Capital Defense Weekly

The turning tide leads off this week.   The number of prisoners in the United States on death row dropped for the third consecutive year in 2003, resulting from in the lowest total number (144) of death sentences in 30 years, according to a report by the Justice Department's Bureau of Justice Statistics.   Likewise, the number of executions this year is expected to hit a seven-year low coming in slightly lower than last year's total of 65 (assuming no further execution warrants).   A big thank you to all those who made these numbers a reality, one case and life at a time.

Leading off the case law news this week the Supreme Court's holding in Smith v. Texas.  A 7-2 majority in Smith held that the "nullification instruction" routinely given, as here, until the early 90's in Texas is  constitutionally inadequate because it did not allow the jury to give " 'full consideration and full effect to mitigating circumstances'. "  Specifically, here the Court found that Smith's jury did not have an adequate vehicle for considering evidence that included organic learning disabilities and low IQ.  The case is the Capital Punishment Clinic at The University of Texas School of Law's second win in the U.S. Supreme Court  in five months.   The scheduled execution of Troy Kunkle was stayed by the Court just hours before his execution in light of Smith.  Kunkle's fate at this time still remains to be decided. 

Three big wins out of Georgia are also noted, including this week's "Hot List" case.  The "Hot List" case is  Height v. Georgia where the Georgia Supreme Court remanded as favorable polygraph results should have been permitted as mitigating evidence in the penalty phase of capital murder trial if those results were taken under conditions deemed reliable. In Henry v. Georgia appellant's death sentence as the trial court seriously erred when it allowed the State to argue during the sentencing phase that defendant deserved the death penalty because he posed a future danger to those in the prison system simply because he killed while free.  In Jenkins v. Georgia relief is had in light of Crawford v. Washington as admission of statements made by a deceased relative of the accused was never subject to the gauntlet of cross but was introduced at trial anyway.

Three other victories are also noted.  In New Jersey the state supreme court reverses in  Reddish v. New Jersey as the admission of evidence that Reddish was in custody on unrelated charges when he confessed and erroneous instructions on the inability of police to locate the victim's body were errors that, cumulatively, warranted reversal of conviction.  In  Ex Parte Bell and Ex Parte Valdez the Texas Court of Criminal Appeals vacates the respective death sentences in light of findings of mental retardation.

Elsewhere, Aya Gruber of Florida International has posted an interesting new paper on SSNR that was recently published in the Temple Law Review titled, "Victim Wrongs:  The Case for a General Criminal Defense Based on Wrongful Victim Behavior in an Era of Victim's Rights." A general criminal law news resource is online and quickly finding a unique niche, the CrimProf Blog, by Professors Jack Chin (U of Ariz SoL) and Mark Godsey (U of Cincy SoL).  In Texas, a new poll finds that 70% of Texans  believe that their state has killed an innocent person and yet the death penalty in the same poll finds support among 75% of Texans.

In an overdue notice to the community, Capital Punishment Research Initiative (CPRI) at SUNY-Albany has several projects relating to the  empirical and historical studies of the death penalty. CPRI research is conducted by the University's graduate students and professors are especially seeking clemency petitions (and related documents) in capital cases, as well as other historical documents, such as files that attorneys might have in storage lockers and the like.

Finally, several requests for copyright information have been received.  Just to clarify I have waived copyright (with attribution) for noncommercial purposes to all materials created in relation to the "weekly."  This is waiver for noncommercial purposes applies to all materials created in the last seven years (unless otherwise noted).

As always, thanks for reading and a special thank you to Sandrine Ageorges for the work in making sure every Texas case, no matter what court,  is brought to my attention. - k

Archived on the web at: http://capitaldefenseweekly.com/archives/041115.htm

EXECUTION INFORMATION
Since the last edition there have been the following executions in the United States:

November
   17 Anthony Fuentes     Texas

Pending execution dates believed to be serious include:
 
November
   30  Thomas Bowling     Kentucky

December
   1   Frances Newton      Texas----female
   2  George Banks          Pennsylvania
   3  Charles Walker         North Carolina


SUPREME COURT
Smith v. Texas,  536 U.S. ---- (11/15/2004)    The standard Texas "nullification instruction" criticized in Penry I & II, as well as Tennard, is  constitutionally inadequate because it did not allow the jury to give " 'full consideration and full effect to mitigating circumstances' " in choosing the defendant's appropriate sentence.

    The Texas Court of Criminal Appeals issued its opinion just prior to our decision in Tennard v. Dretke, 542 U. S. ___ (2004). In Tennard, we reversed the Fifth Circuit's refusal to grant a certificate of appealability (COA) to a defendant who was sentenced under the Texas capital sentencing scheme prior to the legislative revisions which took place in the aftermath of Penry I. Tennard, relying upon Penry I, argued that Texas' two special issues--deliberateness and future dangerousness--did not allow the jury to give effect to his mitigation evidence and that the trial court's failure to issue a supplemental mitigation instruction that would allow the jury to give full effect to his evidence rendered his death sentence unconstitutional. The state court and the Fifth Circuit both held that the lack of an adequate mitigation instruction was irrelevant. The courts both determined that Tennard had failed to satisfy the Fifth Circuit's threshold standard for " 'constitutionally relevant' mitigating evidence, that is, evidence of a 'uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,' and evidence that 'the criminal act was attributable to this severe permanent condition.' " 542 U. S., at ___ (slip op., at 6) (some internal quotation marks omitted).

     Our rejection of that threshold test was central to our decision to reverse in Tennard. We held that "[t]he Fifth Circuit's test has no foundation in the decisions of this Court. Neither Penry I nor its progeny screened mitigating evidence for 'constitutional relevance' before considering whether the jury instructions comported with the Eighth Amendment." Id., at ___ (slip op., at 9). Rather, we held that the jury must be given an effective vehicle with which to weigh mitigating evidence so long as the defendant has met a "low threshold for relevance," which is satisfied by " ' "evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." ' " Id., at ___ (slip op., at 10) (quoting McKoy v. North Carolina, 494 U. S. 433, 440 (1990)).

     The Texas Court of Criminal Appeals relied on precisely the same "screening test" we     held constitutionally inadequate in Tennard. 132 S. W. 3d, at 413 (holding that mitigation evidence requires a special instruction only when that evidence passes the threshold test of "whether the defendant's criminal act was 'due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own' " (quoting Robertson v. Cockrell, 325 F. 3d 243, 251 (CA5 2003) (en banc)). Employing this test, the court concluded that petitioner's low IQ and placement in special-education classes were irrelevant because they did not demonstrate that he suffered from a "severe disability." 132 S. W. 3d, at 414. But, as we explained in Tennard, "[e]vidence of significantly impaired intellectual functioning is obviously evidence that 'might serve as a basis for a sentence less than death.' " 542 U. S., at ___ (slip op., at 13) (some internal quotation marks omitted) (quoting Skipper v. South Carolina, 476 U. S. 1, 5 (1986)). There is no question that a jury might well have considered petitioner's IQ scores and history of participation in special-education classes as a reason to impose a sentence more lenient than death. Indeed, we have held that a defendant's IQ score of 79, a score slightly higher than petitioner's, constitutes relevant mitigation evidence. See Wiggins v. Smith, 539 U. S. 510, 535 (2003); see also Tennard, supra, at ___ (slip op., at 14-15).

     The state court also held that petitioner had offered "no evidence of any link or nexus between his troubled childhood or his limited mental abilities and this capital murder." 132 S. W. 3d, at 414. We rejected the Fifth Circuit's "nexus" requirement in Tennard, supra, at ___ (slip op., at 12-13) (noting that none of our prior opinions "suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered" and holding that the jury must be allowed the opportunity to consider Penry evidence even if the defendant cannot establish "a nexus to the crime").

     That petitioner's evidence was relevant for mitigation purposes is plain under our precedents, even those predating Tennard. See, e.g., Penry I, 492 U. S., at 319-322; Payne v. Tennessee, 501 U. S. 808, 822 (1991); Boyde v. California, 494 U. S. 370, 377-378 (1990); Eddings v. Oklahoma, 455 U. S. 104, 114 (1982). The state court, however, erroneously relied on a test we never countenanced and now have unequivocally rejected. We therefore hold that the state court "assessed [petitioner's legal] claim under an improper legal standard." Tennard, supra, at ___ (slip op., at 13). Because petitioner's proffered evidence was relevant, the Eighth Amendment required the trial court to empower the jury with a vehicle capable of giving effect to that evidence. Whether the "nullification instruction" satisfied that charge is the question to which we now turn.

III

     The Texas Court of Criminal Appeals held that even if petitioner did proffer relevant mitigation evidence, the supplemental "nullification instruction" provided to the jury adequately allowed the jury to give effect to that evidence. The court found it significant that the supplemental instruction in this case "told the jury that it 'shall' consider all mitigating evidence, even evidence unrelated to the special issues, [and] it also told the jury how to answer the special issues to give effect to that mitigation evidence." 132 S. W. 3d, at 416. The court also concluded that the nullification instruction made it clear to the jury that a "No" answer was required if it "believed that the death penalty was not warranted because of the mitigating circumstances." Ibid.

     In Penry II, we held that "the key under Penry I is that the jury be able to 'consider and give effect to [a defendant's mitigation] evidence in imposing sentence.' " 532 U. S., at 797 (quoting Penry I, supra, at 319); see 532 U. S., at 797 (citing Johnson v. Texas, 509 U. S., at 381 (O'Connor, J., dissenting) ("[A] sentencer [must] be allowed to give full consideration and full effect to mitigating circumstances" (emphasis in Johnson))). We explained at length why the supplemental instruction employed by the Texas courts did not provide the jury with an adequate vehicle for expressing a "reasoned moral response" to all of the evidence relevant to the defendant's culpability. 532 U. S., at 796. Although there are some distinctions between the Penry II supplemental instruction and the instruction petitioner's jury received, those distinctions are constitutionally insignificant.

     Penry II identified a broad and intractable problem--a problem that the state court ignored here--inherent in any requirement that the jury nullify special issues contained within a verdict form.

     "We generally presume that jurors follow their instructions. Here, however, it would have been both logically and ethically impossible for a juror to follow both sets of instructions. Because Penry's mitigating evidence did not fit within the scope of the special issues, answering those issues in the manner prescribed on the verdict form necessarily meant ignoring the command of the supplemental instruction. And answering the special issues in the mode prescribed by the supplemental instruction necessarily meant ignoring the verdict form instructions. Indeed, jurors who wanted to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a ' "true verdict.' "

     "The mechanism created by the supplemental instruction thus inserted 'an element of capriciousness' into the sentencing decision, 'making the jurors' power to avoid the death penalty dependent on their willingness' to elevate the supplemental instruction over the verdict form instructions. There is, at the very least, 'a reasonable likelihood that the jury ... applied the challenged instruction in a way that prevent[ed] the consideration' of Penry's mental retardation and childhood abuse. The supplemental instruction therefore provided an inadequate vehicle for the jury to make a reasoned moral response to Penry's mitigating evidence." Id., at 799-800 (citations omitted).

     It is certainly true that the mandatory aspect of the nullification instruction made petitioner's instruction distinct from Penry's. Indeed, the "shall" command in the nullification instruction resolved the ambiguity inherent in the Penry II instruction, which we held was either a nullification instruction or an instruction that " 'shackled and confined' " Penry's mitigating evidence within the scope of the impermissibly narrow special issues. Id., at 798. That being said, the clearer instruction given to petitioner's jury did not resolve the ethical problem described supra, at 10-11.4 To the contrary, the mandatory language in the charge could possibly have intensified the dilemma faced by ethical jurors. Just as in Penry II, petitioner's jury was required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. And just as in Penry II, the burden of proof on the State was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigation evidence petitioner presented.5 Even if we were to assume that the jurors could easily and effectively have comprehended an orally delivered instruction directing them to disregard, in certain limited circumstances, a mandatory written instruction given at a later occasion, that would not change the fact that the "jury was essentially instructed to return a false answer to a special issue in order to avoid a death sentence." Penry II, supra, at 801.

     There is no principled distinction, for Eighth Amendment purposes, between the instruction given to petitioner's jury and the instruction in Penry II. Petitioner's evidence was relevant mitigation evidence for the jury under Tennard and Penry I. We therefore hold that the nullification instruction was constitutionally inadequate under Penry II. The judgment of the Texas Court of Criminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.<>


CAPITAL CASES (Favorable)

Height v. Georgia, 2004 WL 2495008 (Ga.  11/8/2004) Height was entitled to present  favorable polygraph results as mitigating evidence in penalty phase of capital murder trial.

Jenkins v. Georgia, 2004 WL 2495007 (Ga. 11/8/2004) Relief granted as  admission of statements made by defendant's uncle who died prior to  trial would violate defendant's right of confrontation.

Henry v. Georgia, 2004 WL 2495023 (Ga. 11/8/2004) The trial court erred when it allowed the State to argue during the sentencing phase that defendant deserved the death penalty because he posed a future danger to those in the prison system;  "it is improper for the State to argue that a defendant will kill in prison simply because he killed while free."

Reddish v. New Jersey, 2004 WL 2533229 (N.J. 11/10/2004)  The admission of evidence that Reddish was in custody on unrelated charges when he confessed and the erroneous instructions on the inability of police to locate the victim's body are errors that, cumulatively, warrant reversal of the conviction.

Ex Parte Bell, AP- 75,038 (Tex.Crim.App.  11/10/2004)  Relief granted on mental retardation claims.

Ex Parte Valdez, AP- 75,039 (Tex.Crim.App.  11/10/2004)  Relief granted on mental retardation claims.


CAPITAL CASES (Other Than Favorable)

Baird v. Davis,  2004 WL 2567903 (7th Cir. 11/12/2004)  Relief denied on  claims relating to whether Baird was insane at the time of the crime, whether the mitigating circumstance of his mental disorder outweighed the aggravating circumstance;  whether the Indiana Supreme Court disregarded statutory mitigating factors, and whether the state court's factual finding, that petitioner killed because of his fear his grandiose plans would be exposed as a fantasy, was unreasonable.

Wolfe v. Dretke, 2004 WL 2538383 (5th Cir 11/10/2004) (unpublished) Relief denied on claims arising from trial counsel's handling of the prosecution's DNA evidence, lack of contact with Wolfe, the failure to take statements from witnesses, the failure to obtain a plea bargain agreement, and the failure to call defense witnesses.

Hughes v. Mississippi, 2004 WL 2536113 (Miss. 11/10/2004) (dissent)  Relief denied on claims including:   trial counsel's failing to secure an expert concerning victim's time of death; failing to call alibi witnesses; admission of a  prior felony conviction for rape of a seven-year-old child as a crime of violence; failure to investigate and present certain mitigation; prosecutorial comments that defendant failed to take responsibility for his actions as a comment on going to trial; and mental retardation.

Ohio v. Cunningham, 2004 WL 2496525 (Ohio App. 3 Dist. 11/8/2004)  Relief denied on claims including failure to retain a ballistics expert and prepare for ballistics related testimony; failure to investigate, prepare and present mitigation evidence; failure of the state to provide police summaries of witness statements; and failure to grant discovery and money for expert funds.

Ohio v. Wogenstahl, 2004 WL 2567655 (Ohio App. 1 Dist. 11/12/2004)  Relief denied on claims  that the prosecutors in the case withheld evidence and suborned perjury.  Although the alleged subornation was held harmless the Prosecutors' involved  appear to have been referred to bar counsel for disciplinary action. 

Anderson v. Dretke,  2004 WL 2583437 (N.D.Tex. 11/12/2004)  Magistrate's report and recommendation finds "petitioner is mentally competent to make this decision to forego further federal habeas corpus action by which he could seek to vacate his state conviction for capital murder and sentence of death."

Knight v. Dretke, 2004 WL 2549164 (N.D.Tex. 11/10/2004)  Magistrate's report and recommendation indicating that a COA should not issue on any claim including:  suppression of exculpatory evidence; ineffective assistance of counsel in the investigation of evidence of mental condition and/or mitigating evidence;  two written statements having been obtained in violation of petitioner's rights as set forth in Miranda v. Arizona; the claim that other statements given by petitioner were coerced; and the claim with respect to the alleged wrongful exclusion of a juror in violation of Witherspoon v. Illinois.


OTHER NOTABLE CASES

None currently noted.

HOT LIST

Height v. Georgia, 2004 WL 2495008 (Ga.) Height was entitled to present  favorable polygraph results as mitigating evidence in penalty phase of capital murder trial.

Height filed a pretrial motion, seeking a ruling as to the admissibility of the result of the polygraph test as mitigation evidence during the penalty phase of the case. The trial court held a hearing at which the polygraph operator who administered the test, retired GBI Agent Swanee Owen, testified. According to Agent Owen, the examination of Height was one of approximately 3,000 polygraph tests that she conducted during her 25-year GBI career. After she informed Height of his Miranda rights and told him that the test would concern the murder, he signed a waiver. During the polygraph test, she asked him four questions pertaining to the crime: whether he caused any injuries to the victim; whether he was participating in a plan to cover up the death; whether he knew who the killer was; and, whether he lied to the police when he said he did not see Mr. Wood on January 2. Heigh gave a negative response to each of these questions and, based upon the charts generated by the polygraph, Agent Owen concluded that he was not being deceptive in his answers.

However, Agent Owen also noted her concerns about the reliability of the test. She indicated that, at the time, she believed that the examination was being administered too early in the investigation, but that her superiors instructed her to proceed despite her objections. Agent Owen's disagreement with the timing of the test was based upon the lack of specifics concerning the crime, such as information about the murder weapon, which required that she pose questions that were too general to elicit an accurate polygraph response. She also expressed her belief that conducting the test only one day after the murder could skew the result because, psychologically, the perpetrator of a crime may not accept responsibility for his actions until some time afterwards. Agent Owen further testified that she had less confidence in Height's test than any of the thousands of others she had administered.

*2 The trial court initially ruled that the test result could be admitted as mitigation evidence. Subsequently, however, it issued an order acknowledging that, despite the less rigorous standard of admissibility for evidence proffered in the penalty phase, "a review of the relevant cases makes clear that polygraph evidence is limited to the narrow exception requiring a stipulation by both parties."

[1][2] As the trial court correctly observed, it has long been recognized that, in Georgia, polygraph results are inadmissible at trial unless both parties stipulate otherwise. See Harper v. State, 249 Ga. 519, 524(1), 292 S.E.2d 389 (1982); State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977). See also Butts v. State, 273 Ga. 760, 766(14), 546 S.E.2d 472 (2001). The need for each party to stipulate to admissibility is a consequence of "[t]his Court's decisions regarding polygraph science ... [which] have held polygraph results inadmissible because they are unreliable. [Cit.]" Butts v. State, supra at 767(14), 546 S.E.2d 472. This bar to the admission of unstipulated polygraph results appears to be consistent with the position taken by a considerable number of other jurisdictions. See Lee v. Martinez, 136 N.M. 166, 96 P.3d 291, 310-311 (N.M.2004) (noting that 17 states, including Georgia, admit polygraph evidence only by stipulation of both parties).

[3][4] However, an inflexible prohibition on admission of polygraph evidence absent a stipulation conflicts with our recognition of the expansive scope of the evidence that the defendant in a capital case in this state may present in mitigation of his sentence. Georgia law is

permissive with regard to the scope of mitigating evidence that a jury may consider in the sentencing phase. OCGA § 17-10-30 is wholly silent on the definition of mitigating circumstances, and the "conclusion is inescapable that the legislature meant to empower the jury to consider as mitigating anything they found to be mitigating, without limitation or definition." [Cit.] ... [A] trial court "should exercise ... broad discretion in allowing any evidence reasonably tending toward mitigation.' " [Cit.] (Emphasis in original.)

Barnes v. State, 269 Ga. 345, 358-359(27), 496 S.E.2d 674 (1998). See also Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (the hearsay rule may not be applied mechanistically in the sentencing phase of a capital trial to "defeat the ends of justice"); Collier v. State, 244 Ga. 553, 567(11), 261 S.E.2d 364 (1979) (mitigation evidence that is ordinarily inadmissible under an evidentiary rule must not be excluded automatically in the sentencing phase). If Height is found guilty of murder, the jury might conclude that the result of his police-administered polygraph is a factor weighing against the imposition of the death sentence. See Barnes v. State, supra at 359(27), 496 S.E.2d 674; Head v. Ferrell, 274 Ga. 399, 405(V)(A), 554 S.E.2d 155 (2001) (mitigating evidence consists of "anything," including "residual doubt," that might persuade a jury to impose a sentence less than death). Other jurisdictions with similar bans on the admission of polygraph evidence recognize a limited exception when the defendant seeks to present favorable polygraph evidence in the sentencing phase of a death penalty trial. See State v. Porter, 241 Conn. 57, 698 A.2d 739, 779(III) (Conn.1997) (Connecticut's per se ban on the admission of polygraph evidence does not apply to mitigation evidence presented during the sentencing phase of a death penalty trial); State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079, 1089(II) (Wash.1984) (polygraph evidence may be admissible by defense at sentencing phase of a capital case). See also Paxton v. Ward, 199 F.3d 1197, 1211-1216(I)(B) (10th Cir.1999) (prosecution may not apply a per se bar on polygraph evidence so as to abridge a capital defendant's right to present mitigating evidence in seeking imposition of a sentence less than death); Rupe v. Wood, 93 F.3d 1434, 1439-1441 (9th Cir.1996) (trial court's refusal to admit polygraph results in penalty phase pursuant to general rule of inadmissibility violated capital defendant's right to present mitigating evidence).

*3 [5][6][7] Therefore, we conclude that Georgia's general ban on the admission of polygraph test results absent the parties' stipulation should not be applied automatically in the sentencing phase of a capital case so as to prevent the defendant from presenting a favorable polygraph test result. "[E]videntiary rules may be trumped by a defendant's need to introduce mitigation evidence. [Cits.]" Barnes v. State, supra at 358(27), 496 S.E.2d 674. Therefore, to the extent that Baxter v. Kemp, 260 Ga. 184, 187(8), 391 S.E.2d 754, fn. 4 (260 Ga. 184, 391 S.E.2d 754) (1990) or any other case intimates that unstipulated polygraph results are per se inadmissible as mitigation evidence, it is hereby overruled. We caution, however, that today's holding should not be misconstrued as authorizing the admission of polygraph test results in the penalty phase of every capital case. While the scope of permissible mitigation evidence is wide, it is not so extensive as to allow "the wholesale admission of all evidence contended to be mitigating without respect to its reliability ..." Gissendaner v. State, 272 Ga. 704, 714(12), 532 S.E.2d 677 (2000). When the defendant seeks to introduce unstipulated polygraph test results as mitigation evidence, the trial court must exercise its discretion to determine whether those results are sufficiently reliable to be admitted. See Gissendaner v. State, supra (when determining the admissibility of proffered mitigating evidence, the trial court must consider whether substantial reasons exist to assume its reliability). See also People v. Maury, 30 Cal.4th 342, 133 Cal.Rptr.2d 561, 68 P.3d 1, 65- 66(D)(1) (Cal.2003) (court did not err by finding capital defendant's favorable polygraph test result to be inadmissible in the penalty phase because its possible probative value was outweighed by its "doubtful reliability"). In this case, the trial court did not make any findings of fact with regard to the reliability of the unstipulated polygraph test administered to Height, but instead applied the per se rule of inadmissibility of such results. Therefore, we reverse the judgment and remand the case to the trial court for a ruling on the reliability of the particular polygraph test that Height seeks to admit in the penalty phase.

FOCUS

Back next week

FROM AROUND THE WEB

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

NEW RESOURCE: The American Prospect Issues Special Report on U.S. Human Rights
The latest edition of The American Prospect features a series of articles by prominent writers and human rights leaders regarding the effect of the international movement for human rights on the U.S. Two of the articles highlight U.S. death penalty policies. Yale Law School Dean Harold Hongju Koh points out the conflict between the U.S.'s efforts to support international human rights and our domestic practices such as the use of the juvenile death penalty. "In my view, by far the most dangerous and destructive form of American exceptionalism is the assertation of double standards. For by embracing double standards, the United States invariably ends up not on the higher rung but on the lower rung with horrid bedfellows - for example, such countries as Iran, Nigeria, and Saudia Arabia, the only other nations that have not in practice either abolished or declared a moratorium on the imposition of the death penalty on juvenile offenders."

A second article, Criminal Justice and the Erosion of Rights by human rights scholar Deborah Pearlstein, examines the impact of legislation such as the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and The PATRIOT Act on capital cases. Pearlstein notes, "While human-rights observers have rightly focused on terrorism-related developments in the U.S. criminal justice system, the trend toward limited procedural protections for defendants and a shrinking judicial role well predates the September 11 attacks. Indeed, security has been a central justification for rights-limiting changes in the criminal-justice system for decades." Among the other authors in the series are Anthony Lewis, John Shattuck, Gay McDougall, Cass Sunstein, Gara LaMarche, and Mary Robinson. (The American Prospect, October 2004) See International Death Penalty, Juvenile Death Penalty, and Federal Death Penalty.


NEW RESOURCE: Capital Punishment Research Initiative
Based at the State University of New York's Albany campus, the Capital Punishment Research Initiative (CPRI) is dedicated to conducting and supporting empirical and historical studies of the death penalty. CPRI research is conducted by the University's graduate students and professors, as well as by collaborating researchers from around the country. The center's current projects include:

    * Capital Jury Project II - Research on the decision-making of capital jurors. This research draws on the literature concerning cognitive schema, identification and empathy, the interpersonal dynamics of persuasion in groups, and the interplay of race, gender, and social class. The study builds on recently developed findings of stark differences in the decision-making patterns of black and white jurors from the national Capital Jury Project (CJP).
    * Abolitionist Oral History Project - This program involves conducting interviews with a wide variety of American activists in an effort to build an oral history of the mid-20th century and post-Furman movement to end capital punishment in America.
    * National Death Penalty Archives - One of the original goals of the CPRI was to establish and maintain a collection of archival materials to document the history of capital punishment and preserve resources for historical scholarship. Through collaboration with the University at Albany Library’s M.E. Grenander Department of Special Collections and Archives, the CPRI has established the National Death Penalty Archives (NDPA).
    * Clemency Petitions as a Key to Wrongful Executions - This project involves the acquisition annd analysis of clemency petitions and related materials filed in capital cases across America. The Clemency Project intends to acquire an estimated 600-700 such petitions and associated materials, and complete an analysis that uses this material. In essence, these clemency requests can be viewed as a window on the processing of capital cases, and as a source of uniquely detailed information on the nature of faults previously identified in the administration of the death penalty.

Researchers at CPRI are also collaborating on two new projects, a study of state and federal death rows and a study of murder victims' family members. To learn more about the CPRI, visit its Web site. See Resources.


Juveniles and the Mentally Disabled More Likely to Give False Confessions
Studies and surveys have found that both minors and the mentally impaired are more likely to make false confessions, in part because they are more vulnerable to suggestion. A recent study conducted by Northwestern University law professor Steve Drizin and UC Irvine criminologist Richard Leo examined 125 cases in which individuals were exonerated after giving false confessions. The researchers found that 32% of the cases involved minors and 22% of the cases involved individuals with mental retardation. "They are more likely to go along, agree and comply with authority figures - to say what the police want them to say - than the general population," notes Emory University professor Morgan Cloud, who co-wrote another study that found that the mentally impaired - even those who with mild forms of mental retardation - are largely incapable of understanding police admonitions of their right to remain silent and to have an attorney.

A study published in the University of Chicago Law Review examining comprehension of Miranda rights found that only 27% of disabled persons understood that confessions can be used against a suspect, while 91% of nondisabled persons understood this concept. Disabled subjects were also found to be far less likely to understand that police cannot threaten suspects, that police and judges cannot force suspects to talk, and that there is no penalty for remaining silent. While juveniles and those with mental impairments are most likely to succumb to psychological pressure and make erroneous admissions during intense police interrogations, experts note that even the able-minded are at risk. Social scientists and legal experts say the best way to ensure that confessions or admissions are truthful is to require detectives to tape them from the Miranda warning in the first interview until the end of all subsequent interviews. Some states, including Alaska and Minnesota, already require this type of videotaping. UC Berkeley sociologist Richard Ofshe notes that video or voice recordings of confessions would reduce false confessions by as much as 90% because it would stop coercive tactics that are sometimes used by police. (Los Angeles Times, October 30, 2004). See Innocence, Juveniles, and Mental Retardation.


Justice Department Releases "Capital Punishment, 2003"
Mirroring statistics released this year in the Death Penalty Information Center's Innocence Report, the Justice Department's Capital Punishment, 2003 revealed that the nation's death row is continuing to decline and that the amount of time between death sentencing and execution has increased. Compiled by the Bureau of Justice Statistics, the report noted that 3,374 inmates were on death row at the conclusion of 2003, 188 fewer than a year earlier. It also found that the average elapsed time from sentencing to execution increased to almost 11 years in 2003. In 2003, 267 people on death row had their death sentences overturned or removed, the largest number since 1976, a figure that reflects the decision of former Illinois Governor George Ryan to commute 144 death sentences and pardon four men on death row prior to his leaving office. The Justice Department review noted that the number executions and the number of persons sentenced to death also declined last year. (Dept. of Justice Press Release, November 14, 2004). Read Capital Punishment, 2003. DPIC will be releasing its 2004 Year End Report in December. See DPIC's Innocence Report.


California's Record on Wrongful Convictions
A recent San Francisco magazine article entitled "Innocence Lost," examines California's record of wrongful convictions. The researchers report that the nation's largest criminal justice system has sent more innocent people to prison for longer terms than any other state. Among the exonerees are three from the state's death row and nearly 200 people who were serving either life or very long terms. The magazine notes that despite these numbers, state lawmakers have repeatedly passed up opportunities to put safeguards in place that could prevent such errors from happening in the future. Among other key finding's in the magazine's year-long review of wrongful convictions were the following:

    * Over the past 15 years, at least 200 California inmates have been freed after courts found they were unjustly convicted - nearly twice the number of exonerations as in the next two states (Illinois and Texas) combined.
    * California has been sentencing people to life at an alarming rate. More than 30,000 inmates are serving life terms, twice as many as in the entire European Union, which has a population 12 times larger. Approximately 17% of California inmates are lifers, compared to 9% of prisoners in the U.S. as a whole.
    * Some 63% of wrongful convictions in San Francisco's research sample of 30 cases involved serious police error or misconduct. Some 47% of wrongful convictions in the sample involved serious prosecutorial error or misconduct. More than 90% were upheld on direct appeal.
    * In a survey of 676 voters conducted for the magazine by David Binder Research, 69% believe lifers should have the same rights to free attorneys and levels of appeal as people facing execution. Of those polled, 61% also support adding safeguards to prevent wrongful life sentences and 78% favor firing police or prosecutors who break the rules to get a conviction. Currently, action is rarely ever taken against these individuals.
    * While DNA databases may be helpful in freeing some wrongly convicted individuals, only about 10% of criminal cases have any biological evidence - blood, semen, etc. - to test.
    * California's "three strikes" law has added approximately 7,500 people serving life terms to the state's prisons. It has pressured some innocent people to accept deals and plead guilty to crimes they didn't commit rather than risk the automatic life sentence of a third strike.

(San Francisco, November 2004) Read the article (pdf format). See Innocence. See Life Without Parole.


Inmate Exonerated of Murder After His Death; Co-Defendant Who Had Been Given Death Sentence Exonerated Earlier
A murder charge against Louis Greco was finally dismissed by Massachusetts authorities 9 years after he died in prison. According to the Associated Press, in 2000, a Justice Department task force uncovered secret F.B.I. memoranda showing that Mr. Greco and three co-defendants, Peter J. Limone, Joseph Salvati, and Edward Tameleo, had been wrongly convicted of a murder that occurred in 1965 based on perjured testimony. (Limone had been sentenced to death, but was later released and exonerated in 2001. Tameleo also died in prison.) The F.B.I.'s relationship with mob informers has been the subject of a Congressional inquiry. In September 2004, a federal judge allowed a suit filed by Limone, Salvati and Greco's family for malicious prosecution and wrongful imprisonment to go forward. In exonerating Greco, assistant district attorney, Mark Lee, of Suffolk County said: "It appears that justice may not have been done." (N.Y. Times, Nov. 5, 2004). Limone was spared execution when Massachusetts abolished the death penalty in 1974. See DPIC's Innocence List for a description of Peter Limone's case.


NEW RESOURCE: New York's Wrongful Convictions
Scott Christianson's new book, Innocent: Inside Wrongful Conviction Cases, examines mistakes in New York's criminal justice system with an emphasis on mistaken identifications, perjury by eyewitnesses, ineffective counsel, false confessions, and police and prosecutorial misconduct. The book includes a log of the state's wrongful conviction cases, including some capital cases. Christianson reminds readers, "Unfortunately, not much is known about the current nature and extent of wrongful conviction. The state does not maintain a master list of its mistakes." He does applaud state and national efforts to review and improve accuracy, including programs such as The Innocence Project at Cardozo Law School and North Carolina's study to investigate the causes of wrongful convictions. (New York University Pres, 2004). See Resources and Innocence.


NEW RESOURCE: Gubernatorial Politics and Executions
The University of Chicago Law School's Journal of Law and Economics features an article by researchers Jeffrey Kubik and John Moran examining the relationship between politics and executions. In their article, Lethal Elections: Gubernatorial Politics and the Timing of Executions, Kubik and Moran found that states are about 25% more likely to conduct executions in gubernatorial election years than in other years. They also found that the effect of elections on executions is more pronounced for African-American defendants than for white defendants and is larger in the South than in other areas of the country. (46 Journal of Law and Economics 1 (2003)) See Law Reviews.

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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).  If you are a lawyer currently representing capital defendants or death row inmates or considering representing them, please feel join the capital defense discussion list by sending an email and a short one sentence bio to  capitaldefense-subscribe@onelist.com

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* Execution date information per Rick Halperin and other sources.