A slew of  trial level developments are noted. In Pennsylvania, a jury acquitted Theodore Reddice of all charges in the capital murder prosecution against him.  A unanimous jury sentenced Gary Eye to life imprisonment on May 13th in a high profile federal capital prosecution in Kansas City,  Cumberland County, North Carolina "jury has voted to spare the life of convicted double-murderer James Stitt [who had ]killed his housemate, a 21-year-old soldier, and the soldier’s 16-year-old girlfriend, at their home in 2005." The four suspects accused in the murder of former Washington Redskins safety Sean Taylor will not face the death penalty.The penalty phase in United States v. Duncan DP is again delayed.

On the international front, Cuba suspends executions for now  and new Cuban President Raul Castro announced that all death sentences had been commuted to prison terms of 30 years to life, with the exception of 3 people charged with terrorism. China sees 30% drop in death penalty, the exact figures, however are secret. The Pentagon has approved capital  charges for 5 alleged 9/11 co-conspirators.

Unless otherwise noted, all decisions available  for free on  Lexisone, and the usual subscription services like Lexis & Westlaw.

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 LEXIS 9478 (5th Cir 5/1/2008) (unpublished) "We affirm the district court's holding that Monahan failed to provide effective assistance of counsel to Koon during the guilt/innocence phase of his trial,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.

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.

• Ex parte Chris Wayne Shuffield, 2008 Tex. Crim. App. Unpub. LEXIS 316 (Tex Crim App 4/30/2008) (unpublished) Habeas petition denied without discussion.
  

• Humberto Garza v. State, , 2008 Tex. Crim. App. Unpub. LEXIS 340 (Tex Crim App 4/30/2008) (unpublished) Relief denied on 32 claims, including a fairly substantial double jeopardy claim, a challenge to the 10-12 unanimity instructions, and IAC on jury instructions.
  

• Ex parte Rodrigo Hernandez, 2008 Tex. Crim. App. Unpub. LEXIS 346 (Tex Crim App 4/30/2008) (unpublished) Habeas petition denied without discussion save adoption of the trial court's findings of fact and conclusions of law.

• 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.

• Eugene Hamond v. Frazier, 2008 U.S. App. LEXIS 9750 (11th Cir 4/30/2008) (unpublished) Claims of equitable tolling based upon the affirmative acts of third parties, such as counsel telling Petitioner a postconviction or habeas petition has been filed when it has not, requires a factual determination best achieved through an evidentiary hearing.

Week of May 5, 2008 – In Favor of the Defendant or the Condemned

• In re Adam Miranda, 2008 Cal. LEXIS 4819 (Cal 5/5/2008) "Death sentence was reversed because, in the penalty phase, the State failed to disclose material favorable evidence as required by the Fourteenth Amendment, specifically, a letter detailing an admission by a State's witness that a prior killing was committed by the witness, not the accused. The prior killing was the only evidence in aggravation." [via Lexisone.com]

• Paul House v. Bell, 2008 U.S. App. LEXIS 10008 (6th Cir 5/5/2008)(unpublished) Affirmance of the district court's order of relief; “detailed opinion by this court … would only further delay resolution of this matter.”

• Jackson v. Taylor, No. 06-300 (D. Del 5/9/2008) Preliminary injection and stay(s) of execution granted on lethal injection challenge.
  

• James Aaron Miller v. State, 2008 Ark. LEXIS 306 (Ark 5/8/2008) Pro forma motion permitting counsel to withdraw and appointment of appellate counsel granted.

• People v. Paul Gregory Watson, 2008 Cal. LEXIS 5119 (Cal 5/8/2008) "In an automatic appeal in a death penalty case, the judgment is affirmed over claims of error regarding: 1) the use of peremptory challenges in an allegedly racially discriminatory manner to excuse nine African-American prospective jurors; 2) the admissibility of photographs of the crime scene and autopsy; 3) the impeachment of a defense witness with the fact that he was serving time in a federal prison; 4) the trial court instructing the jury with CALJIC No. 8.65 regarding the doctrine of transferred intent; 5) the trial court instructing the jury with CALJIC No. 2.03 regarding willfully false or deliberately misleading statements made at trial; 6) exclusion of testimony of defendant's penalty phase investigator; 7) the removal of a juror due to potential juror bias; 8) the rejection of three penalty phase instructions; 9) whether the court had a duty to instruct the jury that a sentence of life without possibility of parole meant that defendant would never be considered for parole; 10) CALJIC No. 8.85 and CALJIC 8.88 jury instructions; 11) the constitutionality of the death penalty; 12) international law; and 13) cumulative error." [via Findlaw.com]

• Duane Eugene Owen v. State, 2008 Fla. LEXIS 809 (FL 5/8/2008) "Death row inmate did not show counsel was deficient (1) for not moving to suppress his confession under § 90.410, Fla. Stat., as his own testimony refuted his claim he had reasonable belief he was negotiating plea when he confessed; and (2) for not presenting evidence of his substance abuse, as such evidence likely would not have changed sentence." [via Lexisone]

• Troy Brown v. Farwell, No. 07-15592:(9th Cir 5/5/2008)  “The prosecutor’s fallacy” occurs when the prosecutor confuses source probability of DNA with random match probability. That is, a 1 in 10,000 probability of a random DNA match is NOT equated to a 1 in 10,000 chance that the sample did not come from the defendant. Petitioner was convicted of sexual assault on a child. There was conflicting circumstantial evidence, and real questions of eyewitness identification. The state’s expert gave testimony that stated that petitioner’s guilt was 99.99967%, and downplayed the matching of petitioner’s four brothers. The state admitted error in prior proceedings but tried to backtrack at argument (not smart). The 9th affirmed the district court’s granting of the petition (Wardlaw joined by Hawkins). The 9th focused on the Jackson standard of a rational jury versus a reasonable jury, and that an analysis was lacking of the elements and evidence in the state supreme’s court’s decision. O’Scannlain dissented, arguing that the state supreme court’s application of Jackson and federal law was reasonable, and that the evidence had to be viewed in the light most favorable to the state, and here there was circumstantial evidence, and some weight should be given to DNA. Congratulations to Paul Turner and Franny Forsman of the Nevada FPD Office (Las Vegas)." [via the 9th Circuit blog]

• U.S.A. v. Chapman:, No. No. 06-10316 (9th Cir 5/6/2008) A Ninth Circuit panel upholds dismissal of indictment for gross (and I mean gross) prosecutorial misconduct. "The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form ." [via Eugene Volokh]

• State v. Mylee Cottle, No. A-111-06 (NJ 5/6/2008) Relief granted, albeit under the state constitution, on conflict of interest / IAC where trial counsel tried a murder case while on PTI (NJ’s version of a diversionary program) for stalking.

(Initial List)  Week of May 12, 2008 – In Favor of the Defendant or the Condemned

• Henry Skinner v. Quarterman,,  2008 U.S. App. LEXIS 10444 (5th Cir 5/14/2008) Certificate of Appealability granted on two issues.   The first issue addresses trial counsel’s “failure to make use of [a] blood spatter report” which indicated a potentially radically different set of events than those put forward by the prosecution at trial.  The second issue on which the panel granted a COA addresses counsel failure to discover and present testimony of a witness who would have “offered strong circumstantial evidence to corroborate the defense theory” that another man, and not Skinner, committed the murder.

• Ex Parte Gene Wilford Hathorn, Jr., No. AP-75,917, Wednesday ordered, after previously rejecting the issues at bar, further briefing. The Court specifically ordered briefing on:

  1. Did applicant object at trial that his jury was not given an adequate vehicle through which it could give effect to his mitigating evidence? Was any other objection specifically pertaining to mitigating evidence made when discussing the charge to be given the jury?

  2. If no objection was made, does this make a difference regarding the resolution of applicant’s allegation?

  3. Was the mitigating evidence presented at applicant’s trial the type of evidence for which applicant was entitled to a separate vehicle?

  4. Although applicant’s direct appeal began prior to the time the United States Supreme Court handed down the decision in Penry, was direct appeal counsel obligated to raise the claim post-submission considering applicant’s direct appeal remained pending in this Court for some three years after the Penry decision was handed down?

• Michael Emerson Correll v. Ryan, 2008 U.S. App. LEXIS 10431 (9th Cir 5/14/2008)  (Amended opinion on denial of rehearing en banc) Denial of petition for writ of habeas corpus is reversed and the case remanded for a new penalty hearing where defendant was constitutionally entitled to the presentation of a mitigation defense, but did not have an opportunity to offer mitigating evidence.

(Initial List) Week of  May 12, 2008  – Noncapital of note

• Regina Denise McKnight v. State, 2008 S.C. LEXIS 142 (S.C. 5/12/2008) McKnight's trial counsel was "ineffective in her preparation of McKnight's defense through expert testimony and cross-examination," as well as that her conviction was based on "outdated" and inaccurate information linking the fetal death to her cocaine use.

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