Capital Defense Weekly

This edition holds three new favorable decisions, two from Texas and one that somehow got missed from North Carolina.

The Texas Court of Criminal Appeals in  Ex Parte Michael Toney ordered a new trial based on the failure of the State to divulge exculpatory information at trial. At least 14 documents that could have been favorable to Toney’s defense were not given to his lawyers during his first trial. The Tarrant County District Attorney’s office, agreed earlier this year that Toney’s first trial was flawed. The Court decided not to publish this opinion.

In the other favorable CCA decision, Ex Parte Joseph Prystash, the court grants permission in an unpublished order/opinion for a " subsequent application for writ of habeas corpus." Specifically, the Court sent the matter back to the trial court "applicant’s claim that the State suppressed evidence with respect to the voluntariness of his co-defendant’s confession."  Press accounts note that the co-defendant in question has already been retried and reconvicted while a federal district court judge ordered that a third co-defendant be retried.

In the third favorable decision, State v. Eric Glenn Lane, the North Carolina Supreme Court remands for hearings in light of the United States Supreme Court’s recent decision in Indiana v. Edwards. Specifically, "[b]ased on Edwards, defendant argues on appeal that he is entitled to a new trial because the trial court was unaware of its discretion to deny defendant's request for self-representation, and that if it had been aware of its discretion, the trial court would have required counsel for defendant.  "

In the news, North Carolina, California, Florida, and Texas experienced sharp declines in sentencing in 2008 DPIC reports. North Carolina, for example, in 2008 sentenced just one person to death. Harris County Texas - arguably the capital of the American death penalty - sent no one to death row in 2008.

Unfortunately, not all jurisdictions had such a banners years. A jury issued New Hampshire’s first death sentence in a half century Thursday to Michael Addison a man who fatally shot a Manchester police officer to avoid arrest two years ago. Colorado’s death row population doubled recently when Sir Mario Owens was officially sentenced to death.

In CLE news, in coordination with the National Coalition to Abolish the Death Penalty’s annual conference in Harrisburg, PA, January 22-25, 2009, there will be capital defense CLEs on Friday, January 23rd and on Saturday, January, 24th, 2009.  Registration can be for one day or for both days. These programs are being taught by top-notch capital litigators.  I encourage people to take a look and to register for these CLE programs. Info here. For those going to Harrisburg, run me down for happy hour Friday night.

Finally, unsettling news from one of the sources of funding for many criminal justice reform organizations and some in the indigent defense community. "The JEHT Foundation, a national philanthropic organization, has stopped all grant making effective immediately and will close its doors at the end of January 2009. The funds of the donors to the Foundation, Jeanne Levy-Church and Kenneth Levy-Church, were managed by Bernard L. Madoff, a prominent financial advisor who was arrested last week for defrauding investors out of billions of dollars."  The impact of the JEHT closing can't be understated as they permitted funding, directly or indirectly for groups as diverse as Amnesty International, Reprieve, the ACLU, the Colorado Department of Corrections,Tides and others -- they’re not rescinding grants that were already given but multi-year grants won’t be honored.   As one blogger notes"[t]is is a major blow to the criminal justice reform movement nationally, but at the same time JEHT’s prior work has already helped build up a new cadre of skilled activists on these topics who didn’t exist just a few years ago because nobody was providing them professional-level support and development. So even if JEHT never gives another dime, the foundation will have spawned a legacy that will outlive its formal, legal structure."  An incomplete list of organizations is here.  Thanks to JEHT, Jeanne Levy-Church and Kenneth Levy-Church for all the work on making sure the dice in the criminal justice system weren't always loaded against the little guy.

As always thanks for reading.     - k

Pending Executions
January
14 Curtis Moore - Tex*
15 Jose Briseno - Tex*
15 James Callahan - Ala*
21 Frank Moore - Tex*
22 Reginald Perkins - Tex*
22 Darwin Brown - Okla*
28 Virgil Martinez - Tex*
29 Ricardo Ortiz - Tex*

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

• Ex Parte Michael Toney, NO. AP-76,056 (Tex Crim App 12/17/2008)  CCA orders a new trial based on the failure of the State to divulge exculpatory information / “Brady error.”

• Ex Parte Joseph Prystash, No. WR-58,537-02  (Tex Crim App 12/17/2008)  On a subsequent application for writ of habeas corpus, “applicant’s claim that the State suppressed evidence with respect to the voluntariness of his co-defendant’s confession - satisfies the requirements of Texas Code of  Criminal Procedure Article 11.071, Sec. 5(a).”

• Stephen Michael West v. Bell, No. Nos. 05-5132/6219 (6th Cir 12/18/2008) (dissent) Relief denied most notably on an unusually strong ineffective assistance of counsel claim relating to trial counsel's lack of a meaningful mitigation investigation.  Note: this is a case to watch as having either rehearing or cert potential due to the panel majority's treatment of the standards for IAC.

• Julius Recardo Young v. Sirmons, 2008 U.S. App. LEXIS 25280 (10th Cir 12/16/2008)  Relief denied on the four issues for which the district court granted a CoA; " (1) ineffective assistance of trial counsel for failing to adequately investigate and present mitigation evidence during the second-stage proceedings; (2) improper victim impact evidence; (3) improper admission of Young’s “fish blood” statement; and (4) cumulative error. On appeal, Young has abandoned his challenge to the admission of his “fish blood” statement, but continues to pursue the remaining three issues.

• Porter v. Attorney Gen. of Florida, No. 07-12976 (11th Cir 11/19/2008) [via FindLaw] "Death row inmate was improperly granted habeas relief on two claims of ineffective assistance of counsel. Having been found competent and having waived his right to counsel, Petitioner is not entitled to counsel at a second competency hearing; district court failed to give proper AEDPA deference to the Florida Supreme Court's adjudication and findings of fact relating to Petitioner's penalty phase claim."

• Thomas Treshawn Ivey v. Ozmint, 2008 U.S. App. LEXIS 25531 (4th Cir 12/17/2008) (unpublished) Relief denied on whether the "district court erred in denying his § 2254 petition because (1) Young's responses to questions during voir dire show that she was not impartial about the application of the death penalty, (2) Culler's letter requesting withdrawal from representation of Patricia Perkins demonstrates that Culler had an actual conflict of interest adversely affecting his performance at trial, and (3) Savitz's failure to raise a Confrontation Clause challenge to the use of Neumon's prior testimony constituted ineffective assistance of appellate counsel."

• Ex parte Rodney Reed, 2008 Tex. Crim. App. LEXIS 1569 (Tex Crim App 12/17/2008) [via the TCCA blog] "[T]he Court held that all reliable evidence old and new produced by Reed failed to compel the conclusion that it is more likely than not that a reasonable juror would not have voted to convict. Unlike most gateway innocence claims, Reed’s lacked a cohesive theory of innocence. As the Court explained, “By focusing on a romantic relationship between himself and Stacey as well as pointing to several alternative suspects--Fennell, Lawhon, and some unknown dark-skinned man--the new evidence before the Court fails to tell a complete, rational exculpatory narrative that exonerates Reed.” Because the evidence presented by Reed failed to meet this gateway standard, the Court refused to consider the merits of Reed’s Brady claims."

• Juan Ramon Meza Segunda, 2008 Tex. Crim. App. LEXIS 1505 (Tex Crim App 12/10/2008)  [via the TCCA blog] "The Court granted Segundo’s motion for rehearing to consider a point of error relating to the introduction of information contained in parole-revocation documents. The Court had previously considered the issue unpreserved because Segundo failed to direct the Court to where the certificates could be found in the record. Consequently, Segundo pointed out that he’d filed a supplemental record containing the certificates, and the Court pointed out he failed to file a supplemental brief noting this. The Court granted his motion for rehearing and rejected his claim that the certificates contained testimonial statements that violated Crawford. The complained-of language in the certificates recited that Appellant “failed to fulfill the terms and conditions of said release, and is therefore not worthy of the trust and confidence placed therein," that he "has violated the conditions of administrative release," and that he was an "administrative release violator.” This language did not violate Crawford because the language was mere “boilerplate” language on a pre-printed form. Unlike situations where such documents contained recitations of facts recounted by officers, these statements set out sterile and routine recitations of official findings. They merely set out that Segundo had violated his parole and he was subject to re-arrest. They had none of the features of a subjective incident report made by a law enforcement officer. These were public records like a record of a conviction, so the statements were non-testimonial."

• Robert J. Bailey v. State, 2008 Fla. LEXIS 2389 (FL 12/18/2008) Relief denied "Bailey raises three claims: (1) whether the death penalty is disproportionate; (2) whether the prosecutor committed fundamental error by allegedly making inappropriate remarks before the jury; and (3) whether Florida’s capital sentencing procedures are unconstitutional"

• William Frank Davis v. State, 2008 Fla. LEXIS 2393 (FL 12/18/2008) Relief denied over claims "that (A) the trial court erred by instructing the jury on the aggravating circumstance of cold, calculated, and premeditated (CCP), by allowing the prosecutor to argue this aggravator to the jury, and by finding this aggravating circumstance; (B) the trial court erred in failing to consider and weigh evidence of Davis’s impaired capacity as a nonstatutory mitigating factor; (C) the trial court erred in allowing the prosecutor to argue that school fights and Davis’s conduct in jail after the homicide could be used to reduce the weight of the mitigating circumstance of no significant history of prior criminal activity and in reducing the weight of this mitigating factor based on that evidence; (D) the death penalty is not warranted in this case; and (E) the trial court erred in sentencing Davis to death because Florida’s capital sentencing proceedings are unconstitutional under the Sixth Amendment of the United States Constitution pursuant to Ring v. Arizona, 536 U.S. 584 (2002)."

• Comm. v. Roland William Steele, 2008 Pa. LEXIS 2268 (Penn 12/18/2008) Relief denied, most notably, on the admissibility of a juror affidavit that the juror held deep seated views of racial bias. [more here from Prof. Collin Miller]  Other issues on which relief denied include: ineffective assistance of counsel stemming from hair analysis, voir dire (including failure to life qualify jury), jury instructions regarding identification testimony, unanimity instruction, inflammatory closings (both phases) by the Commonwealth, the defenses woeful closing in the penalty phase (capped by his leaving the court room at its conclusion never to return), failure to adequately investigate and present mitigation evidence, jury instructions on mitigation, victim impact, and instruction on torture aggravator.

• Comm v. Ronald Clark, 2008 Pa. LEXIS 2264 (Penn 12/17/2008) [via Lexisone] "Inmate was not entitled to postconviction relief due to alleged ineffective assistance of counsel where, inter alia, counsel did not impeach witness with letter recanting identification because witness did not willingly and independent write letter and instruction on flight was supported by evidence and thus, any objection would have been futile."

• Comm. v. Al Peoples, No. 482 CAP (Penn 12/18/2008) Grant of relief vacated, evidentiary hearing on ineffective assistance of counsel claims ordered.

• State v. Eric Glenn Lane, 2008 N.C. LEXIS 992 (NC 12/12/2008) [via Death Watch: NC] "In Lane’s case (opinion here), the court remanded to the superior court that originally convicted and sentenced Lane, instructing them to consider the United States Supreme Court’s recent decision in Indiana v. Edwards.  In Edwards, SCOTUS ruled that just because a defendant has been found competent to stand trial does not mean that he is capable of representing himself."

• Mark Anthony Poole v. State, SC05-1770 (FL 12/11/2008) A new penalty phase trial granted as "the questions on Poole‘s lack of remorse, . . .  presenting inadmissible nonstatutory aggravation of Poole‘s criminal history and the content of his tattoo deprived Poole of a fair penalty phase. The combination of these errors had the effect of unfairly prejudicing Poole in the eyes of the jury because these errors created a risk that the jury would give undue weight to this information in recommending the death penalty.

• Gabby Tennis v. State, SC06-730 (FL 12/11/2008) A new trial (both guilty and penalty) is ordered in light of the denial to self-representation.  

• State v. Nicole Diar, 2008 Ohio 6266 (Ohio 12/10/2008) State concedes error. "Brooks counseled courts to advise jurors in capital cases that 'a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.' . . .  [T]he state has elected to concede that the trial court’s failure to provide such an instruction constitutes error, given the totality of the specific circumstances, and requires that the cause be remanded to the trial court for a new mitigation hearing."

• State v. Eddie Lamar Taylor, 2008 N.C. LEXIS 986 (NC 12/12/2008) [via Death Watch: NC] "In Taylor’s case (opinion here), the court found that there was no error with Taylor’s conviction or death sentence.  Among the issues raised by Taylor in his appeal: judge error, ineffective assistance of counsel, and racial discrimination in jury selection."

• Anthony Doss v. State, No. 2007-CA-00429-SCT (Miss 12/11/2008) (dissents) Relief denied, most notably on issues relating to mental retardation & penalty phase ineffectiveness for failing to adequately investigate and present mitigation evidence.  A set of stunning dissents, most notably by Presiding Justice Diaz, appears to signal that Mississippi capital litigation is about to get a little more complicated.

As a reminder, if you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. Likewise, we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to one of favorite nonprofits involved in some aspect of the capital punishment issue: Pennsylvanians for Alternatives to the Death Penalty, Death Penalty Information Center, Fair Trial Initiative, Southern Center for Human Rights, & Texas Defense Services. These groups were selected as each have demonstrated an ability to make a difference, usually on a shoestring budget, meaning even the smallest donation goes a long way. On each of the above links you're able to donate as little or as much as you want, or even set up a monthly automated giving amount.  If there is a group you think should be added please drop us a line. - k

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