Another edition, another exoneration. With only minor cases noted during this edition's coverage period (April 21 -28) the important news is on the exoneration front.  DPIC notes

Staying on the exoneration front (albeit noncapital), the Innocence Project of Texas  finally got James Lee Woodard free, he had spent 27 years and four months behind bars for a rape and murder he did not commit.

In the other news of the week, the post-Baze uncertainty continues as Mississippi’s Attorney General has asked that Earl Wesley Berry be executed May 5, 2008 with no decision yet from the Mississippi Supreme Court. The Atlanta Journal-Constitution reports  that Georgia's lethal injection procedure withstood challenge in federal district court.  The Washington Post notes that Virginia has asked the Supreme Court,to  permit  the Commonwealth to resume executions.  Lastly, and on a non-Baze note, "the state of New Mexico agreed to drop its pursuit of the death penalty against two defendants because the state legislature did not provide the money necessary for adequate representation of the defendants, who were accused of killing a prison guard."

At the end of this edition is six month look ahead of CLE opportunities in all regions of the country.  If you know of a CLE that is missing please let us know.

Finally, next week's edition will not run as I will be on vacation.  As always thanks for reading. - k

Week of April 21, 2008 – In Favor of the Defendant or the Condemned

• Anthony Cardell Haynes v. Quarterman, 2008 U.S. App. LEXIS 8735 (5th Cir 4/23/2008) "In light of the Supreme Court’s recent decision in Snyder v. Louisiana, 128 S.Ct. 1203 (2008), we conclude that Haynes is entitled to a COA in connection with his Batson claims in respect to potential jurors Owens and McQueen."

• Steven Victor Wertz v. State, 2008 Ark. LEXIS 266 (Ark 4/17/2008) (unpublished) Motion to file belated brief is granted

Week of April 21, 2008  – In Favor of the State or Government

• Marvallous Keene v. Mitchell, 2008 U.S. App. LEXIS 8926 (6th Cir. 4/25/2008) Relief denied  on two issues that "were certified for appeal: (1) whether Keene was denied equal protection when the prosecutor allegedly selectively prosecuted him because he is African-American; and (2) whether his due process rights were violated when a pretrial identification procured by allegedly unduly suggestive procedures was admitted into evidence at trial."

• People v. Samuel Zamudio, 2008 Cal. LEXIS 4431(CA 4/21/2008) "Conviction and death penalty for first-degree murder and residential robbery is vacated as to one multiple-murder special circumstances finding but otherwise affirmed in its entirety over claims that trial court erred during guilt phase on multiple evidentiary rulings, during penalty phase on multiple instructional rulings, and that the cumulative effects of errors were prejudicial and required reversal." [via Findlaw]

• State v. John Montenegro Cruz, 2008 Ariz. LEXIS 49 (Az 4/21/2008) "Cruz raises twenty-two issues on appeal and lists an additional twenty-one issues to avoid preclusion." Most notable appear to be a fairly strong change of venue claim, that the trial court erred by allowing a "visibly intoxicated" woman to testify, and Cruz was forced to wear a "shock belt"  during trial which impeded his ability to consult with counsel.

• State v. Anthony Bell, 2008 La. LEXIS 865 (LA 4/15/2008) Two day stay granted after pro se defendant decides that maybe he didn't do such a great job representing himself in the guilt phase (as the jury convicted him on all counts) and that maybe his public defenders should represent him in the penalty phase.  The defense had asked for 60 days. (link provided goes to the concurrence and dissent, however, this press account provides a better source of what happens than either the dissent or concurrence.)

• Ellis Louis Mashburn, Jr. v. State, 2008 Ala. Crim. App. LEXIS 90 (Ala. Crim. App 4/25/2008) On return to remand for the trial judge to reweigh aggs vs. mits and to conform its sentencing order to state statute.  Death sentence affirmed. (Previously, the Court had held previously denied a Batson challenge based on use of eight of 40 peremptory strikes to remove black veniremembers and failure to instruct defendant on right to withdraw guilty plea within 30 days of entry did not void plea.)

Week of April 21, 2008  – noncapital of note

• State v. Phillips Hicks & Rashad Babbs, 2008 Wash. LEXIS 365 (Wash 4/24/2008) "We hold that under our current precedent, informing the jury that the case is noncapital and failing to object to the trial court and prosecution doing the same, is deficient performance of counsel. In this case, the error was nonprejudicial."

• Presley v. Allen, No. 07-14902 (11th Cir 4/21/2008) (unpublished) “While a prosecutor's comment, that he had to strike females because the inmate was excusing all the white males and that if the state struck white males none would be on the jury, arguably admitted race and gender as his concerns, the state court finding of no admission of bias was not objectively unreasonable; denial of habeas relief was affirmed.” [via Lexisone]

(Initial List)  Week of April 28, 2008 – In Favor of the Defendant or the Condemned

• Walter Koon v. Cain, 2008 U.S. App. LEXIS 9478 (5th Cir 5/1/2008) (unpublished) "We affirm the district court's holding that Monahan failed to provide effective assistance of counsel to Koon during the guilt/innocence phase of his trial, and that the state court's ruling to the contrary is objectively unreasonable. We further hold that the district court afforded proper deference to the state court's decisions and rulings in reaching its decision, and that it did not abuse its discretion in denying the State's motion for a new trial. Accordingly, we affirm the district court's grant of Koon's petition for writ of habeas corpus, reversing and vacating his conviction and death sentence and remanding his case to state court for a new trial (and re-sentencing if convicted)."

• Shawn Windsor v. Comm, 2008 Ky. LEXIS 105 (Ky 4/24/2008) Remand ordered to expand the record as Windsor's plea deal to DEATH was not, at least procedurally, in accord with state law precedents as to waiver of appellate rights.

(Initial List) Week of April 28, 2008  – In Favor of the State or Government

• Cecil Johnson, Jr., v. Bell, 2008 U.S. App. LEXIS 9234 (6th Cir 4/29/2008) Relief denied on “the following issues: (1) whether the prosecution’s failure to disclose material evidence violated Johnson’s constitutional rights; (2) whether the prosecution violated Johnson’s right to compulsory process by improperly coercing a defense witness; (3) whether the prosecution committed misconduct by improperly interfering with defense witness Victor Davis; (4) whether the prosecution committed misconduct by improperly vouching for a witness’s credibility and inflaming the passions of the jury during closing argument; (5) whether the cumulative prosecutorial misconduct resulted in a violation of Johnson’s constitutional rights; and (6) whether Johnson’s trial counsel rendered ineffective assistance during the guilt phase by not moving for a continuance in light of certain pretrial developments and by not seeking the recusal of the prosecutors after they participated in the conversion of Victor Davis to a prosecution witness.”

• Scott Lynn Pinholster v. Ayers, 2008 U.S. App. LEXIS 9522 (9th Cir 5/2/2008) “In habeas proceedings arising from a death penalty case, a denial of an evidentiary hearing on petitioner's claims of ineffective assistance during the guilt phase is affirmed, but a grant of habeas relief on an ineffective assistance of counsel claim at the penalty phase is reversed on cross-appeal by the government where the California Supreme Court's ruling on the prejudice prong of Strickland was not an unreasonable application of the case.” [via Findlaw]

• Barney Ronald Fuller, Jr., v. State, 2008 Tex. Crim. App. LEXIS 567 (Tex. Crim. App. 4/30/2008) Relief denied on issues relating to: (A) Fuller's guilty plea in front of the jury, (B) failure to order a competency evaluation, (C) voluntariness of his guilty plea, (D) admission of  Fuller's videotaped statement to the police (which the concurrence notes had problems with Miranda), and (E) the factual sufficiency of the evidence supporting the jury’s determination regarding future dangerousness,

• Comm. v. Herbert J. Blakeney, Jr. 2008 Pa. LEXIS 532 (PA 5/1/2008) Relief denied on (A) sufficiency; (B) verdict was against the weight of the evidence; (C) the trial court erred in granting his request to represent himself at trial; (D)the trial court’s denial of his pre-trial request for fees to obtain the services of his chosen psychologist denied him “fundamental due process;” (E) trial court abused its discretion when it denied access to certain police officer's personnel files; and (F) the trial court erred in denying his motion for recusal.

• People v. John Irvin Lewis II, 2008 Cal. LEXIS 4815 (Cal 4/28/2008) Multiple special circumstance findings vacated but death sentence remains intact. “For the foregoing reasons, we (1) vacate the lying-in-wait special circumstances as to murder victims Avina, Sams, Nisbet, and Denogean; (2) reverse defendant’s six convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and 25); (3) modify the judgment to reflect a single sentence for conspiracy (count 27); and (4) order the sentences for the conspiracy conviction in count 27 and for the robbery convictions in counts 5, 8, 9, 15, 19, and 23 stayed. In all other respects, we affirm the judgment, including the sentence of death.”

• Jermaine Lebron v. State, 2008 Fla. LEXIS 756 (FL 5/1/2008) “A conviction and death sentence for murder is affirmed over claims of error regarding: 1) mitigation findings of the trial court; 2) whether the trial court improperly required the jurors to record a numerical vote for findings with regard to each aggravating and mitigating factor presented; 3) a Ring claim; 4) the constitutionality of the standard penalty-phase jury instructions; 5) the constitutionality of lethal injection; and 6) the proportionality of the death sentence.” [via Findlaw]

• Thomas Woodel v. State, 2008 Fla. LEXIS 754 (FL 5/1/2008) “Woodel raises six claims: (1) the trial court erred in excusing for cause two jurors who were not sufficiently fluent in the English language without the aid of an interpreter; (2) fundamental error occurred when the jury heard and considered prejudicial testimony from a State witness; (3) the trial court erred in finding the aggravating factor of ―vulnerability due to advanced age or disability‖ with regard to the murder of Bernice Moody; (4) Woodel’s sentence of death is not proportional; (5) Woodel is entitled to a life sentence because Florida’s death penalty law violates his due process right and his right to a jury; and (6) execution by lethal injection constitutes cruel and unusual punishment.” Relief denied.
  

• David Mark Hill v. State, 2008 S.C. LEXIS 127 (S.C. 4/28/2008) "The defendant in this case has been sentenced to death for murder and wishes to waive his right to further review and appeals. The Court must examine whether he is competent to do so and must determine whether the waiver is knowing and voluntary." Hill held competent to be executed and to waive postconviction litigation relating to his conviction and sentence.

• Robert W. Jackson, III, v. Danberg, 2008 Del. Super. LEXIS 148 (Del Super 4/25/2008) State's lethal injection regime, unlike those in some other states,  comports with the state's Administrative Procedures Act.

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