Four cases are hot listed this week.  In the first of the four cases, the Ninth Circuit sitting en banc Payton v. Woodford has held that jury instructions and the prosecution's closing arguments require penalty phase reversal.  The Payton Court held the jury instruction at issue was not sufficient to permit the jury to give weight to nonstatutory mitigation evidence.  The instruction at issue reads: "Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Adding to the weight of the error was the prosecution's comments that the Petitioner's religious conversion was of no weight under the instructions given by the trial court.

The Alabama Supreme Court in Ex parte Taurus Carroll has sidestepped the issue of whether Ring invalidates that state's capital sentencing scheme to hold that the trial court's override to death was improper. Decisive factors in the decision to reverse were Carroll's age at the time of  the offense, his lack of a significant criminal history, and the recommendation of the victim's family that he be sentenced to life imprisonment without parole. The jury's recommendation was 10-2.

The Fifth Circuit in Janecka v. Cockrell, denied relief on several claims of note. One of these claims related to how far the compulsory process clause of the Sixth Amendment extends.  The panel holds that the state may execute a defense witness without falling afoul of the Sixth Amendment.  Similarly, on this appeal from retrial, the panel holds that the use of the former prosecutor (now a judge) as a victim impact witness was not error.

In the final spotlighted case of the week, Sample v. Tennessee, a remand is ordered as Brady evidence was properly before the post-conviction trial court. The Sample Court holds that precedent does not mandate "dismissal of all late-arising suppression of exculpatory evidence claims, and that the record in this case preponderates against the trial court's determination that the petitioner's liberty interest in raising such an issue was outweighed by the State's interest in finality."

The Focus section will return soon.

Execution Information
Since the last edition the following have been executed:

August
     7    Richard Kutzner        Texas
     8    T.J. Jones                  Texas---juvenile---volunteer

The following executions dates for this summer are considered serious:*

August
     13   Brian Davis                Texas
     14   Javier Medina            Texas----for. natl.
     14   Daniel Basile              Missouri
     19   Christa Gail Pike        Tennessee--female, volunteer
     20   Gary Etheridge           Texas
     23   Anthony Green           South Carolina
     27   Gregory Lott              Ohio
     28   Toronto Patterson       Texas---juvenile

The central question in this case is whether the jury received a constitutionally adequate instruction guiding consideration of Payton's mitigating evidence. The Constitution requires a capital jury to consider all relevant mitigating evidence. Boyde, 494 U.S. at 377-78; Eddings, 455 U.S. at 113-14 ("Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence."). This broad permission includes  [*15]  authority to consider evidence of Payton's good conduct after the crime. Skipper v. South Carolina, 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986) (holding that post-crime good behavior must be considered as mitigating evidence). The trial court's instructions to the jury must impart this constitutional directive.

Respondent urges us to apply the standard for prosecutorial misconduct rather than instructional error and consider whether the prosecutor's argument "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986). Applying this standard, the district court concluded that Payton's trial had been unconstitutionally infected with unfairness.

We need not go down that road. At bottom, the constitutional violation here flows from the lack of guidance that the jury received regarding its duty to consider mitigating evidence. The prosecutor's arguments cannot be isolated from the instruction itself or from the failure of the trial judge properly to instruct the jury or to correct the prosecutor's error. Thus, the focus of  [*16]  our inquiry is whether, viewing the case as a whole, the court's instructions properly guided the jury to consider Payton's mitigating evidence.

Our approach here is consistent with Boyde. In Boyde, the Court first determined whether there was a reasonable likelihood that the jury applied the factor (k) instruction in a way that prevented consideration of the mitigating background and character evidence that Boyde presented. 494 U.S. at 381-84 . It then turned to Boyde's claim that the prosecutor's argument reinforced an impermissible interpretation of factor (k). Id. at 384-86 . Significantly, the Court did not discuss the prosecutorial misconduct standard. Instead, as we do here, the Court analyzed how the jury would have interpreted the instruction in light of the prosecutor's argument. Id.

Under Boyde, we must reverse for instructional error if the challenged instruction is potentially ambiguous and there is a "reasonable likelihood" that the jury applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Id. at 380. We must also determine whether the error was  [*17]  harmless. Id. at 380; Calderon v. Coleman, 525 U.S. 141, 147, 142 L. Ed. 2d 521, 119 S. Ct. 500 (1998) (per curiam).

1. Ambiguity in unadorned factor (k)

The meaning of the factor (k) model instruction as it existed at the time of Payton's trial was far from clear. n5 That instruction directed the jury to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Cal. Penal Code § 190.3. We "approach jury instructions in the same way a jury would -- with a 'common-sense understanding of the instructions in the light of all that has taken place at the trial.'" Penry v. Johnson, 532 U.S. 782, 800, 150 L. Ed. 2d 9, 121 S. Ct. 1910 (2001) (quoting Boyde, 494 U.S. at 381). Most naturally read, the phrase "extenuates the gravity of the crime" refers to evidence relating to or ameliorating the crime itself. On its face, factor (k) does not encompass the kind of post-crime evidence of good works, leadership and religious beliefs that Payton presented at the penalty phase of his trial. n6 Certainly, the prosecutor's interpretation of this factor as  [*18]  excluding post-crime evidence bolsters the conclusion that the jury instruction was ambiguous in its application to Payton's mitigating circumstances.

The year after the jury announced Payton's death sentence, the California Supreme Court recognized the potential for jury confusion inherent in the wording of factor (k). People v. Easley, 34 Cal. 3d 858, 671 P.2d 813, 825-26 & n. 10, 196 Cal. Rptr. 309 (Cal. 1983). The court acknowledged that there was some force to the argument that a jury might reasonably construe the text of the instruction "to permit consideration only of circumstances that relate to the 'gravity of the crime' and not of circumstances that relate to the general character, family background or other aspects of the defendant." Id. at 671 P.2d 825-26 .

The United States Supreme Court held that the factor (k) instruction was not ambiguous as applied to pre-crime background and character evidence as long as the trial court provided clarification of its meaning. n7 Boyde, 494 U.S. at 381-82 n. 5. The Court held that factor (k) passed constitutional muster because there was no "reasonable likelihood" that the jury was misled into believing it could not consider Boyde's mitigating evidence. Id. at 381.

Boyde did not address the question whether, on its face, the unadorned factor (k) instruction is unconstitutionally ambiguous as applied to post-crime evidence. The fact that all of Payton's mitigating evidence was post-crime distinguishes this case from the pre-crime evidence at issue in Boyde which "more readily fits within factor (k)." n8 Payton, 258 F.3d at 928 (Hawkins, J., dissenting). Significantly, Boyde distinguished the pre-crime evidence at issue there from evidence -- such as Payton's -- that "pertained to prison behavior after the crime for which he was sentenced to death." Boyde 494 U.S. at 382 n. 5.

Unlike the pre-crime evidence in Boyde, post-crime mitigation evidence is simply not covered by any natural reading of the words of the unadorned factor (k) instruction. Mitigation evidence occurring after the crime cannot possibly "extenuate the gravity of the crime." Because the unadorned factor (k) instruction does not encompass post-crime evidence, it violates Skipper's requirement that the jury be permitted to consider post-crime good behavior as mitigating evidence in deciding whether to impose the death penalty. See476 U.S. at 5. Standing alone, the factor (k) instruction is unconstitutional as applied to post-crime evidence.

2. The conflicting legal arguments of counsel

The trial court's failure to correct the prosecutor's erroneous interpretation of that instruction, by compounding the potential for confusion inherent in the text of the factor (k) instruction, roots more deeply our conclusion that there was constitutional error. There is no dispute that the prosecutor impermissibly narrowed the scope of factor (k) when he argued to the jurors that the factor did not "refer to anything after" the crime "or later" and that they should not consider  [*22]  Payton's evidence in mitigation. See Payton, 839 P.2d at 1048 ("It is true that the prosecutor during closing argument suggested a narrow and incorrect interpretation of factor (k)."); see also Payton, 258 F.3d at 916 ("In this case, there is no question that the prosecutor misstated what factor (k) refers to.").

The prosecutor's statements further distinguish this case from Boyde. The prosecutor in Boyde "never suggested that the background and character evidence could not be considered." 494 U.S. at 385. In contrast, the prosecutor here told the jurors that the statutory list of factors precluded them from considering the only mitigating evidence Payton presented -- evidence of a post-crime religious conversion and its positive effects on other inmates and the administration of the jail. When a natural reading of the unadorned factor (k) instruction already favored the prosecutor's stance, defense counsel faced an imposing hurdle to convince the jury of the proper interpretation.

3. The absence of instruction from the trial court

We recognize that arguments of counsel generally carry less weight with a jury than instructions  [*23]  from the trial court. Boyde, 494 U.S. at 384. The trial court, however, did nothing to level this uneven playing field. Over the objection of Payton's counsel, the trial court decided to allow each attorney to argue his own legal interpretation to the jury, rather than instructing the jury as to which interpretation was correct. In contrast, the Supreme Court's holding in Boyde that the jury understood the scope of factor (k) relied heavily on the trial court's clarifying instruction allowing the jury to consider "any other circumstance that might excuse the crime," which included the defendant's background and character. Id. at 381-82 & n. 5 (emphasis in original).

Here, the only "curative" instruction given was that the comments by the prosecutor and the defense counsel were not evidence. The ineffectiveness of the trial court's instruction is clear from the prosecutor's return, after the trial court's admonition, to his argument to the jury that factor (k) did not encompass Payton's mitigating evidence.

Nor did the trial court's final instructions to the jury cure the error here. Before the jury retired to deliberate, as noted, the trial  [*24]  court instructed:

In determining the penalty to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial in this case, except as you may be hereafter instructed. You shall consider, take into account and be guided by the following factors, if applicable ....

(emphasis added). The trial court's directive to "consider all of the evidence" failed to correct the prosecutor's error. In the same breath, the trial court stated that the jury should consider all the evidence "except as you may be hereafter instructed" and then instructed them to be "guided by" the eleven-factor test. Thus, the trial court confined the jury's consideration of the evidence to the multi-factor test that the prosecutor had just declared did not allow consideration of Payton's extensive mitigating evidence. The judge then instructed the jury that it was to apply the factors only "if applicable."

In effect, the court's instruction delegated to the jury the legal question whether factor (k) allowed consideration of Payton's mitigating evidence. Nothing prevented the jury from refusing to consider Payton's mitigating evidence and  [*25]  thereby reaching an unconstitutional result. See Eddings, 455 U.S. at 114-15 ("The sentencer ... may determine the weight to be given relevant mitigating evidence. But [it] may not give it no weight by excluding such evidence from [its] consideration."). When "jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error." Griffin v. United States, 502 U.S. 46, 59, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991). We cannot expect a jury to reach the constitutionally correct conclusion that the multi-factor instruction compelled consideration of Payton's mitigating evidence when the jury must overcome both the text of factor (k) and the facially reasonable argument of the prosecutor. These circumstances likely stripped Payton of his only defense to the imposition of the death penalty.

Thus, Payton has satisfied Boyde's standard requiring that he establish that there was a reasonable likelihood that the jury applied the instruction in a way that prevented consideration of his mitigating evidence. Boyde does not require that Payton  [*26]  show that "the jury was more likely than not to have been impermissibly inhibited by the instruction." Boyde, 494 U.S. at 380. However, Payton's death sentence would be constitutional "if there is only a possibility of such an inhibition." Id. In determining whether more than a "possibility" of inhibition existed, we do not limit our inquiry to how "a single hypothetical 'reasonable' juror could or might have interpreted the instruction." Id. The claimed error must amount to more than speculation about the jury's understanding of the instruction. Id.

Payton's claim is more than speculative. Compounding the nebulous terms of the unadorned factor (k) instruction were the prosecutor's erroneous argument and the trial court's silence as to the jury's constitutional obligation to consider all of the mitigating evidence. In Easley, the California Supreme Court stated that trial courts should, in instructing jurors on factor (k), tell juries that they can consider any aspect of the defendant's character or record. 671 P.2d at 826 n. 10. Here, defense counsel asked for an instruction similarly clarifying the breadth of the scope of factor (k).  [*27]  Despite agreeing that it was a "catch-all provision," the trial judge refused. Instead, the jury was given the unadorned factor (k) instruction without any explanation by the court as to what was appropriate to consider under factor (k). In sum, the jury received the multi-factor instruction, including factor (k), on the same plate with the contentions of the prosecutor and defense counsel as to its applicability, and without further guidance from the trial court.

Penry v. Johnson, 532 U.S. 782, 150 L. Ed. 2d 9, 121 S. Ct. 1910 (2001), confirms our conclusion that there was a reasonable likelihood that the jury did not consider Payton's mitigating evidence. There, the Supreme Court condemned a similar tripartite error consisting of a jury instruction that excluded consideration of Penry's mitigating evidence, the prosecutor's exhortation to the effect that the jury should follow that instruction, and the trial court's failure to provide a "vehicle" for the jury to "express[ ]the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." 532 U.S. at 804. In emphasizing that the jury must be able to "consider and give  [*28]  effect to a defendant's mitigating evidence in imposing sentence," the Court stated:

It is only when the jury is given a vehicle for expressing its reasoned moral response to that evidence in rendering its sentencing decision that we can be sure that the jury has treated the defendant as a uniquely individual human being and has made a reliable determination that death is the appropriate sentence.

 Id. at 797 (internal quotations, brackets, italics, and citations omitted).

Penry reminds us that we presume that jurors follow their instructions. n9 Id. at 799. When the effect of a mitigation instruction, viewed in the full context of the trial, is to confuse or mislead the jury in its duty to consider all relevant mitigation evidence, there has been constitutional error. By labeling the prosecutor's incorrect contentions mere "argument," the trial court not only failed to correct a critical misstatement of law but also effectively instructed the jury to consider the prosecutor's erroneous legal position. See Caldwell v. Mississippi, 472 U.S. 320, 339, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). This directive is  [*29]  sufficient to establish constitutional error.

Footnotes
n9 The dissent's reliance on Weeks v. Angelone, 528 U.S. 225, 145 L. Ed. 2d 727, 120 S. Ct. 727 (2000) is misplaced. In Weeks, the Supreme Court considered an instruction that it had previously determined was unambiguous standing alone. 528 U.S. at 231 (citing Buchanan v. Angelone, 522 U.S. 269, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998)). In contrast, the Supreme Court in Boyde determined that the factor (k) instruction was constitutional by relying heavily on the trial judge's clarifying instruction to the jury about its meaning. Moreover, in Weeks, the Supreme Court emphasized that the trial judge had separately instructed the jury to consider all mitigating circumstances. This is almost exactly the instruction that Payton's defense counsel requested and that the trial judge rejected. 528 U.S. at 231-32 .

In its revised sentencing order on the second remand, the trial court explained its override of the jury's recommendation of a sentence of life imprisonment without the possibility of parole as follows:

"'The jury did not have before [it] the presentence report, background information and history of the defendant, his family, education and work history. The jury was not aware of the fact that the defendant had served a period of incarceration and had just been released for a very short time when he obtained a weapon and committed this intentional murder during a robbery. The jury did not view and was not privy to the expression of the pain of the victim's family expressed at the sentencing hearing before the Court.

"'Although this Court always gives, and did in this case give, great weight and consideration to a jury's recommendation as to punishment, considering the above, the Court found it appropriate to overrule the jury's recommendation of life without parole.'"

Carroll IV, ___ So. 2d at ___ (quoting the trial court's order). We find two aspects of the trial court's order troubling.

First, it is clear from the foregoing excerpt from the trial court's order that the trial court considered Carroll's incarceration for youthful-offender adjudications in negating the mitigating circumstance of no significant criminal history. We specifically stated in Ex parte Burgess, 811 So. 2d 617 (Ala. 2000), that a trial court is not allowed to do so.

"[A] trial court may consider a defendant's juvenile adjudications to be a relevant consideration in deciding what weight to assign to the statutory mitigating circumstances of a defendant's lack of a significant prior criminal history and a defendant's age at the time of the offense. ... In other words, during the sentencing process in a capital case, the trial court may use a defendant's juvenile record to diminish the weight to be accorded the mitigating circumstance of that defendant's lack of a significant history of prior criminal activity, as well as the mitigating circumstance of that defendant's age at the time he or she committed the capital offense, but the trial court may not use the juvenile record as the basis for giving little or no weight to such mitigating circumstances."

811 So. 2d at 624 (emphasis added). Because Carroll's incarceration shortly before the murder in this case was the result of youthful-offender adjudications, the trial court's second order on remand, justifying its use of Carroll's juvenile record as the basis for giving little or no weight to the mitigating circumstance that Carroll had no significant history of prior criminal activity, conflicts with our observation in Carroll III and with our direction in Ex parte Burgess.

Second, in light of the wish of the victim's family that Carroll not be sentenced to death, but that he instead be sentenced to life imprisonment without parole, we find it hard to reconcile the trial court's reliance upon the "pain of the victim's family" as one of its reasons for overriding the jury's recommendation.

Although the trial court stated that it "always gives, and did in this case give, great weight and consideration to a jury's recommendation as to punishment," under the circumstances here presented, where other aspects of the trial court's order on remand are problematic, it appears that it gave insufficient weight to the jury's recommendation that Carroll be sentenced to life imprisonment without parole. In this case, the recommendation was entitled to considerable weight.

We take this opportunity to further explain the effect of a jury's recommendation of life imprisonment without the possibility of parole. n1 Such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the "triggerman" or a recommendation of leniency by the victim's family; the jury's recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.

Based on an appellate court's duty to independently weigh the aggravating and mitigating circumstances in a capital case, and treating the jury's recommendation as a mitigating circumstance in this case, we conclude that the trial court's override in this case of the jury's recommended sentence of life imprisonment without parole and that court's subsequent sentence of death were improper under the circumstances presented here. See § 13A-5-53(a) and (b), Ala. Code 1975. Here we have overwhelming support of a sentence of life imprisonment without the possibility of parole, as evidenced by the jury's vote of 10-2 for such a sentence. Furthermore, Justice Houston in a special writing in Carroll III ably marshaled all of the factors that make the sentence of death in this case excessive and disproportionate.

"Given the jury's recommendation of life imprisonment without parole; the recommendation of the victim's family that the defendant be sentenced to life imprisonment without parole; the fact that the defendant was 17 years old when he committed the crime; and the circumstances of the crime (particularly that the defendant made no attempt to kill the witnesses to the crime), ... the sentence of death is excessive and disproportionate."

___ So. 2d at ___ (Houston, J., concurring in part and dissenting in part). Because of Carroll's age at the time of the offense, his lack of a significant criminal history, and the recommendation of the victim's family that he be sentenced to life imprisonment without parole, the jury's 10-2 recommendation that he not be sentenced to death tips the scales in favor of following the jury's recommendation. We therefore reverse the judgment of the Court of Criminal Appeals as to Carroll's sentence and remand the case for that court to instruct the trial court to resentence Carroll following the jury's recommendation of life imprisonment without the possibility of parole.

Janecka next seeks a COA on his claim that his Sixth Amendment compulsory process right was violated when the State executed Markham Duff-Smith--the mastermind of the plot to murder the Wanstrath family--less than one month before Janecka's 1993 retrial. According to Janecka, Duff-Smith had informed his counsel that he would be willing to testify in Janecka's defense at his retrial. n13 Although Duff-Smith did not specify exactly what his testimony would entail or how it would be helpful to Janecka's defense, Janecka contends that it would have supported his duress defense and made him appear more sympathetic in the eyes of the jury during sentencing. n14

At the time Duff-Smith spoke with Janecka's counsel, he was on death row for the 1975 murder of his mother--Kevin Wanstrath's grandmother. His execution date was scheduled to take place one-month before the commencement of Janecka's retrial. Janecka then filed two motions to stay Duff-Smith's execution. Both motions were denied, the latter on the ground that the State's interest in the timely punishment of Duff-Smith outweighed Janecka's interest in having Duff-Smith testify in person at his trial. n15 According to the state trial court, Janecka's Sixth Amendment right was adequately protected by Janecka's ability to depose Duff-Smith. After his motions for stay of Duff-Smith's execution were denied, Janecka attempted to depose Duff-Smith. Duff-Smith,  [*26]  however, refused to cooperate. When called before the court to be deposed, Duff-Smith stated that he was invoking his Fifth Amendment right for purposes of the deposition, but that he would waive that privilege if called to testify at trial.

After Duff-Smith refused to testify at his deposition, Janecka submitted a sealed offer of proof outlining the testimony Duff-Smith would provide at trial. Specifically, Janecka urged that:

1. Duff-Smith's testimony would dispute that Janecka was in the chain of remuneration for this crime;

2. Duff-Smith's testimony would establish that he did not pay Walt Waldhauser to pay Janecka to murder;

3. Duff-Smith would testify that various state witnesses were lying;

4. Duff-Smith would testify that if Janecka did murder for hire, he did it out of duress from the mafia; and

5. Duff-Smith would testify in mitigation of sentence.  [*27]

Janecka then reurged his motion to stay Duff-Smith's execution, but his motion was again denied. Four days later, the State of Texas executed Duff-Smith. Duff-Smith's final words were: "I am a sinner of all sinners. I was responsible for the 75 and 79 cases. My trial was not just; it was not fair; they lied against me."

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." U.S. CONST. amend. VI. The Supreme Court has made clear, however, that in order to establish a violation of the compulsory process right, a petitioner must show more than the mere absence of a defense witness's testimony at trial. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982); Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967). Rather, a petitioner "must at least make some plausible showing of how [the absent witness's] testimony would have been both material and favorable to his defense." Valenzuela-Bernal, 458 U.S. at 867 (holding that defendant's compulsory  [*28]  process right was not violated by the deportation of illegal aliens who could be defense witnesses because defendant could not show lost testimony would have been material, favorable, and not merely cumulative).

Janecka has failed to make the requisite showing under Valenzuela-Bernal. Janecka's explanation of how Duff-Smith's testimony might have been material and favorable to his defense is vague at best. He fails to offer any details regarding what specific information Duff-Smith could have provided or why Duff-Smith's testimony would not have been merely cumulative of other evidence presented at trial. The only specific point Janecka suggests Duff-Smith would have made had he been able to testify at trial was that he did not pay Waldhauser to hire Janecka to murder the Wanstraths. Janecka has failed to show how this point could have helped his defense. Because the State's theory was that Waldhauser, rather than Duff-Smith, paid Janecka to kill the Wanstraths, any evidence that Duff-Smith did not intend for Waldhauser to hire Janecka would have been of little value. n16

Moreover, even assuming Janecka has established materiality and favorableness, the absence of Duff-Smith's testimony from Janecka's retrial and sentencing hearing was harmless. See Crane v. Kentucky, 476 U.S. 683, 689, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986) (stating that compulsory process violations are subject to harmless-error review). The State's evidence of guilt in this case was overwhelming. In addition to linking Janecka to the murder weapon, Janecka confessed three times to the murder of Kevin Wanstrath. The State also presented evidence that Janecka received several cash payments for the Wanstrath murders, and that Janecka attempted to use the gun and the can of mace to pressure Waldhauser into giving him more money. The State's presentation at Janecka's sentencing hearing was also overwhelming. In addition to the vileness of shooting a baby through the head as he lay in his crib, Janecka had been linked to at least four murders for hire as well as several instances of domestic violence. Witnesses testified to murderous threats made by Janecka on various occasions. In light of this evidence, it is highly unlikely that Duff-Smith's testimony would have  [*30]  affected the jury's decisions to convict Janecka of capital murder and to sentence him to death. Brecht v. Abrahamson, 507 U.S. 619, 637 & 639, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993) (concluding that error was harmless because it did not have a "substantial and injurious effect or influence in determining the jury's verdict").

Because Janecka has failed to make a substantial showing of the denial of his compulsory process right, he is not entitled to a COA on this claim.

V

Finally, Janecka seeks a COA on his claim that the state trial court admitted "irrelevant and prejudicial victim-impact evidence" during the sentencing phase of his trial in violation of his Eighth and Fourteenth Amendment rights. Specifically, Janecka argues that statements made by two of the State's witnesses at sentencing were so inflammatory that they exceeded the scope of victim-impact evidence allowed by the Supreme Court in Payne v. Tennessee. 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). Janecka also argues that the statements exceeded Payne because they were given by people who were neither related to nor had a relationship with Kevin Wanstrath  [*31]  prior to his death.

In Payne v. Tennessee, the Supreme Court held that the Eighth Amendment presents no per se bar to the admission of victim-impact evidence during the penalty phase of a capital trial. Id. n17 According to the Court:

Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. . . . In the majority of cases, . . . victim impact evidence serves entirely legitimate purposes. . . . [A] State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.

501 U.S. at 825. Although the Court held that the Eighth Amendment poses no per se bar to victim-impact evidence, its opinion left open the possibility that in a specific situation, an Eighth Amendment problem may result. Moreover, the Court noted that "in the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the  [*32]  Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Id.

Janecka first challenges the admission of the testimony of Judge Ted Poe. Judge Poe, in his former capacity as an Assistant Harris County District Attorney, had prosecuted one of Janecka's co-defendants. Judge Poe was apparently called by the State to rebut Janecka's argument that sentencing him to death would be grossly unfair in light of the fact that Waldhauser and Paul  [*33]  McDonald, both accomplices in the murders, were free men by the time of Janecka's retrial. After explaining the relatively lenient treatment of Waldhauser and McDonald, however, Judge Poe went on to testify about the additional issue of how his life had been profoundly affected and "forever changed" by the death of Kevin Wanstrath and his contact with this case. Over the objections of Janecka's counsel, Judge Poe testified that he had a child who was now the same age as Kevin would have been had he lived. Judge Poe also testified that he kept a photo of Kevin on his desk at work--both in his former capacity as a prosecutor and in his current capacity as a judge.

In addition to the testimony of Judge Poe, Janecka also challenges the admission of the testimony of Michael Chavis. The State called Chavis to testify about how Janecka attempted to recruit him in an effort to rip off a drug dealer. Over Janecka's objection, however, Chavis went on to testify about how the killing of Kevin Wanstrath "affected" him. Chavis testified that the loss of his leg in an unrelated accident did not compare to the pain caused by his knowledge that he might have prevented the offense but did not do so.  [*34]

Assuming arguendo that the admission of Judge Poe's and Chavis's challenged testimony was constitutional error, Janecka's claim still fails because he has not shown that the testimony had a "substantial and injurious effect or influence in determining the jury's [punishment] verdict." Brecht, 507 U.S. at 637. n18 To begin, the challenged statements constituted only a small part of Judge Poe's and Chavis's otherwise properly-elicited testimony. Moreover, they were only a brief part of the State's overall case at sentencing, which included nine witnesses testifying over a two-day period. n19 The State also did not refer to the testimony of Judge Poe and Chavis in its closing statement. Finally, in light of the other evidence before the jury at sentencing, including testimony that Janecka was the only person involved who was willing to shoot the baby, Janecka's history of brutality against persons close to him, and evidence of his involvement in at least four murders for hire, it is highly improbable that the jury would have sentenced him differently had the statements been excluded. n20

Because Janecka has failed to make a substantial showing of the denial of his Eighth and Fourteenth Amendment rights, he is not entitled  [*36]  to a COA on this claim.

The United States Supreme Court has held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196-97. n3 Evidence is favorable to an accused where it exculpates the accused, mitigates the punishment, or impeaches the prosecution's witnesses. See Johnson v. State, 38 S.W.3d at 55-56. Evidence is material when there is a reasonable probability that the result of the proceeding would have been different had the exculpatory evidence been disclosed. Id. at 58.

The post-conviction petition and attached exhibits in this case alleged that the prosecution violated these due process principles by suppressing police records that included numerous statements made by Melvin Wallace. For instance: Wallace told Sgt. J.D. Welch that he did not notice Sample during the robbery; Wallace told Sgt. Welch that he had been shot by McKay; Wallace told Officer J.D. Douglas that he could identify McKay but not the second man involved in the offense; and Wallace gave physical descriptions that did not match either McKay or Sample. The petition alleged that these statements were exculpatory and material because they contradicted Wallace's critical eyewitness testimony at trial.

In addition, the petition alleged that the prosecution suppressed the following exculpatory evidence: reports that Sample's fingerprints were not found at the scene of the offenses; reports that other potential suspects were near the scene at the time of the offenses; descriptions given to the dispatcher that matched neither Sample nor McKay; descriptions given to officers by witness Charles Rice that matched neither Sample nor McKay; inconsistent statements made by Rice regarding the  [*11]  offenses; and reports that drugs were commonly sold from the L & G grocery store. n4

 The  petitioner asserted that the claim was not raised within the three-year statute of limitations because he was unaware that the prosecution suppressed the exculpatory evidence until he had access to police investigative files pursuant to the decision in Capital Case Resource Center of Tennessee, Inc. v. Woodall, No. 01 A01-9104-CH-00150, 1992 Tenn. App. LEXIS 94 (Jan. 29, 1992), which held that the Tennessee Public Records Act n5 applies to criminal cases under collateral review. Moreover, after remand, the petitioner asserted that he had requested exculpatory evidence both before trial and after the Woodall decision and that he did not obtain possession of the evidence until September of 1993. The trial court  [*12]  nonetheless determined that the claim was barred by the statute of limitations.

Statute of Limitations

At the time the petitioner filed this petition for post-conviction relief, the Post-Conviction Procedure Act stated:

[a] prisoner in custody under sentence of a court of this state must petition for post-conviction relief under this chapter within three (3) years of the date of the final action of the highest state appellate court to which an appeal is taken or consideration of such petition shall be barred.

Tenn. Code Ann. § 40-30-102 (1990). n6 The statute was applied prospectively, meaning that petitioners whose cases were final before the statute was enacted were given three years from the effective date of July 1, 1986, in which to seek post-conviction relief. See State v. Masucci, 754 S.W.2d 90 (Tenn. Crim. App. 1988). Because this Court  [*13]  decided the petitioner's direct appeal in 1984, the parties agree that the three-year statute of limitations began to run on July 1, 1986, and that the present petition, filed in January of 1995, was filed well after the limitations period expired.

Sample argues, however, that the exculpatory evidence claim could not have been raised before the statute of limitations expired because he did not have access to investigative files until the decision in Woodall in January of 1992 and did not have actual possession of the exculpatory evidence until September of 1993. Sample urges that application of the statute of limitations would deny him a reasonable opportunity to raise the claim  [*14]  and violate due process. The State, which notes that Woodall was decided in January of 1992, and that the petition was not filed until January of 1995, maintains that the claim was barred by the statute of limitations and that the petitioner was not denied a reasonable opportunity to have the claim heard. n7

Due Process

We first addressed whether due process may require an exception to the post-conviction statute of limitations in Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The petitioner, whose post- conviction petition challenging his enhanced sentencing as a persistent offender was filed after the statute of limitations, argued that he could not raise the issue until prior convictions  [*15]  used to enhance his sentence were set aside in a separate post-conviction suit in another county. Id. at 205.

We recognized that although the State has a legitimate interest in preventing the litigation of stale claims by enacting statutes of limitations in post-conviction cases, "due process requires that potential litigants be provided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner." Id. at 208. In weighing the interests of a petitioner against the interests of the State, we said that "the test is whether the time period provides an applicant a reasonable opportunity to have the claimed issue heard and determined." Id. at 208. Accordingly we concluded that strict application of the statute of limitations to prevent the petitioner from challenging his improperly enhanced sentence under the unusual procedural circumstances in Burford violated due process. Id.

In applying Burford, we have since clarified that due process may prohibit strict application of the statute of limitations in a post-conviction case "when the grounds for relief, whether legal or factual, arise after  [*16]  . . . the point at which the limitations period would normally have begun to run." Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). In such a case, the court must determine whether application of the limitations period would deny the petitioner a reasonable opportunity to present the claim by balancing the "liberty interest in 'collaterally attacking constitutional violations occurring during the conviction process,' . . . against the State's interest in preventing the litigation of 'stale and fraudulent claims.'" Id. (citations omitted); see also Caldwell v. State, 917 S.W.2d 662 (Tenn. 1996) (application of the three-year statute of limitations did not deny petitioner a reasonable opportunity to raise a pretextual arrest issue). n8

As  [*17]  the parties recognize, we applied this balancing analysis to circumstances similar to the present case in Wright v. State, 987 S.W.2d 26 (Tenn. 1999). In Wright, the petitioner's first degree murder conviction and death sentence were affirmed on direct appeal in 1988. In January of 1995, after the three-year statute of limitations had expired, the petitioner filed a post-conviction petition alleging that the prosecution violated his right to due process by withholding exculpatory evidence. As in the present case, the petitioner alleged that the claim did not arise until he had access to investigative records under the Court of Appeals' decision in Woodall. The trial court nonetheless found that the claim was barred by the three-year statute of limitations and dismissed the petition.

On appeal, we agreed that the exculpatory evidence issue was a later-arising claim and stressed that "the critical inquiry [was] whether . . . application of the three-year statute of limitations effectively denied Wright a 'reasonable opportunity' to raise the issue." Wright v. State, 987 S.W.2d at 29. We also acknowledged that the right asserted by Wright -  [*18]  the denial of due process from the prosecution's suppression of exculpatory evidence - was a personal trial right directly relating to the justice or integrity of the conviction and sentence. Id. at 30 (citing Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1197).

In applying the analysis, however, we determined that the balancing otherwise "weighed heavily in favor of the legitimate interests of the State," inasmuch as the post-conviction suit was filed ten years after the commission of the offense, six and one-half years after the conviction became final, three and one-half years after the three-year post-conviction statute of limitations expired; and nearly three years after the Woodall decision. See id. Moreover, we concluded:

This passage of time is directly related to the manner and means of litigating Wright's issue. The availability of critical witnesses and their ability to recall and relate details as to the alleged suppression of exculpatory evidence and the facts of this offense are immediate and significant concerns. Wright's mere allegation that the prosecution suppressed exculpatory evidence does not warrant relief. Instead,  [*19]  Wright must establish that favorable evidence existed, that it was material to the defense, and that it was, in fact, suppressed by the prosecution. Accordingly, . . . raising this issue at this stage of the proceedings, would require extensive, possibly expensive litigation.

Id. (citations omitted); see also Caldwell v. State, 917 S.W.2d at 666 ("All the dangers inherent in the litigation of stale claims - which the State has a legitimate interest in preventing - appear to be present here").

Despite the factual similarities to the present case, we believe that the State reads Wright too broadly in asserting that it requires the dismissal of all late-arising exculpatory evidence claims. We did not establish such a per se rule for rejecting exculpatory evidence claims in Wright or any other case, nor have we ever created a specific limitations period for late-arising claims in general. See Wright v. State, 987 S.W.2d at 30; Burford v. State, 845 S.W.2d at 208. Instead, beginning with Burford, we have consistently said that the principles of due process are flexible and require balancing of a petitioner's liberty  [*20]  interests against the State's finality interests on a case by case basis. See Burford v. State, 845 S.W.2d at 207 ("Identification of the precise dictates of due process requires consideration of both the governmental interests involved and the private interests affected by the official action.").

Accordingly, our review must consider that the record in the present case differs in several important respects from that in Wright. The post-conviction petition filed by Sample was accompanied by exhibits and records replete with apparent exculpatory evidence; in contrast, the petition in Wright contained "mere allegations" of exculpatory evidence. See Wright v. State, 987 S.W.2d at 30; see also Tenn. Code Ann. § 40-30-104(b) (1990) ("The petition shall have attached affidavits, records or other evidence supporting its allegations . . . ."). n9 When the court undertakes its review of the petition, exhibits, and records, such considerations necessarily bear upon the petitioner's liberty interest. n10

Similarly, the record in this case, unlike Wright, details the petitioner's efforts to obtain exculpatory evidence both before trial, after trial, and after the decision in Woodall. The petitioner asserted that the prosecution refused to respond to his repeated requests and that he was unable to secure the evidence until September of 1993, and then only through the assistance of the Capital Case Resource Center. The State's sole response is that the exculpatory evidence was available when Woodall was decided in January of 1992; the State does not explain why the prosecution did not respond to the repeated requests of the petitioner and does not otherwise  [*22]  convincingly respond to the assertions regarding the petitioner's efforts to secure the evidence. n11 Again, these considerations bear upon not only the significance of the petitioner's liberty interest in asserting a late-arising claim in a capital case but also the balancing of that interest against the State's asserted interest.

Moreover, given these significant distinctions, our decisions following Wright likewise bear upon  [*23]  the issue in this case. In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), for example, the petitioner alleged that his pro se petition for post-conviction relief was untimely because his attorney failed to comply with the procedural requirements for withdrawing from representation following direct appeal and the petitioner did not know whether his direct appeal remained pending. We remanded for an evidentiary hearing to determine whether the petitioner was denied a reasonable opportunity to seek post-conviction relief through no fault of his own due to the possible misrepresentation of his counsel. Id. at 471. Moreover, even though the petitioner apparently had three months to seek post-conviction relief after learning that his direct appeal had concluded, we remanded for a determination of whether he had "time enough" to preserve a reasonable opportunity to seek relief. See also Burford v. State, 845 S.W.2d at 208.

Similarly, a majority of the Court recently held under analogous circumstances that due process mandated an exception to the one-year statute of limitations where a petitioner in a capital case sought a writ of error  [*24]  coram nobis based on newly discovered evidence of actual innocense. State v. Workman, 41 S.W.3d 100 (Tenn. 2001). n12 In relying on Burford and Williams, the Court observed:

Weighing the[] competing interests in the context of this case, we have no hesitation in concluding that due process precludes application of the statute of limitations to bar consideration of . . . this case. [The defendant's] interest in obtaining a hearing to present newly discovered evidence that may establish actual innocence of a capital offense far outweighs any governmental interest in preventing the litigation of stale claims.

Id. at 103. Significantly, the majority stressed that the "delay in obtaining the evidence [was] not attributable to the fault of [the defendant] or his attorneys," and that the State had failed to respond to a prior subpoena that sought the evidence. Id. Moreover, the majority concluded that the fact that the defendant waited 13 months to raise the claim did not eliminate the due process implications. Id. at 103-104.

In our view, these considerations are applicable in the present case given the distinctions between it and Wright. In Williams, for example, we emphasized that a post-conviction petitioner should not be denied a reasonable opportunity to raise a claim due to another's misconduct. In Workman, we emphasized that newly found exculpatory evidence in a capital case may warrant due process consideration where the fault in creating delay in raising the issue does not rest with the petitioner. Moreover, the fact that Sample waited approximately 16 months after discovering the evidence before raising the issue is not substantially different than the 13-month period in Workman. As we said in Workman, "the time within which the petition was filed does not exceed the reasonable opportunity afforded by due process." Id. at 103.

In reaching this holding we disagree with the dissent's conclusion that the petitioner is barred from hearing his claim because he waited an unreasonable length of time to raise the issue after obtaining the evidence. Initially, we stress that the petitioner, despite his efforts, did not obtain the exculpatory evidence until well after  [*26]  the three-year statute of limitations had expired and therefore had no opportunity to file the claim within the statutory period. In comparison, the Court has granted due process relief in cases where the petitioners discovered their late-arising claims for relief before the statute of limitations had expired yet asserted the claims after the statute expired. See Burford v. State, 845 S.W.2d at 209 (nine months remaining in the statutory period); Williams v. State, 44 S.W.3d at 471 (three months remaining in the statutory period).

In addition, although the petitioner did not raise the issue until 16 months after obtaining the evidence, it bears noting that there was at that time no statute of limitations applicable to late-arising claims; indeed, the Court in Burford, which was decided nine months before Sample obtained the evidence in this case, declined to adopt a specific period for asserting late-arising claims in favor of a case by case due process analysis. Burford, 845 S.W.2d at 208; see also Wright, 987 S.W.2d at 30. n13 Moreover, the 16-month period under these circumstances must be viewed  [*27]  with and mitigated by the fact that the prosecution suppressed the evidence and prevented the issue from being litigated for over 10 years. In balancing the interests of the parties, there is simply no basis for holding that the 16- month period in and of itself was unreasonable.

Accordingly, we conclude that our decision in Wright v. State, 987 S.W.2d 26 (Tenn. 1999), did not create a per se rule requiring the dismissal of all late-arising suppression of exculpatory evidence claims and that the record in this case preponderates against the trial court's determination that the petitioner's liberty interests in raising such an issue were outweighed by the State's interest in finality. We therefore remand for further proceedings on this claim.

The Court is in summer recess.

Subsequent to the decision in the district court and the appeal to this Court the United States Supreme Court decided Ring v. Arizona, No. 01-488, U.S. 2002, 2002 WL 1357257 (Decided June 24, 2002) which appears to invalidate the death penalty scheme in Idaho which to this time has allowed the sentencing judge to make factual findings of the aggravating factors necessary to the imposition of a death sentence. Ring requires those factual findings to be made by a jury. In light of that decision it is necessary to remand this case for further consideration by the district court. There are a number of other issues raised in the appeal and petition for post conviction review. Whether those issues will remain following resentencing in this district court is problematic and speculative. Consequently, the Court will not determine them at this time.

CAPITAL CASES (Unfavorable Disposition)
Johnson v. Cockrell, 2002 U.S. App. LEXIS 15348 (5th Cir 7/31/2002) Counsel's performance in cross examination of the victims father in the penalty phase as the evidence against the accused was overwhelming.

Mississippi v. Culp, 2002 Miss. LEXIS 245 (Miss 8/1/2002) Where the local District Attorney but not the Attorney General is served with a gag order in a given case only the DA & not the AG is forbidden to speak on matters relating to the case.

New Jersey v. Marshall, 2002 N.J. LEXIS 1090 (N.J. 07/30/2002) Marshall's  claim of error in the penalty-phase jury charge is barred because it was considered and rejected in his first PCR petition and because it is now time barred. Appellant's arguments the trial court could have, and should have, more precisely informed the jury that a non- unanimous verdict was acceptable and that unanimity referred only to a verdict to impose the death sentence are non-meritorious.

South Carolina v. Passaro, 2002 S.C. LEXIS 132 (SC 7/29/2002) Condemned may waive right to direct appeal but not to proportionality & other statutorily required review.

OTHER  NOTABLE  CASES

No cases noted this week

No cases noted.

Will return soon.

Pennsylvania Passes Law Giving Inmates Access to DNA Testing
On July 10, Pennsylvania Governor Schweiker signed legislation that allows inmates access to DNA testing.  The bill, which unanimously passed both houses of the General Assembly, will allow inmates to request DNA testing if it might have a bearing on the verdict in their case and if the DNA technology was not used at the time of their conviction.  The testing may also be sought if the inmate's attorney did not request the testing at trial, prior to January 1, 1995.  Pennsylvania is now one of 27 states that allow inmates to request testing of crime scene evidence that could lead to exoneration.  "We shouldn't be in the position of punishing people who are innocent," said the bill's sponsor Stewart J. Greenleaf (R - Montgomery).  (Philadelphia Inquirer, 7/11/02)  See also, Innocence and the Death Penalty.

 NEW VOICES: Justice Stevens Addresses Death Penalty for Juveniles
     U.S. Supreme Court Justice John Paul Stevens addressed the issue of juveniles and the death penalty while speaking at the 9th Circuit's Judicial Conference on July 18, 2002.  Justice Stevens, who wrote the majority opinion in Atkins v. Virginia abolishing the death penalty for those with mental retardation, predicted that juveniles would be the "next area for debate."  The United States is "out of step with the views of most countries in the Western world," according to Stevens. Stevens did not anticipate that the Supreme Court would lead the debate and cautioned: "That is more likely to be addressed in the legislative forum than in the judicial forum."  Stevens also said that the public was growing more skeptical of the death penalty's deterrent effect and more aware of the possibility that innocent people might be executed.  (Washington Post, 8/5/02)  See also, New Voices and Supreme Court.

Deterrence: Homicide Rates Fall in Canada After Abolition of Death Penalty
    The abolition of the death penalty in Canada in 1976 has not led to increased homicide rates.  Statistics Canada reports that the number of homicides in Canada in 2001 (554) was 23% lower than the number of homicides in 1975 (721), the year before the death penalty was abolished.  In addition, homicide rates in Canada are generally three times lower than homicide rates in the U.S., which uses the death penalty.  For example, according to the U.S. Bureau of Justice Statistics, the homicide rate in the U.S. in 1999 was 5.7 per 100,000 population and the rate in Canada was only 1.8.  Canada currently sentences those convicted of murder to life sentences with parole eligibility.  (Issues Direct.com, 8/4/02).  See also International Death Penalty.

Turkish Parliament Passes Legislation to Abolish the Death Penalty
    Turkey's parliament approved a package of rights, including abolishing the death penalty, in an effort aimed at increasing its chances of joining the European Union.  The legislation will replace the death penalty with life in prison without parole, although capital punishment will remain on the books during times of war.  After Turkey became a candidate for membership in the European Union in 1999, the Union made abolition of the death penalty a condition for membership.  (New York Times, 8/4/02)  See also, International Death Penalty.
 

NEW RESOURCES: ABA's Juvenile Justice Center Publishes Two Death Penalty Reports
The American Bar Association's Juvenile Justice Center has published two new death penalty reports. The first report, "The Juvenile Death Penalty in the United States," provides an overview of the topic and outlines recent developments in the United States and internationally. The ABA's second report, "Clemency and Consequences: State governors and the impact of granting clemency to death row inmates," examines clemency petitions during the past decade and discusses the perceived political consequences of granting pardons. Both publications are available by contacting the ABA's Juvenile Justice Center at (202) 662-1506. See also, Juveniles and Clemency.

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 at newsletters.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).

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CITATION
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Capital Defense Weekly, Volume V, Issue 28; http://capitaldefenseweekly.com/archives/020805.htm
 

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