Laird v. Horn, 2005 U.S. App. LEXIS 14547 (3rd Cir 7/18/2005)  The trial court here did not explain that a co-conspirator can not be convicted of first-degree murder absent a shared specific intent to kill.

Cobb v. Dretke,  2005 U.S. App. LEXIS 14513 (5th Cir 7/18/2005)  Motion for COA dismissed as Cobb was a juvenile at the time of the offense.

Roberts v. Norris, 2005 U.S. App. LEXIS 14421 (8th Cir  7/18/2005)  Government's appeal of stay denied as moot as the stay was granted to protect jurisdiction to allow Roberts to file a habeas petition.  Habeas petition has subsequently filed rendering the need to enter stay moot.

The contention is that the same district attorney's office prosecuting Brooks for capital murder was prosecuting a member of the jury deciding his fate. This circumstance, however innocent on the part of the juror and however pure the motive of the prosecution in the filing of the initial charge, created an intolerable inherent risk of abuse. The argument is that throughout the sentencing phase of the trial and deliberations over the sentence, Garcia faced the reality that his own fate would be decided by a prosecutor exercising virtually unreviewable discretion over his offense--an offense that could have been charged up to a third degree felony.

The State argues that the state proceedings have demonstrated that there was no actual bias; that Brooks must rely on what, in the State's [*7]  view, is an unsettled doctrine: implied bias. It next replies that the arresting officer charged Brooks unlawfully carrying a weapon, a misdemeanor, n8 not the felony offense of going with a firearm into a courthouse; n9 that Garcia was in fact never charged with a felony and pled to the possession charge. Moreover, the State urges that it could not have sustained a felony prosecution on these facts in that the statute at the time required entry into a courtroom, although it was later amended to reach entry onto the premises of a courthouse. n10

This is not a case of jury tampering or outside information finding its way to a juror. Nor is it a case of misconduct by a juror while performing his duties, although he was headed into the courthouse to resume work as a juror. Rather, this case involves a juror, Garcia, who found himself in a position of potential conflict between his duty and his self-interest. Further, this is not a case where the trial judge failed to respond properly. To the contrary, on learning of Garcia's arrest, the trial judge questioned Garcia out of the presence of the other jurors and in the presence of all counsel, insuring that others had not and would not learn of what had happened. He also accepted the assurances of Garcia that this would have no effect on his deliberations. In short,  [*9]  there can be no claim of deficiency in the procedural response to the arrest of the juror. The trial judge did all that he could do, short of seating a new jury. n11

We cannot know whether Garcia's assurances of fairness were realized even if we accept as we do the trial court's finding of his credibility. In general, we have responded to this reality in two ways. In one small set of circumstances, we have been unwilling to accept a juror's claims of fairness; rather, we have implied bias and ordered new trials. n12 While we recently summarized the law in this circuit and need not march that ground again, n13 it bears emphasis that while we are persuaded that the principle of implied bias is settled federal law, its application has been confined to [*10]  a narrow range of cases. As Justice O'Connor once opined:

While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. n14

In a second [*11]  set of cases, we have refused to imply bias and held that post-verdict hearings to determine bias is an adequate response, guided in our path by Supreme Court precedent. n15 In Remmer v. United States, n16 the Court found presumptive prejudice in an unsuccessful effort to bribe a juror; but rather than order a new trial, instructed the trial judge to conduct a hearing into the circumstances to determine prejudice. n17 Then, in Smith v. Phillips, n18 the Court declined to imply bias where a juror in a murder trial applied for a job in the district attorney's office, a fact not disclosed until after the conviction. Reviewing caselaw, the Court summed up: "These cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation." n19 The Court continued:

Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case. n20

Justice [*12]  O'Connor concurred, making clear that in certain narrow circumstances where implied bias is found, "a hearing may be inadequate for uncovering a juror's biases." n21 We, in turn, made clear in United States v. Scott that the law in this Circuit tracks Justice O'Connor's view. n22

Lower courts have divided over whether Remmer's presumption of prejudice survived Phillips as well as the [*13]  later decision of the Court in United States v. Olano. n23 While a panel of this court concluded in United States v. Sylvester n24 that Remmer and Phillips had ended the "presumption of prejudice," it did not address implied bias, seeing the issue in Sylvester to be where the burden of proof properly lay. It held that the government had no burden to prove the absence of prejudice until the court on inquiry determines that prejudice is likely. The determination of implied bias is an objective legal judgment made as a matter of law and is not controlled by sincere and credible assurances by the juror that he can be fair. n25 By definition then, rules for hearings into actual bias such as shifting burdens of proof are not in play in the narrow range of cases in which it is implied.

Our question is whether Garcia's conduct is of the genre of cases Justice O'Connor pointed to in her concurring opinion in Phillips: juror conduct not salvageable by post event hearings. We think that the answer to this question is yes. Garcia was married with two young children. As he listened to the evidence in the sentencing phase and participated in the jury's decision of the State's contention that Brooks should be put to death he was facing a stunning turn of events in his own life. He could have been sentenced to a year in jail; worse yet, he could have faced a felony prosecution, notwithstanding the State's interpretation in this case of the older version of the Texas gun possession statute. True enough he was not an employee of the district attorney's office, but in practical ways his future was even more in its hands. Garcia testified that the sentencing hearing "was one entire week of hell" and he suffered "unrelenting embarrassment." He thought the matter of his arrest was to be held in confidence, but his "name and this case [was] the head story at twelve, five, six and ten o'clock for four straight days."

We do not suggest that being charged with unlawfully [*15]  carrying a weapon alone disqualified Garcia for jury service under state law or that any outstanding misdemeanor charge should support a finding of implied bias. It is rather the sum of all factual circumstances surrounding this juror--in particular, the power of the District Attorney, and the timing and sequence of events--that compels this conclusion. n26 As Lord Coke put it, a juror must be as "indifferent as he stands unsworne." n27 That there is no evidence that the District Attorney did anything to exploit his power over juror Garcia is of no moment. That the power presents an intolerable risk of working its will without the raising of a hand or a nod is the vice here.

Here, the Commonwealth argues that the district court improperly concluded that Laird's challenge to the trial court's accomplice liability charge was not subject to the deferential standard of AEDPA because the state supreme court never adjudicated it on the merits.

Thus, before we address the merits of the challenge to the accomplice liability instruction, we must determine whether the district court correctly identified the applicable standard of review. Holloway v. Horn, 355 F.3d 707, 718 (3d Cir. 2004).

The Commonwealth argues that the Pennsylvania Supreme Court's adjudication of Chester's claim that his trial counsel was ineffective for not objecting to the instruction is tantamount to a decision on the [*9]  merits of Laird's due process challenge to the instruction that must be afforded deference under AEDPA. The Commonwealth has not offered any authority to support the proposition that a ruling on a defendant's ineffectiveness of counsel claim constitutes a decision on the merits of a due process claim subsequently raised by the co-defendant on collateral review, and we can find no such authority. Moreover, the ephemeral nature of any such agency is particularly problematic here because Laird and Chester each attempted to blame the other for Milano's murder during their joint trial. n5

The Commonwealth's [*10]  position is even more untenable given the state supreme court's analysis of Chester's PCRA claim. In affirming the denial of Chester's PCRA petition, the Court also concluded that the challenge to the accomplice liability instruction had previously been litigated. However, it then noted that the claim had arguable merit as the charge was "facially inconsistent" with the court's decision in Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961, 962 (Pa. 1994). The Court stated: 

Although this claim was finally litigated for purposes of PCRA review, we must acknowledge the arguable merit of [Chester's] allegation. The charge on accomplice liability as given at petitioner's trial appears facially inconsistent with this court's holding in Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994). A general accomplice charge, while legally correct on the law of accomplice liability, when given in conjunction with a charge of first degree murder, must clarify for the jury that the specific intent to kill necessary for a conviction of first degree murder must be found present in both the actual killer and the accomplice. The rationale used by  [*11]  this court on direct appeal in resolving this issue fails to acknowledge this distinction.

Commonwealth v. Chester, (Chester II), 557 Pa. 358, 733 A.2d 1242, at 1253 n.12 (emphasis added). The Court thus admitted th\at its reasoning on direct appeal in Chester I failed to acknowledge that an accomplice instruction involving a charge of first-degree murder must inform the jury of the need to find that the accomplice shared the specific intent to kill the victim. n6

evertheless, the Court held that Chester had not been prejudiced by the charge because he had been convicted of conspiracy to commit first-degree murder, and the jury therefore must have found the requisite intent beyond a reasonable doubt. However, as we note below in discussing our recent decision in Bronshtein v. Horn, that reasoning is flawed. Laird and Chester were convicted of conspiracy to commit murder. [*12]  Since second and third degree murder do not require the specific intent to kill, see 18 Pa. C.S.A. � 2502, we can not agree with the state court's harmless error analysis.

Although even a cursory reading of Chester I establishes that the state supreme court never addressed the merits of Laird's due process claim, the Commonwealth nevertheless argues that "the district court's finding that the Pennsylvania Supreme Court rejected [Laird's accomplice liability claim] without ever having reviewed it is clearly not supported by the record." Appellant's Br. at 25. That is clearly wrong.

Moreover, the weakness of the Commonwealth's position is underscored by the Pennsylvania Supreme Court's decision in Laird I rejecting the contention that Laird's claim of inconsistent verdicts had been previously litigated on direct appeal. The Court explained: "only co-defendant Chester raised this issue, it has not been finally litigated by [Laird]." Laird I, 726 A.2d at 355. Therefore, the state supreme court did not intend for its resolution of claims raised by one defendant to control unlitigated claims of the co-defendant.

Alternatively,  [*13]  the Commonwealth argues that if Laird did not raise the accomplice liability instruction on direct appeal, we can not review it on habeas review because Laird can not establish the "cause and prejudice" or "miscarriage of justice" required for reviewing a procedurally defaulted claim. According to this alternative position, "Laird, as Chester did, could have raised this issue on direct appeal and it would have been addressed by both the state trial and the Pennsylvania Supreme Court." Appellant's Br. at 25. The district court rejected this argument and so do we.

The district court correctly concluded that Laird's accomplice liability claim is not procedurally defaulted. We will affirm that conclusion for substantially the reasons set forth by the district court in its well-reasoned opinion. See Laird II, 159 F. Supp. 2d at 70-77. n7 For the reasons that follow, we also affirm the district court's conclusion that the trial court's accomplice liability instruction denied Laird a fair trial in violation of the Due Process Clause of the Fourteenth Amendment.

A. The Accomplice Liability Charge.

HN4Go to the description of this Headnote.In In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), the Supreme Court held that due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364. Laird argues that the jury instructions pertaining to accomplice liability for first-degree murder relieved the Commonwealth of its burden of proving beyond a reasonable doubt that he intended to kill Milano.

HN5Go to the description of this Headnote.Under Pennsylvania law, first-degree murder requires the specific intent to kill, and that mens rea is also required of accomplices and co-conspirators. See 18 Pa. C.S. � 2502(a); Smith v. Horn, 120 F.3d 400, 410 (3d Cir. 1997) (citing Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (Pa. 1994)). HN6Go to the description of this Headnote.On habeas review, we must analyze the challenged portions of the jury instruction in context with the entire charge and determine "whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way that violates the Constitution."  [*15]  Smith, 120 F.3d at 411.

During the guilt phase of Laird's trial, the court gave the following instruction on accomplice liability:


App. at 231-32. Thereafter, the court gave the following instruction on first-degree murder:

App. at 253-54.

As noted above, Chester and Laird both testified that the other killed Milano. Each defendant admitted participating in the kidnaping, but denied any intent to kill Milano or to help the other kill him. Since Laird was convicted of conspiracy, kidnaping and aggravated assault as well as murder generally, he argues that the instructions allowed the jury to convict him of first-degree murder as Chester's accomplice even if the jury was not convinced of a shared intent to kill. The Commonwealth attempts to counter by arguing that "it is logical that the subsequent references to 'accomplice' were made in reference to the particular offense that the trial court was discussing." Appellant's Br. at 35. The Commonwealth therefore urges us [*17]  to infer that the jury understood an "accomplice" to first-degree murder must have the specific intent to kill required for a conviction of that crime.

However, that argument stretches the contours of the challenged jury instruction beyond the words of the charge. Moreover, we have already rejected the identical position in Smith. There, Smith and his accomplices killed their victim while robbing a pharmacy, and the trial court gave an accomplice liability charge that was nearly identical to the one at issue here. Relevant portions of that charge are quoted at length below. n8 Smith claimed that the charge denied him a fair trial. In reviewing the challenged jury instruction, we said: "nothing in this charge would lead the jury to think that, when the court instructed the jury on murder, and the court used the word 'accomplice,' that word meant only 'accomplice in the murder.' Indeed, this charge reinforces the notion that an accomplice for one purpose is an accomplice for all purposes." Id. at 414. That is precisely the problem here.

The Commonwealth attempts to distinguish Smith by arguing that the only focus of Chester and Laird was harming Milano. According to the Commonwealth, unlike Smith, Laird and Chester did not also agree to commit a crime such as theft or robbery. However, that position ignores the record. Chester and Laird were also convicted of kidnaping, aggravated assault, false imprisonment, and unlawful restraint. Given the court's instruction on accomplice liability, the jury could easily have convicted Laird of first-degree murder based on his conspiring with Chester to kidnap or assault Milano even if jurors were not convinced beyond a reasonable doubt that Laird intended to kill him.

The Commonwealth also points out that the trial court instructed the jury that a defendant could not be found guilty of first-degree murder unless the defendant was "at that time, capable of forming a specific intent to kill . . . ." App. at 261. However, that instruction was given in the context of a charge on the diminished capacity defense to first-degree murder.   When that defense is implicated, voluntary intoxication can reduce first-degree murder to third-degree murder by raising a reasonable doubt about [*19]  the perpetrator's ability to form the specific intent to kill. See Whitney v. Horn, 280 F.3d 240, 254 (3d Cir. 2002) (citing Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (Pa. 1975)). Given that context, we can not conclude that such a brief reference to the required mens rea for first-degree murder remedies the incorrect and misleading portion of the instruction.  "Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. [We have] no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis v. Franklin, 471 U.S. 307, 322, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985).

Moreover, the problem here is exacerbated because, as noted above, the Pennsylvania Supreme Court, while recognizing the problem with the instruction, did not attempt to resolve it.

Thus, inasmuch as Laird's claim was not adjudicated on the merits by the state court, the district court correctly concluded that AEDPA's deferential standard of review does not apply and that the instruction was erroneous. This does not, however, end our inquiry. We [*20]  must still determine if the error was harmless as the Commonwealth claims and as the Pennsylvania Supreme Court suggested in Chester II.

Attempt to Strip the Federal Courts' Review Power in Death Penalty Cases Meets Conservative Opposition
The following article by Henry Weinstein appeared in the Los Angeles Times, July 28, 2005:

(DPIC Note: The Senate Judiciary Committee put off markup of the Streamlined Procedures Act, probably until September.  Also, see Letter from former Attorneys General and prosecutors opposing this legislation.)



Editorial Criticizes Proposed Bill to Limit Death Penalty Appeals
A recent Philadelphia Inquirer editorial criticized the proposed "Streamlined Procedures Act," federal legislation that would deny or sharply restrict the reach of federal judges in hearing habeas-corpus claims from those on death row. Noting that the measure would increase the possibility of executing an innocent person, the editorial stated:


(Philadelphia Inquirer, July 23, 2005) See Innocence, Representation, Recent Legislative Activities


Birmingham News, Chicago Tribune, "Deadline" Documentary to Receive DPIC Journalism Awards
The Death Penalty Information Center (DPIC) will honor journalists from The Birmingham News and The Chicago Tribune, and directors from Big Mouth Productions during its 9th Annual Thurgood Marshall Journalism Awards at the National Press Club on Monday, July 25. The awards recognize those journalists who have made an exceptional contribution to the understanding of problems associated with capital punishment.

This year’s ceremony will feature the first-ever Thurgood Marshall Journalism Award for Excellence in the Posthumous Exploration of Innocence. The honor will go to Chicago Tribune reporters Steve Mills and Maurice Possley for their article about the capital conviction of Cameron Todd Willingham, who was executed in Texas last year. Willingham had been convicted and sentenced to death for the arson murder of his three daughters, but had maintained his innocence since his arrest. An investigation of the state’s case against Willingham revealed that his conviction was based primarily on arson theories that have since been repudiated by scientific advances.

The Award for Excellence in Print Journalism will be awarded to Carla Crowder, a reporter with The Birmingham News. Crowder will receive the honor for her achievements in giving voice to both sides of the death penalty debate in Alabama. Crowder’s articles have profiled the individual life histories of the executed, the economic and personal struggles faced by those who have been exonerated from death row, and the stories of those who continue to await their executions. In 2004, Crowder wrote about the life of David Hocker, who was executed in Alabama late last year. Hocker was convicted of capital murder after a one-day trial, sentenced to death after his attorney presented no mitigation evidence, and was executed with no post-conviction review. In her series on Hocker, Crowder did what no attorney or social worker had ever done before: tell Kevin Hocker’s life story.

Directors Katy Chevigny and Kirsten Johnson of the New York-based Big Mouth Productions will receive the Award for Excellence in Broadcast Journalism for their documentary “Deadline.” This film, which was featured last year by Dateline NBC, gave viewers a first-hand look at the emotional events surrounding former Illinois Governor George Ryan’s historic decision to pardon four men and offer clemency to the remaining 167 people on the state’s death row due to his concerns about the fairness and accuracy of Illinois’s death penalty. Though he had been a tough-on-crime death penalty supporter for nearly two decades, Ryan’s opinion about capital punishment was shaken when he watched a group of journalism students discover evidence that exonerated a man from death row just before his scheduled execution. In the film, Chevigny and Johnson give viewers an insider’s look at Ryan’s courageous actions and America’s death penalty debate.
See Thurgood Marshall Journalism Awards.


Federal Death Penalty in Non-Death Penalty States
The federal death penalty was reinstated in 1988 with a limited statute for murders in the course of a drug conspiracy. It was expanded to 60 offenses in 1994 and included crimes such as carjacking and drive-by shootings if a death results. During the Clinton administration, no one from a non-death penalty state was sentenced to death. Since 2000, there have been at least 5 individuals in non-death states who have received death sentences: 2 in Iowa (Dustin Honken and Angela Johnson), 1 in Massachusetts (Gary Sampson), 1 in Michigan (Marvin Gabrion), and most recently, 1 in Vermont (Donald Fell). A total of 40 people are now under a federal death sentence (in some cases, a judge has not formally imposed the sentence). See Federal Death Penalty

New York Assemblyman Joseph Lentol will deliver the keynote address at the awards luncheon. Earlier this year, Lentol, who is Chair of the Assembly’s Committee on Codes, played a pivotal role in the committee’s historic vote not to reinstate capital punishment in New York. A former death penalty proponent, Lentol’s position on the issue began to evolve after the state’s statute was declared unconstitutional in 2004 and the Assembly held a series of public hearings to determine the best course of action regarding the future of capital punishment in New York.

The Thurgood Marshall Journalism Awards are named in honor of the late Supreme Court Justice who believed that people would see the death penalty in a new light once they understood how it works in practice. “The question with which we must deal,” Justice Marshall wrote, “is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in light of all information presently available.”

The distinguished judges for this year’s Awards were Loren Ghiglione, Dean of the Medill School of Journalism at Northwestern University, and Virginia Sloan, Executive Director of The Constitution Project.

Entries for next year’s awards must be published or produced in 2005 and should be submitted to the Death Penalty Information Center by January 31, 2006.

China to give increased scrutiny to death penalty
Executing Atkins?

Iran executes three juvenile offenders

Will Atkins get the benefit of Atkins?
Earlier this year, the New York Times ran this article providing a remarkable account of how and why Daryl Atkins — who was the defendant at the center of the Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits executing mentally retarded offenders — may now be scoring high enough on IQ tests to permit his execution to go forward.  Thanks to Howard at How Appealing, this post provides a collection of more recent articles discussing the special jury trial which started this week with the sole purpose of deciding whether or not Daryl Atkins is mentally retarded and thus constitutionally exempt from the death penalty.
This lengthy article from the Washington Post provides a thoughtful account of Daryl Atkins' life and crime, as well as his long legal saga and current legal realities.  Especially interesting is not only the article's account of the evidence each side now will present to the jury to support or dispute Atkins' claim of mental retardation, but also the basic fact that to spare Atkins' life the "defense must prove retardation 'by a preponderance of the evidence.'"

THE SMALL PRINT
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ISSN: 1523-6684

* Execution date information per Rick Halperin and other sources.