Capital Defense Weekly

Cases to watch?

What cases should we be watching this year, suggestions?  Comments are open, feel free to post anonymously.

weekly email edition

From this week’s email edition:

Willie H. Nowell v. State from the Florida Supreme Court leads off this edition. The Nowell Court grants a new trial as the trial court erred in allowing the State‘s peremptory strike against a member of a minority group; the prosecutor’s claim that he struck a juror out of a general “dislike” of the “type” of juror he that the venireperson would be was inappropriate.  Additionally, the trial court erred in denying appellant‘s objections and motions for mistrial made during the State‘s penalty phase closing argument:

“Mercy. State asks that you recommend mercy if mercy is warranted. And mercy wasn’t given in this case, not by Mr. Nowell, not by Mr. Bellamy. There was no mercy there, none whatsoever.”

Two noncapital habeas case of note are also had.  The Sixth Circuit in Michael W. Brown v. Smith holds that where “substantial evidence supporting a habeas claim comes to light during the proceedings in federal district court” AEDPA does not apply. Specifically, Brown’s trial attorneys’ in this sexual abuse case failed “to investigate and obtain records related to his daughter’s counseling sessions.” “[T]he absence of the counseling records before the Michigan Court of Appeals (through  no fault of Brown’s), combined with that court’s explicit statement that its review was ‘limited to mistakes apparent on the record,’ means that there is no relevant state court adjudication to which this court can defer.”  The Sixth Circuit has previously held AEDPA does not apply in the context of certain Brady claims “uncovered” during federal habeas.

In the final case of note, Cecilio Gonzalez v. Duncan, the Ninth Circuit holds that a 28 year to life sentence for failure to register violates the Eight Amendment. Rather than stealing his thunder, Steven Kalar, a federal defender in California’s Northern District, at the  Ninth Circuit blog does a fantastic job digesting the case and how to litigate related issues of noncapital proportionality.

In the news, DPIC notes  number of police officers killed by gunfire in 2008 dropped by 40% from 2007, down to its lowest level in more than 50 years, according to a report by the National Law Enforcement Officers Memorial Fund. In an editorial the Dallas Morning News named the Dallas County District Attorney its Texan of the Year.

For the next few weeks (ok months) I will be in trial and the weekly email edition is likely to be light. My apologies in advance. As always thanks for reading.     - k

execution data

Execution data for the rest of the winter is listed to the right.

Broken system: Georgia indigent defense

NYT has this on a suit filed by lawyers from the Southern Center for Human Rights on behalf of a man who has been without counsel for eight months pretrial. [h/t Howard]

Illinois Senate designee “Sought Death Penalty for Innocent Man”

The headline says it all:

Former Illinois attorney general Roland Burris, embattled Gov. Rod Blagojevich’s pick to replace Barack Obama in the Senate, is no stranger to controversy.

Public fury over the governor’s alleged misconduct has masked the once lively debate over Burris’ decision to continue to prosecute – despite the objections of one of his top prosecutors – the wrong man for a high-profile murder case.

While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville. The crime took place in 1983.

But by 1992, another man had confessed to the crime, and Burris’ own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court.

Burris refused. He was running for governor.

Murder rate in NJ following abolition

The Star Ledger provides the preliminary numbers of murders for the first calendar year following abolition in New Jersey.  While the the numbers in all towns and counties aren’t available, the murder rate appears to have dropped, approximately 5-10%.  The UCRs will have the final numbers, however, the repeal of the death penalty appears to have had, at worst, no effect on murder rates.

this week’s edition

Seasons greetings, Merry (belated) Christmas & Happy New Year. From this week’s edition.

Leading off this week is John Thompson v. Harry F. Connick, et al, a civil case. Prosecutos in Thompson knowingly failed to turn over key exculpatory information. Fast-forward a few years Thompson gets sentenced to death, exhausts his normal rounds of of state and federal “appeals,” and an execution date set.  Defense investigators then discovered the suppressed evidence. The State, in light of the new evidence, agrees to a retrial. At the new trial a jury acquits in 35 minutes. Thompson sues and a jury awards him $14 million.  The Times Picayune notes:

In trying to get Thompson’s $14 million reward overturned, lawyers representing the district attorney’s office pointed out that he had never been raped, was fed at all times and given necessary medicine, received visitors, became buddies with other inmates, got to watch television and play chess. Plus, they added, he had been in jail for little stuff before and describes himself now as being ‘blessed.’

Thompson founded Resurrection After Exoneration, a nonprofit that helps exonerees from Louisiana and Mississippi readjust to normal society after incarceration.

The other opinion of note comes from the Fourth Circuit, United States v. Richard Stitt. The Government concedes error in Stitt.  Specifically, it agreed with the Defense that trial counsel labored under a conflict of interest.  The Government, however, argues on appeal that the trial district court, rather than imposing a sentence of life on its own, should have impaneled a jury and conducted a new sentencing hearing.  The Fourth Circuit agrees, specifically, “we conclude that the district court erred by finding that § 848(g) was not saved by the general Savings Statute, 1 U.S.C.A. § 109.”

In the news, DPIC notes that

In December 2007, New Jersey became the first state to legislatively abolish the death penalty in 40 years.  In commenting on the absence of capital punishment for one year, a number of state prosecutors found no problems with the new system.  “We have not viewed it as an impediment in the disposition of murder cases,” said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that reviewed the death penalty. “As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases.”

In Washington, the top medical officer at DoC resigned rather than participate in supervising those who will “carry out” executions there.

In CLE news, in coordination with the National Coalition to Abolish the Death Penalty’s annual conference in Harrisburg, PA, January 22-25, 2009, there will be capital defense CLEs on Friday, January 23rd and on Saturday, January, 24th, 2009.  Registration can be for one day or for both days. These programs are being taught by top-notch capital litigators.  I encourage people to take a look and to register for these CLE programs. Info here. For those going to Harrisburg, run me down for happy hour Friday night.

As always thanks for reading.     - k

For anyone who has ever quit a job because their morals required it….

Doctors may not ethically participate in executions.  In Washington, the top medical officer at DoC resigned rather than participate in supervising those who will implement the execution warrant.  From the Olympian

The state Department of Corrections’ top medical officer has resigned, saying that the use of agency staff members to prepare for an execution is unethical.

Dr. Marc Stern, who lives in Olympia, said the American Medical Association and Society of Correctional Physicians oppose physician involvement in executions, “and they say physicians should not supervise somebody who is involved in executions.”

“The only way out we found was for me to recuse myself, and the only way I could recuse myself was to resign,” he said.

The agency had been set to execute Darold Ray Stenson, convicted of murder, this month. The execution has been postponed.

Stern said he supervised about 700 people in prisons and other corrections facilities statewide. He said at least one of the people he supervised had been involved in execution preparations at Walla Walla State Penitentiary.

He told his superiors that he objected to his division’s involvement, but no solution was found, he said.

Scott Blonien, assistant secretary of the department, characterized Stern’s objections as more individual than professional.

“It’s clear to us that Marc had a personal, ethical conflict, and we respect that. There’s nothing we would want to do in the department to cause someone to commit a violation of their personal ethics,” he said.

Handicapping New Hampshire’s first capital appeal

via press accounts:

The defense team’s objections included a litany of constitutional challenges to New Hampshire’s capital murder statute. Since the last death sentence was handed down here in 1959, state law and U.S. Supreme Court law around the death penalty have changed. Addison’s case will be the first time that New Hampshire’s justices examine the state’s statute.

“There has never been an independent review of whether this death penalty statute stands up under the New Hampshire Constitution,” said Barbara Keshen, who has prosecuted and defended murder cases in the state and is now the staff lawyer at the New Hampshire Civil Liberties Union and an active death penalty opponent.

Keshen identified a number of questions for the court to consider before it ever reaches the details of Addison’s case, including language in the New Hampshire Constitution that describes “the true design of all punishments” as “to reform, not to exterminate mankind.”

Keshen also said that the court could find that the death penalty does not square with “evolving standards of decency.”

Addison’s lawyers have raised many more constitutional challenges, saying the law is unfair because it disproportionately affects black defendants, punishes killings that are not premeditated, permits victim impact evidence that stirs jurors’ emotions and that lethal injection - the execution method recommended by the statute - is cruel.

Addison’s lawyers also plan to appeal the case on issues particular to Addison’s trial. In an e-mail yesterday, Guerriero said that the appeal will focus on four issues:

• The defense plans to appeal Addison’s convictions in three other incidents close to the murder that prosecutors have characterized as a crime spree. Guerriero said that prosecutors were improperly allowed to tell jurors in those cases that Addison was facing a capital murder charge. After his convictions for those crimes - two armed robberies and a domestic shooting - jurors were asked to consider the guilty verdicts as reasons why Addison deserved death.

• The defense asked the court repeatedly to move the case out of Manchester and into a different county court, citing blanket media coverage of the case and the emotional atmosphere surrounding the killing in the city. Addison’s lawyers argued that jurors would have preconceived notions about the case and might have trouble facing their neighbors if they did not select a death sentence. Judge Kathleen McGuire rejected the motions, and a pretrial appeal to the New Hampshire Supreme Court was unsuccessful.

• The defense unsuccessfully asked McGuire to tell the jury that it must find the death penalty was necessary “beyond a reasonable doubt.”

• The defense asked to tell jurors about other murder cases, where capital punishment was not imposed, as a means of arguing that a death sentence would be disproportionate. McGuire said such comparisons were the job of the Supreme Court, not the jury.

“My sense is that they’re doing exactly what very capable defense attorneys are supposed to be doing in capital cases,” said Charles Putnam, a professor at UNH and co-director of the university’s Justiceworks study group. “They’re finding issues that they want to articulate, they’re focusing on those, and they’re finding ways to return to them.”

weekly email edition

This week’s email edition is available here.  As always, the email edition is a little pinch of things that have appeared here recently, a litte touch of legal research,  and a whole lot of theft borrowing from people smarter than me friends’ good work:

This edition holds three new favorable decisions, two from Texas and one that somehow got missed from North Carolina.

The Texas Court of Criminal Appeals in  Ex Parte Michael Toney ordered a new trial based on the failure of the State to divulge exculpatory information at trial. At least 14 documents that could have been favorable to Toney’s defense were not given to his lawyers during his first trial. The Tarrant County District Attorney’s office, agreed earlier this year that Toney’s first trial was flawed. The Court decided not to publish this opinion.

In the other favorable CCA decision, Ex Parte Joseph Prystash, the court grants permission in an unpublished order/opinion for a ” subsequent application for writ of habeas corpus.” Specifically, the Court sent the matter back to the trial court “applicant’s claim that the State suppressed evidence with respect to the voluntariness of his co-defendant’s confession.”  Press accounts note that the co-defendant in question has already been retried and reconvicted while a federal district court judge ordered that a third co-defendant be retried.

In the third favorable decision, State v. Eric Glenn Lane, the North Carolina Supreme Court remands for hearings in light of the United States Supreme Court’s recent decision in Indiana v. Edwards. Specifically, “[b]ased on Edwards, defendant argues on appeal that he is entitled to a new trial because the trial court was unaware of its discretion to deny defendant’s request for self-representation, and that if it had been aware of its discretion, the trial court would have required counsel for defendant.  “

In the news, North Carolina, California, Florida, and Texas experienced sharp declines in sentencing in 2008 DPIC reports. North Carolina, for example, in 2008 sentenced just one person to death. Harris County Texas - arguably the capital of the American death penalty - sent no one to death row in 2008.

Unfortunately, not all jurisdictions had such a banners years. A jury issued New Hampshire’s first death sentence in a half century Thursday to Michael Addison a man who fatally shot a Manchester police officer to avoid arrest two years ago. Colorado’s death row population doubled recently when Sir Mario Owens was officially sentenced to death.

In CLE news, in coordination with the National Coalition to Abolish the Death Penalty’s annual conference in Harrisburg, PA, January 22-25, 2009, there will be capital defense CLEs on Friday, January 23rd and on Saturday, January, 24th, 2009.  Registration can be for one day or for both days. These programs are being taught by top-notch capital litigators.  I encourage people to take a look and to register for these CLE programs. Info here. For those going to Harrisburg, run me down for happy hour Friday night.

Finally, unsettling news from one of the sources of funding for many criminal justice reform organizations and some in the indigent defense community. “The JEHT Foundation, a national philanthropic organization, has stopped all grant making effective immediately and will close its doors at the end of January 2009. The funds of the donors to the Foundation, Jeanne Levy-Church and Kenneth Levy-Church, were managed by Bernard L. Madoff, a prominent financial advisor who was arrested last week for defrauding investors out of billions of dollars.”  The impact of the JEHT closing can’t be understated as they permitted funding, directly or indirectly for groups as diverse as Amnesty International, Reprieve, the ACLU, the Colorado Department of Corrections,Tides and others — they’re not rescinding grants that were already given but multi-year grants won’t be honored.   As one blogger notes”[t]is is a major blow to the criminal justice reform movement nationally, but at the same time JEHT’s prior work has already helped build up a new cadre of skilled activists on these topics who didn’t exist just a few years ago because nobody was providing them professional-level support and development. So even if JEHT never gives another dime, the foundation will have spawned a legacy that will outlive its formal, legal structure.”  An incomplete list of organizations is here.  Thanks to JEHT, Jeanne Levy-Church and Kenneth Levy-Church for all the work on making sure the dice in the criminal justice system weren’t always loaded against the little guy.

As always thanks for reading.     - k

JEHT to close its door a victim of the Madoff

I’ve been perhaps slow posting the earthquake of a story that JEHT will be closing its doors.  Scott @ Grit notes:

News came on Monday that the JEHT Foundation, a philanthropic charity out of New York that has funded a great deal of criminal justice reform work in Texas and around the country, will cease giving grants and close its doors in January because their money was invested with alleged Wall Street crook Michael Madoff who apparently lost all their money in a $50 billion “ponzi scheme.” You can read the announcement from their President Robert Crane here.. . .

The JEHT Foundation was particularly important because it had undertaken to finance grants in areas like civil liberties advocacy and criminal justice reform that more traditional liberal foundations had considered too edgy to support.. . .

It’s hard to know what impact JEHT’s closure will have - they’re not rescinding grants that were already let, but multi-year grants won’t be honored and JEHT will not be issuing new funds for these types of projects.

This is a major blow to the criminal justice reform movement nationally, but at the same time JEHT’s prior work has already helped build up a new cadre of skilled activists on these topics who didn’t exist just a few years ago because nobody was providing them professional-level support and development. So even if JEHT never gives another dime, the foundation will have spawned a legacy that will outlive its formal, legal structure.

Who exactly has JEHT given to? As bobswern notes:

Of course, it’s easy to blame Madoff.  And, I’d like nothing more than for this guy to be taken out back and shot. But, I have to ask: What about the total lack of regulatory supervision that occurred as far as all of this was concerned? The extent to which our markets have gone completely unsupervised under the Bush Administration is beyond the pale! (I’ll save that rant for another time. And, despite the title of this diary, the reality is that Bernie Madoff now belongs on the list of “All-time Progressive Enemies;” but George W. Bush still lays claim to the top spot on it.)

You might ask: What is The JEHT Foundation?

Think: Amnesty International, the ACLU, Center for International Environmental Law, Center for Constitutional Rights, Human Rights Watch,  Physicians for Human Rights, Immigrant Legal Resource Center, Center for Public Integrity, Center for Investigative Reporting….the list just goes on and on!

Bob has the entire list of who has received funding in the past and who might lose their funding.  I should note that those involved in finding funding for criminal justice are going to be facing a much, much tougher 2009 than even forecasted a few weeks ago.

New CLE for January

“In coordination with the National Coalition to Abolish the Death Penalty’s annual conference in Harrisburg, PA, January 22-25, 2009, there will be capital defense CLEs on Friday, January 23rd and on Saturday, January, 24th, 2009.  Registration can be for one day or for both days. These programs are being taught by top-notch capital litigators.  I encourage people to take a look and to register for these CLE programs.” Info here

For those going to Harrisburg, run me down for happy hour Friday night.

[h/t to Marshall for the reminder]

New Hampshire: first death sentence since Dick Nixon was Ike’s vice president

via the AP:

A jury issued New Hampshire’s first death sentence in a half century Thursday to a man who fatally shot a Manchester police officer to avoid arrest two years ago.. . .

Addison, 28, had no reaction as the Hillsborough County Superior Court jury announced its verdict after about 13 hours of deliberation over four days. The state Supreme Court will automatically review the conviction and sentence, and the defense said it will appeal.

The judge must formally impose the sentence, but cannot change it.

New Hampshire hasn’t executed anyone since 1939. The last time a New Hampshire court imposed the death penalty was in 1959, but the lives of the two convicted men were spared when the U.S. Supreme Court struck down capital punishment for a time in the 1970s. In 2004, a federal judge in Massachusetts, which has no death penalty, ordered convicted killer Gary Sampson executed in New Hampshire, but Sampson is appealing and is being held in Indiana.

NC: Just one

North Carolina in 2008 sentenced just one person to death.

James Ray Little was the only person sentenced to death in North Carolina this year.  2008 saw the lowest number of new death sentences in North Carolina since the death penalty was reinstated in 1977. [h/t Death Watch]

Texas CCA: pigs fly

The Texas Court of Criminal Appeals in Ex Parte Michael Toney, NO. AP-76,056, ordered a new trial based on the failure of the State to divulge exculpatory information / “Brady error.” Media accounts note:

The decision was not a surprise to defense attorneys or the Tarrant County District Attorney’s office, who, in an unusual move, agreed earlier this year that Toney’s first trial was unconstitutional.

Now prosecutors must decide whether to retry the 23-year-old case.

Chuck Mallin, chief of the appellate division, said prosecutors will meet with District Attorney Tim Curry and make a decision “probably some time in the near future.”

“I am sure that it is our intention right now (to retry it) but we will discuss the decision,” Mallin said.

In an unrelated case, Ex Parte Joseph Prystash, No. WR-58,537-02 “applicant’s claim that the State suppressed evidence with respect to the voluntariness of his co-defendant’s confession - satisfies the requirements of Texas Code of  Criminal Procedure Article 11.071, Sec. 5(a).”

Harris County sends no one to death row in 2008

Harris County Texas - arguably the capital of the American death penalty - sent no one to death row in 2008.  TMN has more.

New Hampshire: Addison jury still out

Michael Addison killed Manchester, N.H police Officer Michael Briggs.  Monday lawyers finished summing up their penalty phase arguments to the jury on whether or not to condemn Mr. Addison to death.  After 13 hours of deliberation jurors have yet to deliver a verdict.  Deliberations continue in the morning.  Mr. Addison’s case, from press reports, marks only the second time in five decades that a jury in the Granite State is weighing life and death for a convicted murderer.

New Jersey one year later: the sky still hasn’t fallen

This week marks the one year anniversary of abolition of the New Jersey death penalty. The Star-Ledger, that state’s largest paper, reflects:

A year later, prosecutors and defense lawyers agree the demise of the death penalty has had no discernible impact on the way would-be capital cases are prosecuted in New Jersey.

And while the philosophical debate over the death penalty has not changed, some say a new law that has prison without parole as the most severe penalty is better than a capital punishment law with what seemed like an unending appeals process. Since the state reinstated capital punishment in 1982, there were no executions, even though 60 defendants had been sentenced to death.

“I don’t think it’s made much of a difference at all other than that some of the cases that were languishing out there are now getting tried,” said Richard Pompelio, executive director of the New Jersey Crime Victims Law Center. “The important thing for crime victims is that the process have an end, and with the death penalty there never was an end.”

During the debate over repeal, there was concern that removing the threat of the death penalty would impede prosecutors’ ability to negotiate pleas, but that has not materialized, according to prosecutors. Three of 23 capital punishment cases pending at the time of repeal have resulted in guilty pleas.

“We have not viewed it as an impediment in the disposition of murder cases,” said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that two years ago recommended repealing the death penalty. “As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases.”

Essex County Prosecutor Paula Dow, head of the state association of county prosecutors, said eliminating the death penalty has not hindered prosecutors in pursuing tough sentences for the most violent offenders.

“We are still seeing very aggressive sentences,” Dow said, citing instances in which judges have imposed life sentences for murder.

A life sentence is 75 years in prison, 85 percent of which must be served without parole. “That’s almost the penultimate penalty,” she said.

Dow said repealing the death penalty also freed prosecutors from the burden of pursuing death penalty cases in lengthy, expensive trials and prolonged appeals.

“It was a very big drain on the limited resources of law enforcement,” she said. “There were long delays in the resolution of the cases, multiple appeals and very high costs associated with the handling of the litigation.”

Abandonning unanimity in Georgia?!?!?

via the NY Times:

Representative David Ralston, a Blue Ridge Republican who is chairman of the House Non-Civil Judiciary Committee, said, “The Nichols case, because it’s so recent and so high profile and the guilt of the defendant is so clear, has provided a great deal of momentum to the supporters of a change.”

Legislators have not decided who will introduce the proposal to end unanimity or how many jurors’ votes it will require for a death sentence, Mr. Ralston said. But if the proposal passes, Georgia will become the only state to allow non-unanimous juries to sentence defendants to death.

The federal government also requires a jury to be unanimous to impose death. (In Alabama, Delaware, Florida, Montana and Nebraska, judges can impose death sentences after a jury issues its recommendation.)

It is not clear, however, that a Georgia proposal can withstand a constitutional challenge. Carol Steiker, a death penalty expert at Harvard Law School, said it could violate the 14th Amendment guarantee of due process and the Eighth Amendment ban on cruel and unusual punishment. Although the Supreme Court allows non-unanimous juries in many cases, Ms. Steiker said, death sentences require the highest standards.

“As the Supreme Court tends to say, ‘Death is different,’ ” she said. “It’s different in severity and it’s different in finality. This case really illustrates one of the problems with states trying to maintain thoughtful and circumscribed death penalty rules. There’s incredible pressure on these legislatures to change the laws at critical moments after high-profile cases.”

Even critics of the death penalty worried about the message sent by Mr. Nichols’s sentence.

“This case shows how arbitrary and irrational the death penalty can be,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “People shake their heads when they hear that someone got the death penalty for robbing a 7-Eleven, and Brian Nichols got life in prison for his heinous crimes.”

Colorado: update

Colorado’s death row population doubled last week when Sir Mario Owens was officially sentenced to death on Monday, December 8. He joins Nathan Jerard Dunlap, who methodically murdered four people in an Aurora Chuck E. Cheese 15 years ago this month.

In the December issue of 5280, editors Patrick Doyle and Natasha Gardner revisit the macabre anniversary in “The Politics of Killing,” a five-month long investigative reporting effort that raises questions about Colorado’s use of the death penalty by investigating the collision of justice, politics, vengeance, and ambition. Today, Dunlap’s state appeals are exhausted and his case sits in U.S. District Court. Popular first-term governor Bill Ritter may be only person who can stop Dunlap’s execution.