Capital Defense Weekly
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SUPREME COURT

Banks v. Dretke , --- U.S. ---- (2/25/2004) A broad majority (7-2) grants the writ as to the death sentence as to the failure to turn over Brady materials in the penalty phase [note this opinion appears to finally resolve for a few minority jurisdictions the applicability of Brady to the penalty phase].  Remand ordered for determination as to whether the conviction can stand.   Rule 15 of the Federal Rules of Civil Procedure held applicable in habeas proceedings.   COA improperly denied by the Fifth Circuit.

    Our determination as to “cause” for Banks’s failure to develop the facts in state-court proceedings is informed by Strickler.12 In that case, Virginia prosecutors told the petitioner, prior to trial, that “the prosecutor’s files were open to the petitioner’s counsel,” thus “there was no need for a formal [Brady] motion.” 527 U.S., at 276, n. 14 (quoting App. in Strickler v. Greene, O. T. 1998, No. 98—5864, pp. 212—213 (brackets in original)). The prosecution file given to the Strickler petitioner, however, did not include several documents prepared by an “importan[t]” prosecution witness, recounting the witness’ initial difficulty recalling the events to which she testified at the petitioner’s trial. 527 U.S., at 273—275, 290. Those absent-from-the-file documents could have been used to impeach the witness. Id., at 273. In state-court postconviction proceedings, the Strickler petitioner had unsuccessfully urged ineffective assistance of trial counsel based on counsel’s failure to move, pretrial, for Brady material. Answering that plea, the State asserted that a Brady motion would have been superfluous, for the prosecution had maintained an open file policy pursuant to which it had disclosed all Brady material. 527 U.S., at 276, n. 14, 278.

    This Court determined that in the federal habeas proceedings, the Strickler petitioner had shown cause for his failure to raise a Brady claim in state court. 527 U.S., at 289. Three factors accounted for that determination:

“(a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such evidence; and (c) the [State] confirmed petitioner’s reliance on the open file policy by asserting during state habeas proceedings that petitioner had already received everything known to the government.” Ibid. (internal quotation marks and footnote omitted).13

    This case is congruent with Strickler in all three respects. First, the State knew of, but kept back, Farr’s arrangement with Deputy Sheriff Huff. App. to Pet. for Cert. C43; Tr. of Oral Arg. 33; cf. Kyles v. Whitley, 514 U.S. 419, 437 (1995) (prosecutors are responsible for “any favorable evidence known to the others acting on the government’s behalf in the case, including the police”). Second, the State asserted, on the eve of trial, that it would disclose all Brady material. App. 361, n. 1; see supra, at 3. As Strickler instructs, Banks cannot be faulted for relying on that representation. See 527 U.S., at 283—284 (an “open file policy” is one factor that “explain[s] why trial counsel did not advance [a Brady] claim”).

    Third, in his January 1992 state habeas application, Banks asserted that Farr was a police informant and Banks’s arrest, “a set-up.” App. 180, ¶114 (internal quotation marks omitted). In its answer, the State denied Banks’s assertion. Id., at 234; see supra, at 10. The State thereby “confirmed” Banks’s reliance on the prosecution’s representation that it had fully disclosed all relevant information its file contained. 527 U.S., at 289; see id., at 284 (state habeas counsel, as well as trial counsel, could reasonably rely on the State’s representations). In short, because the State persisted in hiding Farr’s informant status and misleadingly represented that it had complied in full with its Brady disclosure obligations, Banks had cause for failing to investigate, in state postconviction proceedings, Farr’s connections to Deputy Sheriff Huff.

    On the question of “cause,” moreover, Banks’s case is stronger than was the petitioner’s in Strickler in a notable respect. As a prosecution witness in the guilt and penalty phases of Banks’s trial, Farr repeatedly misrepresented his dealings with police; each time Farr responded untruthfully, the prosecution allowed his testimony to stand uncorrected. See supra, at 4—7. Farr denied taking money from or being promised anything by police officers, App. 37; he twice denied speaking with police officers, id., at 38, and twice denied informing Deputy Sheriff Huff about Banks’s trip to Dallas, id., at 109. It has long been established that the prosecution’s “deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.” Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam) ). If it was reasonable for Banks to rely on the prosecution’s full disclosure representation, it was also appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction. See Berger v. United States, 295 U.S. 78, 88 (1935); Strickler, 527 U.S., at 284.14

    The State presents three main arguments for distinguishing Strickler on the issue of “cause,” two of them endorsed by the Court of Appeals. Brief for Respondent 15—20; App. to Pet. for Cert. A19, A22—A23; see supra, at 15. We conclude that none of these arguments accounts adequately for the State’s concealment and misrepresentation regarding Farr’s link to Deputy Sheriff Huff. The State first suggests that Banks’s failure, during state postconviction proceedings, to “attempt to locate Farr and ascertain his true status,” or to “interview the investigating officers, such as Deputy Huff, to ascertain Farr’s status,” undermines a finding of cause; the Fifth Circuit agreed. App. to Pet. for Cert. A22; Brief for Respondent 18—20. In the State’s view, “[t]he question [of cause] revolves around Banks’s conduct,” particularly his lack of appropriate diligence in pursuing the Farr Brady claim before resorting to federal court. Brief for Respondent 14.15

    We rejected a similar argument in Strickler. There, the State contended that examination of a witness’ trial testimony, alongside a letter the witness published in a local newspaper, should have alerted the petitioner to the existence of undisclosed interviews of the witness by the police. 527 U.S., at 284, and n. 26. We found this contention insubstantial. In light of the State’s open file policy, we noted, “it is especially unlikely that counsel would have suspected that additional impeaching evidence was being withheld.” Id., at 285. Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. As we observed in Strickler, defense counsel has no “procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.” 527 U.S., at 286—287. The “cause” inquiry, we have also observed, turns on events or circumstances “external to the defense.” Amadeo v. Zant, 486 U.S. 214, 222 (1988) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

    The State here nevertheless urges, in effect, that “the prosecution can lie and conceal and the prisoner still has the burden to … discover the evidence,” Tr. of Oral Arg. 35, so long as the “potential existence” of a prosecutorial misconduct claim might have been detected, id., at 36. A rule thus declaring “prosecutor may hide, defendant must seek,” is not tenable in a system constitutionally bound to accord defendants due process. “Ordinarily, we presume that public officials have properly discharged their official duties.” Bracy v. Gramley, 520 U.S. 899, 909 (1997) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14—15 (1926)). We have several times underscored the “special role played by the American prosecutor in the search for truth in criminal trials.” Strickler, 527 U.S., at 281; accord, Kyles, 514 U.S., at 439—440; United States v. Bagley, 473 U.S. 667, 675, n. 6 (1985); Berger, 295 U.S., at 88. See also Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting). Courts, litigants, and juries properly anticipate that “obligations [to refrain from improper methods to secure a conviction] … plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.” Berger, 295 U.S., at 88. Prosecutors’ dishonest conduct or unwarranted concealment should attract
no judicial approbation. See Kyles, 514 U.S., at 440
(“The prudence of the careful prosecutor should not … be discouraged.”).

    The State’s second argument is a variant of the first. Specifically, the State argues, and the Court of Appeals accepted, that Banks cannot show cause because in the 1992 state-court postconviction proceedings, he failed to move for investigative assistance enabling him to inquire into Farr’s police connections, connections he then alleged, but failed to prove. Brief for Respondent 15—16; App. to Pet. for Cert. A19; see 1977 Tex. Gen. Laws ch. 789, §2(d) (as amended) (instructing postconviction court to “designat[e] the issues of fact to be resolved,” and giving the court discretion to “order affidavits, depositions, interrogatories, and hearings”). Armed in 1992 only with Demetra Jefferson’s declaration that Farr was “well-connected to law enforcement people,” App. 195, ¶7; see supra, at 9, Banks had little to proffer in support of a request for assistance from the state postconviction court. We assign no overriding significance to Banks’s failure to invoke state-court assistance to which he had no clear entitlement. Cf. Strickler, 527 U.S., at 286 (“Proper respect for state procedures counsels against a requirement that all possible claims be raised in state collateral proceedings, even when no known facts support them.”).16

    Finally, relying on Roviaro v. United States, 353 U.S. 53 (1957), the State asserts that “disclosure [of an informant’s identity] is not automatic,” and, “[c]onsequently, it was Banks’s duty to move for disclosure of otherwise privileged information.” Brief for Respondent 17—18, n. 15. We need not linger over this argument. The issue of evidentiary law in Roviaro was whether (or when) the Government is obliged to reveal the identity of an undercover informer the Government does not call as a trial witness. 353 U.S., at 55—56. The Court there stated that no privilege obtains “[w]here the disclosure of an informer’s identify, or of the contents of his communication, is relevant and helpful to the defense of an accused.” Id., at 60—61. Accordingly, even though the informer in Roviaro did not testify, we held that disclosure of his identity was necessary because he could have “amplif[ied] or contradict[ed] the testimony of government witnesses.” Id., at 64.

    Here, the State elected to call Farr as a witness. Indeed, he was a key witness at both guilt and punishment phases of Banks’s capital trial. Farr’s status as a paid informant was unquestionably “relevant”; similarly beyond doubt, disclosure of Farr’s status would have been “helpful to [Banks’s] defense.” Id., at 60—61. Nothing in Roviaro, or any other decision of this Court, suggests that the State can examine an informant at trial, withholding acknowledgment of his informant status in the hope that defendant will not catch on, so will make no disclosure motion.

    In summary, Banks’s prosecutors represented at trial and in state postconviction proceedings that the State had held nothing back. Moreover, in state postconviction court, the State’s pleading denied that Farr was an informant. App. 234; supra, at 10. It was not incumbent on Banks to prove these representations false; rather, Banks was entitled to treat the prosecutor’s submissions as truthful. Accordingly, Banks has shown cause for failing to present evidence in state court capable of substantiating his Farr Brady claim.

C

    Unless suppressed evidence is “material for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice to overcome [a] procedural default.” Strickler, 527 U.S., at 282. Our touchstone on materiality is Kyles v. Whitley, 514 U.S. 419 (1995). Kyles instructed that the materiality standard for Brady claims is met when “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” 514 U.S., at 435. See also id., at 434—435 (“A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.”); accord, Strickler, 527 U.S., at 290. In short, Banks must show a “reasonable probability of a different result.” Kyles, 514 U.S., at 434 (internal quotation marks omitted) (citing Bagley, 473 U.S., at 678).

    As the State acknowledged at oral argument, Farr was “paid for a critical role in the scenario that led to the indictment.” Tr. of Oral Arg. 34. Farr’s declaration, presented to the federal habeas court, asserts that Farr, not Banks, initiated the proposal to obtain a gun to facilitate the commission of robberies. See App. 442—443, ¶¶7—8; supra, at 5. Had Farr not instigated, upon Deputy Sheriff Huff’s request, the Dallas excursion to fetch Banks’s gun, the prosecution would have had slim, if any, evidence that Banks planned to “continue” committing violent acts. App. 147.17 Farr’s admission of his instigating role, moreover, would have dampened the prosecution’s zeal in urging the jury to bear in mind Banks’s “planning and acquisition of a gun to commit robbery,” or Banks’s “planned violence.” Ibid.; see Tr. of Oral Arg. 50.18

    Because Banks had no criminal record, Farr’s testimony about Banks’s propensity to commit violent acts was crucial to the prosecution. Without that testimony, the State could not have underscored, as it did three times in the penalty phase, that Banks would use the gun fetched in Dallas to “take care” of trouble arising during the robberies. App. 140, 144, 146—147; see supra, at 8. The stress placed by the prosecution on this part of Farr’s testimony, uncorroborated by any other witness, belies the State’s suggestion that “Farr’s testimony was adequately corroborated.” Brief for Respondent 22—25. The prosecution’s penalty-phase summation, moreover, left no doubt about the importance the State attached to Farr’s testimony. What Farr told the jury, the prosecution urged, was “of the utmost significance” to show “[Banks] is a danger to friends and strangers, alike.” App. 146.

    In Strickler, 527 U.S., at 289, although the Court found “cause” for the petitioner’s procedural default of a Brady claim, it found the requisite “prejudice” absent, 527 U.S., at 292—296. Regarding “prejudice,” the contrast between Strickler and Banks’s case is marked. The witness whose impeachment was at issue in Strickler gave testimony that was in the main cumulative, id., at 292, and hardly significant to one of the “two predicates for capital murder: [armed] robbery,” id., at 294. Other evidence in the record, the Court found, provided strong support for the conviction even if the witness’ testimony had been excluded entirely: Unlike the Banks prosecution, in Strickler, “considerable forensic and other physical evidence link[ed] [the defendant] to the crime” and supported the capital murder conviction. Id., at 293. Most tellingly, the witness’ testimony in Strickler “did not relate to [the petitioner’s] eligibility for the death sentence”; it “was not relied upon by the prosecution at all during its closing argument at the penalty phase.” Id., at 295. In contrast, Farr’s testimony was the centerpiece of Banks’s prosecution’s penalty-phase case.

    Farr’s trial testimony, critical at the penalty phase, was cast in large doubt by the declaration Banks ultimately obtained from Farr and introduced in the federal habeas proceeding. See supra, at 5, 11. In the guilt phase of Banks’s trial, Farr had acknowledged his narcotics use. App. 36. In the penalty phase, Banks’s counsel asked Farr if, “drawn up tight over” previous drug-related activity, he would “testify to anything anybody want[ed] to hear”; Farr denied this. Id., at 110; supra, at 7. Farr’s declaration supporting Banks’s federal habeas petition, however, vividly contradicts that denial: “I assumed that if I did not help [Huff] … he would have me arrested for drug charges.” App. 442, ¶6. Had jurors known of Farr’s continuing interest in obtaining Deputy Sheriff Huff’s favor, in addition to his receipt of funds to “set [Banks] up,” id., at 442, ¶7, they might well have distrusted Farr’s testimony, and, insofar as it was uncorroborated, disregarded it.

    The jury, moreover, did not benefit from customary, truth-promoting precautions that generally accompany the testimony of informants. This Court has long recognized the “serious questions of credibility” informers pose. On Lee v. United States, 343 U.S. 747, 757 (1952). See also Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L. J. 1381, 1385 (1996) (“Jurors suspect [informants’] motives from the moment they hear about them in a case, and they frequently disregard their testimony altogether as highly untrustworthy and unreliable … .”). We have therefore allowed defendants “broad latitude to probe [informants’] credibility by cross-examination” and have counseled submission of the credibility issue to the jury “with careful instructions.” On Lee, 343 U.S., at 757; accord, Hoffa v. United States, 385 U.S. 293, 311—312 (1966). See also 1A K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal §15.02 (5th ed. 2000) (jury instructions from the First, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits on special caution appropriate in assessing informant testimony).

    The State argues that “Farr was heavily impeached [at trial],” rendering his informant status “merely cumulative.” Tr. of Oral Arg. 49; see Brief for Respondent 26—28; post, at 4, n. 3. The record suggests otherwise. Neither witness called to impeach Farr gave evidence directly relevant to Farr’s part in Banks’s trial. App. 124—133; id., at 129 (prosecutor noted that Kelley lacked “personal knowledge with regard to this case on trial”). The impeaching witnesses, Kelley and Owen, moreover, were themselves impeached, as the prosecution stressed on summation. See id., at 141, 148; supra, at 7—8. Further, the prosecution turned to its advantage remaining impeachment evidence concerning Farr’s drug use. On summation, the prosecution suggested that Farr’s admission “that he used dope, that he shot,” demonstrated that Farr had been “open and honest with [the jury] in every way.” App. 140; supra, at 8.

    At least as to the penalty phase, in sum, one can hardly be confident that Banks received a fair trial, given the jury’s ignorance of Farr’s true role in the investigation and trial of the case. See Kyles, 514 U.S., at 434 (“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”). On the record before us, one could not plausibly deny the existence of the requisite “reasonable probability of a different result” had the suppressed information been disclosed to the defense. Ibid. (internal quotation marks omitted) (citing Bagley, 473 U.S., at 678); Strickler, 527 U.S., at 290. Accordingly, as to the suppression of Farr’s informant status and its bearing on “the reliability of the jury’s verdict regarding punishment,” App. to Pet. for Cert. C44; supra, at 13, all three elements of a Brady claim are satisfied

Muhammad v. Close , ---- U.S. ---- (2/25/2004) Lower federal court inappropriately dismissed prisoner's section 1983 action seeking compensatory and punitive damages (even in the absence of any implication going to the fact or duration of the underlying sentence) under Heck v. Humphrey.

Groh v. Ramirez , --- U.S. ---- (2/24/2004) In this "Bivens" action, the warrant was “unreasonable” under the Fourth Amendment because it was ambiguous and failed to describe the items sought with any particularity.  In addition, the Court rejected the argument that the warrant application’s specific description saved the actual warrant.  Finally, the Court concluded that the officer involved was not entitled to qualified immunity because the warrant’s facially apparent defect rendered the service of the warrant unreasonable. 

HOT LIST 

Florida v. Davis , 2004 Fla. LEXIS 230 (FL 2/19/2004)  "[T]he blatant expressions of racial prejudice by trial counsel in this case constitute ineffective assistance of counsel that affected the fairness and reliability of the proceedings to such an extent that our confidence in the outcome is undermined."

Applying these standards and principles, we conclude that the expressions of racial animus voiced by trial counsel during voir dire so seriously affected the fairness and reliability of the proceedings that our confidence in the jury's verdicts of guilt is undermined. We cannot agree with the trial court's conclusion that an explicit expression of racial prejudice can be considered a legitimate tactical approach. Whether or not counsel is in fact a racist, his expressions of prejudice against African Americans cannot be tolerated.

Initially, we strongly reaffirm the principle that racial prejudice has no acceptable place in our justice system. As we stated in  [*10]  Powell v. Allstate Insurance Co., 652 So. 2d 354, 358 (Fla. 1995),
 
the founding principle upon which this nation was established is that all persons were initially created equal and are entitled to have their individual human dignity respected. This guarantee of equal treatment has been carried forward in explicit provisions of our federal and state constitutions. It is not by chance that the words "Equal Justice Under Law" have been placed for all to see above the entrance to this nation's highest court. If we are to expect our citizens to treat one another with equal dignity and respect, the justice system must serve as the great example of maintaining that standard. And while we have been far from perfect in implementing this founding principle, our initial declaration and our imperfect struggle and efforts have served as a beacon for people around the world.
 
In Powell, we considered whether to authorize an inquiry to ascertain whether racist jokes and statements were made by jurors in a trial involving a suit by the plaintiffs, who were black citizens of Jamaica, against an insurance company for claims arising from an automobile accident. See id. at 355.  [*11]  We authorized the inquiry, and ruled that if the trial court determined that the statements were in fact made, the comments warranted a new trial. See id. at 358. Rejecting any notion that this was not a proper concern within the purview of the justice system, we stated:

The issue of racial, ethnic, and religious bias in the courts is not simply a matter of "political correctness" to be brushed aside by a thick-skinned judiciary. . . .

Despite longstanding and continual efforts, both by legislative enactments and by judicial decisions to purge our society of the scourge of racial and religious prejudice, both racism and anti-Semitism remain ugly malignancies sapping the strength of our body politic. The judiciary, as an institution given a constitutional mandate to ensure equality and fairness in the affairs of our country when called on to act in litigated cases, must remain ever vigilant in its responsibility. The obvious difficulty with prejudice in a judicial context is that it prevents the impartial decision-making that both the Sixth Amendment and fundamental fair play require. A racially or religiously biased individual harbors certain negative stereotypes  [*12]  which, despite his protestations to the contrary, may well prevent him or her from making decisions based solely on the facts and law that our jury system requires.
 
Id. (quoting United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986)). The United States Supreme Court has observed that it has been compelled to "engage[] in 'unceasing efforts' to eradicate racial prejudice from our criminal justice system." McCleskey v. Kemp, 481 U.S. 279, 309, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987) (quoting Batson v. Kentucky, 476 U.S. 79, 85, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)).

The necessity of vigilance against the influence of racial prejudice is particularly acute when the justice system serves as the mechanism by which a litigant is required to forfeit his or her very life. As the United States Supreme Court first stated more than twenty-five years ago, "death is different in kind from any other punishment imposed under our system of criminal justice." Gregg v. Georgia, 428 U.S. 153, 188, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); see also State v. Dixon, 283 So. 2d 1, 7 (Fla. 1973) (stating that because "death is a unique punishment in  [*13]  its finality and in its total rejection of the possibility of rehabilitation . . ., the Legislature has chosen to reserve its application to only the most aggravated and unmitigated of most serious crimes"). We have acknowledged that "death is different" in recognizing the need for effective counsel in capital proceedings "from the perspective of both the sovereign state and the defending citizen." Sheppard & White, P.A. v. City of Jacksonville, 827 So. 2d 925, 932 (Fla. 2002).

In Robinson v. State, 520 So. 2d 1, 7 (Fla. 1988), this Court emphasized that the "risk of racial prejudice infecting a criminal trial takes on greater significance in the context of a capital sentencing proceeding." Accordingly, we vacated a death sentence because of the prosecutor's suggestion during cross-examination of a defense expert that the black defendant preyed on white women.

In a noncapital case, the First District overturned a second-degree murder conviction because of an improper appeal to racial prejudice. See Wallace v. State, 768 So. 2d 1247, 1250-51 (Fla. 1st DCA 2000). In Wallace, the prosecutor disregarded the trial court's admonition  [*14]  against emphasizing that before a fatal confrontation with another man, the black defendant was making vulgar remarks to a white woman. See id. at 1249. The First District stated:

In the present case, the jurors were required to determine whether the homicide was justifiable. The race of the woman with whom the defendant had been conversing in the cafe earlier in the evening had nothing to do with the issue of his guilt or innocence. All the prosecutor needed to do to put the events in the proper context was to elicit a brief statement that the defendant was asked to leave because he was arguing with another patron. Nevertheless, he repeatedly emphasized that the woman in the cafe was a white woman and he repeatedly stressed the fact that the defendant had been making vulgar comments to her.

These actions effectively invited the jury to make a decision based on a characterization of the defendant and not on the evidence of his guilt or innocence. Without even a pretense of relevancy the prosecutor managed to conjure up the image of a black man making rude and sexually offensive comments to a white woman. Some members of the defendant's all-white jury may have  [*15]  reacted negatively to this portrayal of the defendant, regardless of their views of the evidence.

We are not suggesting that the jurors were affected by the prosecutor's appeal to racial prejudice merely because all of them are white. The point is that no jury should be exposed to an argument like the one made in this case.
 
Id. at 1250 (emphasis supplied).

In light of the repeated admonitions by the United States Supreme Court, this Court, and others against allowing racial prejudice to play any part in the determination of guilt or imposition of sentence in a criminal case, we are greatly disturbed by trial counsel's blatant acknowledgment to the jury, in defending an African-American defendant accused of an interracial crime, of his negative feelings toward "black people just because they're black." We condemn these statements not because counsel chose to discuss the topic of race in voir dire, which is permissible, but because he did so in a manner that fatally compromised his ability to effectively represent Davis in his capital trial and created a reasonable probability of unreliable convictions.

CAPITAL CASES (Favorable Disposition)

In the Matter of the Readoption with Amendments of Death Penalty Regulations , 4 N.J. Super. LEXIS 81 (NJ App Div 2/20/2004) In an action brought by New Jerseyans for a Death Penalty Moratorium, the state lethal injection protocol under state administrative law fails as it lacks substantial support in the record developed below and appear to be  "arbitrary and unreasonable."

we have concluded that because they lack evidential and reasoned support in this record, several of the regulations challenged by appellant appear to be arbitrary and unreasonable. We cannot, however, determine from this record whether there is indeed available rational support for them that was considered but unexpressed by DOC. Because of the patent gravity of the life and death issues implicated by the regulations, we have concluded that rather than simply striking down those regulations, DOC should have the opportunity to give them further consideration, by additional hearings if necessary,and to articulate, if it is able to do so, a supporting basis for those determinations. In the meantime, however, we are satisfied that the regulations as a whole, as they now stand, may not be implemented by the carrying out of a death sentence.

***

To summarize, with respect to the challenge to the regulations themselves, we remand to the DOC for further consideration consistent with this opinion, and we stay the implementation of the regulations until that reconsideration has been completed. As to the privilege claims, we remand to the trial court for entry of an amended order consistent with this opinion and for a further hearing, as required by this opinion, respecting the missing documents. We further direct that the trial court complete its proceedings respecting the missing documents prior to further proceedings by the DOC.

Snow v. Oklahoma , 2004 Okla. Crim. App. LEXIS 11(Okla. Crim. App. 2/19/2004) Jury tiral ordered on the issue of mental retardation.

Miller v. Maryland , 2004 Md. LEXIS 53 (Md 2/19/2004) Plurality of the court vacates Mr. Miller's sentence of death with no one ground garnering a simple majority.

Judge Raker would affirm the verdicts and the prison sentences but vacate the death sentence based on her view that the preponderance standard, required by statute and Rule of this Court to be used in determining whether the aggravating factor found by the jury outweighed any mitigating factors found by one or m re of the ju rors, is unconstitutional under principles enunciated in Apprendi v. New Jersey  and Ring v. Arizona. In declaring that the death sentence should be vacated on that ground, she is joined by Chief Judge Bell and Judge Eldridge. Judge Battaglia, joined by Chief Judge Bell and  Judge Eldridge, believes that the entire judgment should be reversed and that Miller should be awarded a new trial because of newly discovered evidence that the witness, Bobbitt, may have been promised leniency by the State in return for his testimony. They believe that, had that new evidence been presented to the jury, there is a reasonable possibility that the jury would have acquitted Miller of the first degree sexual offense charge, which would have made him ineligible for the death penalty, or, at the sentencing proceeding, would have failed to find the necessary aggravating factor, that he committed the murder while committing or attempting to commit the first degree sexual offense.

Williams v. Georgia , 2004 Ga. LEXIS 142 (Ga 2/16/2004) "Case must be remanded for further proceedings regarding Williams’s burglary charge and the two felony murder charges predicated on that burglary” based on the failure of the state to timely bring Williams to trial .

CAPITAL CASES (Unfavorable Disposition)

Wilson v. Ozmint , 2004 U.S. App. LEXIS 2679 (4th Cir 2/17/2004) (unpublished) Motion for rehearing and suggestion for rehearing en banc denied as having been filed out of time.

McCullum v. Dretke , 2004 U.S. App. LEXIS 3065 (5th Cir 2/20/2004)(unpublished) COA denied on claims relating to: "(1) whether he was entitled to a jury instruction on parole eligibility when the alternative to the death penalty was a life sentence with the possibility of parole; (2) whether he was entitled to have the term “society” defined for the jury; (3) whether Texas’s capital sentencing system is unconstitutional because the death penalty is not uniformly applied; and (4) whether there was sufficient evidence to support the jury’s verdict."

Cockrell v. Dretke , 2004 U.S. App. LEXIS 2559 (5th Cir 2/17/2004)(unpublished) COA denied on claims relating to ineffective assistance of counsel based on the failure to present evidence of a low I.Q. and the result of a "cocaine psychosis."

Quince v. Crosby , 2004 U.S. App. LEXIS 2616 (11th Cir 2/18/2004) Relief denied on: "(1) whether or not the failure of Judge Johnson to recuse himself deprived Quince of any constitutional right, or otherwise is relevant to this appeal; (2) whether or not Quince was denied effective assistance of counsel because his trial counsel’s status as special deputy sheriff created a conflict of interest; and (3) whether there was a violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821 (1987), because the sentencing judge did not consider nonstatutory mitigating  circumstances."

Isom v. Arkansas , 2004 Ark. LEXIS 111 (Ark 2/18/2004) Relief denied on claims relating to: (1) sufficiency of the evidence; (2)  jury selection (Batson, rehabiilitiation of Witherspooned jurors; removal of a death hesitant juror; prosecution's conduct of life / death qualification in voir dire) ; (3) jury verdict form; (4) state's closing argument;  (5) failure to give lesser included instructions on robbery;  (6) aggravator for avoiding or preventing arrest; and (7) constitutionality of the capital murder statute.

Cauthern v. Tennessee , 2004 Tenn. Crim. App. LEXIS 149 (Tenn. Crim. App. 2/19/2004)   Relief denied on claims relating to "(1) that trial counsel's services were deficient and prejudicial; (2) that the state suppressed exculpatory evidence in violation of his due process rights; (3) that the United States Supreme Court's opinions in Apprendi v. New Jersey and Ring v. Arizona require that his death sentence be set aside; (4) that he was entitled to but was not notified of his right to seek German consular assistance pursuant to the Vienna Convention on Consular Relations; (5) that the lower court erroneously concluded that some of his claims had been waived or previously determined; (6) that Tennessee's system of capital punishment is unconstitutional; and (7) that erroneous jury instructions impaired his right to a fair trial."

OTHER NOTABLE CASES

Stokes v. Maryland , 2004 Md. LEXIS 51 (Md 2/18/2004) Reversed due to the presence of alternate jurors in guilt phase deliberations of a bifurcated trial.

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The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

   
NEW VOICES: Urban League President Says Death Penalty is "Cruel and Inhuman"
In a recent column, Marc H. Morial, the current President of the National Urban League and former President of the U.S. Conference of Mayors, praised recent efforts to halt executions while questions about innocence and fairness are addressed by legislators. Morial noted:
There are growing calls for moratoria on executions, a growing reluctance among juries to levy the death penalty, efforts to insure that defendants in capital cases, who are most often poor, are represented by good attorneys, and even legislative attempts at the state and federal levels to fix the flaws in various parts of the steps of death-penalty cases.
These efforts are worthwhile--in our view, both for their practicality and for their underscoring the moral arguments against the death penalty: It is a practice that cannot be fixed by the application of "practical" measures. It is inherently cruel and inhuman punishment, in no small measure because it is layered through and through with America's legacy of class and racial oppression.
(MaximsNews.com, February 25, 2004)(emphasis added) See New Voices.    

South Dakota Legislators Vote to Ban Death Penalty for Juveniles
Legislation banning capital punishment for crimes committed by those younger than 18 has passed both the South Dakota House and Senate. The bill will now go to Governor Mike Rounds for signature into law. Republican Representative Hal Wick of Sioux Falls supported the bipartisan measure, stating, "I do have concerns about heinous crimes, but I don't think it's our place to destroy or forget the sanctity of life. Violent responses by the state beget more violence. The state must lead by example. Instead of encouraging a culture of death by killing criminals, we must seek punishment for crimes that respects the dignity of human life and at the same time serves human justice." Internationally, the U.S. is one of only a handful of countries that allow the execution of juvenile offenders. (Argus Leader, February 25, 2004) Nationally, the federal government and 17 of the 38 states that have the death penalty ban the execution of the juvenile offenders. Rounds' signature would make South Dakota the 18th death penalty state to abandon the practice. The U.S. Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. See DPIC's Roper v. Simmons page. See Juvenile Death Penalty.    

NEW VOICES: Connecticut Lags Behind in Death Penalty Reforms
The Chair of Connecticut's Judiciary Committee has called for enactment of death penalty reforms to protect against wrongful convictions. Of the six reforms recommended after a 13-month special commission on Connecticut's death penalty, only one has been enacted. Members of the commission noted, "Experiences in other states throughout the country suggest that Connecticut cannot be complacent and 'best practices' should be the watchword." Among the recommendations are video taping of interrogations, a blind and sequential witness ID process to reduce false identifications, pre-trial hearings to evaluate the validity of jail house snitch testimony, improved access to DNA testing, and an "open file" policy for prosecutors in capital cases. Rep. Michael Lawlor, Judiciary Co-chair, said that there have been no executions in Connecticut "because nobody really wants to do it." (New Haven Advocate, January 15, 2004) See New Voices and Recent Legislative Activity.    

Supreme Court Overturns Texas Death Sentence
In a 7-2 decision in Banks v. Dretke, the Supreme Court overturned the death sentence of Delma Banks Jr., concluding that he was denied a fair trial because prosecutors in Texas failed to disclose key information. Last year, Banks was just minutes from his scheduled execution in Texas when the Supreme Court intervened. Today's decision remands the case back to a lower court so that new evidence may be considered. Read DPIC's Press Release. Also, Read the opinion.    

NEW VOICES: Kansas Supreme Court Justice Reflects: "Do I Have It Right?"
In a report filed by the Kansas Judicial Council Death Penalty Advisory Committee, retired Kansas Supreme Court Justice Fred N. Six noted that capital punishment cases pose immense burdens on judges. He stated:

Always in the consciousness of that justice is the question, "do I have it right?" A wrong call is irreversible because "death is different." The "do I have it right" question travels with you. You carry it with you during the workday, deliberations at case conference, your commute to and from work, before retiring at night, and on weekends. The question shadows you. However, normal shadows disappear at sundown, the "do I have it right" does not. You also carry a brief case filled with death case material home at night and on weekends. This brief case becomes your "constant companion" until the death case opinion is filed.

(Report of the Judicial Council Death Penalty Advisory Committee, January 29, 2004) See New Voices.    

New Hampshire Senate, Wyoming House Pass Bills to Ban Juvenile Death Penalty
Less than a month after the U.S. Supreme Court announced that it will reconsider the constitutionality of the death penalty for juvenile offenders, two state legislative bodies have passed measures to ban the practice. The New Hampshire Senate passed its bill to ban the execution of those who were under the age of 18 at the time of their offense on February 19, 2004. The measure now moves to the House, where a committee hearing and vote are expected in the coming weeks. The Wyoming House also passed a measure to ban the execution of juvenile offenders. The House voted 45-12 in support of the bill on February 20, and members of the Wyoming Senate are expected to consider the ban next week. A bill is also advancing in the South Dakota legislature. Currently, 17 of the 38 states that maintain capital punishment forbid the execution of those who were juveniles at the time of their crime. The juvenile death penalty is also forbidden under the federal government's statute. See Juvenile Death Penalty. See Recent Legislative Activity.    

New Jersey Court Halts Executions, Orders Review of Lethal Injection
The Appellate Division of New Jersey's Superior Court ruled today that the state's Department of Corrections (DOC) must examine its lethal injection execution procedures before it carries out any death sentences, thereby halting executions in the state until such a review takes place. The ruling notes, "[B]ecause of the patent gravity of the life and death issues implicated by the regulations, we have concluded that rather than simply striking down those regulations, DOC should have the opportunity to give them further consideration, by additional hearings if necessary, and to articulate, if it is able to do so, a supporting basis for those determinations. In the meantime, however, we are satisfied that the regulations as a whole, as they now stand, may not be implemented by the carrying out of a death sentence." The ruling may also require the DOC to release additional documents regarding the state's lethal injection procedures to New Jerseyans for a Death Penalty Moratorium, the non-profit organization that filed the original challenge to the DOC's lethal injection procedures. Read the opinion (Feb. 20, 2004). See Methods of Execution.    

NEW RESOURCES: Capital Punishment Law and Practice Examined in Two New Books
Two new books on the death penalty offer readers an examination of capital punishment law and America's use of this punishment. In "Understanding Capital Punishment Law," a new book published as part of the LexisNexis Understanding series, law professors Linda Carter and Ellen Kreitzberg offer students in capital punishment courses an overview of this complex area of law. The book includes a thorough review of constitutional law and current issues related to capital punishment in the U.S. (Matthew Bender & Company, Inc. 2004)
The Second Edition of "America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction" provides an overview of the history, politics, law, empirical evidence, and other aspects of the contemporary debate about the death penalty in America. Updated from the original 1998 text of the same name, the book includes essays by noted death penalty experts. (Edit. by J. Acker, R. Bohm, & C. Lanier, Carolina Academic Press, 2003) See Resources.    

Vietnamese National Scheduled for Execution Despite Board's Unanimous Recommendation for Clemency
Hung Thanh Le, a Vietnamese foreign national, is scheduled for execution on February 26th in Oklahoma. Governor Brad Henry has so far rejected a unanimous recommendation from the Oklahoma Board of Pardon and Paroles to reduce Le's death sentence to life in prison. Le's appeal notes that he was not informed of his right to contact the Vietnamese consulate when he was arrested and may have been suffering from post-traumatic stress disorder stemming from the Vietnam war. Leaders of the Vietnamese-American Community of Oklahoma City have urged Henry to consider the clemency petition, and others are asking for at least a 30-day stay of execution. (Associated Press, February 17, 2004). See Foreign Nationals.    

Alan Gell of North Carolina Is Nation's 113th Death Row Exoneree
Alan Gell of North Carolina became the nation's 113th exonerated death row inmate today, February 18, 2004. Gell, who has maintained his innocence since his 1998 conviction, was acquitted of all charges by a jury that deliberated for only two and a half hours at his retrial. In December 2002, a North Carolina judge vacated Gell's murder conviction and ordered a new trial after ruling that prosecutors withheld important evidence that might have helped exonerate Gell at his first trial. Among the evidence not revealed was a secretly taped 1995 telephone conversation in which the prosecution's star witness said she "had to make up a story" about the murder. The state also withheld numerous witness statements that said they saw the victim alive after the only time Gell could have committed the murder, and forensic experts have corroborated the time of death with these statements. Assistant Attorney General Steven Bryant admitted that the state should have turned over the exculpatory evidence, and the state decided not to seek the death penalty in Gell's second trial. Gell is the first death row exoneree freed in 2004, and the fourth exoneree from North Carolina. Gell's exoneration comes just weeks before the North Carolina House of Representatives is scheduled to take an historic vote that could halt executions in this closely-watched Southern state. Read DPIC's Press Release. See Innocence.    

NEW RESOURCES: Death Penalty Study Examines Sentencing Rates, Executions, Race Statistics
The authors of a new study published in the Journal of Empirical Legal Studies (J. Blume, T. Eisenberg, & M. Wells, "Explaining Death Row's Population and Racial Composition," Vol. I, Issue 1, March 2004, at 165) concluded that Texas' reputation as the leading death penalty state in the U.S. is attributable more to its high number of executions and the large number of murders in the state, rather than to its sentencing rate. Despite leading the country by far in terms of number of executions, Texas is about average in death sentences when compared to its number of murders. Nevada and Oklahoma are the leading states with the most death sentences per 1,000 murders. With respect to race, the study found that the race of the victim in the underlying murder is crucial in deciding who is sentenced to death. Across a spectrum of states, a black person who murdered a white victim is two and a half times as likely to be sentenced to death than a white who murdered a white victim. (New York Times, February 14, 2004). Read the Study (PDF). See Resources, Race, and Executions.    

Recent Developments in the Federal Death Penalty

• Federal prosecutors dropped charges against Darrell Rice shortly before he was to face capital charges for two murders in Shenandoah National Park. New forensic evidence cast doubt on the case against Rice, despite the fact that Attorney General John Ashcroft had made a public announcement of Rice's indictment employing a new law in 2002. (Washington Post, Feb. 7, 2004).
• A federal judge threw out a jury's (July 2003) verdict of guilt in the capital case of Jay Lentz, accused of murdering his wife. Lentz has been granted a new trial and the judge's ruling accused the prosecutors of deliberately and recklessly placing improper evidence before the jury. The prosecutors are appealing the judge's ruling. (Washington Post, Feb. 7, 2004).
• On the grounds that his federal indictment did not include the aggravating factors necessary to support his execution, the Court of Appeals for the 8th Circuit reduced Billie Jerome Allen's death sentence to life in prison in February 2004. Allen was sentenced to death by a jury in 1998 following his conviction for murder in the course of a bank robbery. In June 2002, the U.S. Supreme Court vacated Allen's death sentence and remanded the case back to the Eighth Circuit for reconsideration in light of the Court's ruling in Ring v. Arizona. (February 5, 2004, St Louis Post Dispatch).
• Gary Sampson pleaded guilty to the carjacking and murder of two Massachusetts men. A jury returned a death verdict for Sampson on December 23, 2003. U.S. District Judge Mark L. Wolf formally sentenced Sampson to death, but ordered that the execution be carried out in New Hampshire, which has not held an execution since 1939. (Boston Globe, January 30, 2004).

The federal government has set June 8 as the execution date for David Paul Hammer. Hammer pleaded guilty in 1998 to the murder of his prison cellmate in 1996. He has vacillated back and forth about waiving his appeals and this is his third execution date. (Terre Haute Tribune Star, Feb. 12, 2004). See Federal Death Penalty.    

NEW VOICES: Charlize Theron Criticizes Death Penalty After Her Movie Role
Charlize Theron, who recently won a Golden Globe Award for her portrayal of executed Florida death row inmate Aileen Wuornos in the movie "Monster," has stated that making the movie made her more aware of how "ineffective" capital punishment is. Theron, who is opposed to the death penalty, was only 15 when her own mother shot and killed her drunken father after he threatened to kill his wife and daughter. "I don't think condemning people who murder and then killing them necessarily sends out the right message. And I have a huge problem with the way these people are used as political pawns," said Theron, a native of South Africa. Theron's portrayal of Wuornos showed her as a homeless prostitute who was sentenced to die for a series of murders she committed after a killing in self defense. Theron has also been nominated for a best actress Academy Award. (Reuters, February 8, 2003) See New Voices and Women and the Death Penalty.    

State Medical Examiner Indicted for Lying; Participated in a Third of Death Row Cases
A Tennessee medical examiner who helped convict about a third of the state's death row inmates has been indicted for faking an attack in which he was strapped with a homemade bomb around his neck. Dr. O'Brian Smith was found in 2002 wrapped head to toe in barbed wire and bound to window bars in his office, an incident investigators first believed was carried out by those who were angry with Smith for helping to convict Philip Workman and other inmates on Tennessee's death row. The indictment against Dr. Smith accuses him of lying to agents and unlawful possession of a bomb, charges that carry a maximum penalty of 20 years in prison.

According to Don Dawson, Tennessee's chief post-conviction defender, Dr. Smith had completed the autopsies, supervised the autopsies, or testified during trial in 30 to 40 percent of the state's capital cases. Of the state's 97 death row inmates, 38 were convicted in Shelby County where Smith practices.A few hours after his indictment by a federal grand jury, Dr. Smith provided testimony in another on-going murder case. Dr. Cyril H. Wecht, the chief medical examiner in Pittsburgh and president of the American Board of Legal Medicine, noted, "If he could fabricate a story like this that a Hollywood screenwriter on LSD would have difficulty coming up with, who can believe him in the courtroom?" When Dr. Smith came under investigation in 2003, Tennessee Governor Phil Bredesen issued an 11th-hour stay of execution to death row inmate Philip Workman, whose clemency request was denied during proceedings that featured Dr. Smith's expert testimony. It is expected that other death row inmates will file challenges based on Dr. Smith's involvement in their prosecution. (New York Times and Washington Post, February 12, 2004) See TCASK Press Release.    
   
   
 
 

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ADDITIONAL RESOURCES
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), TalkLeft.com    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).