Capital Defense Weekly
available at http://capitaldefenseweekly.com/archives/080707.htm


This week's edition brings a little bit for every need.  For the federal habeas litigator there is the Fifth Circuit's Michael Wayne Hall v. Quarterman, which deals the 28 U.S.C. § 2254(d), factual development in postconviction and Atkins.  The Georgia Supreme Court looks at measuring sticks, the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases and the Southern Center for Human Rights Defense Manual, holding that Mark Hall's trial counsel failed to adequately investigate and present mitigation evidence  Looking at state sentencing schemes, the Nevada Supreme Court in Eugene Hollis Nunner v. Eight Judicial Dist. holds that conspiracy to commit robbery is not an aggravating circumstance under that state's capital sentencing scheme. Finally, marking the overlay of capital and noncapital law, an intermediate Ohio appellate court, in State v. Terrance Tate affirms the suppression of a statement in this capital murder prosecution as the Accused was a suspect and was not free to leave, the police screamed at him, and they tried to overpower, trick, or coerce defendant into talking.

DPIC notes that the he latest version of  Death Row USA  (Winter 2008 - reflecting death row numbers as of January 1, 2008) has been released by the Capital Punishment Project of the NAACP Legal Defense and Educational Fund, Inc. "The report also contains information on each person executed since the death penalty was reinstated in 1976, and information on U.S. Supreme Court decisions.  The last version of DR USA was Jan. 1, 2007.. . . The total number of inmates on death rows across the country is 3,309, a decrease from 3,350 reported on January 1, 2007.  The jurisdictions with the most inmates on death row are:  California (667); Florida (397); Texas (373); Pennsylvania (228). The jurisdictions (having 10 or more inmates) with the highest percentage of minorities on death row are:  Texas (70%); Pennsylvania (69%);  Louisiana (66%)."

In other news, a fierce battle is underway in North Carolina on whether the Tarheel state will add a a Racial Justice Act to the state's capital sentencing scheme.  The scheduled execution of  Lester Leroy Bower Jr. has been stayed in light of new evidence of possible innocence. The District Attorney handling the Paul House retrial indicates if the DNA" found on a hair discovered in Carolyn Muncey’s hand following her murder, he will consider dropping the charges against House." The Oklahoma Pardon and Parole Board voted 4-1 Tuesday to recommend clemency convicted killer Kevin Young;. the board’s recommendation now goes to the Governor.The scheduled execution of  Lester Leroy Bower Jr. has been stayed so that Bower's guilt can reassured in light of new evidence. “This  local article from Missouri, headlined “Prosecutors use discretion differently in death sentencing” indicates the seeking of new death sentences appears to be down in the "Show Me" state.  Lastly, a California judge threatened to throw a widow in jail when called as a prosecution witness in the penalty phase if she told the jury she did not support the death penalty.

Hofstra Law Review has a just released an edition devoted to the topic of mitigation in capital cases. The edition appears to be an instant classic. The entire edition is online. This edition has the ABA’s Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (PDF). Other articles include :

  • and numerous articles by legends of the bar, the bench and academia that provide useful discussions of the mitigation function from a variety of perspectives.

Looking ahead, the Fifth Circuit granted a COA in Paul Everette Woodward v. Epps on "whether the State's use of peremptory challenges at Woodward's resentencing violated his Fourteenth Amendment right to equal protection under Batson."  Also, tThe Florida Supreme Court finds insufficient evidence to support a finding of premeditation and vacates a first degree murder conviction in Eddie Junior Bigham v. State.

Lastly, my apologies for running late, it has been difficult to get back in to the cyber grind following an exceptionally heavy late spring / early summer in court. As always thanks for reading and for forgiving the typos in advance - k


Pending Executions
July
14 Tamir Hamilton - Nev (s)
22 Kevin Young - Okla*
23 Derrick Sonnier - Tex.*
23 Dale Lee Bishop - Ms*
24 Christopher Emmett Va*
28 Gregory Decay - Ark.(s)
30 John Middleton - Mo.*
31 Larry Davis - Tex.*
31 Tommy Arthur - Ala*

August
5 Jose Medellin - Tex.*
7 Heliberto Chi - Tex.*
12 Leon Dorsey - Tex.*
14 Michael Rodriguez Tx* (v)
20 Denard Manns - Tex.*
21 Jeff Wood -Tex.*

September
9 Gregory Wright -Tex.*
9 Frank Williams, Jr., - Ark*
10 Charles Hood - Tex.*
17 William Murray -Tex.*
18 Joseph Ries -Tex.*
23 Richard Henyard - FL*
25 Jessie Cummings - Okla*

October
7-13 Briley Piper - S.D.*
14 Richard Cooey - Ohio*
16 Kevin Watts - Tex(
28 Eric Nenno - Tex*


Recent Executions
July
1 Mark Schwab - Fl
10 Carlton Turner - Tex.
10 Kent Jackson - Va

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources: DPIC, Rick Halperin & AP]

Week of June 30, 2008 – In Favor of the Defendant or the Condemned

  • Mark Hall v. McPherson,  2008 Ga. LEXIS 551 (Ga 6/30/2008) "The testimony elicited at trial regarding McPherson's upbringing, in contrast to that presented at the habeas evidentiary hearing, not only failed to inform the jury of the extent and scope of the childhood abuse and neglect McPherson endured and of his childhood exposure to alcohol and drug-abusing adults, but the trial testimony portrayed McPherson's mother as a long-suffering, hard-working, devoted mother to her sons who had done everything she could to keep McPherson away from drugs. The jury never heard that when McPherson was growing up, his mother was a violent alcoholic who chased him away from his home for days at a time and who often beat him, leaving him badly bruised, and that he spent much of his youth in foster homes or institutionalized."  Further, "No reasonable lawyer in counsel’s position would have decided not to seek McPherson’s drug treatment records, particularly his Charter Peachford records.Trial counsel’s investigation also was not reasonable in light of the guidelines set forth by the American Bar Association, which provide that counsel at every stage of a capital case “have a continuing duty to investigate issues bearing upon penalty and to seek information that supports mitigation or rebuts the prosecution’s case in aggravation.” As counsel had no rational strategy or reason for failing to develop this mitigating evidence, their performance fell below an objective standard of reasonableness.
  • State v. Terrance Tate,  2008 Ohio App. LEXIS 2712 (Ohio 7th App 6/26/2008)  (dissent) "The motion to suppress was properly granted because defendant was in custody when he was questioned about the child’s fatal injuries. The interrogation took place at the police station, defendant was a suspect and was not free to leave, the police screamed at him, and they tried to overpower, trick, or coerce defendant into talking. " [via Lexisone]
Week of June 30, 2008 – In Favor of the State or Government
  • Johnny Wayne Hyde v. Branker,  2008 U.S. App. LEXIS 13778 (4th Cir 6/30/2008) (unpublished)  Relief denied on claims that  "(a) the state court erred in denying his motion to suppress a confession that he made to police officers during a custodial interrogation;"  (b) "the Supreme Court of North Carolina erred in finding that the state trial court did not violate his constitutional rights when it excused several prospective jurors during consideration of hardship requests";  (c) "the state appellate court also violated or unreasonably applied Supreme Court precedent in rejecting his claim that the trial court impermissibly restricted defense questions during voir dire;"  (d) "state court violated clearly established Supreme Court precedent in rejecting his contention that insufficient evidence supported the jury finding as to one of the aggravating circumstances -- that the murder was committed for the ppuurpose of avoiding arrest;"  (e) "the trial court erred by failing to intervene ex mero motu when the prosecutor made an allegedly improper closing argument that asked the jury to consider an aggravating factor not recognized under North Carolina law;"  (f ) " the jury instructions allowed the jury to accord no weight at all to statutory mitigating circumstances and that, as a result, his sentence was unconstitutionally arbitrary;" and  (g) "trial counsel was constitutionally ineffective in failing to present a voluntary intoxication defense at the guilt phase of the trial and in failing to prepare expert witnesses regarding intoxication at the sentencing phase."
  • William Mark Mize v. Hall,  2008 U.S. App. LEXIS 14002 (11th Cir 7/2/2008)  Relief denied on appeal relating to claims whether: (a) a "prosecutorial misconduct claim was procedurally defaulted"; (b)  "the prosecution violated Brady v. Maryland by failing to turn over six pages of notes from a pretrial interview;" and  (c) " Mize asserted an actual innocence claim, relying on statements made by Chris Hattrup in his plea colloquy, at Mize's motion for new trial hearing, and in two affidavits."
  • Daniel Jon Peterka v. McNeil, 2008 U.S. App. LEXIS 14001 (11th Cir 7/2/2008) Relief denied. "Peterka argues that his penalty-phase counsel were ineffective for failing to investigate and present three types of potentially mitigating evidence: (1) evidence concerning Peterka's military record; (2) evidence concerning Peterka's good prison behavior, including his failure to take advantage of an escape by his cellmates; and (3) evidence in the nature of his family relationships and good character. For the reasons explained below, we affirm the district court's denial of Peterka's petition."
  • Ex parte Darryl Dewayne Turner; 2008 Ala. LEXIS 128 (Ala 6/27/2008) Turner "petitions this Court for the writ of mandamus directing the Court of Criminal Appeals to vacate its June 29, 2007, order in which it instructed Judge James W. Woodruff, Jr., to set aside his order granting discovery of certain institutional files and prosecution records. We conclude that Turner has not demonstrated a clear legal right to the relief sought; therefore, we deny the petition."
  • People v. Michael McCrea Whisenhunt, 2008 Cal. LEXIS 7900 (Cal 6/30/2008) "In an automatic appeal, a conviction for first degree murder and death sentence is affirmed over claims of error regarding: 1) denial of defendant's request to show prospective jurors photographs of the victim's injuries during voir dire; 2) excusing a juror based on her views concerning the death penalty; 3) sufficiency of the evidence to support the first degree murder conviction and torture special-circumstances finding; 4) admission of evidence of prior acts of child abuse; 5) a refusal to permit the defense to present evidence impeaching a prosecution witness; 6) admission of evidence of victim's prior injuries; 7) cross-examination of defendant on past acts of child abuse; 8) admission of photographs of the victim; 9) refusal to instruct on the offense of being an accessory after the fact to a felony; 10) failure to instruct the jury with CALJIC No. 3.19; 11) failure to instruct on second degree implied malice murder; 12) instruction that motive is not an element of murder by torture; 13) refusal to give additional instruction on premeditation and deliberation; 14) refusal to give additional instruction on lack of motive; 15) unconstitutionality of jury instructions allegedly affecting the beyond a reasonable doubt standard; 16) unconstitutionality of the reasonable doubt instruction; 17) unconstitutionality of the consciousness of guilt instruction; 18) the instruction on first degree murder; 19) failure to instruct on unanimity for the theory of first degree murder; 20) unconstitutionality of CALJIC No. 8.75; 21) unconstitutionality of the prosecution's reference to itself as "the People;" 22) unconstitutionality of the murder by torture and torture special circumstances instructions; 23) the admission of photographs of the victim at the penalty phase; 24) admission of evidence of an unadjudicated crime; 25) refusal of defendant's proposed penalty phase instructions; 26) refusal to instruct on the definition of "life without the possibility of parole;" 27) refusal to instruct on the role of mercy in the penalty determination; 28) refusal to instruct the jury to not rely solely on the facts of the murder verdict and the special circumstances as aggravating factors; 29) various challenges to California's death penalty law; and 30) cumulative error." [via FindLaw]
  • People v. Ramon Bojorquez Salcido,  2008 Cal. LEXIS 7901 (Cal 6/30/2008) "In an automatic appeal, a conviction of first and second degree murder, and attempted murder, and a sentence to death are affirmed over claims of error regarding: 1) the seizure of defendant in Mexico by agents of the United States and California governments by allegedly misrepresenting that defendant was a citizen of the U.S., in violation of the extradition treaty between the countries; 2) inadequate Miranda warnings during his return from Mexico; 3) denial of a commission to examine Mexican officials concerning defendant's confession; 4) prosecutions' for-cause challenges of prospective furors; 5) prosecution's peremptory challenges of minority group prospective jurors; 6) peremptory challenges of death penalty skeptics; 7) denial in part of a motion for discovery of personnel files of DEA agent and certain officers; 8) admission of evidence of defendant's molestation of victims; 9) admission of victim-impact evidence at the guilty phase; 10) prosecutorial misconduct; 11) jury instructions; 12) cumulative error; 13) delay in notice that the prosecution intended to offer evidence in aggravation; 14) admission of photographs of a victim; 15) exclusion of mitigation evidence that survivors would receive benefits from defendant's art sales; 16) jury instruction on weighing of factors; 17) cumulative prejudice; 18) failure to give curative instructions; 19) the multiple-murder special circumstance's failure to narrow the class of persons eligible for the death penalty; 21) constitutional vagueness of section 190.3, factor (a); 22) delay in the execution; 23) challenges to the death penalty scheme; and 24) denial of a motion for continuance to enable the defense to review juror questionnaires." [via FindLaw]
  • Russell Hudson v. State, 2008 Fla. LEXIS 1217 (Fl 7/3/2008) Relief denied. "[C]laims raised are: (1) error in admission of hearsay testimony of phone call from Peller to Pritchard; (2) error in allowing Gonzalez's out-of-court statement that Hudson stole Peller's gun; (3) error in allowing the State to comment on Hudson's failure to testify against others; (4) error in denying request for special instruction on the HAC aggravator; (5) fundamental error in State's jury argument on HAC; (6) error in allowing Fizzuoglio's testimony that Peller knew he was going to die; (7) error in finding HAC; (8) error in finding CCP; (9) error in weighing of sentencing circumstances; (10) failure of judge to make findings required for the death penalty; and (11) unconstitutionality of the death penalty statute under Ring v. Arizona, or Furman v. Georgia."
  • Ricardo Gonzalez v. State,  2008 Fla. LEXIS 1216 (Fl 7/3/2008) "Gonzalez has appealed the denial of postconviction relief to this Court, raising eight issues. He contends (1) trial counsel rendered ineffective assistance during the guilt phase of trial; (2) trial counsel rendered ineffective assistance during the new penalty phase; (3) the circuit court erred in summarily denying Gonzalez's claim that newly discovered evidence of a life sentence imposed on Fernando Fernandez requires that Gonzalez receive a life sentence; (4) the circuit court erred in failing to disclose records allegedly exempt from production under Florida Rule of Criminal Procedure 3.852; (5) the circuit court erred in striking Gonzalez's original postconviction motion without permitting him leave to amend; (6) the application of the new rule 3.851 to Gonzalez violates his rights to due process and equal protection; (7) Florida's capital sentencing procedures violates Gonzalez's Sixth Amendment right to have a unanimous jury return a verdict addressing guilt of all the elements necessary for the crime of first-degree murder, in violation of Ring v. Arizona, 536 U.S. 584 (2002); and (8) his constitutional right against cruel and unusual punishment will be violated as he may be incompetent at the time of execution."
  • Anthony Spann v. State, 2008 Fla. LEXIS 1225 (FL 7/3/2008)  Relief denied on claims that "that (1) trial counsel rendered ineffective assistance during the guilt phase of trial, and (2) trial counsel rendered ineffective assistance during the penalty phase by failing to conduct a thorough investigation of mitigating evidence."
  • Roderick Ruffin v. State,  2008 Ga. LEXIS 550 (Ga 6/30/2008)  Relief on speedy trial claim denied. "It has now been well over three years since Ruffin was indicted, and the vigor and formality with which he has pressed his constitutional speedy trial claim are no longer subject to challenge. The District Attorney should be aware that any further delay in bringing Ruffin to trial not attributable to Ruffin runs a serious risk of violating Ruffin's right to a speedy trial guaranteed by the Sixth Amendment and the Georgia Constitution. If that were to happen, then under controlling United States Supreme Court precedent, dismissal of the charges against Ruffin would be constitutionally required"
  • Schofield v. Andrew Allen Cook,  2008 Ga. LEXIS 545 (Ga 6/30/2008) "We have set out above the instances in which we have found or assumed trial counsel's deficient performance. We conclude, considering the combined effect of those deficiencies, that they did not in reasonable probability affect the outcome of either phase of Cook's trial. Id. Accordingly, we order Cook's death sentence reinstated"
  • Ex parte Juan Jose Reynoso,  2008 Tex. Crim. App. LEXIS 821 (Tex Crim App 7/2/2008)  "This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071. In an order delivered on June 27, 2007, dismissing the application as untimely, we set out a detailed account of applicant's repeated attempts to waive his appeals that were interspersed with an occasional desire to pursue those same appeals. Ex parte Reynoso. Given the timing and applicant's repeated claims that he did not want to pursue his appeals, we held that, although his application was filed during an interval in which he chose to pursue his appeals, applicant could not show good cause for the untimely filing. Id. Therefore, we dismissed his application in its entirety and declined to appoint him new counsel under Article 11.071 § 4A. Id. Applicant subsequently filed a suggestion that we reconsider the case on our own initiative as allowed under Texas Rule of Appellate Procedure 79.2(d). Applicant asserted that the Court had not considered the application of Texas Rule of Appellate Procedure 4.1(a) in calculating the date on which applicant's habeas application had been due. We granted rehearing on our own initiative and asked for briefs on the issue. Throughout the scholarly debate that followed, the Court discovered that the issue was much more detailed and complicated than simply asking whether the calculation rule should be applied. We now file and set and issue the following opinion, concluding that there was good cause for applicant's tardy filing, but denying relief on his writ."
(Initial List) Week of June 30, 2008 – In Favor of the Defendant or the Condemned
  • Paul Everette Woodward v. Epps,  2008 U.S. App. LEXIS 14247 (5th Cir 7/7/2008) (unpublished) "COA is granted on the issue of whether the State's use of peremptory challenges at Woodward's resentencing violated his Fourteenth Amendment right to equal protection under Batson."
  • Eddie Junior Bigham v. State, 2008 Fla. LEXIS 1232 (Fl 7/10/2008)"[W]e reverse the first-degree murder conviction and vacate the death sentence because we conclude the evidence is insufficient to prove premeditation. However, we find that the record supports a conviction of second-degree murder, and we remand to the trial court to enter a judgment of conviction on second-degree murder and to conduct a sentencing proceeding on that conviction."
  • Ex parte State of Alabama; (In re: State of Alabama v. Jason Murphy), 2008 Ala. Crim. App. LEXIS 120 (Ala Crim App 7/3/2008) "Judge Reynolds is directed to grant the motion to compel and to continue Murphy's third trial until a transcript of the second trial is prepared by his official court reporter, Deborah Sharman."
(Initial List) Week of June 30, 2008 – In Favor of the State or Government
  • Christopher Scott Emmett, v. Johnson, 2008 U.S. App. LEXIS 14701 (4th Cir 7/10/2008) Challenge to Virginia's lethal injection protocol in this section 1983 action denied as: 1) Virginia's protocol is substantially similar to that at issue in Baze;  2) plaintiff failed to produce sufficient evidence that Virginia's scheme would produce undue risk of pain; and 3) anecdotal evidence and speculation of future incidents are insufficient to defeat summary judgment.
  • Samuel Bustamante v. Quarterman,  2008 U.S. App. LEXIS 14248 (5th cir 7/7/2008) "Bustamante contends that counsel rendered ineffective assistance by failing to inspect the trial exhibits before they were given to the jury, thus allowing an exhibit that had not been admitted to be considered by the jury."
  • Frank Moore v. Quarterman,  2008 U.S. App. LEXIS 14284 (5th Cir 7/7/2007)  In "a prosecution for capital murder, denial of a certificate of appealability after the district court denied petitioner habeas relief is affirmed over claims of error regarding: 1) the state's withholding of evidence favorable to his cause both as to guilt and punishment; 2) comments made in a second trial referring to a first trial, as being a violation of his right to a presumption of innocence; and 3) ineffective assistance of counsel based on a failure to adequately investigate the facts surrounding the shooting." [via Findlaw]
  • Abdullah Shariv Kaazim Mahdi v. Bagley, 2008 U.S. App. LEXIS 14260 (6th Cir. 7/7/2008) Relief denied. "Mahdi argues that the district court erred in finding that: (1) his trial counsel was not ineffective; (2) his appellate counsel was not ineffective; and (3) the retroactive application of a change in Ohio case law did not constitute a violation of the Due Process Clause."
  • People v. Billy Ray Riggs,  2008 Cal. LEXIS 8244 (Cal 7/10/2008)  "A conviction and death sentence for first degree murder are affirmed over claims of error regarding: 1) inadequate Faretta advisement; 2) denial of a motion to change venue; 3) error in failing to excuse jurors during death qualifying voir dire; 4) admissibility of a videotape of America's Most Wanted; 5) admission of battered woman syndrome evidence; 6) the trial court's decision to deem the defense case complete; 7) prosecutorial misconduct during the guilty and penalty phases; 8) improper admission of photographs of the victim's body; 9) instructional error during the guilty and penalty phases; 10) constitutionality of the death penalty; and 11) the cumulative effect of errors." [via FindLaw]
  • People v. Richard Ray Parson, No. S056765 (Cal 7/10/2008) "A conviction and death sentence for murder, robbery, and burglary are affirmed over claims of error regarding: 1) denial of defendant's motion to suppress evidence seized; 2) the court's failure to instruct sua sponte on assault because there was evidence to show that the offense he committed was less than burglary and robbery; 3) a failure to instruct sua sponte on theft and on the definition of the term "steal" in connection with the elements of burglary; 4) jury instructions which undermined the requirements of proof; 5) prosecutorial misconduct; 6) ineffective assistance of counsel; 7) a failure to provide intercase proportionality review; 8) the constitutionality of the death penalty; 9) violations of international law; and 10) the cumulative effect of errors in both the guilt and penalty phase." [via FindLaw]
  • James Armando Card, Sr. v. State, 2008 Fla. LEXIS 1231 (Fl 7/10/2008) "In a prosecution for murder, robbery and kidnapping, denial of defendant's motion to vacate his death sentence is affirmed over claims of error regarding ineffective assistance of counsel in his re-sentencing, based on an alleged failure to investigate and present mitigation evidence that would have supported two statutory mitigating circumstances." [via FindLaw]
  • Neil K. Salazar v. State, 2008 Fla. LEXIS 1235 (7/10/2008) "A conviction and death sentence for first degree murder are affirmed over claims of error regarding: 1) denial of defendant's motion for a mistrial based on improper prosecutorial comments during guilt-phase final arguments; 2) improper self-bolstering witness testimony; 3) the trial court's error in finding the cold, calculated, and premeditated aggravator; 4) arguments during penalty phase closing arguments that victims were terrorized; 5) the unconstitutionality of the death penalty; 6) the sufficiency of the evidence; and 7) the proportionality of the death sentence."  [via FindLaw]
  • Michael Reaves v. State, 2008 Ga. LEXIS 622 (GA 7/11/2008)  Court below did not err as to: "(1) whether the trial court erred in denying a motion to suppress Reaves’ statements; (2) whether the trial court erred in denying a motion to suppress evidence seized with warrants; and (3) whether the trial court erred in refusing Reaves’ request to have a video recording of his custodial statements examined by the FBI. Reaves’ wife was also charged with murder and related offenses,"
  • Charlott Lynett Reaves v. State, 2008 Ga. LEXIS 622 (GA 7/11/2008)  Trial court did not err as to: "(1) whether the trial court erred regarding a motion to suppress evidence seized with warrants and (2) whether the trial court erred in denying a motion to exclude a printed e-mail under the privilege afforded to inter-spousal communications."
  • Ex parte Edgar Arias Tamayo, 2008 Tex. Crim. App. Unpub. LEXIS 488 (Tex. Crim. App. 7/2/2008)  Dismissed with written order as to Vienna convention claim.


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OPEN RESEARCH DATA:  Search terms for the weekly are   "DEATH PENALTY" OR "CAPITAL MURDER" OR "SENTENCED TO DEATH" OR "PENALTY PHASE" OR "SPECIAL QUESTIONS" OR "SENTENCE OF DEATH" OR "SENTENCED TO DEATH" OR "DEATH SENTENCE" or "capital punishment" or "witherspoon" - please note, however, the terms "overproduce" results, including all federal habeas corpus cases.

Execution information derived from Rick Halperin, DPIC & media accounts