Ten "wins" of one kind or another are reported this week's roundup. Three "major" wins involve the right to a mitigation specialist, the dangers of 404(b) "other crimes" materials and Atkins standards,. Other wins involve duty of loyalty, jury instructions as to principles, a stay on Vienna Convention grounds, how little weight need be afforded to jury recommendations for death; two COA grants in the Fifth Circuit (chiefly ineffective assistance of counsel); and counsel fees. The United States Court of Appeals for the Armed Forces in United States v. Kreutzer has issued a decisive opinion on the right to counsel & the use of experts in capital cases. The case arises out of an incident where Sergeant William Kreutzer "opened fire with an automatic weapon on personnel in his brigade when they were in formation commencing a unit run." The convening authority at the subsequent proceedings denied funds for a mitigation expert. Adopting the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Commentary to Guidelines (revised ed. 2003), the Court notes that "mitigation specialists may play a particularly important role in ensuring the fair and full adjudication of military death penalty cases where, as here, counsel have little training or experience in capital litigation." "Kreutzer's three uniformed attorneys recognized that they could not gather, analyze, and formulate this mental health evidence; a mitigation specialist could have done so and assisted counsel in identifying qualified mental health experts to present the evidence on both the merits and on sentencing. In turn, the defense on the merits could have incorporated that analysis either to bolster the theory that was used at trial or to create a different theory to contest premeditation on the merits." "We note that because there is no professional death penalty bar in the military services, it is likely that a mitigation specialist may be the most experienced member of the defense team in capital litigation." In a case I whiffed on the daily blog, the North Carolina Supreme Court in State v. al-Bayyinah warns of the dangers (read evils) of 404(b) evidence. Along the way to ordering a new trial the Court also set forth a fantastic analysis of what trial court's should weigh in deciding whether to admit pre-trial identification evidence. Ultimately, "the Rule 404(b) evidence in the present case rested on questionable identification procedures, which in turn arose from robberies that were factually dissimilar to the robbery and murder charged in the instant case." New Jersey's intermediate court (the Appellate Division) in State v. Jimenez sets forth a fairly progressive standard for Atkins claims. The Jimenez standard requires the prosecution to prove the absence of mental retardation beyond a reasonable doubt to a jury. The Court goes on to note the tension between some states' permitting judges to find the absence of MR and the right to a jury trial noted in Apprendi & Ring. The Court sways between federal and state law precedent and it remains unclear whether the key holdings appear to be based on federal or state law. Judge Fisher issues a beautiful concurrence as well. In the news, The Dallas Morning News has a continuing series, Striking Difference that examines Dallas County's jury selection procedures. For example, Tuesday morning's articles were entitled Judges rarely detect jury selection bias, Famed DA's son still sees race bias, Disputed practice still a courtroom fixture, Sides say time has hand in stereotyping and 'I just felt like I was lynched.' The study of Dallas County jury pool found prosecutors were twice as likely to strike blacks than other groups and defense counsel three times as likely to strike whites. DPIC notes a "new Michigan Law Review article by Professor John Blume of Cornell Law School examines the relationship between "volunteering" for execution and suicide. Blume found that nearly 88% of all death row inmates who have "volunteered" for execution have struggled with mental illness and/or substance abuse. He writes that there is an especially strong link between "volunteerism" and mental illness. Of the "volunteer" executions he reviewed, 14 involved schizophrenia and several more reported delusions that may reflect schizophrenia. Depression and bipolar disorder accounted for at least 23 other cases, and post-traumatic stress disorder was present in another 10. At least 30 of those who "volunteered" for execution had previously attempted suicide. The article also notes that between 1977 and 2003, 85% of the 93 inmates who opted to allow their execution to proceed without exhausting all legal appeals were white males, despite the fact that white males make up only 45% of all death row inmates. (J. Blume, "Killing the Willing: 'Volunteers,' Suicide and Competency," 103 Michigan Law Review 939 (2005))." Two cases in which supporters claim the person about to be executed is innocent are also in the news. John Spirko, who is scheduled to die next month, went before the Ohio Parole Board on Tuesday for a clemency hearing; Spirko also has filings asserting governmental fraud in the first round of habeas hearings pending in federal district court. In Texas Frances Newton is down to just over three weeks left with activists expected to put pressure on the Texas Board of Pardons & Parole, as well as Governor Perry, in the next few days to grant clemency; David Dow & the Texas Innocence Network has initiated successor litigation on her behalf. Action in pending federal death penalty cases are also noted. The NY Daily News has this pieceon Judge Nicholas Garaufis of the Eastern District of New York who has seven death cases on his docket in addition to 350 civil and 300 criminal cases; some in the federal death penalty bar suspect docket manipulation by DoJ in order to get that many capital cases in front of just one judge (the odds of random assignment of so many death cases without docket manipulation and thirteen active judges would seem to be less than one in ten thousand). In North Dakota, the shoot-out over the federal government's decision to seek death against Alfonso Rodriguez in the face of what appears to be continuing its attempts to "nationalize" the death penalty and insulate the federal death penalty against allegations of geographic and racial bias (there is purportedly a fantastic motion on racial bias filed in this matter, unfortunately, that district is yet to go live with CM/ECF and the briefs are unavailable for wider distribution).

Finally, in light of ongoing quality control botches such as State v. al-Bayyinah (about once a quarter we completely miss the holding of a case finding grants of relief or denial of relief when the opposite was true) and the reality that such errors are more likely to occur now that the site has switched back to a "daily" mode, a new rewards program is being offered. If you catch a botch either in the weekly or the daily let us know that you caught the botch. Any botch you catch where the botch was made after 8/22/2005 and you are the first to let us know (unless we fix it before we get your email naturally) we will mail you your choice of any item from the now closed (ok almost closed) website store. Our call what qualifies as a botch and who caught it first.

Full edition here