This week focuses on several cases previously missed for one reason or another. Of particular note is White v. Johnson out of the Fifth Circuit missed in last week's edition that addresses the issue of how to address an alleged error under the right to assistance of experts under Ake v. Oklahoma. In Depth this week focuses on recent and classical law review articles compiled by the Death Penalty Information Center on the death penalty and habeas corpus.

In Focus

White v. Johnson ((previously missed) Fifth Circuit holds finds no constitutional violation in this capital case that revolves chiefly around the the issue of ineffective assistance of counsel concerning expert witnesses.

We acknowledged in Goodwin that a few other circuits have adopted a more expansive reading of Ake, holding that a defendant may be entitled to the appointment of a psychiatrist in some circumstances in which the state offers only nonpsychiatric evidence of future dangerousness. See id. (citing Clisby v. Jones, 960 F.2d 925, 929 n.7 (11th Cir. 1992), and Liles v. Saffle, 945 F.2d 333, 340-41 (10th Cir. 1991)). However, even under the expansive reading of Ake adopted by these circuits, a defendant must establish that "his mental condition could have been a significant mitigating factor." Liles, 945 F.2d at 341; see also Clisby, 960 F.2d at 929 ("Ake requires a state to provide the capital defendant with such access to a competent psychiatrist upon a preliminary showing to the trial court that the defendant's mental status is to be a significant factor at sentencing."). As was the case in Goodwin, White made no such showing to the trial court. See Goodwin, 132 F.3d at 189-90. The conclusory allegation contained in White's motion for the appointment of a psychiatrist that such an appointment "[was] necessary for [White's] counsel to have full access to an accurate knowledge of the facts involved in the case" was insufficient of itself to demonstrate White's entitlement to the appointment of a psychiatrist. See Volanty v. Lynaugh, 874 F.2d 243, 245-47 (5th Cir. 1989) (holding that a motion for the appointment of a psychiatric expert based on an allegation that the defendant was temporarily insane at the time of the offense as a result of drug use was insufficient to support an Ake claim absent additional supporting evidence); Volson, 794 F.2d at 176 (holding that an attorney's "conclusional allegation" that his client "was unable to understand the difference between right and wrong at the time of the offense" was insufficient to entitle him to the appointment of a psychiatrist under Ake). Further, when asked by the trial court to clarify the basis on which he sought the appointment of a psychiatrist, White merely stated that he was entitled to the appointment of a psychiatrist based on the fact that the state intended to present psychiatric evidence and made no additional factual showing evidencing his entitlement to the appointment of a psychiatrist on any other basis.

Because White did not make a showing to the trial court that he was entitled to expert psychiatric assistance on any basis other than the fact that the state intended to present psychiatric evidence regarding his future dangerousness, he had no right to the assistance of a psychiatrist but for the state's offering psychiatric evidence regarding his future dangerousness. See Williams, 989 F.2d at 844 n.10; Messer, 831 F.2d at 960; cf. Ake, 470 U.S. at 83 (noting that an indigent defendant has a constitutional right to the appointment of a psychiatrist "when the defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial" (emphasis added)). Thus, assuming that the trial court committed Ake error by (1) conditioning the appointment of a psychiatrist on White's submission to a mental examination and state access to the results thereof and (2) allowing the state to present psychiatric evidence, such error would have been cured had the court simply precluded the state from admitting psychiatric evidence. As noted earlier, the erroneous admission of psychiatric evidence during a capital sentencing hearing is subject to harmless-error analysis. See Satterwhite, 486 U.S. at 257-58

Capital Cases

Baldwin v. Johnson Eleventh Circuit affirms in this Alabama capital case as to claims of ineffective assistance of counsel and a broad array of other trial errors (found mostly defaulted). Although the panel summarily dismisses most of the claims & its analysis is extremely truncated, on the issue of mitigation the court holds

Upon careful consideration, we conclude that Baldwin's claim is without merit.21 See Atkins v. Singletary, 965 F.2d 952, 962 (11th Cir. 1992) (after reviewing the record, the court rejected petitioner's argument that the sentencing judge did not consider nonstatutory mitigating factors, and finding "it . . . more correct to say that the [sentencing] judge did not accept -- that is, give much weight to -- [the defendant's] nonstatutory factors."), cert. denied, 515 U.S. 1165 (1995); Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir.) (stating that this court could not conclude, just because the sentencing judge only discussed the statutory aggravating and mitigating factors in her order, that the other evidence in mitigation was not considered), cert. denied, 469 U.S. 873 (1984). "Our review is completed once it is established that a full hearing was conducted in which appellant's counsel was given an opportunity to present all of the mitigation evidence. There is no indication whatsoever that the trial judge did not conscientiously consider everything presented." Palmes, 725 F.2d at 1523. Indeed, in Card v. Dugger, we stated that the "[l]ack of reference in a sentencing report to nonstatutory circumstances is not . . . , standing alone, sufficient evidence of a Hitchcock violation to justify relief." 911 F.2d 1494, 1522 (11th Cir. 1990).

In this case, during the sentencing hearing the judge made it clear that he welcomed any information in mitigation that Baldwin had to offer, not just concerning the statutory mitigating circumstances. In addition, the prosecutor made no comment or objection to the evidence of mitigating -- whether statutory or nonstatutory -- circumstances. Additionally, Baldwin's lawyer stated that "[Baldwin's] age and what he has told from the witness stand" were the only mitigating circumstances that he could present. Although the court did not discuss any nonstatutory mitigating evidence, and found Baldwin's age -- a statutory mitigating circumstance -- to be the only mitigating factor, the court preceded his findings through stating that it had "considered the evidence presented at trial and at said sentence hearing[.]" Sentencing Hr'g at 268; see also Card, 911 F.2d at 1523 ("[W]hile the sentencing order did not specify a finding of the presence or absence of nonstatutory mitigating circumstances, . . . the judge did not state that he had only reviewed those mitigating factors spelled out in the statute, but rather stated that he had considered and weighed `all the evidence in the case.'"); Horsley, 45 F.3d at 1491 ("We believe that Horsley's focus on one isolated statement of the sentencing judge place[d] far too much stress on just one statement in a long discourse, a discourse which, taken as a whole, shows that the sentencing court probably considered nonstatutory mitigating evidence.") (dicta).22

Habeas

Allen v. Oregon Ninth Circuit remands (in part) federal habeas petition where petitioner challenged both state and federal convictions.

Rhoden v. Rowland Ninth Circuit grants habeas on claims that prisoner was visibly shackled in jurors presence.

Flanagan v. Johnson Fifth Circuit reinstates habeas holding it was tolled under the AEDPA.

Prisoner's Rights and Police Misconduct Cases

White v Balderama Fifth Circuit in this 42 U.S.C. § 1983 examines qualified immunity.

Simmons v. Cook Eighth Circuit examines the rights of wheel chair bound inmates.

Clarke v. Stadler Fifth Circuit takes an en banc look at a prisoner's right to redress under the First Amendment.

Other Views

LJX, as always the best legal read on the web at http://www.ljx.com, reviews criminal cases, some of which covered here, some not. Check to see how the reviews here compare:

SELECTIVELY ENFORCING A prison regulation against an inmate so that he is not allowed to publish his writings while other inmates are so allowed violates his First Amendment rights, the 3d U.S. Circuit Court of Appeals held Aug. 25. Mumia Abu-Jamal v. Price, 96-3756. Reversing and remanding, Judge Richard L. Nygaard said, "Prison regulations which restrict an inmate's First Amendment rights must operate in a neutral fashion, without regard to the content of the expression." Mumia Abu-Jamal, a journalist, was convicted of murdering a police officer and is on death row. He continued to publish after his incarceration. After National Public Radio proposed conducting a series of interviews with him, a public outcry resulted. The prison then invoked against him a prison regulation that prohibits inmates from carrying on a business of profession. Despite the regulation, another inmate was publishing and promoting, for profit, a book he wrote. Mr. Jamal sought a preliminary injunction to enjoin enforcement of the rule against him. The appeals court held that applying the prison regulation in this fashion violated Mr. Jamal's First Amendment rights and that an injunction with respect to the regulation was appropriate. Judge Nygaard said, "Jamal is likely to show that the Department's discriminatory application of the business or professions rule to his writing is an exaggerated response to the Department's security objectives because there are obvious easy alternatives to address the Department's concerns. Jamal's activity has not heightened tensions at the prison....Importantly, Jamal is a condemned man, whose only time to speak and write is now."

* * * * *

People v. Cortez Affirming the judgment of the court of appeal, the high court held that any conspiracy to commit murder is necessarily a conspiracy to commit premeditated, first-degree murder and is therefore punishable in the same manner as first-degree murder. Justice Marvin R. Baxter said, "[W]here two or more persons conspire to commit murder--i.e., intend to agree to conspire, further intend to commit the target offense of murder, and perform one or more overt acts in furtherance of the planned murder--each has acted with a state of mind 'functionally indistinguishable from the mental state of premeditating the target offense of murder.'" Mario Alberto Cortez was charged with conspiracy to commit murder. He was convicted, and the court sentenced him to a term of 25 years to life. On appeal, Mr. Cortez urged that the trial court erred in failing to require the jury to determine the degree of the murder alleged as the target offense of the charged conspiracy. The court of appeals rejected that argument and affirmed the trial court's judgment. In a dissent, Justice Joyce L. Kennard wrote, "[B]y holding that conspiracy to murder is subject to the punishment for first degree murder without requiring proof of the mental state of first degree murder, the majority creates for the first time a conspiracy crime that does not require proof of the mental state of the target crime, and creates as well the possibility that a defendant will be punished more harshly for conspiring than for the completed crime."

In Depth

This week marks the return of the In Depth section of the newsletter after a long hiatus. An outstanding list of recent and classical law review articles compiled by the Death Penalty Information Center is listed below.

Alternatives

Bedau, Hugo Adam: "Imprisonment vs. death: Does avoiding Schwarzschild's paradox lead to Sheleff's dilemma?"; 54 Albany Law Review 481 (1990)

Lane, J. Mark: "Is there life without parole? A capital defendant's right to a meaningful alternative sentence"; 26 Loyola of Los Angeles Law Review 327 (1993)

Marquart, James W. and Sorensen, Jonathan R.: "A national study of the Furman-commuted inmates: addressing the threat to society from capital offenders"; 23 Loyola of Los Angeles Law Review 5 (1989)

Arbitrariness

Baldus, David et al.: "Arbitrariness and discrimination in the administration of the death penalty: a challenge to state supreme courts"; 15 Stetson Law Review 133 (1986)

Berger, Vivian: ""Black box decisions" on life or death - if they're arbitrary, don't blame the jury: a reply to Judge Patrick Higginbotham"; 41 Case Western Reserve Law Review 1067 (1991)

Berger, Vivian: "Payne and suffering - a personal reflection and a victim-centered critique"; 20 Florida State University Law Review 21 (1992)

Burkhead, Michael and Luginbuhl, James: "Sources of bias and arbitrariness in the capital trial"; 50 Journal of Social Issues 103 (1994)

Symposium: Stephen B. Bright, Norman Greene, Gerald B. Lefcourt, Michael G. Millman, Norman Redlich, Bryan Stevenson, Ronald J. Tabak: "The O. J. Simpson case and capital punishment"; 38 Howard Law Journal 247 (1995)

Tabak, Ronald J.: "The death of fairness: the arbitrary and capricious imposition of the death penalty in the 1980s"; 14 Review of Law and Social Change 797 (1986)

Vitiello, Michael: "Payne vs. Tennessee: a "stunning ipse dixit""; 8 Notre Dame Journal of Law, Ethics and Public Policy 165 (1994)

Capital juries

Bowers, William J.: "The capital jury project: rationale, design, and preview of early findings"; 70 Indiana Law Journal 1043 (1995)

Costanzo, Sally et al.: "Deciding to take a life: capital juries, sentencing instructions, and the jurisprudence of death"; 50 Journal of Social Issues 149 (1994)

Dayan, Marshall et al.: "Searching for an impartial sentencer through jury selection in capital trials"; 23 Loyola of los Angeles Law Review 151 (1989)

Eisenberg, Theodore et al.: "Jury responsibility in capital sentencing: an empirical study"; 44 Buffalo Law Review 339 (1996)

Hoffmann, Joseph L.: "The executioners sing"; 28 The Bill of Rights Journal 19 (1995)

Paduano, Anthony and Smith, Clive A. Stafford: "Deathly errors: jurors misperceptions concerning parole in the imposition of the death penalty"; 18 Columbia Human Rights Law Review 211 (1987)

Perlin, Michael L.: "The sanist lives of jurors in death penalty cases: the puzzling role of "mitigating" mental disability evidence"; 8 Notre Dame Journal of Law, Ethics and Public Policy, 239 (1994)

Clemency

Bedau, Hugo Adam: "A retributive theory of the pardoning power?"; 27 University of Richmond Law Review 185 (1993)

Jorgensen, James N.: "Federal executive clemency power: the President's prerogative to escape accountability"; 27 University of Richmond Law Review 345 (1993)

Kobil, Daniel T.: "Due process in death penalty commutations: life, liberty and the pursuit of clemency"; 27 University of Richmond Law Review 201 (1993)

Ledewitz, Bruce and Staples, Scott: "The role of executive clemency in modern death penalty cases"; 27 University of Richmond Law Review 227 (1993)

Moore, Kathleen Dean: "Pardon for good and sufficient reasons"; 27 University of Richmond Law Review 281 (1993)

Palacios, Vicotria J.: "Faith in fantasy: the Supreme Court's reliance on commutation to ensure justice in death penalty cases"; 49 Vanderbilt Law Review 311 (1996)

Radelet, Michael L. and Zsembik, Barbara A.: "Executive clemency in post-Furman capital cases"; 27 University of Richmond Law Review 289 (1993)

Schumacher, Daryl M.: "Intruders at the Death House: limiting third-party intervention in executive clemency"; 30 The John Marshall Law Review 567 (1997)

Constitutionality

Bandes, Susan: "Simple murder: a comment on the legality of executing the innocent"; 44 Buffalo Law Review 501 (1996)

Bedau, Hugo Adam: "Interpreting the Eighth Amendment: principled vs. populist strategies"; 13 Thomas M. Cooley Law Review 789 (1996)

Denno, Deborah W.: "Getting to death: Are executions constitutional?"; 82 Iowa Law Review 319 (1997)

Harding, Roberta M.: "The gallows to the gurney: analyzing the (un)constitutionality of the methods of execution"; 6 The Boston University Public Interest Law Journal 153 (1996)

Laurence, Michael and Sevilla, Charles M.: "Thoughts on the cause of the present discontents : the death penalty cases of Robert Alton Harris"; 40 UCLA Law Review 345 (1992)

Ledewitz, Bruce: "Could the death penalty be a cruel punishment?"; 3 Widener Journal of Public Law 121 (1993)

Marinello, Joseph R.: "The death penalty and pre-trial publicity: Are today's attempts at guaranteeing a fair trial adequate?"; 8 Notre Dame Journal of Law, Ethics and Public Policy 371 (1994)

Steiker, Carol and Steiker, Jordan: "Sober second thoughts: reflections on two decades of constitutional regulation of capital punishment"; 109 Harvard Law Review 355 (1995)

Costs

Bright, Stephen B.: "The death penalty as the answer to crime: costly, counterproductive and corrupting"; 35 Santa Clara Law Review 1211 (1995)

Dieter, Richard C.: "What politicians don't say about the high costs of the death penalty"; 1 Studies in Prolife Feminism 11 (1995)

Spangenberg, Robert L. and Walsh, Elizabeth: "Capital punishment or life imprisonment? Some cost considerations"; 23 Loyola of Los Angeles Law Review 45 (1989)

Deterrence

Bailey, William C. and Peterson, Ruth D.: "Murder, capital punishment, and deterrence: a review of the evidence and an examination of police killings"; 50 Journal of Social Issues 53 (1994)

Fox, James Alan and Radelet, Michael L.: "Persistent flaws in econometric studies of the deterrent effect of the death penalty"; 23 Loyola of Los Angeles Law Review 29 (1989)

Haney, Craig and Logan, Deana Dorman: "Broken promise: the Supreme Court's response to social science research on capital punishment"; 50 Journal of Social Issues 75 (1994)

Due Process

Bright, Stephen B.: "The American Bar Association's recognition of the sacrifice of fairness for results: will we pay the price of justice?"; 4 Georgetown Journal on Fighting Poverty 183 (1996)

Coyne, Randall and Entzeroth, Lyn: "Report regarding implementation of the American Bar Association's recommendations and resolutions concerning the death penalty and calling for a moratorium on executions"; 4 Georgetown Journal on Fighting Poverty 3 (1996)

Tabak, Ronald J.: "Why the ABA opposes unjust executions"; 4 Georgetown Journal on Fighting Poverty 181 (1996)

Federal habeas corpus

Blaustein, Susan: "Habeas corpse"; 28 The Bill of Rights Journal 25 (1995)

Bright, Stephen B.: "Is fairness irrelevant? The evisceration of federal habeas corpus reviewand limits on the ability of state courts to protect fundamental rights"; 54 Washington and Lee Law Review 1 (1997)

Bureau of Justice Statistics, ed.: "Challenging state court criminal convictions"; Federal Habeas Corpus Review 1 (1995)

Duffy, Donna and Mello, Michael: "Suspending justice: the unconstitutionality of the proposed six-month time limit on the filing of habeas corpus petitions by state death row inmates"; 18 New York University Review of Law and Social Change 451 (1990-1991)

Faust, Richard et al.: "The great writ in action: empirical light on the federal habeas corpus debate"; 18 New York University Review of Law and Social Change 637 (1990-1991)

Foley, Timothy J.: "The new arbitrariness: procedural default of federal habeas corpus claims in capital cases"; 23 Loyola of Los Angeles Law Review 193 (1989)

Freedman, Eric M.: "The suspension clause in the ratification debates"; 44 Buffalo Law Review 451 (1996)

Lane, J. Mark and Tabak, Ronald J.: "Judicial activism and legislative "reform" of federal habeas corpus: a critical analysis of recent developments and current proposals"; 55 Albany Law Review 1 (1991)

Liebman, James S. and Ryan, William F.: ""Some effectual power": the quantity and quality of decisionmaking that article III and the Supremacy Clause demand of the federal courts"; 98 Columbia Law Review 696 (1998)

Lyon, Andrea D.: "New opportunities for defense attorneys: how record preservation requirements after the new habeas bill require extensive and exciting trial preparation"; 30 The John Marshall Law Review 389 (1997)

Scheidegger, Kent S.: "Habeas corpus, relitigation, and the legislative power"; 98 Columbia Law Review 888 (1998)

Tabak, Ronald J.: "Habeas corpus as a crucial protector of constitutional rights: a tribute which may also be a eulogy"; 26 Seton Hall Law Review 1477 (1996)

Tabak, Ronald J., ed.: "Dead man walking without due process? A discussion of the Anti-terrorism and Effective Death Penalty Act of 1996"; Panel members: Susan Cary, Thoams Dunn, Leon Friedman, Mark Olive, Lori Rozsa, Ronald J. Tabak; 23 New York University Review of Law and Social Change 163 (1997)

Tabak, Ronald J., ed.: "Is there any habeas left in this corpus?"; Panel members: Stephen B. Bright, Susan Getzendanner, Scharlette Holdman, Andrea Lyon, E. Michael McCann, Reverend Michael Place, Andrew L. Sonner, Jeffrey Urdangen, Professor Larry Yackle; 27 Loyola University Chicago Law Journal 523 (1996)

Yackle, Larry W.: "A primer on the new habeas corpus statute"; 44 Buffalo Law Review 381 (1996)

General

ACLU, ed.: "Death Penalty Q & A"; 28 The Bill of Rights Journal 31 (1995)

Bedau, Hugo Adam: "The death penalty in America"; 28 The Bill of Rights Journal 13 (1995)

Bohm, Robert M.: "Rejoinder - qualified support for the death penalty: the illusion of hypothetical scenarios"; 6 Justice Quarterly, Academy of Criminal Sciences 197 (1989)

Brennan, Jr., William J.: "Neither victims nor executioners"; 8 Notre Dame Journal of Law, Ethics and Public Policy 1 (1994)

Costanzo, Mark and White, Lawrence T.: "An overview of the death penalty and capital trials: history, current status, legal procedures, and costs"; 50 Journal of Social Issues 1 (1994)

Dieter, Richard: "Secondary smoke surrounds the capital punishment debate"; 13 Criminal Justice Ethics 2 (1994)

Dubber, Markus Dirk: "The pain of punishment"; 44 Buffalo Law Review 545 (1996)

Friedrichs, David O.: "Comment - humanism and the death penalty: an alternative perspective"; 6 Justice Quarterly, Academy of Criminal Justice Sciences 211 (1989)

Gey, Steven G.: "Death is different: or how we stopped worrying and learned to love the chair"; 41 Rutgers Law Review, 451 (1988)

Gross, Samuel R.: "The romance of revenge: capital punishment in America"; 13 Studies in Law, Politics, and Society 71 (1993)

Herbert, Bob: "The hanging tree"; 4 Georgetown Journal on Fighting Poverty 189 (1996)

Ingle, Joseph B.: "Final hours: the execution of Velma Barfield"; 23 Loyola of Los Angeles Law Review 221 (1989)

Kadish, Mark J.: "Article 36 of the Vienna Convention on Consular Relations: a search for the right to consul"; 18 Michigan Journal of International Law 565 (1997)

Kannar, George: "Federalizing death"; 44 Buffalo Law Review 325 (1996)

Kreitzberg, Ellen: "Death without justice"; 35 Santa Clara Law Review 485 (1995)

Kroll, Michael A.: "Witness to an execution"; 28 The Bill of Rights Journal 5 (1995)

Lane, J. Mark and Tabak, Ronald J.: "The execution of injustice: a cost and lack-of-benefit analysis of the death penalty"; 23 Loyola of Los Angeles Law Review 59 (1989)

MacArthur, John R.: "The death penalty and the decline of liberalism"; 30 The John Marshall Law Review 321 (1997)

Meade, Christopher J.: "Reading death sentences: the narrative construction of capital punishment"; 71 New York University Law Review 732 (1996)

Moore, William Neal: "I shall not die, but live"; 4 Georgetown Journal on Fighting Poverty 195 (1996)

Polsby, Daniel D.: "Recontextualizing the context of the death penalty"; 44 Buffalo Law Review 527 (1996)

Prejean, Helen: "Walking on death row"; 28 The Bill of Rights Journal 9 (1995)

Radelet, Michael L. and Vandiver, Margaret: "Capital punishment in America. An annoted bibliography."; Garland Publishing, New York & London, 1988

Symposium: Joseph M. Bessette, Stephen B. Bright, George H. Kendall, William J. Kunkle, Jr., Carol Steiker and Jordan Steiker: "Reflections on a quarter-century of constitutional regulation of capital punishemnt"; 30 The John Marshall Law Review 399 (1997)

Symposium: Walter Berns, Nancy Bothne, William Bowers, Richard C. Dieter, Richard D. Land, James Lund and Austin Sarat: "The death penalty: a philosophical and theological perspective"; 30 The John Marshall Law Review 463 (1997)

Symposium: Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Douglas G. Robinson, Diann Rust-Tierney, Charkes F. Shilling, Andrew L. Sonner, Ronald J. Tabak, David Von Drehle, James Wootton: "The death penalty in the 21st century"; 45 The American University Law Review 239 (1995)

Trulock, Jennifer M.: "An interview with William Neal Moore"; 4 Georgetown Journal on Fighting Poverty 191 (1996)

Innocence

Bedau, Hugo Adam and Radelet, Michael: "Miscarriages of justice in potentially capital cases"; 40 Stanford Law Review 21 (1987)

Bedau, Hugo Adam and Radelet, Michael L.: "The myth of infallibility: a reply to Markman and Cassell"; 41 Stanford Law Review 161 (1988)

Berger, Vivian: "Herrera vs. Collins: the gateway of innocence for death-sentenced prisoners leads nowhere"; 35 William and Mary Law Review 943 (1994)

Bryan, Robert R.: "The execution of the innocent: the tragedy of the Hauptmann-lindbergh and Bigelow cases"; 18 New York University Review of Law and Social Change 831 (1990-1991)

Freedman, Eric M.: "Innocence, federalism, and the capital jury: two legislative proposals for evaluating post-trial evidence of innocence in death penalty cases"; 18 New York University Review of Law and Sovcial Change 315 (1990-1991)

Gross, Samuel R.: "The risks of death: why erroneous convictions are common in capital cases"; 44 Buffalo Law Review 469 (1996)

Leo, Richard A. and Ofshe, Richard J.: "The consequence of false confessions: deprivations of liberty and miscarriages of justice in the age of psychological interrogation"; 88 The Journal of Criminal Law and Criminology, 429 (1998)

Markman, Stephen J. and Cassell, Paul G.: "Protecting the innocent: a response to the Bedau-Radelet Study"; 41 Stanford Law Review 121 (1988)

Radelet, Michael et al.: "Prisoners released from death rows since 1970 because of doubts about their guilt"; 13 Thomas M. Cooley Law Review 907 (1996)

Juveniles

Hamm, Mark S.: " Legislator ideology and capital punishment: the special case for the Indiana juveniles"; 6 Justice Quarterly, Academy of Criminal Justice Sciences 219 (1989)

Mental retardation

Billotte, Jamie Marie: "Is it justified? - The death penalty and mental retardation"; 8 Notre Dame Journal of Law, Ethics and Public Policy 333 (1994)

Crocker, Phyllis L.: "Concepts of culpability and deathworthiness: differentiating between guilt and punishment in death penalty cases"; 66 Fordham Law Review 21 (1997)

Keyes, Denis W. et al.: "Mitigating mental retardation in capital cases: finding the "invisible" defendant"; 22 Mental and Physical Disabilities Law Reporter 529 (1998)

Mitigation

Haney, Craig: "The social context of capital murder: social histories and the logic of mitigation"; 35 Santa Clara Law Review 547 (1995)

Moral issues

Bohm, Robert M.: "Humanism and the death penalty, with special emphasis on the post-Furman experience"; 6 Justice Quarterly, Academy of Criminal Justice Sciences 173 (1989)

Bright, Stephen B.: "The electric chair and the chain gang: choices and challenges for America's future"; 71 Notre Dame Law Review 845 (1996)

Dieter, Richard C.: "Ethical choices for attorneys whose clients elect execution"; 3 The Georgetown Journal of Legal Ethics 799 (1990)

Freedman, Alfred M. and Halpern, Abraham L.: "The erosion of ethics and morality in medicine: physician participation in legal executions in the United States"; 41 New York Law School Law Review 169 (1996)

Lamont, Corliss: "Yes to life"; 28 The Bill of Rights Journal 35 (1995)

Opinions/ views

Anaya, Toney: " Statement by [former governor] Toney Anaya on capital punishment"; 27 University of Richmond Law Review 177 (1993)

Bowers, William J., et al.: "A new look at public opinion on capital punishment: what citizens and legislators prefer"; 22 American Journal of Criminal Law 77 (1994)

Bradford, David J.: "Judge Rubin and the death penalty: legacy unaccomplished"; 52 Louisiana Law Review 1441 (1992)

Ellsworth, Phoebe C. and Gross, Samuel R.: "Hardening of attitudes: Americans' views on the death penalty"; 50 Journal of Social Issues 19 (1994)

Felton, Norman: "A parent says no to revenge"; 28 The Bill of Rights Journal 3 (1995)

McCann, E. Michael: "Opposing capital punishment: a prosecutor's perspective"; 79 Marquette Law Review 649 (1996)

Politics

Bresler, Kenneth: "Seeking justice, seeking election, and seeking the death penalty: the ethics of prosecutoral candidates' campaining on capital convictions"; 7 The Georgetown Journal of Legal Ethics 941 (1994)

Bright, Stephen B.: "The politics of crime and the death penalty: not "soft on crime" but hard on the Bill of Rights"; 39 Saint Louis University Law Journal 479 (1995)

Bright, Stephen B.: "Political attacks on the judiciary: Can justice be done amid efforts to intimidate and remove judges from office for unpopular decisions?"; 72 New York University Law Review 308 (1997)

Bright, Stephen B. and Keenan, Patrick J.: "Judges and the politics of death: deciding between the Bill of Rights and the next election in capital cases"; 75 Boston University Law Review 759 (1995)

Cuomo, Mario M.: "Some thoughts on judicial independence"; 72 New York University Law Review 298 (1997)

Davidow, Robert P.: "Federal habeas corpus: the effect of holding state capital trials collateral proceedings before a judge running for re-election"; 8 Notre Dame Journal of Law, Ethics and Public Policy 317 (1994)

Tabak, Ronald J., ed.: "Politics and the death penalty: Can rational discourse and due process survive the perceived political pressure?"; Panel members: James E. Coleman, Hon. James G. Exum, Jr., Nat Hentoff, Hon. Susan John, Hon. Ernest Preate, Jr., Norman Redlich, Bryan Stevenson, Shabaka Sundiata Waglini; 21 Fordham Urban Law Journal 239 (1994)

Tigar, Michael E.: "Judges, lawyers and the penalty of death"; 23 Loyola of Los Angeles Law Review 147 (1989)

Uelmen, Gerald F.: "Review of death penalty judgments by the Supreme Courts of California: A Tale of Two Courts"; 23 Loyola of Los Angeles Law Review 237 (1989)

Race

Baldus, David et al.: "Reflections on the "inevitability" of racial discrimination in capital sentencing and the "impossibility" of its prevention, detection, and correction"; 51 Washington and Lee Law Review 357 (1994)

Baldus, David et al.: "Arbitrariness and discrimination in the administration of the death penalty: a challenge to state supreme courts"; 15 Stetson Law Review 133 (1986)

Bright, Stephen B.: "Discrimination, death and denial: the tolerance of racial discrimination in infliction of the death penalty"; 35 Santa Clara Law Review 433 (1995)

Chemerinsky, Erwin: "Eliminating discrimination in administering the death penalty: the need for the Racial Justice Act"; 35 Santa Clara Law Review 519 (1995)

Johnson, James H. et al.: "African American males and capital murder: a death penalty mitigation strategy"; 18 Urban Geography 403 (1997)

Tabak, Ronald J.: "Is racism irrelevant? Or should the fairness in death sentencing act be enacted to substantially diminish racial discrimination in capital sentencing?"; 18 New York University Review of Law and Social Change 777 (1990-1991)

Representation

Bright, Stephen B.: "Counsel for the poor: the death sentence not for the worst crime but for the worst lawyer"; 103 The Yale Law Journal 1835 (1994)

Bright, Stephen B.: "In defense of life: Enforcing the Bill of Rights on behalf of poor, minority and disadvantaged persons facing the death penalty"; 57 Missouri Law Review 849 (1992)

Costanzo, Mark and Peterson, Julie: "Attorney persuasion in the capital penalty phase: a content analysis of closing arguments"; 50 Journal of Social Issues 125 (1994)

Cohen, Douglas M. and Lardent, Esther F.: "The last best hope: representing death row inmates"; 23 Loyola of Los Angeles Law Review 213 (1989)

Geimer, William S.: "A decade of Strickland's Tin Horn: doctrinal and practical undermining of the right to counsel"; 4 William and Mary Bill of Rights Journal 91 (1995)

Howard Jr., Roscoe C.: "The defunding of the post conviction defense organizations as a denial of the right to counsel"; 98 West Virginia Law Review 864 (1996)

Mello, Michael: "Death and his lawyers: why Joseph Spaziano owes his life to the Miami Herald - and not to any defense lawyer or judge"; 20 Vermont Law Review 19 (1995)

Tabak, Ronald J., ed.: "The death of fairness? Counsel competency and due process in death penalty cases"; Panel members: Stephen B. Bright, Talbot "Sandy" D'Alemberte, David R. Dow, Arthur "Cappy" Eads, Elaine R. Jones, Anthony Lewis, Hon. Ernest D. Preate, Jr., Sister Helen Prejean C.S.J., Clive A. Stafford Smith, Ronald J. Tabak, Michael E. Tigar; 31 Houston Law Review 1105 (1994)

Vick, Douglas W.: "Poorhouse justice: underfunded indigent defense services and arbitrary death sentences"; 43 Buffalo Law Review 329 (1995)

Weisberg, Robert: "Who defends capital defendants?"; 35 Santa Clara Law Review 535 (1995)

State habeas review

Bienen, Leigh B.: "The proportionality review of capital cases by state high courts after Gregg: only the "appearance of justice"?"; 87 The Journal of Criminal Law and Criminology 130 (1996)

Bright, Stephen B.: "Is fairness irrelevant? The evisceration of federal habeas corpus review and limits on the ability of state courts to protect fundamental rights"; 54 Washington and Lee Law Review 1 (1997)

Hartman, Marshall and Nyden, Jeanette: "Habeas corpus and the new federalism after the Anti-Terrorism and Effective Death Penalty Act of 1996"; 30 The John Marshall LawReview 337 (1997)

Hartman, Rhonda G.: "Critiquing Pennsylvania's comparative proportionality review in capital cases"; 52 University of Pittsburgh Law Review 871 (1991)

Mello, Michael: "Rough justice: reflections on the capital habeas corpus (anti)jurisprudence of judge Robert S. Vance"; 42 Alabama Law Review 1197 (1991)

Sorensen, Jonathan R. and Wallace, Donald, H.: "Missouri proportionality review: an assessment of a state supreme court's procedures in capital cases"; 8 Notre Dame Journal of Law, Ethics and Public Policy 281 (1994)

Thibodeau, Renee: "Efficiency vs. Justice: Giarratano and the Capital petitioner's right to a "meaningful" postconviction process"; 8 Notre Dame Journal of Law, Ethics and Public Policy 317 (1994)

State specific

Acker, James R.: "When the cheering stopped: an overview and analysis of New York's death penalty legislation"; 17 Pace Law Review 41 (1996)

Bienen, Leigh B. et al.: "The reimposition of capital punishemnt in New Jersey: the role of prosecutorial discretion"; 41 Rutgers Law Review 27 (1988)

Driggs, Ken: "A current of electricity sufficient in intensity to cause immediate death: a pre-Furman history of Florida's electric chair"; 22 Stetson Law Review 1169 (1993)

Koosed, Margery Malkin: "Some perspectives on the possible impact of diminished federal review of Ohio's death sentences"; 19 Capital University Law Review 695 (1990)

Ledewitz, Bruce: "Sources of injustice in death penalty practice: the Pennsylvania experience"; 95 Dickinson Law Review 652 (1991)

MacFarlane, Walter A.: "The clemency process in Virginia"; 27 University of Richmond Law Review 241 (1993)

Medlin, Nell Joslin and Mello, Michael: "Espinosa vs. Florida: Constitutional hurricane, lambent breeze, or idiot wind?"; 22 Stetson Law Review 909 (1993)

Mello, Michael: "The jurisdiction to do justice: Florida's jury override and the state constitution"; 18 Florida State University Law Review 923 (1991)

Tabak, Ronald J., ed.: "Are executions in New York inevitable?"; Panel members: Cessie Alfonso, Dean John D. Feerick, Lee Grant, George H. Kendall, Thomas McDermott, Archibald Murray, His Eminence John Cardinal O'Connor, Barbara Paul Robinson; 22 Fordham Urban Law Journal 557 (1995)

Vandiver, Margaret: "The quality of mercy: race and clemency in Florida death penalty cases"; 27 University of Richmond Law Review 315 (1993)

Weisberg, Robert: "The New York Statute as cultural document: seeking the morally optimal death penalty"; 44 Buffalo Law Review 283 (1996)

Zimring, Franklin E.: "The wages of ambivalence: on the context and prospects of New York's death penalty"; 44 Buffalo Law Review 303 (1996)

Supreme Court

Bigel, Alan I.: "Justices William J. Brennan, Jr. and Thurgood Marshall on Capital Punishment: its constitutionality, morality, deterrent effect, and interpretation by the court"; 8 Notre Dame Journal of Law, Ethics and Public Policy 11 (1994)

Blackmun, Harry A.: "A dissenting voice"; 28 The Bill of Rights Journal 23 (1995)

Casper, Jonathan D. and Diamond, Shari Seidman: "Empirical evidence and the death penalty: past and future"; 50 Journal of Social Issues 177 (1994)

Mello, Michael: "Adhering to our views: Brennan and Marshall and the relentless dissent to death as a punishment"; 22 Florida State University Law Review 592 (1995)

Tabak, Ronald J.: "Justice Brennan and the death penalty"; 11 Pace Law Review 473 (1991)

(Please note that Dick Dieter nor the Death Penalty Information Center at the time of this mailing has granted permission to reprint although such request is pending. If you find it useful please thank them next time you visit their site (http://essential.org/dpic).)

Parting note

Due to a problem with archiving recent editions on the website, the archiving of older newsletters has been temporarily suspended.

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

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