Capital Defense Weekly

Three cases out of the Supreme Court lead off this edition (covering October 6, 2003 through October 12, 2003). In the first case the Court blocked the execution of David Larry Nelson in Alabama less than three hours before it was to take place. The Court granted a stay until it can review his appeal to determine whether it should or should not take cert. Nelson's attorneys filed papers with the court earlier Thursday saying Nelson has collapsed veins and that lethal injection would be so painful it would be cruel and unusual punishment. Whether the grant is limited to this issue or will be a broader challenge to lethal injection remains to be seen.

In Tennard v. Dretke the Court granted cert and consolidated the case with Smith v. Dretke. The question in Smith is: "Did the Court of Appeals misapply Penry v. Johnson, 532 U.S. 782 (2001), by imposing a requirement that evidence demonstrate a 'uniquely severe permanent handicap' in order for a Texas capital murder defendant to claim that a 'nullification' instruction was improper?" As noted here when the panel's split decision was originally handed down: "Tennard v. Cockrell explores the role of Texas's special questions & mental retardation. A split panel holds Petitioner 'did not establish or argue to the jury that he was mentally retarded' as the witness & counsel never actually used the word 'retarded' in front of the jury. The panel reaches these conclusions despite testimony at trial that indicated Tennard has an IQ of 67 & that trial counsel in closing repeated several times the fact his client had a low IQ. In the alternative, the panel holds, the petitioner 'made no showing at trial that the criminal act was attributable to this severe permanent condition'."

The Court also granted cert in Dretke v. Haley, a case involving the "actual innocence" exception to the rules governing procedural default. The Fifth Circuit held that habeas corpus petitioners could raise defaulted claims relating to career felony enhancement in noncapital cases as the actual innocence exception applies to alleged noncapital sentencing phase errors. The Fifth Circuit decision is here. The cert. petition is here.

Elsewhere in Head v. Hill, the Georgia Supreme Court upheld the state statutory requirement that mental retardation must be proven by a defendant beyond a reasonable doubt in cases where a death sentence was handed down prior to the effective date of the statute. Finally, in a noncapital case with interesting First Amendment overtones and comic relief value, Coggin v. Texas, an intermediate Texas appellate court examines the issue of whether merely gesturing the "bird" in and of itself is a breach of the peace.

I am scheduled to be out to trial next week so the Weekly may not run. As always, thanks for reading - karl

EXECUTION INFORMATION
No one has been executed since the last edition.

December
   3 Richard Duncan                Texas
     9 Billy Vickers                     Texas
    10 Kevin Zimmerman             Texas
    11 Bobby Lee Hines              Texas

CAPITAL CASES (Unfavorable Disposition)
Head v. Hill, 2003 Ga. LEXIS 850 (GA 10/6/2003) State statutory requirement that mental retardation must be proven by a defendant beyond a reasonable doubt where the person was condemned to death prior to the enactment of the retardation statute affirmed.

Nelson v. Campbell, 2003 U.S. App. LEXIS 20694 (11th Cir 10/8/2003) (dissent) Section 1983 challenge treated as successive habeas claim. Lethal injection challenge (as applied) denied. SCOTUS issues stay. See above.

Arkansas v. Roberts, 2003 Ark. LEXIS 509 (Ark 10/9/2003) Trial court's finding Appellee is mentally fit to waive appeals affirmed.

Pennsylvania v. Abu-Jamal, 2003 Pa. LEXIS 1852 (PA 10/8/2003) Relief on claims of actual innocence denied as untimely.

Moody v. Dretke, 2003 U.S. App. LEXIS 20470 (5th Cir 10/7/2003) (unpublished) COA denied on claim that trial counsel rendered ineffective assistance of counsel by failing to call a certain witness. Note: The opinion in dicta states the district court provisionally granted relief on a Batson claim, however, no further information is available at this time as to whether, in fact, the conviction was tossed by the district court on that ground.

Ohio v. Brown, 2003 Ohio LEXIS 2564; 2003 Ohio 5059 (Ohio 10/8/2003) Relief denied, most notably on whether the misleading of defendant by police during interrogation was sufficient to render confession involuntary and whether the trial court should have held that the jury was irreconcilably deadlocked.

Cummings-El v. Florida, 2003 Fla. LEXIS 1717 (FL 10/9/2003) Relief denied on claims that trial counsel was ineffective (1) for failing to request a second-chair attorney; (2) for failing to object to the State's method of death-qualifying a jury and for failing to object to the trial court's exclusion of certain venirepersons for cause; (3) for failing to object to an improper comment made by the trial court regarding Cummings-El's right to remain silent; (4) for failing to investigate and present mitigating evidence during the penalty phase; (5) t for failing to call Daphne Roberts to testify during the penalty phase; (6) for failing to object to cumulative testimony in the penalty phase; and (7) cumulative error.

Tompkins v. Florida, 2003 Fla. LEXIS ---- (FL 10/9/2003) Relief denied, most notably, that the trial judge failed to independently weigh the aggravating and mitigating circumstances, as well as failed to disclose that the State prepared the sentencing order.

Henry v. Florida, 2003 Fla. LEXIS 1719 (FL 10/9/2003) Relief denied on claims that counsel was ineffective for relying on the theories of self-defense and diminished capacity, which were not viable but another viable defense was available. Relief also denied trial counsel's for failing to present available mental health mitigation evidence during the penalty phase.

Mann v. Tennessee, 2003 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. 10/9/2003) Relief denied on failure to adequately prepare and to resource the guilt phase defense, as well as failed to consult with expert witnesses prior to their testimony in the penalty and presented merely cosmetic lay witness testimony

Coggin v. Texas, 2003 Tex. App. LEXIS 8678 (Tex. App.--Austin 10/9/2003) (unpublished) (dissent) Gesturing the "bird" is not legally sufficient in and of itself to incite an immediate breach of the peace.

The "bird" is "an obscene gesture of contempt made by pointing the middle finger upward while keeping the other fingers down." Merriam-Webster OnLine, at http://www.m-w.com. This gesture is of ancient origin:

The middle-finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus. It was also known as the obscene finger, or the infamous finger, and there are a number of references to its use in the writings of classical authors. . . . The middle-finger jerk has survived for over 2,000 years and is still current in many parts of the world, especially the United States.

Desmond Morris et al., Gestures 81-82 (1979). This symbolic gesture has come to mean many things to many people in many contexts, including "displeasure" and "mild annoyance." See Martha Irvine, Is the Middle Finger Losing Its Badness?, AP Online, Feb. 23, 2003, available at 2003 WL 13367718 (reprinted in several newspapers). See also the cover of the September 20, 2003 issue of

The Economist magazine, depicting a cactus in a desert panorama giving the gesture because of displeasure with the outcome of the Cancun trade talks.

In "Kiss of Death: America's Love Affair with the Death Penalty," attorney John Bessler presents arguments against capital punishment based on his work as a pro bono attorney for death row inmates in Texas. Woven into Bessler's personal account is an examination of U.S. capital punishment practices in contrast to the absence of the death penalty in other nations. The book also addresses the toll executions take on those who participate in the process. (Northeastern University Press, 2003) See Resources.

Foreign Service Journal Examines the Impact of World Opinion on the U.S. Death Penalty
The October 2003 edition of the Foreign Service Journal contains a series of articles examining world opinion on the death penalty and its effect on U.S. policies. The articles, including one by DPIC Executive Director Richard Dieter, feature information on international treaties, the experiences of former U.S. foreign diplomats, and the effect of the international movement away from the death penalty on the U.S.'s position as a leader in human rights. Among the other contributing writers are Harold Hongju Koh, Thomas R. Pickering, Paul Rosenszweig, Greg Kane, and Paul Blackburn. (Foreign Service Journal, October 2003) See International Death Penalty. For a copy of Richard Dieter's article, contact DPIC.

Federal Judge Declares Electrocution Unconstitutional and Ring v. Arizona to be Retroactive
In a decision vacating the death penalty for Nebraska death row inmate Charles Jess Palmer, U.S. District Court Judge Joseph Bataillon declared that electrocution is unconstitutional. Bataillon wrote, "In light of evidence and evolving standards of decency, the court would find that a death penalty sentence imposed on a defendant in a state that provides electrocution as its only method of execution is an unnecessary and wanton infliction of pain." Nebraska is the only state that maintains electrocution as its sole method of execution. Bataillon's ruling also stated that the U.S. Supreme Court's decision in Ring v. Arizona - which held that it is unconstitutional to have a judge, rather than a jury, decide eligibility for a death sentence - is retroactive and applies to Palmer's case. The judge further decried the lengthy period of time Palmer has spent on death row. Palmer remains incarcerated with a sentence of life imprisonment. (Lincoln Journal Star, October 10, 2003) See Methods of Execution, Ring v. Arizona, and Life Without Parole.

NEW RESOURCE: The Angolite Focuses On Texas Death Penalty
The most recent edition of The Angolite, a bimonthly magazine produced by inmates at Louisiana's Angola State Penitentiary, focuses on the Texas death penalty. The publication's feature article, "If Not For Texas," is an overview of capital punishment in Texas compared to other states and to national death penalty developments. The high number of executions in Texas, inadequate representation, innocence, juveniles, race, victims' families, the mentally retarded, and women on death row are among the topics discussed. (The Angolite, January-February 2003) See Resources.

World Day Against the Death Penalty
Amnesty International members around the world are observing the organization's inaugural World Day Against the Death Penalty. The October 10, 2003, observance includes activities sponsored in conjunction with the World Coalition Against the Death Penalty. In addition to an Internet demonstration for all countries that still practice the death penalty demanding the immediate end to all executions, the day's events will include debates, lectures, and demonstrations to raise public awareness and promote change. For more information visit Amnesty International's Web site. See International Death Penalty.

Experts Warn Execution Drug May Mask Suffering
A growing number of medical and legal experts are warning that the chemical pancuronium bromide, a commonly used lethal injection drug, could leave a wide-awake inmate unable to speak or cry out as he slowly suffocates. Advances in medicine have found that the drug, used by executioners to paralyze the skeletal muscles while not affecting the body's brain or nerves, can mask severe suffering. While the American Veterinary Medical Association condemns the use of pancuronium bromide in the euthanasia process because "the animal may perceive pain and distress after it is immobilized," the majority of states that maintain the death penalty continue to incorporate it as the second of three drugs used to execute those on death row. When questioned about what death row inmates would feel if the first short-term anesthesia drug did not function properly and the remaining two drugs, including pancuronium bromide, were administered, Dr. Mark J.S. Heath of Columbia University stated, "It would basically deliver the maximum amount of pain the veins can deliver, which is a lot." (New York Times, October 7, 2003). See Methods of Execution and Botched Executions.

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). 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. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).

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