Capital Defense Weekly

Case development out of Missouri

In Michael Taylor v. State the Missouri Supreme Court reverses

The circuit court denied postconviction relief. In a decision written by Chief Justice Laura Denvir Stith, the Supreme Court of Missouri concludes that the prosecution failed to obey rules and a court order requiring it to provide the impeaching information and that defense counsel were ineffective in impeaching the witness and in failing to present mitigating evidence in the penalty phase. In a 6-0 decision, the Court affirms the findings with respect to the guilt phase of the trial, holding that these failures would not have affected the outcome of the guilt phase, in which the inmate admitted the murder but claimed he was not guilty by reason of mental disease or defect. In a 3-1-2 decision, the Court reverses as to the death penalty phase and remands (sends back) the case for a new penalty phase trial on the basis that there is a reasonable likelihood that the outcome of the penalty phase proceeding may have been different but for these errors.

noncapital exoneration

“After serving 17 years in Ohio prison for a rape he didn’t commit, Robert McClendon was released August 11 due to DNA evidence of his innocence. This morning, he appeared again in a Columbus courtroom, as a judge dismissed charges pending against him. He was also declared a “wrongfully imprisoned person” - making him eligible for compensation under Ohio law, and the judge moved to expunge his record immediately.” [via the Innocence Project]

email edition

The email edition is now available.

Leading off this edition is the only favor disposition for the period from August 11-18, 2008, Rickey Lynn Lewis v. Quarterman . The Fifth Circuit in Lewis remands back to the district court the question of whether or not Lewis is mentally retarded. Specifically at issue in Lewis is an affidavit by the creator of the IQ test relied upon by the State’s expert that asserts the State’s expert flawed methodology improperly raised Mr. Lewis IQ score.  The district court failed to consider the affidavit in making its determinations.  The panel in Lewis concludes the affidavit submitted for the first time in federal habeas review — and hence unavailable to the state court in making its factual determinations — should have been considered by the district court in determining whether or not Mr. Lewis is, in fact, mentally retarded.

In other news, Jeffrey Woods’ execution has been stayed by the Hon. Orlando L. Garcia, a federal district court judge, Jeffrey Woods v. Quarterman. In strong, blunt language the district court condemned the Texas state courts’ position that Woods, pro se, needed to make a “substantial showing of incompetency” before experts and counsel were appointed. “With all due respect, a system that requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”

The Missouri Supreme Court has postponed the scheduled execution of Dennis Skillicorn. The Skillicorn Court stayed the August 27 execution date after counsel asserted prison officials obstructed their efforts to prepare a clemency petition.

In a “grab bag” of other news, a federal district court  has stayed Denard Manns‘ execution date as, purportedly, Mr. Manns was without counsel. Counsel for Charles Hood recently filed a civil lawsuit seeking to discover whether retired Judge Verla Sue Holland and former district attorney Tom O’Connell, Jr., the former presided over Mr. Hood’s trial while the latter was DA, had an affair during the course of the trial. The Innocence Project reports the Texas State Forensic Science Commission has agreed  to investigate possible negligence or misconduct in the Cameron Todd Willingham case; Mr. Willingham was executed in 2004. The Baltimore Sun reports on the ongoing Maryland Commission’s hearing on the death penalty. President Bush on Friday signed into law legislation expanding a student loan forgiveness program for students who become legal aid lawyers, state or local prosecutors and public defender.

Looking to the next edition, several favorable opinions are noted.  In both Jesse Bond v. Beard &Reginald Jells v. Mitchell relief is granted, from the Third and Sixth Circuits, respectively, on the failure of trial counsel to adequately investigate and prepare for the penalty phase.  In Jasper N. McMurtrey v. Ryan the Ninth Circuit grants relief as there exists “a reasonable doubt as to McMurtrey’s mental competence” to have stood trial. In Michael Rosales v. Quarterman the Fifth Circuit grants a COA on the issue of whether the condemned is mentally retarded within the meaning of Atkins v. Virginia.

As always thanks for reading, for forgiving the typos in advance, and understanding that the downturn in the economy has seen a corresponding rise in my indigent defense practice and related obligations.  - k

with sadness…

Rachel King has passed.  Our thoughts and prayers remain with her family.  Services will be later this week in Wayne, Maine at Wayne Methodist Church.

Rachel worked tirelessly with the ACLU’s Capital Punishment Project prior for leaving for academia. She is also the author of books such as Don’t Kill in Our Names : Families of Murder Victims Speak Out Against the Death Penalty & Capital Consequences : Families of the Condemned Tell Their Stories, as well as the fictional work Tales of the District. Rachel is scheduled to receive a Lifetime Achievement Award from the National Coalition to Abolish the Death Penalty at that organization’s annual conference this winter.

Sr. Helen takes on the DNCC

via the Rocky Mountain News:

Ultimately [ ]  Prejean received a standing ovation for her fiery denouncement of war and her tying it to desensitization caused by the allowance of capital punishment in American prisons.

“Practice of the death penalty on our own soil,” Prejeans said, “has made it easier for us to kill those we designate as enemies or suspected enemies.”

Prejean railed against what she called “shocking legalisms” used “to legitimize torture of suspected terrorists.”

“We need to take death off the table as a punishment,” she said, adding that it would allow the U.S. to criticize countries like China for their own human rights records and “hold our heads up high because we don’t torture our citizens.”

adding an ask to the weekly email

Going forward  at the end of all the weekly email editions will be an “ask” for various nonprofits working on issues surrounding capital punishment and/or criminal justice reform.  For the next quarter it will look something like this:

As a reminder, if you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don’t require it. Likewise, we don’t charge a subscription fee, but if you find the weekly useful we’d appreciate even a nominonal tax deductible donation to one of favorite nonprofits involved in some aspect of the capital punishment issue: Pennsylvanians for Alternatives to the Death Penalty, Death Penalty Information Center,  Fair Trial Initiative, Southern Center for Human Rights, Texas Defense Services, Tennessee Coalition Against State Killing, & Murder Victims’ Families For Human Rights.  On each of the above sites you are able to donate as little or as much as you want, or even set up a monthly automated giving amount.

some good news on the PD student loan front

Of late I work in a small public defender trial office (3 staff trial attorneys & 1 per diem).  Good water cooler gossip virtually never exists.  That is where Skelly’s Arbitrary and Capricious comes in.  Skelly offers good  news, good gossip & sometimes funny war stories about fellow PDs, usually best read over a cup of coffee.  Earlier this week was one such bit of great news:

Loan-Forgiveness Program Becomes Law - Legal aid attorneys, state and local prosecutors and public defenders benefit

President Bush on Friday signed into law legislation expanding a student loan forgiveness program for students who become legal aid lawyers, state or local prosecutors and public defenders…

Woods stay order

The Woods stay order is here.

Jeffrey Woods execution has been stayed for tonight. All executions for the remainder of the month are off. From that opinion.

With all due respect, a system that requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by definition, an insane system.”

more here & via Steve Hall @ Stand Down

Third Circuit grant of PP relief

Counsel for Bond failed to meet this constitutional minimum. Had they investigated Bond’s background and mental health, they would have presented a starkly different picture of Bond to the jury at the penalty phase than the one they actually presented. A reasonable lawyer who understood Bond’s life history would not have proceeded on the theory that he had led a productive life before going on a crime spree as a result of a series of disappointments. Such an attorney instead would have presented evidence to the jury of Bond’s abusive and neglectful family life, his low intelligence, and his psychiatric and psychological problems. There is a reasonable probability that this different course, even in the face of competing expert testimony introduced by the Commonwealth, would have resulted in the imposition of a life sentence.

Missouri stay

The Missouri Supreme Court has postponed next week’s scheduled execution of Dennis Skillicorn, The state supreme court delayed his Aug. 27 execution date by at least 30 days.

COA granted in Rosales v. Quarterman on Atkins claim

The Fifth Circuti in Michael Rosales v. Quarterman, No. 07-70019, has granted a Certificate of Appealability on the issue of whether the condemned is mentally retarded within the meaning of Atkins v. Virginia.

Headlines elsewhere

I remain in trial for a few more days in what seems to be a summer of endless court deadlines and appearances in addition to trials. Posting will continue to be light through at least the end of the week. Elsewhere headlines read:

From DPIC - Live Radio Show Covers Issues in Texas Executions

From AI’s DP blog - Hidden Victims of the Death Penalty-What about Death Row Family Members?

TCASK note’s Tennessee’s Fairness Committee Focuses on Defense

The StandDown Texas Project hasTx BPP Rejects Wood Clemency Bid - Updated &The Charles Hood Case

he Baltimore Sun notes>Panel debates cost of executing someone in Md.

Cameron Todd Willingham to be reinvestigated

via the Innocence Project

The Texas State Forensic Science Commission agreed Friday to investigate possible negligence or misconduct in the Cameron Todd Willingham case. Willingham was executed in 2004 for allegedly murdering his three young children by setting his Corsicana home on fire in 1991. An independent panel of arson experts subsequently found that the fire was not arson. In May 2006, the Innocence Project formally submitted a request to the Commission to review arson convictions statewide-particularly in the Willingham case. The Commission’s investigation marks the first time that a state has reviewed a possible wrongful execution.

Read the Houston Chronicle article about the investigation here.
Read the Associated Press article here.
Read additional coverage here and here.

Sixth Circuit penalty phase grant of relief

The Sixth Circuit today granted penalty phase relief in Jells v Mitchell on a common refrain, failure to adequately investigate for the penalty phase.

Jells has demonstrated that his counsel provided ineffective assistance when they: (1) failed to timely prepare for the mitigation phase of Jells’s trial; and (2) failed to use a mitigation specialist to gather information about Jells’s background in preparation for mitigation. The Ohio Court of Appeals’ refusal to recognize that these omissions by Jells’s counsel fell outside the bounds of professionally competent assistance constituted an unreasonable application of federal law as determined by the Supreme Court in Strickland.

term wrap up

The Criminal Justice Section of the American Bar Association has made available its 2008 Annual Review of the Supreme Court’s Term, Criminal Cases. [via SCOTUSBlog & Harmful Error]

email edition available

This week’s email edition is available here.

say hello to . . .

Say hello to the 28 U.S.C. § 2254 Blog.

Clearing the row in Trinidad & Tobago

In Trinidad and Tobago the 52 people earlier this weekend saw their death sentences commuted to life.

new scholarship

via SLP

A new article now up here at SSRN, which looks closely at one state’s death penalty, looks like useful weekend reading.  The article is titled “The Death Penalty in Delaware: An Empirical Study,” and here is the abstract:

This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware.  In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects.  Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the result of a change in the Delaware death sentencing scheme from jury to judge sentencing.  When that change was implemented, the number of death sentences rose dramatically.  Our preliminary findings also reveal a geographic effect. Two thirds of the death sentences were imposed in New Castle County, 29% were imposed in Kent County and only 5% of the death sentences resulted from murders which occurred in Sussex County.  Finally, in analyzing the outcomes of the cases in which the defendant was sentenced to death on appeal, we found an overall error rate of 44%.