Two state favorable state court cases are noted as hot this week as is one truly ugly Texas decision.

In the first of these case,Murphy v. Oklahoma, examines the question of how to apply the United States Supreme Court's opinion in Atkins v. Virginia. TheMurphyCourt adopts a standard of an IQ 70 with several other attendant factors. As the Oklahoma Court of Criminal Appeals decision is among the first in the nation to adopt a standard for such claims both at trial and in cases in which a sentence of of death has been imposed it earns the hot designator.

The Mississippi Supreme Court inPuckett v Mississippiexamines the issue of filing petitions for state post-conviction review. ThePuckettCourt has permitted the filing of a post-conviction motion outside the normal time and gives a good analysis as to why.

In one other case of note this week, the Texas Court of Criminal Appeals on Wednesday,Texas v. Patrick, as it has been want to do, greatly increased the chance of executing the innocent in that state. ThePatrickCourt has held that the state's DNA testing law was inappropriately used to grant a death row inmate such testing & that mandamus should issue as to the order. The practical effect of the mandamus is to further limit that state's system of safety valves for protecting the innocent. Mr. Patrick will, save some extraordinary intervention, be executed early next week.

A correction is also noted this week. The last edition ran a seriously flawed analysis ofKnese v. Missouri. A major thank you to the small phalanx of Missouri attorneys who spotted the error. That case should have read:

Knese v. Missouri, 2002 Mo. LEXIS 89 (Mo 8/27/2002) Knese's trial counsel was ineffective in failing to question, during voir dire, two of the eventual jurors about questionnaire responses suggesting they automatically would vote to impose death after a murder conviction. The attorney admitted he should have struck these jurors for cause, and his failure to do so was the most egregious mistake he ever has made in trying a case. This complete failure in jury selection affected the penalty phase only, as nothing in the questionnaires indicated either of these jurors was predisposed to vote for guilt or innocence automatically. The penalty phase of the trial is reversed accordingly, and the case is remanded.

As CLE information on upcoming courses comes in it will be placed in a new column at the end of the weekly labeled, surprisingly enough "CLEs." Kicking off the columns is October's mental health training in Atlanta being offered byHAT and the Administrative Office of the Courts.

Execution Information

Since the last edition the following have been executed:

September

10 Tony Walker Texas

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

September

13 Michael Passaro South Carolina----volunteer

17 Jessie Patrick Texas

18 Ronald Shamburger Texas

24 Rex Mays Texas

25 Robert Buell Ohio

25 Calvin King Texas

October

1 James Powell Texas

2 Rigoberto Velasco Florida--for. nat'l, volunteer

9 Aileen Wournos Florida--female, volunteer

17 Donald Dallas Alabama

HOT LIST

Murphy v. Oklahoma, 2002 OK CR 32; 2002 Okla. Crim. App. LEXIS 37 (Ok Crim App 9/04/2002) Oklahoma defines its rules for mental retardation litigation and remands Mr. Murphy's case for further litigation:

In proposition three, Petitioner claims, due to his mild mental retardation, his execution would violate the state and federal constitutional prohibitions against cruel and/or unusual punishments and would offend contemporary standards of decency. He asks this Court to consider recent legislative and judicial action and other "indicia of current public sentiment" in resolving this claim. He also asks us to hold his post-conviction proceeding in abeyance pending the United States Supreme Court's decision in Atkins v. Virginia.12

¶27 Petitioner did not raise this claim on direct appeal, although he obviously had the opportunity to do so, and he does not raise the issue here in relation to an ineffective assistance claim. Under normal circumstances, this would be absolutely fatal to his claim under the post-conviction act. However, due to a recent flurry of legislative,13 executive,14 and judicial activity concerning this precise issue, including the United States Supreme Court's opinion in Atkins, we will address this issue in order to give guidance to the various district court judges, attorneys, and death row inmates who may be affected by what appears to be a new rule of constitutional law.

¶28 As the law in this state currently stands, "[a]ll persons are capable of committing crimes," except those in certain statutorily defined classes, including "persons who are impaired by reason of mental retardation upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness" and "[p]ersons who committed the act, or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent." 21 O.S.2001, § 152. And yet, while mentally retarded individuals are capable of committing crimes in Oklahoma, in light of Atkins, those who fit within its holding are no longer eligible for the death penalty.15

¶29 Atkins notes, however, that there is serious disagreement (and thus no "national consensus"16) among the States in determining which offenders are in fact retarded: "Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about who there is a national consensus."17 Atkins, __ U.S. at __, 122 S.Ct. at 2250. It is therefore important to understand that Atkins does not attempt to define who is or who is not mentally retarded for purposes of eligibility for a death sentence, but "leave[s] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." Id.

¶30 That puts this State in an interesting position, considering our legislature has attempted to do just that, but our Governor has apparently disagreed with the legislature's efforts. Thus, the task falls upon this Court to develop standards to guide those affected until the other branches of government can reach a meeting of the minds on this issue.

¶31 According, we hereby adopt the following definition for mental retardation that will apply to individuals alleging they are not eligible to be sentenced to the death penalty, for use in capital trials:

A person is "mentally retarded": (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18)19; and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work.

It is the defendant's burden to prove he or she is mentally retarded by a preponderance of the evidence20 at trial. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative. However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary21 intelligent quotient test.

This standard shall be used at all future and pending capital trials, until such time as it may be replaced by a suitable legislative enactment.

¶32 Unless the issue of mental retardation is resolved prior to trial, the issue of mental retardation shall be decided in the sentencing stage of a capital murder trial, pursuant to the instruction set forth in Appendix "A." Furthermore, in all future capital trials where the defendant intends to use the issue of mental retardation to avoid the death penalty, the defendant shall give written notice of that fact by filing a notice in the record (and copied to counsel for the State) no less than forty-five (45) days prior to trial. The Oklahoma Criminal Discovery Code, 22 O.S.2001, § 2001 et seq., shall be applicable to any evidence relating to the issue of mental retardation.

¶33 If the jury determines a defendant is mentally retarded, as defined within this opinion, that defendant shall no longer be eligible for the death penalty. However, if the jury finds the defendant has not proven he or she is mentally retarded by a preponderance of the evidence, the defendant's intellectual functioning may still be considered as a mitigating factor in the sentencing stage.

¶34 In those cases where (1) a defendant has properly raised the issue of mental retardation, as set forth above, (2) the jury finds the defendant is not mentally retarded, as defined in this opinion, and (3) the jury then imposes the death penalty, the trial court shall, upon request of the defendant,22 hold a post-judgment Atkins hearing for the purpose of determining if the jury's decision on the issue of mental retardation has resulted in an excessive sentence,23 i.e., a sentence that imposed the death penalty upon a defendant who is mentally retarded, as herein defined.

¶35 The trial judge's duty at an Atkins hearing is to determine whether or not the factual determinations relating to the issue of mental retardation were imposed by the jury under the influence of passion, prejudice, or any other arbitrary factor.24 In administering this duty, the trial judge shall conduct his or her own de novo review25 of the evidence presented at trial and determine whether or not the defendant is mentally retarded, as herein defined, using a preponderance of the evidence standard. The trial judge shall make written findings and conclusions upon whether or not the defendant is mentally retarded, using the definition above, and file those written findings and conclusions in the record within fifteen (15) days of the hearing, as an exhibit to the trial judges report. Where a trial judge determines that a defendant is mentally retarded and, consequently, that the jury's decision finding the defendant not mentally retarded was due to the influence of passion, prejudice, or other arbitrary factor, that issue may be raised as a proposition of error for this Court to consider as part of its mandatory sentence review.

¶36 For pending capital appeals and inmates who may file applications for post-conviction relief to address this issue, the issue of mental retardation is preserved in the following circumstances: in those cases where evidence of the defendant's mental retardation was introduced at trial and/or the defendant either (1) received an instruction that his or her mental retardation was a mitigating factor for the jury to consider, (2) appealed his death sentence and therein raised the claim that the execution of the mentally retarded was cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution (or a substantially similar claim relating to his or her mental retardation), or (3) raised a claim of ineffective assistance of counsel, on appeal or in a previous post-conviction application, in which he or she asserted trial counsel or appellate counsel failed to raise the claim that the execution of the mentally retarded was cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. In such cases, the defendant's counsel shall file either an application for post-conviction relief, if the defendant's case is not pending in this Court, or an application with this Court in a pending appeal seeking a remand to the appropriate District Court for an evidentiary hearing to determine whether or not sufficient evidence of the defendant's mental retardation exists in order for the matter to be remanded for resentencing, as ordered below.

Puckett v. Mississippi, 2002 Miss. LEXIS 267 (Miss 8/29/2002) Permission to file state post-conviction motion outside of time granted.

¶4. The first question to be decided is when the statute of limitations begins to run. The phrase "filed within one year after conviction," requires construction. The Court has previously recognized that the Legislature holds the prerogative of placing reasonable time limitations on the filing of post-conviction applications. Cole v. State, 608 So. 2d 1313, 1318 (Miss. 1992). "The issue here is not the power of the legislature to provide such limitations, but the interpretation of statutes and court rules within the framework of a legislative act which impacts on the exercise of constitutional rights." Sykes v. State, 757 So. 2d 997, 1000 (Miss. 2000).

¶5. To hold that conviction, as used in this statute, means the entry of the judgment of the trial court, would not recognize the statutory and constitutional requirements that the Supreme Court review all death penalty cases. In a death penalty context, a conviction is final only when the mandatory state appellate review is complete, i.e., when this Court's mandate on appeal issues.

¶6. Under such a construction, the time period for filing Puckett's application for post-conviction relief expired on July 19, 2002. However, the special facts of this case require that we determine whether the statute has been tolled, and, if so, for what period.

TOLLING OF THE STATUTE

¶7. While the Court is not at liberty to extend or modify statutory limitations, when a party is prohibited from exercising his right to proceed by circumstances which are clearly beyond his control and rise to such a dimension as to implicate due process and fundamental fairness, the Court may and should toll the limitations for the period of the impairment. Application of this limited equitable rule requires recognition that "state post-conviction efforts, though collateral, have become part of the death penalty appeal process at the state level." Jackson, 732 So. 2d at 191. An indigent inmate under a sentence of death is entirely dependant upon state-appointed counsel to pursue his post-conviction efforts.

¶8. Our sister state of Tennessee has recently addressed the equitable tolling of the statute of limitations in Williams v. State, 44 S.W.3d 464 (Tenn. 2001), under similar circumstances. There, Williams urged that the limitations for his post-conviction filing should be tolled due to his attorney's abandonment of his case without informing Williams. Distinguishing a judicial extension or alteration of the legislative act from equitable tolling for due process purposes, the Court remanded for a factual determination in the trial court, saying:

We emphasize that under no circumstances are we allowing a petitioner to file an untimelyapplication for permission to appeal with the belief that the one-year statute conviction would commence upon this Court's dismissal of that untimely application. As the dissent aptly states, "filing an untimely application for permission to appeal to this Court does not constitute 'an appeal' as that term is used in Tennessee Code Annotated § 40-30-202(a) and therefore does not delay commencement of the one-year post-conviction statute of limitations. Indeed, in this case, the statute of limitations began to run . . . when the Court of Criminal Appeals affirmed Williams's conviction. The sole inquiry here, however, is whether this limitation period is tolled because of due process concerns surrounding possible attorney misrepresentation. . . . [The statute of limitations] gives defendants one year to file their petitions, and we are simply remanding the case to the trial court for an evidentiary hearing to determine (1) whether due process tolled the statute of limitations so as to give the appellee a reasonable opportunity after the expiration of the limitations period to present his claim in a meaningful time and manner; and (2) if so, whether the appellee's filing of the post-conviction petition [after the statutory period had run] was within the reasonable opportunity afforded by the due process tolling. To summarily terminate his claim without further inquiry would be an "abridgement of both direct and post-conviction avenues of appeal-without ever reaching the merits of the appell[ee's] case-[and] would be patently unfair." Crittenden v. State978 S.W. 2d 929 (Tenn. 1998).

. . . . In conclusion, the 1995 Post-Conviction Procedure Act clearly requires that post-conviction claims be filed in a timely manner. Although we agree that Williams filed his petition beyond the statutory deadline, due process considerations may have tolled the limitations period. Hence, the statute cannot be strictly applied without further inquiry, to deny him a reasonable opportunity to seek post-conviction relief.

Williams, 44 S.W.3d at 471. See also Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999) (affirming the district court of appeals and saying that due process entitles a defendant to belatedly file a post-conviction claim if his efforts were frustrated by his counsel's misleading conduct).

¶9. Equitable tolling of the statute of limitations in post-conviction proceedings is likewise recognized in the federal system. Dunlap v. United States,250 F.3d 1001, 1006 (6th Cir. 2001). The doctrine should only be applied in rare and exceptional circumstances. Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999). The doctrine may be applied when a movant files in untimely fashion due to extraordinary circumstances which are both beyond his control and unavoidable even in the exercise of due diligence. Sandvik v. United States,177 F.3d 1269, 1271 (11th Cir. 1999). A showing of excusable neglect is insufficient, and a petitioner must show that he was prevented from asserting his right to relief. Jones v. Morton ,195 F.3d 153, 159 (3d Cir. 1999).

¶10. Puckett brings to this Court's attention the facts that indicate without doubt that he has been prevented from filing his application through no fault or neglect on his part. On February 9, 2001, the Office of Capital Post-Conviction Counsel contracted with Steve Presson of Norman, Oklahoma, to represent Puckett. Then, by order dated October 31, 2001, the Circuit Court of Forrest County declared Puckett to be indigent and further found that Steve Presson of Oklahoma should be appointed as Puckett's post-conviction counsel, if funds were available to pay him, and that "in the event that such funds do not become available, then an attorney from the Office of Capital Post-Conviction Counsel should be appointed as post-conviction counsel for Mr. Puckett effective December 4, 2001." Funds were determined to be unavailable, and C. Jackson Williams, then director of the Office of Capital Post-Conviction Counsel, was substituted as counsel for Puckett on December 7, 2001. Williams thereafter resigned as director of the Office of Capital Post-Conviction Counsel on January 2, 2002. The new director, Robert Ryan, and Terri L. Marroquin filed appearance forms with the Clerk of this Court on February 22, 2002.

¶11. It appears that in the interim, Presson had obtained important files and documents including trial counsel's files, police reports and discovery materials and removed them to his offices in Oklahoma. The Office of Capital Post-Conviction Counsel began to attempt to recover these materials in order to proceed on Puckett's behalf. Presson however ignored requests to turn over the files, and Ryan was ultimately forced to file a complaint with the Oklahoma Bar Association seeking their return. On June 13, 2002, this Court entered an order directing Presson to return all of Puckett's files. Presson eventually delivered three boxes of material to the Office of Capital Post-Conviction Counsel on July 8, 2002. The record before us demonstrates that during the period from late December 2001 the Office of Capital Post-Conviction Counsel conscientiously tried to retrieve those documents and to obtain duplicates from other sources. Counsel for Puckett now seeks relief from this Court requesting an extension of time in which to file the application for leave to seek post-conviction relief.

¶12. In the present case, it cannot be said that Puckett has slept on his rights or that he seeks relief because of mere excusable neglect. Due to circumstances completely beyond his control, Puckett has been unable to timely file an application for leave to seek post-conviction relief within the one-year time frame. His former attorney's actions have affirmatively frustrated his efforts through new counsel to pursue the post-conviction process. Pursuant to this Court's decision in Jackson v. State,732 So.2d 187 (Miss. 1999), Puckett was clearly entitled to appointed competent and conscientious counsel to assist him with his pursuit of post-conviction relief. Although his direct appeal was affirmed on June 28, 2001, with the mandate issuing on July 19, 2001, the trial court did not hold a hearing until October 23 of that year, to determine Puckett's indigence and desire to have counsel. The trial court's order reflects that the Office of Capital Post-Conviction Counsel lacked the funding to pay Presson to represent Puckett. Attachments to Puckett's motions for time include copies of e-mail communication between that Office and Presson which indicate that Presson had ceased to work on the matter, failed to return vital documents, and abandoned communication with the Office. While Presson could not be expected to represent Puckett without compensation, once he entered on the task he was bound by professional obligation to do no harm. His failure to return the documents, for whatever reason, fell below professional standards and frustrated Puckett's efforts to seek relief. To punish Puckett for these circumstances would deprive him of minimal due process and a fair opportunity to be heard. The statute was tolled by these events, and the Court is bound to grant Puckett relief.

Texas v. Patrick, 2002 Tex. Crim. App. LEXIS 148 (Tex Crim App 9/11/2002) Holding the haste to execute more important than the risk of executing the innocent, mandamus issues to trial court judge to rescind order permitting DNA testing.

Although the State argues that permitting an appeal of the trial court's DNA order is consistent with the spirit of Article 44.01, the State does not claim that Article 44.01 specifically authorizes its appeal, and we find nothing in that article authorizing an appeal here. The State does contend that its appeal is authorized by Article 64.05, which provides:

An appeal of a finding under Article 64.03 or 64.04 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.

The State contends that this language [*4] places no limitation on who may take an appeal, and due to its general wording, authorizes an appeal by either the inmate or the State. The State then concludes that Article 64.05's general authorization to appeal extends to the present case.

We disagree. Article 64.05 cannot authorize an appeal here because the State is not appealing the finding that the court made under Chapter 64. The trial court expressly found that Chapter 64's requirements were notmet and deniedthe application for testing pursuant to that statute. The State does not complain of that finding. And the trial court's order granting DNA testing does not purport to be based upon Chapter 64. Consequently, there is no basis for an appeal by the State. And although applicant has argued that the findings are wrong, and he could have appealed from them, he has not done so. The State's appeal is dismissed.

C. Writ of Mandamus

To be entitled to a writ of mandamus, the State must demonstrate that: (1) there is no other adequate legal remedy, and (2) there is a clear and indisputable right to the relief sought. n3 Because the State cannot appeal the trial court's order in this case, the State has no remedy [*5] other than a writ of mandamus. Thus, we move to the second question, whether the State has a clear and indisputable right to the relief sought.

When a conviction has been affirmed on appeal and the mandate has issued, general jurisdiction is not restored in the trial court. n4 The trial court has special or limited jurisdiction to ensure that a higher court's mandate is carried out n5 and to perform other functions specified by statute, such as finding facts in a habeas corpus setting, n6 or as in this case, determining entitlement to DNA testing. The trial court did not cite a statutory provision, or any other source of authority, that would authorize the order for DNA testing, and we are unaware of any source of authority for this action. As we have previously observed, the order was based neither upon Chapter 64 nor upon a pending application for writ of habeas corpus. n7 The trial [*6] court was therefore clearly and indisputably without jurisdiction to issue the order in question.

The dissent contends that the trial court's action was not so clearly wrong as to be beyond dispute. In support of this contention, the dissent cites the maxim "whatever is not forbidden is permitted." n8 Whatever validity that maxim may have as a general matter, it does not apply here. Without jurisdiction, the trial court has no power to act. Consequently, a source of jurisdiction must be found to authorize the trial court's orders. The dissent [*7] contends that, "once post-conviction jurisdiction attaches, the trial court may perform acts which, although not explicitly authorized, are implicit to the jurisdictional purpose." n9 But, as the dissent concedes, these "implicitly authorized" acts must be in furtherance of some other action for which there is an explicit grant of jurisdiction. n10 The dissent finds Chapter 64 to be an explicit grant of jurisdiction. n11 But the dissent does not explain how the trial court's order in this case furthers its Chapter 64 jurisdiction. If, for example, the requirements under Chapter 64 for testing had been met, and testing was conducted, the trial court might legitimately order the appearance of witnesses involved in the testing process, if such appearance was deemed necessary for the trial court to make findings under Article 64.04. But here, Chapter 64's requirements were notmet, and so testing was not authorized under the statute. The dissent does not, and indeed cannot, explain how a trial court's jurisdiction under the DNA testing statute is furthered by testing that is not authorized under that statute.

The dissent contends that an unresolved question exists as to whether the trial court has "continuing jurisdiction" after it determines that the applicant has failed to meet Chapter 64's requirements. n12 But the question posed is not one of "continuing jurisdiction" but whether the statute authorizes the trial court to issue an order not authorized by the statute. The answer is obvious from the question. The Legislature could have given the trial court discretionary authority under Chapter 64 to order DNA testing when the conditions for compelling DNA testing were absent. The Legislature did not do so. n13

The dissent further contends that the Court said in Awadelkariem v. Staten14 that the trial court has "inherent jurisdiction and authority" to perform certain acts. n15 But nothing in Awadelkariem, either in the Court's opinion or in Judge Meyers' concurring opinion, suggests that there is such a thing as "inherent jurisdiction." Jurisdiction cannot be "inherent;" it is conferred by constitution or by statute. As Judge Meyers says in his concurrence, a trial court's ability to act "is limited, however, by the court's retention of jurisdiction or statutory authority over the matter." Awadelkariemconcerned the power of a court to act while it still had jurisdiction, not whether a court could act without jurisdiction. Jurisdiction expires when a case becomes final or is taken to a higher court. n16 Any inherent powers possessed by the trial court as a result of its jurisdiction under Chapter 64 would necessarily be limited by Chapter 64. Thus, Awadelkariemmight support a trial court's decision to rescind an order granting or denying DNA testing under Chapter 64 (for a limited time), but that case cannot be invoked to support a non-Chapter 64 basis for ordering DNA [*10] testing.

The dissent argues, correctly, that prior to the enactment of Chapter 64, the trial court would not have had jurisdiction to enter any order relating to post-conviction DNA testing. The dissent then finds inherent jurisdiction stemming from the filing of the Chapter 64 motion. But if the law is that the return, by statute, of jurisdiction to a trial court for a limited purpose invests the court with jurisdiction to act in matters other than those dictated by the statute, then that law would not be limited to DNA testing. If the trial court has jurisdiction to order DNA testing outside the statute, then it would have jurisdiction to enter or lift a stay of execution. [*11] Similar consequences could occur for other statutes conferring limited jurisdiction upon trial courts. The remand of a case to the trial court under Article 11.07, for instance, would allow the trial court to enter orders beyond the scope of our remand order because the trial court would have jurisdiction over the case. A remand for a trial court to make findings of fact under Art. 38.22, § 6 would create jurisdiction for the court to enter other orders.

The dissent also contends that the trial court should be empowered to order DNA testing at applicant's urging because the court would be empowered to order DNA testing if requested by the State. n17 This "reciprocity" theory assumes that the trial court has some generalized authority to issue such an order on behalf of the State; it does not. If the material is not within the possession of the prosecution or law enforcement, a search warrant could be issued if there were reasonable grounds to believe the DNA would lead to a perpetrator. Or a subpoena could be issued pursuant to a grand jury investigation. The State is no more entitled than a convicted person to an order compelling DNA testing simply because it wants one. Of course, [*12] the State could conduct DNA testing of material within the prosecution's possession without a court order, and under those circumstances, nothing prevents the State and the defendant from agreeing to a DNA test paid for by the defendant. n18

Finally, the dissent claims that absent a showing of harm, the State has failed to show that the trial court violated a ministerial duty. But whether there was a violation of such a duty should not be established by whether there is harm. The dissent confuses the legal issue of jurisdiction with the question of whether the act harms anyone. Jurisdiction exists or it does not. If it does not exist, the trial court cannot [*13] act. Questions of harm are not pertinent to the issue before us.

The State is entitled to a writ of mandamus from this Court ordering the trial court to vacate its order. n19 As is our custom, we will withhold issuance of the writ and accord the trial court an opportunity to conform its actions to this opinion. n20 Only if such action is not taken will the writ of mandamus issue. n21

SUPREME COURT

The Court is in summer recess.

CAPITAL CASES (Favorable Disposition)

Ohio v. Lomax, 2002 Ohio LEXIS 2029; 96 Ohio St. 3d 318; 2002 Ohio 4453 (Ohio 9/11/2002) In a case that seemingly needs a road-map to determine the appellate posture and prior proceedings, the Ohio Supreme Court holds that the intermediate appellate erred when it permitted the state to appeal what amounted to a judgment of acquittal as to the penalty of death. The prior appeal resulted in a reversal intermediate appellate court. On resentencing the three-judge panel instituted a death sentence. (The case appears to be a sub silentio application of Ring v. Arizona. Please use caution in citing this case due to the unusual procedural posture of the case and fineries of Ohio law involved a misinterpretation of the holding is possible).

CAPITAL CASES (Unfavorable Disposition)

Corcoran v. Indiana, 2002 Ind. LEXIS 688 (Ind 9/5/2002) (Dissent) Relief denied on allegations relating to whether the trial court improperly considered non-statutory aggravators, failed to consider all proffered mitigators and whether the death sentence is manifestly unreasonable.

Illinois v. Ballard, 2002 Ill. LEXIS 376 (Ill 8/30/2002) (Dissents) Appeal from jury waived trial proves fruitless on claims of failure to suppress statements under the Sixth Amendment and state statute, sufficiency of mitigation evidence, other crimes evidence, and that the Illinois death penalty statute is overbroad in its number of aggravators.

In re Andrews, 2002 Cal LEXIS 5472 (Cal. 08/26/2002) (Dissent) Relief denied on very strong claims of failure to adequately investigate a large volume mitigation evidence.

Pennsylvania v. Miller, 2002 Pa. LEXIS 1854 (PA 9/5/2002) (Dissents) Relief denied, over dissents, on whether trial counsel rendered ineffective assistance in failing to procure records, arrange a psychological evaluation, and present expert testimony in the penalty phase concerning Appellant's mental health, as well as whether the prosecution improperly vouched for the credibly of its key witness.

Humphries v. South Carolina, 2002 S.C. LEXIS 147 (SC 8/26/2002) "Payne does not prohibit character comparisons between defendants and victims; it prohibits comparisons that suggest that there are worthy and unworthy victims."

Williams v. Davis, 2002 U.S. App. LEXIS 17982 (7th Cir. 08/29/2002) Claims that trial counsel was ineffective for failing to exploit weakness in the state's case relating to blood evidence as counsel (1) made some use of the evidence & (2) petitioner was not prejudiced assuming counsel was ineffective.

USA v. Lentz, 2002 U.S. Dist. LEXIS 16339 (E.D.Va 8/22/2002) The trial court in this "Federal Death Penalty Act" proceeding denies relief: (1) whether the alleged statutory aggravating factor under section 3592(c)(1), "death occurring during the commission of another crime," unconstitutionally duplicates elements of the kidnaping offense in violation of the Eighth Amendment of the United States Constitution; and (2) whether the non-statutory aggravating factor alleged in the notice, "other offenses and threatened offenses," is unconstitutionally overbroad or irrelevant.

Hutchinson v. Bell, 2002 U.S. App. LEXIS 17871 (6th Cir. 08/29/2002) Habeas relief rejected on claims relating to: 1) the state trial court failed to grant him a severance from his co-defendant in violation of his right to confront his accuser and his right to a fair trial; 2) the prosecution withheld exculpatory and impeachment evidence in violation of Brady v. Maryland; 3) he received ineffective assistance of counsel due to trial counsel's failure to investigate adequately his innocence; 4) prosecutorial misconduct denied him due process of law; and 5) the federal district court dismissed his petition without holding an evidentiary hearing.

Ducket v. Mullin, 2002 US App LEXIS 18262 (10th Cir 9/4/2002) Habeas relief denied on claims: "(1) that the conduct and comments of the state prosecutor deprived him of a fair trial; (2) that trial counsel's failure to investigate and present mitigating evidence deprived him of effective assistance of counsel; (3) that the federal district court erred by refusing to provide him funds with which to retain an expert witness for the evidentiary hearing conducted by the court; (4) that the admission into evidence of a videotape of the murder scene deprived him of a fair and impartial jury; and (5) that the application of the "murder to avoid arrest" aggravating circumstance deprived him of a fair trial. Having studied this matter closely, we conclude that Ducket is not entitled to habeas relief on any of these claims."

Gilbert v. Mullin, 2002 U.S. App. LEXIS 18140 (10th Cir. 09/03/2002) Relief denied on claims that: (1) his right to a fair trial was violated by a coerced verdict at the sentencing stage of the trial; (2) he was improperly denied his request for a competency evaluation in state court; and (3) there was insufficient factual support for the jury's finding of the existence of the "avoid arrest" and "continuing threat" aggravating circumstances

State v. Louviere, 2002 La. LEXIS 2452 (La. 09/04/2002) Relief denied on: (1) whether the government could pursue a death sentence under state law after the appellant's guilty plea to murder; (2) the existence of Brady evidence; (3) whethr the trial court erred in failing to sequester those jurors who had survived the state's and the defense's challenges for cause; (4) whether the trial court improperly "limited his cross- examination by refusing "to allow defense counsel to mention the existence of the civil litigation ... ."

Moore v. Alabama, 2002 Ala. Crim. App. LEXIS 182 (Ala Crim App 8/30/2002) Relief denied on return from remand order relating to whether trial counsel was ineffective, relating chiefly to the failure to adequately investigate.

South Carolina v. Weik, 2002 S.C. LEXIS 159 (SC 9/3/2002) Relief denied on issues relating to: (A) competency; (B) trial court's refusing to accept appellant's offer to plead guilty but mentally ill (GBMI); (C) refusal to grant a second competency hearing at the conclusion of the guilt phase; (D) trial court's failing to submit GBMI as a form of the verdict in the guilt phase; (E) admission of twelve color photographs in the penalty phase of the trial; and (F) Proportionality.

Valle v. Moore, 2002 Fla. LEXIS 1806 (FL 8/29/2002) Relief denied on claims relating to whether: (1) appellate counsel was ineffective for failing to raise a claim regarding the trial court's denial of Valle's motion to waive the advisory jury; (2) appellate counsel was ineffective for failing to raise as an issue the CCP instruction, which was inadequate and unconstitutional; (3) appellate counsel was ineffective for failing to raise as an issue that the State's comments to the jury during voir dire tainted the jury pool and resulted in the State obtaining many for-cause excusals of potential jurors; and (4) appellate counsel was ineffective for failing to raise as an issue the trial court's denial of Valle's motion to suppress physical evidence.

Pennsylvania v. Bond, No. 212 Cap. App. Dkt. (PA 08/23/2002) Relief denied on whether: (1) trial counsel were ineffective for failing to investigate and present different or additional mitigation evidence; (2) newly-discovered evidence that the trial prosecutor exercised his peremptory challenges in a racially discriminatory fashion, ; (3) the post-conviction court erred in failing to grant a hearing based on the unsworn affidavit of appellant's co-defendant ; (4) trial counsel were ineffective for failing to ensure that the jury was properly "life-qualified"; (5) trial counsel were ineffective for requesting that an erroneous mercy instruction be given to the jury and for appealing to the jury's sympathy and mercy in the penalty phase closing ; (6) claims regarding alleged racial discrimination in capital sentencing; and (7) the cumulative error.

OTHER NOTABLE CASES

Kolberg v. Mississippi, 2002 Miss. LEXIS 268 (Miss 8/29/2002) (strong dissent) Trial court did not err in not instructing the jury fully on the aggravating circumstance of felony child abuse.

Tennessee v. Ramon, 2002 Tenn. Crim. App. LEXIS 673 (Tenn Crim App 8/9/2002 )"After a thorough review of the record, we conclude that the Defendant proved by clear and convincing evidence that he was insane at the time of the offense. The record is virtually void of any evidence that the Defendant was sane at the time of the stabbing."

Sanders v. Tennessee, 2002 Tenn. Crim. App. LEXIS 756 (Tenn Crim App 8/30/2002) In striking especially aggravated rape conviction, court provides a clear cut analysis of the difference between the crime rape and the crimes of rape and kidnapping.

Ford v. Hubbard, 2002 U.S. App. LEXIS 18345 (9th Cir 9/6/2002) Non-capital stay and abate procedures examined for mixed habeas petitions. "We conclude that the district court erred by failing to inform Ford (1) that it could consider his stay motions only if he opted to amend the petitions and dismiss the then-unexhausted claims, and (2) that his federal claims would be time-barred, absent cause for equitable tolling, upon his return to federal court if he opted to dismiss the petitions "without prejudice" and return to state court to exhaust all of his claims."

FOCUS

The Focus section will return next week

CLEs

One new CLE this week:

The Sheraton Colony Square Hotel in midtown Atlanta, Georgia, will be the site of this program, to be held October 31-November 3, 2002. This seminar is designed for, and attendance is limited to, 200 people. Continuing legal education (CLE) accreditation for this program will be sought in all applicable jurisdictions. There will be no tuition, and materials will be provided to participants free of charge. There is no funding available to cover airfare and lodging expenses ("travel scholarships") to attend this program.

These are exciting times in the science of mental health treatment. Each day brings a better understanding about the causes of mental defects and illnesses, the workings of the human brain, and how effectively to treat and manage debilitating disorders. These advances can be harnessed in the criminal and capital defense arena only if advocates are committed to a multi-disciplinary approach to representation. How is a mental disorder or illness discovered? How does it fit into a defense? How does the defendant or petitioner resist the prosecution's efforts to thwart or contradict diagnoses? What ethical considerations arise when representing a mentally ill, brain damaged, or mentally retarded client?

These and many other questions were successfully addressed and answered in 1999 in Washington D.C., and in 2000 in San Francisco, at the First and Second National Seminars on Mental Health and the Criminal Law. However, the answers change as rapidly as the science advances. And as the recent Supreme Court decision banning the execution of the mentally retarded illustrates, the law evolves to incorporate advances in the understanding of human behavior.

To register for this seminar complete the Registration Form fully which is located at www.capdefnet.org under the Upcoming Seminars page of the HAT section. A program agenda and other pertinent information will be forwarded to registrants approximately two weeks before the seminar. We expect that on-site registration/ materials pick-up will commence at 3:00 p.m. and the program will begin at 5:00 p.m. on Thursday, October 31, and that the seminar will conclude at 1:00 p.m. on Sunday, November 3.

OTHER RESOURCES:

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

DPIC RESOURCE: Executions in the U.S. 1608-1987: The Espy File

The "Espy File" is a database of executions in the United States and the earlier colonies from 1608 to 1987. This list of 14,634 executions was compiled by M. Watt Espy and John Ortiz Smylka, and was made available through the Inter-University Consortium for Political and Social Research (1994).

DPIC's creation of the files below features important information about each execution listed in the Espy File, such as the name, age and race of each individual executed, the date of execution, and the method of execution used, but omit some information, such as county of execution and the occupation of the executed. (To download the complete Espy File, visit the ICPSR Web site at www.icpsr.umich.edu/NACJD (click "download data" and use ICPSR # 8451)). Please note that although the official title of the Espy File denotes executions through 1987, actual data continues until the execution of Roy A. Harich in Florida on April 24, 1991. In addition, some information in the Espy File differs slightly from DPIC information since 1976, with respect to dates of execution and race of the inmate, but not the names, place or method of execution. In these instances, DPIC has verified through Department of Corrections' Web sites and news accounts that the information on DPIC pages is correct. For information on more recent executions, see DPIC's Information on Executions in the U.S. DPIC's display of the Espy File data has been sorted in three different ways for convenience in researching: Executions in Chronological Order, Executions in Alphabetical Order by the last name of the defendant, and Executions in Geographical Order, by the state in which the execution was carried out. DPIC will display other information from this file in the near future.

Executions by Date

Executions by Name

Executions by State

The chart above chronicles the United States' use of the death penalty over the past four centuries. The chart highlights the gradual rise in use of capital punishment in the seventeenth, eighteenth, and nineteenth centuries; a peak of nearly 200 executions per year in the mid-1930s; a subsequent decline in use and a moratorium on executions between 1967 and 1977; and finally, a trend toward more executions in recent years.

Texas Executions Far Surpass Any Other State

Texas has carried out more than half of the nation's total executions in 2002. The September 10th execution of Tony Walker was the state's 24th this year, nearly five times as many executions as the next leading state (Missouri). Since the reinstatement of the death penalty, Texas has executed 280 death row inmates, more than one-third of the country's 796 executions. Among the Texas executions are the last six executions of juvenile offenders in the United States. Texas is one of the few jurisdictions in the world to carry out such executions in the past two years. See also, Executions.

Governor Ryan Nearing Decision on Commutations

Illinois Governor George Ryan recently said that his decision to commute death sentences to life in prison should be "for everybody or nobody." As the Illinois Prisoner Review Board prepares to hear nearly 160 separate clemency cases, Ryan noted, "I don't know how I could pick and choose. That's why I have to determine whether it's going to be for everybody or for nobody. . . I want to make sure we don't put innocent people to death, that's my concern. The system right now is you can flip a coin to determine who's going to live and die." (Associated Press, September 6, 2002) See also, Illinois Commission on Capital Punishment and Clemency.

EU Justice Ministers, Ashcroft to Discuss Death Penalty, Extradition

U.S. Attorney General John Ashcroft is scheduled to meet with European Union justice ministers in Copenhagen this week to try to boost cooperation in extraditions and to address EU concerns about the United States' use of the death penalty. While EU member nations have expressed a willingness to cooperate more closely with the United States in the fight against terrorism, officials do not want any extradition deal that could lead to their citizens facing the death penalty. Nations belonging to the EU enforce a mandatory ban on capital punishment. (Reuters, September 4, 2002)

Earlier this month, Germany - a EU member nation - told the United States it will withhold evidence against Sept. 11 conspiracy defendant Zacarias Moussaoui unless it receives assurances that the material won't be used to secure a death penalty against him. (See below) See also, International Death Penalty.

NEW VOICES: Retiring Illinois Chief Justice Calls For End to State's Death Penalty

As he stepped down as chief justice of the Illinois Supreme Court, retiring Justice Moses Harrison said the state's death penalty is immoral and should be abolished. "Our system's the greatest in the world, but we know that it's not infallible," he said. "Despite the courts' efforts to fashion a death penalty scheme that is just, fair and reliable, the system is not working," he had written earlier. (Associated Press, September 5, 2002)

In April 2002, the Illinois Commission on Capital Punishment finished its review of the state's death penalty laws and released a lengthy list of recommended reforms. The blue-ribbon commission was created in 2000 by Illinois Governor George Ryan, who set in place the nation's first state moratorium on executions. See also, Illinois Commission on Capital Punishment and New Voices.

New York City Premiere of "Dead Man Walking" Opera

September 13, 2002, will mark the New York City premiere of the acclaimed opera "Dead Man Walking," based on the prize-winning book by Sister Helen Prejean. The opera and the book, as well as the film of the same title, follows Prejean's journey as a Louisiana nun who became the spiritual advisor to a death row inmate. Composed by Jake Heggie, the opera was hailed by the San Francisco Chronicle as a "gripping, enormously skillful marriage of words and music to tell a story of love, suffering and spiritual redemption." The opera will run through October 2, 2002. For more information or to purchase tickets, see the New York City Opera's Web page. Certain organizations are using the occasion of the opera as a fund-raising opportunity. For more information about discout tickets assisting such organizations, contact Ronald Tabak. For information about the New York Society for Ethical Culture's September 12 panel discussion with Sister Prejean and representatives of the New York City Opera, see the society's press release.

Germany Seeks Assurances that Death Penalty Will Not Be Sought

Germany has told the United States it will withhold evidence against Sept. 11 conspiracy defendant Zacarias Moussaoui unless it receives assurances that the material won't be used to secure a death penalty against him, Germany's justice minister said in remarks released Saturday. Justice Minister Herta Daeubler-Gmelin said Germany would provide documents on Moussaoui to the United States on condition that they "may not be used for a death sentence or an execution." (Associated Press, Sept. 1, 2002.)

Three Supreme Court Justices Urge Consideration of Juvenile Issue As Texas Executes Another Juvenile Offender

The August 28th execution of Texas juvenile offender Toronto Patterson marked the third time in four months that Texas has executed a black male who was sentenced to die for crimes committed as a juvenile. In response to Patterson's appeal to the U.S. Supreme Court to stay his execution in order to consider whether the execution of juvenile offenders is cruel and unusual punishment, three Supreme Court Justices - Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer - said the Court should consider reviewing the death penalty for those who commit crimes before the age of 18. In his dissenting opinion, Justice Stevens wrote, "Given the apparent consensus that exists among the states and in the international community against the execution of a capital sentence imposed on a juvenile offender, I think it would be appropriate for the court to revisit the issue at the earliest opportunity." (Washington Post, August 29, 2002)

Earlier this month, former first lady Rosalynn Carter called for a national moratorium on executions and an end to the execution of juvenile offenders. (See below.) Read Justice Stevens's dissenting opinion. See also, Juveniles and the Death Penalty.

NEW VOICES: Business Leaders Criticize U.S. International Record

The decision by Mexican President Vincente Fox to call off a visit to Texas and a meeting with President Bush due to the state's recent execution of a Mexican foreign national (see below) prompted the Latin America Advisor to probe how professional business leaders view the U.S.'s record on honoring its international treaty obligations. The following responses were among those featured in the newsletter:

James R. Jones, Co-chair of Manatt Jones Global Strategies LLC: "The U.S. government needs to enforce the right of immigrants and other foreign visitors to contact their native country's consular offices at times of arrest much better than we do presently. . . . [W]e should do it for the benefit of U.S. citizens traveling abroad who should expect the same legal rights."

Tony Smith, Partner at Schmeltzer, Aptaker & Shepard: "The U.S. record is terrible . . . . Clearly, Americans are at risk, as more and more travel and do business in foreign countries."

Robert C. Helander, Managing Partner of InterConsult LLP: "Observing a suspect's Miranda rights is not sufficient in the case of a foreign national from a country with which the U.S. has diplomatic relations . . . [T]here needs to be better training and communication between the federal authorities and the local and state levels of policing."

(Latin America Advisor, August 27, 2002). See also, New Voices.

NEW RESOURCE: Human Rights and the U.S. Death Penalty

DPIC's Executive Director, Richard Dieter, recently delivered a paper on human rights and the death penalty at Oxford University in England. The paper, entitled "The Death Penalty and Human Rights: U.S. Death Penalty and International Law," was presented at the Oxford Round Table on human and civil rights before an international gathering of human rights experts. The paper traces the development of capital punishment as a human rights issue, and it examines recent international challenges to the death penalty in the United States. Read the paper.

Michigan Man Exonerated by DNA; Judge Wanted Him Sentenced to Death

After nearly two decades in prison, Michigan inmate Eddie Joe Lloyd has been exonerated by DNA evidence. Lloyd, a paranoid schizophrenic who falsely confessed to the murder of Michelle Jackson, was in a mental hospital at the time of his false confession. He maintains that the confession, developed in cooperation with the police, was intended as a ruse to smoke out the real killer. In a hearing to request Lloyd's release from prison, both his attorneys and prosecutors presented the exculpatory DNA evidence to the same judge who sentenced Lloyd to life in prison. At that 1985 sentencing, the judge lamented Michigan's lack of the death penalty, stating:

The sentence the statute requires is inadequate. I feel like the courtÕs hands are tied. I cannot impose the sentence the facts call for in this matter. The only justifiable sentence I would say that I could impose would be termination by extreme constriction.

During the hearing on August 26, Lloyd's conviction was overturned and he was released from prison. There have been 110 inmates from across the nation exonerated by DNA evidence, including 12 death row inmates. (The Innocence Project, Associated Press and New York Times, August 26, 2002) See also, Innocence.

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).