Texas Dept. of Criminal Justice
01-7662
Appealed From: 5th Circuit Court of Appeals (261 F.3d 445)
Oral Argument: Oct. 16, 2002
Subject: Jury selection, race discrimination, capital case
Question(s) presented: (1) Is the court required to ignore uncontested evidence of a pattern and practice of racial discrimination, and evidence of contemporaneous instances of discrimination, when assessing the genuineness of a prosecutor's proffered race-neutral reason for exercising a peremptory challenge? (2) Did the court of appeals incorrectly conclude that 28 U.S.C. @@ 2254(d)(2) and 2254(e)(1) require a habeas corpus petitioner to rebut state court determinations of fact by proving them "unreasonable" by "clear and convincing evidence"? (3) When assessing whether a state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," may a federal court ignore the unreasonableness of the process by which the state court determined facts?
Thomas Miller-El is black. But only one black juror was selected for his capital murder trial in 1986. Texas prosecutors struck ten out of eleven African-Americans from the jury pool, leaving only one black man who said during voir dire, "I think capital punishment is too easy."
Prosecutors alleged Miller-El shot two hotel clerks, killing one and crippling another, while robbing a Holiday Inn in Irving, Texas, near Dallas, in 1985. The surviving clerk, Donald Hall, testified that Miller-El tied up Douglas Walker and himself; then Miller-El removed his glasses, stood at the men’s feet and shot them both with his nine-millimeter machine gun. Miller-El was convicted of murder and sentenced to death.
Before the trial’s completion, Miller-El objected to the exclusion of African-Americans from the jury pool. Miller-El claimed his rights under the 6th Amendment and Equal Protection Clause of the 14th Amendment were violated. The trial court denied the motion.
Miller-El argued in the Texas Court of Criminal Appeals that the exclusion of African-American jurors from his trial was indicative of a pervasive trend clouding jury selection in Dallas. Citing district attorney training manuals that warned prosecutors, "minority races almost always empathize with the defendant," as well as statistical findings from the 1986 Dallas Morning News story, "Race Bias Pervades Jury Selection: Prosecutors Routinely Bar Blacks, Study Finds," Miller-El said the district court failed to consider the historic exclusion of African-Americans from juries. The state court denied the appeal.
After exhausting his appeal options in state court, Miller-El sought habeas corpus relief in a federal district court. The district court denied the petition and a unanimous 5th Circuit Court of Appeals panel affirmed.
In the court’s opinion, Judge Harold DeMoss Jr. acknowledged that Miller-El’s "primary challenge is to the district’s court alleged failure to give proper weight and credit to the evidence which he presented regarding the historical data evidencing exclusion of African-American jurors." Despite this, the three-judge panel determined that Miller-El failed to provide "clear and convincing evidence" to challenge the court’s ruling that prosecutors struck ten out of eleven African-Americans from the jury pool for race-neutral reasons.
The appeals court based its analysis on the three-tiered test the U.S. Supreme Court provided in its 1986 opinion in Batson v. Kentucky, to evaluate discrimination claims in jury selection. Under Batson, a defendant must provide evidence indicating that prosecutors deliberately excluded potential jurors during selection because of race alone. Prosecutors must then offer a race-neutral explanation for why they objected to the excluded jurors. In determining the merits of a Batson claim, trial courts are advised during the third phase of review to consider any relevant information in determining whether prosecutors systematically discriminated against a particular race of jurors.
In seeking Supreme Court review, Miller-El’s attorneys argued the appeals court erred in failing to consider corroborating evidence regarding jury selection during the third stage of Batson review. "Pattern-and-practice evidence is relevant in determining the genuineness of prosecutors’ race-neutral reasons," said Jim Marcus, Miller-El’s attorney.
But prosecutors say discrimination was not an issue. "There was no historic pattern of racial discrimination," said Lori Ordiway, chief of the appellate section in the Dallas District Attorney’s Office. Though only one juror on Miller-El’s trial was African-American, Ordiway said that another member was Hispanic and one juror was Philippine. "One-quarter of the jury was non-white or non-Anglo."
The debate over whether courts should consider non-trial specific evidence of jury discrimination during the third phase of Batson review warrants Supreme Court review, Marcus said. "Not only are the rights of the accused and potential jurors at issue, but the integrity of the judicial process is also on the line," said Elisabeth Semel, an attorney with the Death Penalty Clinic at the University of California’s Berkeley Law School, who filed an amicus brief in support of Miller-El.
On Feb. 15, 2002, the Court granted certiorari in the case. Miller-El’s execution, which was scheduled for Feb. 21, was stayed temporarily. Texas officials selected the February date, which was the tenth execution scheduled for Miller-El, after the 5th Circuit denied Miller-El’s appeal in August 2001.

Abdur'rahman, Abu-Ali v. Bell(Warden)
01-9094
Appealed From: 6th Circuit Court of Appeals (226 F.3d 696)
Oral Argument: Nov. 6, 2002
Subject: Capital case, ineffective counsel, habeas corpus
Question(s) presented: (1) Did the 6th Circuit err in holding, in square conflict with decisions of the U.S. Supreme Court and other circuits, that every Fed.R.Civ.P. 60(b) motion constitutes a prohibited "second or successive" habeas petition as a matter of law? (2) Does a court of appeals abuse its discretion in refusing to permit consideration of a vital intervening legal development when its failure to do so precludes a habeas petitioner from ever receiving any adjudication of his claims on the merits?
On Feb. 16, 1986, James Lee Jones hatched a plan to rob Patrick Daniels, a small-time drug dealer living in Nashville, Tenn. He would provide a gun to an acquaintance, Harold Devalle Miller, who would surprise Daniels and Jones as Jones purchased marijuana in Daniels' apartment. Miller would then rob them both, and he and Jones would split the take later.
But the scheme didn't go as planned. Miller got scared, so Jones dropped the idea for the act -- but not the robbery.
The next day, Miller and Jones went to Daniels' apartment with a shotgun and an unloaded handgun. There, they forced Daniels and his girlfriend, Norma Norman, to the floor and used duct tape to restrain their hands and feet and cover their eyes and mouths.
Jones took a butcher knife from the kitchen and told Daniels he had been sent to "clean up." Jones was involved with a militant group called the Southeastern Gospel Ministry, and part of its stated mission was to remove drugs and drug dealers from the black community.
Jones stabbed Daniels six times in the chest, hitting him four times in the heart, while Daniels begged for his life. Jones watched Daniels' body spasm as he died, blood pouring from his nose and mouth. Then Jones turned to Norman, stabbing her several times. He left the knife in her back.
Jones and Miller also left with what they had come for; they took Daniels' ATM card, some marijuana and $300 in cash.
Jones, then 35, was arrested and charged with first degree murder, assault with intent to commit murder and armed robbery. Miller was also charged, but he pleaded guilty to second degree murder and armed robbery in exchange for testifying against Jones.
Jones' original attorney, Neal McAlpin, was hired by members of SEGM, the militant group with which Jones was involved. Because of the possible conflict of interest resulting from SEGM's influence over Jones at the time of the crime, McAlpin asked to withdraw as Jones' attorney.
Lionel Barrett and Sumpter Camp were last-minute replacements for McAlpin. Barrett and Camp neglected to meet with McAlpin or obtain his files during the transition, and although Barrett accepted the case in October 1986, the attorneys did not begin working on the case until March 1987. The trial was scheduled for July of that year in Davidson County Criminal Court.
SEGM also paid a portion of the new attorneys' fees. But the bill was not paid in full, and Barrett said he would not continue working on the case until he received the total amount. The attorneys had no money for investigative work to clear Jones and, as a result, no investigative work was done on Jones' behalf.
Had the attorneys looked into Jones' background, they would have uncovered a long history of violent criminal behavior, diagnosed anti-social personality disorders and brutal accounts of family abuse and dysfunction. Jones had been severely abused by his father. Both of Jones' siblings also had emotional problems and had attempted suicide. His sister bore hisfather's baby.
Jones was convicted in 1987 of first-degree murder, assault with intent to commit murder and armed robbery. He was sentenced to death on the murder charge and consecutive life sentences on the other charges.
The jury found three aggravating factors to warrant the death penalty. First, Jones had previously been convicted of a murder while in prison. Second, Daniels' murder was especially heinous, atrocious and cruel. And third, the murder was committed while Jones was involved in a robbery.
No mitigating factors were presented at the sentencing hearing. Only Jones and his wife testified in his defense, even though other members of his family were willing to, but never asked to appear. During the sentencing hearing, Jones admitted he killed Daniels.
Jones appealed to the Tennessee Supreme Court on various grounds, including improper jury selection; insufficient evidence to support the robbery conviction (which contributed to the aggravating factors leading to his death sentence); insufficient evidence that the murder was especially heinous, atrocious or cruel; and failure of his lawyers and the trial court to consider Jones' mental fitness to receive the death penalty. The court denied all claims and affirmed his execution, scheduling it for June 10, 1990.
After the Tennessee Supreme Court declined to rehear his case, Jones – who converted to Islam in 1988 while in prison and changed his name to Abu-Ali Abdur'rahman -- filed an amended petition in the trial court claiming ineffective assistance of counsel during his original trial. An evidentiary hearing was held in May 1993, after which the trial judge agreed that Abdur'rahman's attorneys had been lacking, in part because they failed to present mitigating factors at sentencing.
Even so, the court did not overturn his conviction, ruling that the errors would not have changed the outcome of the case. The judge determined that the available mitigating factors, which may have persuaded jurors not to impose the death sentence, were also aggravating factors. The mitigating information included the fact that the murder Abdur'rahman committed in prison had been motivated out of a fear of homosexual advances, rather than it being drug- and gang-related, as the jurors were told.
The Tennessee Court of Criminal Appeals upheld the trial court's finding and the U.S. Supreme Court denied certiorari. A new execution date was set for June 10, 1996.
Abdur'rahman petitioned for a writ of federal habeas corpus to the U.S. District Court in Nashville, which granted a stay of execution on May 31, 1996. The court did so in response to a Supreme Court ruling issued the previous month, which required a district court to grant a stay while considering any federal habeas corpus petition that isn't obviously without merit. Otherwise, the prisoner might be executed while the court was considering the case, which would make the prisoner's habeas corpus claim moot.
Another evidentiary hearing was held on Feb. 6, 1998, during which Barrett and Camp admitted that their representation was inadequate and, in fact, may have contributed to Abdur'rahman's death sentence.
"I feel that my performance certainly did not satisfy the standards that I adhere to myself as far as pursuing the psychiatric aspect, particularly at the sentencing hearing," Barrett said during the hearing.
Camp testified that he and Barrett had failed Abdur'rahman.
"We didn't give the jury any reason to oppose death on James Jones (Abdur'rahman)," he said.
After the hearing, the district court threw out most of Abdur'rahman's claims because he had failed to first bring those claims before the Tennessee Supreme Court. Abdur'rahman could not go back to the state court at that point because the statute of limitations on his state appeals had expired.
However, because of new information presented at the evidentiary hearing about the way Barrett and Camp handled the original trial, the district court granted Abdur'rahman's habeas corpus appeal on his death sentence. U.S. District Judge Todd J. Campbell disagreed with the lower courts' ruling that the inadequate representation at trial had not affected the outcome of Abdur'rahman's case, particularly his sentence.
"Despite an abundance of mitigating evidence," Campbell wrote, "there was virtually a complete failure by counsel to present a defense to the jury at [Abdur'rahman's] sentencing."
In response to Campbell's ruling, both sides appealed. Abdur'rahman still wanted his conviction overturned, and the state, through Riverbend Maximum Security Institution Warden Ricky Bell, wanted Abdur'rahman's death sentence reinstated.
In a 2-1 decision, the 6th Circuit Court of Appeals reversed Campbell's ruling that vacated Abdur'rahman's death sentence. It also upheld Campbell's decision denying Abdur'rahman's appeal of his conviction. The 6th Circuit, which based its decisions on the same reasoning as the original trial court, essentially killed both of Abdur'rahman‚s habeas corpus petitions.
Abdur'rahman petitioned the federal appeals court for a rehearing, which was denied. He appealed to the U.S. Supreme Court, which denied certiorari Oct. 9, 2001. A subsequent request for rehearing was denied two months later. Based on the high court's response, Abdur'rahman had exhausted all recourse, and a new execution date would be set.
In the meantime, the Tennessee Supreme Court had issued a new rule. "Rule 39" states that claims made in a federal habeas corpus petition were not required to be exhausted in the state system before going to federal court. That meant that the reason Judge Campbell denied many of Abdur'rahman's claims was no longer valid.
Abdur'rahman's attorneys re-petitioned the U.S. District Court, but both the district court and the 6th Circuit Court of Appeals ruled that doing so would constitute a second consideration of a habeas corpus petition, which is prohibited.
On April 8, 2002, the U.S. Supreme Court stayed Abdur'rahman's execution, pending a decision on whether to review the case, and two weeks later, on April 22, the Court granted certiorari in the case, limiting review to questions 1 and 2 in Abdur'rahman's petitiion, and allowed him to proceed in forma pauperis.

Bradley MacLean, one of Abdur'rahman's attorneys, said the question before the Supreme Court is more about a technicality of the law than about the case itself.
"[It] is fairly narrow . . . and I am extremely optimistic that we will win on that issue," he said.
Sattazahn, David v. Pennsylvania
01-7574
Appealed From: Pennsylvania Supreme Court (763 A.2d 359)
Oral Argument: Nov. 4, 2002
Subject: Capital case, double jeopardy, resentencing
Question(s) presented: (1) Does the double jeopardy clause of the 5th Amendment bar the imposition of the death penalty upon reconviction after an initial conviction, set aside on appeal, in which the trial court imposed a statutorily mandated life sentence when the capital sentencing jury failed to reach a unanimous verdict? (2) Is a capital defendant's life and liberty interest in the imposition of a life sentence by operation of state law, following a capital sentencing hearing in which the sentencing jury fails to reach a unanimous verdict, violated when his first conviction is later overturned and the state seeks and obtains a death sentence on retrial?
David Allen Sattazahn never claimed he was innocent of killing Richard Boyer, the manager of Heidelberg Family Restaurant in Robesania, Pa. But he did contend he never intended to take Boyer’s life on April 12, 1987, when he and an accomplice, Jeffrey Hammer, robbed the manager after closing time. Boyer refused to give them a bag of money, and the two men shot him. Boyer was pronounced dead from two bullets that matched Sattazahn’s .22 Ruger semiautomatic pistol.
In 1991, a jury convicted Sattazahn, then 29, of first, second and third degree murder along with assault and weapon charges. However, that same jury could not decide unanimously if Sattazahn deserved the death penalty. Pennsylvania law mandated that the judge impose a sentence of life in prison when there is a hung jury. Thus, by default, Sattazahn received a life sentence.
Sattazahn appealed his conviction and in 1994, he was granted a re-trial because of an error made during instructions to the jury. He was willing to plead guilty to voluntary manslaughter to avoid a re-trial on the murder charges, but the prosecution rejected his offer and filed notice it would seek the death penalty.
Sattazahn’s lawyer tried to prevent prosecutors from pursuing the death penalty, but their motion was denied. A second jury found Sattazahn guilty, but this time unanimously decided he deserved to die.
Traditionally, the double jeopardy clause of the 5th Amendment is understood as a protection from being tried for the same crime twice. Yet, the protection is extended to defendants who are saved from (or acquitted of) the death penalty by the jury even though they were found guilty of a crime. They cannot be subjected to capital punishment again.
In a 4-3 decision, the Pennsylvania Supreme Court ruled Sattazahn was not protected under the 5th Amendment from being sentenced to die. Justice Sandra Schultz Newman wrote, "Since there was no jury unanimity as to sentence during [Sattazahn’s] first trial, there could be no jury verdict. Accordingly, there was no acquittal on the merits of the death penalty."
Sattazahn’s lawyer, Robert Brett Dunham, argues that regardless of whether it was mandated by law, a life sentence was given and it is a final verdict. "The argument has been it was a hung jury," he said. "But whether you call it a hung jury or not, what matters are the legal implications of the sentencing scheme."
In short, Pennsylvania’s system could create a chilling effect on defendants. Any prisoner who received a life sentence by default because of an undecided jury would give up his or her right to appeal for fear of being executed after a retrial. According to Dunham, there are currently four people in the state who fall into this category, even though Sattazahn is the only defendant thus far affected.
The three dissenting judges were concerned about such a chilling effect. "In my view," wrote Justice Thomas G. Saylor in a one-paragraph dissent, "the ends of justice would be better served if . . . we were to require that such a defendant, if convicted upon retrial, must receive a life sentence originally imposed. Such a requirement would be consistent with the legislative intent that if even a single juror decides against the death penalty, the penalty will not be imposed."
On March 18, 2002, the U.S. Supreme Court granted certiorari in the case and allowed Sattazahn to proceed in forma pauperis.

Briefs and related materials are available through Lexis, Westlaw, as well as through the following Findlaw.com links:

Abdur'Rahman v. Bell(No. 01-9094)
Death Penalty, Effective Assistance of Counsel
Clay v. United States(No. 01-1500)
Habeas Corpus, Finality of Conviction, 28 U.S.C. § 2255
Connecticut Dept. of Public Safety v. Doe, et al.(No. 01-1231)
Fourteenth Amendment, Due Process, Sex Offender Registry
Ewing v. California(No. 01-6978)
Three Strikes Law, Eighth Amendment, Cruel and Unusual Punishment
Godfrey v. Doe(No. 01-729)
Megan's Law, Internet Registries, Sex Offenders
Lockyer v. Andrade(No. 01-1127)
Three Strikes Law, Eighth Amendment, Cruel and Unusual Punishment
Miller-El v. Cockrell(No. 01-7662)
Peremptory Challenges, Jury Selection, Racial Discrimination
Sattazahn v. Pennsylvania(No. 01-7574)
Double Jeopardy, Death Penalty

OTHER RESOURCES:

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

Philippines Halts Executions as Legislators Consider Abolition of the Death Penalty
Foreign Affairs Secretary Blas Ople recently told European Union ambassadors that the Philippines is suspending executions while its Congress "is still debating the merits of the death penalty." In honor of the decision, Rome's government and the Sant' Egidio religious group lit up the Colosseum for two days. Rome's Colosseum is bathed in golden lights for two days every time a death penalty is suspended or commuted or a nation abolishes capital punishment. (Kyodo News, October 1, 2002, and Reuters, October 1, 2002). See also, International Death Penalty.
New Voices: U.S. Judge Says Death Penalty is "Critical Problem" for Courts
During a Nashville speech to federal and state judges, U.S. 6th Circuit Court of Appeals Senior Judge Gilbert Merritt said that capital punishment is "by far the most difficult, time-consuming, frustrating, and critical joint problem (judges) have to grapple with on a daily basis." Merritt noted that, despite the intense scrutiny of death penalty cases, he has reviewed two cases in which he has "serious doubts" the right man was sentenced to death. He described Tennessee's death penalty system as "still broken" and stated that other judicial issues "pale in comparison." The reliability of that system has been muddied by passion, politics, "extremely zealous" prosecutors, and a lack of training for defense attorneys, he said. (The Tennessean, September 27, 2002) See also, New Voices.
U.S. District Judge Expands Rights of Foreign Nationals
U.S. District Judge David H. Coar recently ruled that a decision by the International Court of Justice "conclusively determines that Article 36 of the Vienna Convention creates individual enforceable rights, resolving the question most American have left open." The U.S.-ratified Vienna Convention on Consular Relations requires government officials to promptly notify foreign nationals who have been detained on suspicion of criminal activity that they have a right to contact their consulate. In his ruling in the case of Gregory Madej (U.S. ex rel. Gregory Madej v. James M. Schomig, No. 98 C 1866), a Polish foreign national who claims that Chicago police and Cook County prosecutors violated his right to secure consular assistance, Judge Coar noted that Madej's rights under both the Vienna Convention and the Consular Convention of 1972 between Poland and the United States "were clearly violated." The judge rejected arguments that an individual alleging violations of Article 36 may be denied relief if he misses the deadline imposed by the state for initiating such a challenge to his conviction or sentence. (Chicago Daily Law Bulletin, September 26, 2002) See also, International Death Penalty.
New Voices: Victims' Family Members, Prosecutors Agree to Not Seek Death Penalty
Several Utah death penalty cases were recently resolved short of trial after victims' families agreed with prosecutors to not seek the death penalty. Some family members believed that execution was too quick and too easy a punishment, and some were exhausted by pre-trial hearings and wanted to move on with their lives. Others expressed forgiveness and compassion for the defendant and his family. Salt Lake District Attorney David Yocom noted that families have a large stake in the outcome of cases because those that go to trial will require the families' "personal involvement through who knows how many years of appeals." Deputy Salt Lake District Attorney Robert Stott believes the ability to sentence a capital murder defendant to life without the possibility of parole has made it easier to resolve cases short of trial. "If families are assured they (the defendant) will never get out, it seems much more appropriate a penalty," he said. Since Utah added the sentencing option of life without parole in 1992, only 5 defendants have been sentenced to death. (Associated Press, September 30, 2002) See also, New Voices.
Federal Judge's Ruling Could Have Greater Impact
The basis for the recent ruling by U.S. District Court Judge William Sessions that the federal death penalty is unconstitutional (see below) is that Congress allowed relaxed standards for admitting evidence at the sentencing phase of a death penalty trial. Given what is at stake, life or death, the highest standards used to determine guilt should also be used in determining eligibility for a death sentence, the opinion said. Some states also use a relaxed standard at sentencing (see, e.g., Fla. Stat. sec. 921.141 (2002)), and if the decision in U.S. v. Fell is upheld or adopted by state courts, it could affect state, as well as federal, sentences. Judge Sessions wrote: "using a relaxed evidentiary standard for the determination of death-eligibility factors will not satisfy the demands of due process and the Sixth Amendment rights of confrontation and cross-examination." Fell, at 30. He further challenged the government's contention that death sentencing permitted weaker rules of evidence: "In effect, the government would approve death eligibility as the federal criminal justice system's sole exception to the practice of requiring that offense elements be proven by admissible evidence comporting with due process and fair trial guarantees. This makes no sense." Fell, at 37.
DETERRENCE: States Without the Death Penalty Fared Better Over Past Decade
In the past ten years, the number of executions in the U.S. has increased while the murder rate has declined. Some commentators have maintained that the murder rate has dropped because of the increase in executions (see, e.g., W. Tucker, "Yes, the Death Penalty Deters," Wall St. Journal, June 21, 2002). However, during this decade the murder rate in non-death penalty states has remained consistently lower than the rate in states with the death penalty. (See Chart I, below).
These figures exclude Kansas and New York, which adopted the death penalty in 1994 and 1995 respectively. If these states are included in their proper categories, the results are even more dramatic:
As executions rose, states without the death penalty fared much better than states with the death penalty in reducing their murder rates. The gap between the murder rate in death penalty states and the non-death penalty states grew larger (as shown in Chart II). In 1990, the murder rates in these two groups were 4% apart. By 2000, the murder rate in the death penalty states was 35% higher than the rate in states without the death penalty. For additional charts and the data underlying these patterns, see Murder Rates Data and Deterrence.
Another Judge Rules Federal Death Penalty Unconstitutional
MONTPELIER, Vt. (AP) - A federal judge declared the federal death penalty unconstitutional Tuesday in the second such ruling in less than three months.
U.S. District Judge William Sessions said the law does not adequately protect defendants' rights.
'If the death penalty is to be part of our system of justice, due process of law and the fair trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected,' he said.
In July, U.S. District Judge Jed Rakoff in New York City became the first federal judge to declare the 1994 Death Penalty Act unconstitutional. He cited evidence indicating that innocent people have been put to death." (Associated Press, Sept. 24, 2002).
Today's ruling, in the case of U.S. v. Donald Fell, No. 2:01-CR-12-01 (District Court of Vermont), is based on the U.S. Supreme Court's decision in Ring v. Arizona holding that certain elements of the death penalty sentencing process are equivalent to a finding of guilt. Judge Sessions therefore concluded that the same rules of evidence should apply to determining death eligibility as are applied to the guilt-innocence phase of the trial. This ruling only applies to this defendant until it is upheld or overturned by a higher federal court. Read the decision.
Possible Innocence: Judge Grants New Trial to Florida Man, Decries Prosecutorial Misconduct
Criticizing the prosecutor for his "habit of failing to turn over exculpatory and impeachment evidence," a federal judge recently granted a new trial to Florida death row inmate Billy Kelley. Kelley's first trial ended in a mistrial in 1984. Jurors in Kelley's second trial were not made aware of an immunity deal given to the state's key witness. When the jurors asked if the witness had anything to gain by testifying against Kelley, they were falsely told by the prosecutor that he "had nothing to gain by his testimony." The jury then convicted Kelley of first degree murder and he was sentenced to death. Now, if the state drops charges, he will go free. Constitutional law expert Laurence Tribe of Harvard Law School assisted with Kelley's appeal. (Miami Herald, September 20, 2002). See also, Innocence.
DETERRENCE: States Without the Death Penalty Fared Better Over Past Decade
In the past ten years, the number of executions in the U.S. has increased while the murder rate has declined. Some commentators have maintained that the murder rate has dropped because of the increase in executions (see, e.g., W. Tucker, "Yes, the Death Penalty Deters," Wall St. Journal, June 21, 2002). However, during this decade the murder rate in non-death penalty states has remained consistently lower than the rate in states with the death penalty. (See Chart I, below).
These figures exclude Kansas and New York, which adopted the death penalty in 1994 and 1995 respectively. If these states are included in their proper categories, the results are even more dramatic:
As executions rose, states without the death penalty fared much better than states with the death penalty in reducing their murder rates. The gap between the murder rate in death penalty states and the non-death penalty states grew larger (as shown in Chart II). In 1990, the murder rates in these two groups were 4% apart. By 2000, the murder rate in the death penalty states was 35% higher than the rate in states without the death penalty. For additional charts and the data underlying these patterns, see Murder Rates Data and Deterrence. Chart IChart II
Photo by LINZY LUEBCHOW/THE CHRONICLE
Paper dolls, representing the number of people--about 800--executed in the United States since the deathpenalty was reinstated in 1977, hang in front of the West Union Building as a silent protest of capitalpunishment. The display was organized by Amnesty International. Amnesty International Report Examines Juvenile Death Penalty in the United States
In a report released today (Sept. 25) titled "Indecent and internationally illegal: The death penalty against child offenders," Amnesty International examines the juvenile death penalty in the United States. The report looks at the U.S. Supreme Court's Atkins v. Virginia decision exempting prisoners with mental retardation from the death penalty and applies its reasoning to the issue of juvenile offenders. The report also provides a broad overview of the history of the juvenile death penalty through case reviews, international human rights policies, and recent developments around the world. Read the report. See also, Juvenile Death Penalty.
Another Judge Rules Federal Death Penalty Unconstitutional
"MONTPELIER, Vt. (AP) - A federal judge declared the federal death penalty unconstitutional Tuesday in the second such ruling in less than three months.
U.S. District Judge William Sessions said the law does not adequately protect defendants' rights.
'If the death penalty is to be part of our system of justice, due process of law and the fair trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected,' he said.
In July, U.S. District Judge Jed Rakoff in New York City became the first federal judge to declare the 1994 Death Penalty Act unconstitutional. He cited evidence indicating that innocent people have been put to death." (Associated Press, Sept. 24, 2002).
Today's ruling, in the case of U.S. v. Donald Fell, No. 2:01-CR-12-01 (District Court of Vermont), is based on the U.S. Supreme Court's decision in Ring v. Arizona holding that certain elements of the death penalty sentencing process are equivalent to a finding of guilt. Judge Sessions therefore concluded that the same rules of evidence should apply to determining death eligibility as are applied to the guilt-innocence phase of the trial. This ruling only applies to this defendant until it is upheld or overturned by a higher federal court. Read the decision.
Possible Innocence: Judge Grants New Trial to Florida Man, Decries Prosecutorial MisconductCriticizing the prosecutor for his "habit of failing to turn over exculpatory and impeachment evidence," a federal judge recently granted a new trial to Florida death row inmate Billy Kelley. Kelley's first trial ended in a mistrial in 1984. Jurors in Kelley's second trial were not made aware of an immunity deal given to the state's key witness. When the jurors asked if the witness had anything to gain by testifying against Kelley, they were falsely told by the prosecutor that he "had nothing to gain by his testimony." The jury then convicted Kelley of first degree murder and he was sentenced to death. Now, if the state drops charges, he will go free. Constitutional law expert Laurence Tribe of Harvard Law School assisted with Kelley's appeal. (Miami Herald, September 20, 2002). See also, Innocence.
Attorney's Letter Reflects Ongoing Crisis in Death Penalty Representation
The most recent edition of the Louisiana Bar Journal contains a letter written by defense attorney David J. Williams. In the letter, Williams shares his experience representing Leslie Dale Martin, who was executed earlier this year. The letter reads as follows:
This letter is about the trial of Leslie Dale Martin who was executed on May 10, 2002. On March 30, 1992, I was appointed to represent Martin. Exactly six weeks later, over our vigorous protest that we were not prepared, the trial began and Martin was convicted and sentenced to death.
Neither of Martin's two attorneys had any experience or training in handling this type of case. In addition, the caseload of the lead counsel was such that he only had time to read through the file once before trial.
We hired a psychiatrist to examine Martin for the penalty phase. We thought that the case would be continued because the psychiatrist had not examined Martin before the trial began. Instead, the trial judge ordered the trial to begin and the psychiatrist to examine Martin at night when the trial went on during the day. Other than hiring a psychiatrist, we had not done any preparation whatsoever for the penalty phase.
The case shows that, in death penalty cases, it does not matter whether or not the defense attorneys are inexperienced or unprepared. District Attorneys should cite this case for the proposition that capital cases should be rushed into trial quickly before the defense attorneys have a chance to prepare a defense.
This case cost me most of the respect that I formerly had for the criminal justice system. I thought that courts reviewed death sentences carefully to make sure that the defendant had a fair trial. Instead, it is only a matter of random chance whether or not a sentence will be overturned.
(Louisiana Bar Journal, August/September 2002)

Karl's Corner

The World's Funniest Joke -- Official
Thu Oct 3,10:34 AM ET
By Corey Ullman
LONDON (Reuters) - After a year of painstaking scientific research, the world's funniest joke was revealed on Thursday.
In a project described as the largest-ever scientific study into humor, the British Association for the Advancement of Science ( news - web sites) asked Internet users around the world to submit their favorite jokes and rate the funniness of other people's offerings.
More than 40,000 jokes from 70 countries and two million critiques later, this is it:
"Two hunters are out in the woods when one of them collapses. He doesn't seem to be breathing and his eyes are glazed. The other man pulls out his phone and calls emergency services.
He gasps to the operator: "My friend is dead! What can I do?" The operator in a calm, soothing voice replies: "Take it easy. I can help. First, let's make sure he's dead."
There is a silence, then a shot is heard.
Back on the phone, the hunter says, "Ok, now what?"
Researchers found significant differences between nations in the types of jokes they found funny.
People from the UK, the Republic of Ireland, Australia and New Zealand preferred gags involving word play, such as:
PATIENT: "Doctor, I've got a strawberry stuck up my bum."
DOCTOR: "I've got some cream for that."
Americans and Canadians favored jokes where people were made to look stupid.
TEXAN: "Where are you from?"
HARVARD GRAD: "I come from a place where we do not end our sentences with prepositions."
TEXAN: "OK -- where are you from, jackass?"
Meanwhile, many Europeans liked gags that were surreal or made light of serious subjects such as illness, death and marriage:
A patient says, "Doctor, last night I made a Freudian slip, I was having dinner with my mother-in-law and wanted to say: 'Could you please pass the butter?'
"But instead I said: 'You silly cow, you have completely ruined my life.'"
Marriage-mocking also featured in the top American joke:
"A man and a friend are playing golf one day. One of the guys is about to chip onto the green when he sees a long funeral procession on the road next to the course.
"He stops in mid-swing, takes off his golf cap, closes his eyes, and bows down in prayer. His friend says: 'Wow that is the most thoughtful and touching thing I have ever seen. You are truly a kind man.'
"The man then replies: 'Yeah, well, we were married 35 years.'"
Death earned big laughs in Scotland:
"I want to die peacefully in my sleep like my grandfather. Not screaming in terror like his passengers."
And animals figured prominently. Take the number one joke in England:
"Two weasels are sitting on a bar stool. One starts to insult the other one. He screams, 'I slept with your mother!'
"The bar gets quiet as everyone listens to see what the other weasel will do.
"The first again yells, 'I SLEPT WITH YOUR MOTHER!'
"The other says: 'Go home dad, you're drunk.'"
The survey revealed other fun facts:
-- Of the countries rating the highest number of jokes, Germans, perhaps surprisingly, laughed the most. Canadians laughed least.
-- If you want to tell a funny animal joke, make it a duck.
-- The most frequently submitted joke, at 300 times, was: "What's brown and sticky? A stick."
Researchers said no one ever found it funny.
The findings can be read at www.laughlab.co.uk

OTHER RESOURCES

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