The Court disagreed with the state and determined that a witness is not excused from testifying at trial simply because [the prosecution] did not interrogate the witness. A witness is also not excused simply because his statements come from neutral and scientific testing. The Court found that the statements on the certificates were the type of statements Crawford intended to cover, since an objective witness would have reasonably believed that the statements made on the certificates would be available for use at trial. Furthermore, the purpose of the evidence was to show the substance’s composition and weight for which he was on trial for. Thus, information stating that a substance is a drug is in fact testimonial in nature which requires a witness to testify at trial.

Last week we missed the Delaware Supreme Court's holding in  Allison Lamont Norman v. State.  The Norman Court held that the trial court's instruction improperly limited the Defendant's mitigation evidence. Specifically, the State sought to use the aggravating circumstance that Norman caused the death of two persons, one in Delaware and one in Maryland.  The defense argued lack of criminal responsibility on the Maryland charge - and hence the ability to use Maryland murder as an aggravating circumstance. "[T]he absence of any instruction to guide the jury on the issue of Norman’s alleged lack of criminal responsibility under Maryland law—requires a new penalty hearing. Without guidance from the trial judge on Maryland law, the jury could not properly determine the existence of the alleged mitigating circumstance that Norman was 'not criminally responsible' for the crimes he committed in Maryland or weigh that circumstance in its determination of sentence."

On the lethal injection front, Maryland has released its new draft procedures here.  Missouri executions are effectively on hold until the federal Reginald Clemons lethal injection litigation resolves. The Nebraska Supreme Court dismissed Raymond Mata's lethal-injection appeal, unfortunately we've been unable to obtain the opinion.  California's lethal injection process remains under enormous pressure, as this piece by Prof. Ty Alper effectively demonstrates.

In the news, a federal jury in San Francisco unanimously declined to impose a death sentence on  Dennis Cyrus (who had been  convicted of three murders). Two suspects, Robert Springsteen and Michael Scott , in the "North Austin yogurt shop murders" have been released ROR despite facing capital murder charges, as the the State's case purportedly has fallen to pieces; Mr. Springsteen spent four years on death row before his conviction was reversed on appeal. DPIC notes that  a study finds "North Carolina conservatively spent at least $36 million dollars by seeking the death penalty instead of life in prison without parole over the past 7 years, just on defense costs."

As always thanks for reading. - k

United States Supreme Court since last edition

• Melendez-Diaz v. Mass., No. 07–591 (6/25/2009)  The Sixth Amendment requires confrontation of any witness, including criminalists.

• Safford Unified Sch. Dist. No. 1. v. Redding, No. 08-479 (6/25/2009)  "In a 42 U.S.C. section 1983 action alleging an unlawful search of a student, the denial of summary judgment based on qualified immunity is affirmed where the search of Plaintiff's underwear violated the Fourth Amendment because the facts did not give school officials reasonable suspicion to search her underwear." [via Findlaw]

• Terry Alvin Hyatt v. Branker, 2009 U.S. App. LEXIS 13441 (4th Cir 6/22/2009) Relief denied on claims asserting "(1) Fifth and Fourteenth Amendment rights in refusing to suppress incriminating statements made by Hyatt without the benefit of counsel, (2) his Sixth Amendment rights by denying his request to discharge his court appointed attorneys after the trial began, and (3) his Fourteenth Amendment due process rights by failing to instruct the jury on a lesser-included offense." "Habeas petition was properly denied as there was no basis for court to disturb state court's holding that inmate waived Fifth Amendment right to counsel during custodial interrogation as, inter alia, state court's holding that his statement did not unequivocally express desire for attorney did not constitute unreasonable application of federal law." [via Lexis] " ;In a capital habeas matter, the denial of Petitioner's petition is affirmed, where: 1) a law enforcement officer did not hear Petitioner make an unequivocal request for counsel prior to making his confession; and 2) the state court did not err in holding that Petitioner waived his right to counsel during a custodial interrogation." [via FindLaw]

• Marshall Lee Gore v. State,  No. SC05-1848 (FL 6/25/2009) Relief denied on claims including: "(A) Gore was incompetent at the time of his trial and postconviction proceedings; (B) the trial court erred in finding that Gore waived his allegations of ineffective assistance of counsel during sentencing and the trial court erred in finding that Gore voluntarily waived an evidentiary hearing on his claim of ineffective assistance during the Spencer hearing; (C) the trial court erred in refusing to allow postconviction counsel complete and unfettered access to available public records or sufficient time for a full investigation into the records made available; (D) the trial court erred in failing to conduct a cumulative error analysis that fully considered Gore‘s allegations of constitutional error; (E) the trial court erred in striking Gore‘s initial postconviction motion without permitting him leave to amend; and (F) the trial court‘s summary denial of claims I, II, III, V, VI, IX and X was error; Florida‘s capital sentencing procedures violate Ring v. Arizona, 536 U.S. 584 (2002); and Gore cannot be executed because he is insane."

• Juan Carlos Chavez v. State, No. SC07-952  &  Juan Carlos Chavez v. McNeil (FL 6/25/2009) Postconviction appeal and habeas corpus denied.  Claims denied include: "(1) the postconviction court erred in ruling that a lawyer who had studied the Cuban legal system was not qualified to offer opinion testimony concerning the Cuban and American criminal justice systems; (2) the postconviction court erred in determining that counsel was effective despite the failure to present evidence of mental health mitigation through the testimony of a psychologist; [ ] (3) there was a per se denial of effective assistance of trial counsel because discord amongst the defense team rendered the adversarial process inherently unreliable" " [4] ineffective appellate representation occurred during the direct appeal for the failure to challenge the constitutionality of Florida‘s lethal-injection protocol; [5] counsel failed to assert that Florida‘s standard penalty-phase jury instructions unconstitutionally shift the burden of proof to the defendant; [6] counsel failed to challenge the penalty-phase jury instructions with regard to minimizing and denigrating the role of the jury; and [7] cumulative errors deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution."

(Initial List) Week of June 22, 2009 – Noncapital

• Phelps v. Alameida, 2009 U.S. App. LEXIS 13685 (9th Cir 6/25/2009)  Petitioner was repeatedly denied relief on procedural grounds without ever having the substantive merits of his claims addressed. The procedural hurdles thrown in his way (first it was timeliness, then whether a Rule 60(b) motion was subject to 2244) subsequently were held improper in unrelated litigation but only after his case had wound its way through the system. After repeatedly trying to use Rule 60(b) to "get back in to Court" a panel remands -- after it had originally denied a COA -- and orders the district court to address his substantive claims for relief, some 11 years after the petition was initially filed.
  

• State v. Siller, 2009 Ohio 2874; 2009 Ohio App. LEXIS 2434 (Ohio 8th App. 6/18/2009) New trial granted. "Thomas Siller [ ]has been convicted twice by juries based in part on false forensic testimony.  Siller and another man were convicted of a 1997 murder based in part on testimony from forensic analyst Joseph Serothwik, whose false testimony also contributed to the wrongful conviction of Anthony Michael Green, who was exonerated by DNA testing in 2001. DNA testing in Siller’s case now implicates a man who testified against him at trial."  [via the Innocence Project blog]
  

Week of  June 15, 2009 – In Favor of the Accused or Condemned

• Allison Lamont Norman v. State, 2009 Del. LEXIS 306(Del 6/16/2009) "By relying upon the aggravating circumstance that Norman caused the death of two persons, the prosecution put in issue a second homicide in Maryland. Norman presented evidence in mitigation of his lack of criminal responsibility for his conduct in Maryland. Neither the jury nor the trial judge decided Norman’s claim in mitigation under Maryland law. This was because the Superior Court determined—at the State’s request—that Norman’s evidence of his lack of any criminal responsibility under Maryland law. This ruling—and the absence of any instruction to guide the jury on the issue of Norman’s alleged lack of criminal responsibility under Maryland law—requires a new penalty hearing. Without guidance from the trial judge on Maryland law, the jury could not properly determine the existence of the alleged mitigating circumstance that Norman was “not criminally responsible” for the crimes he committed in Maryland or weigh that circumstance in its determination of sentence. Delaware law and the Eighth Amendment to the United States Constitution require the jury and the judge to consider any mitigating circumstance that may be raised by the evidence.  The absence of an instruction on how to determine the existence of the alleged mitigating circumstance jeopardized the fairness and integrity of the penalty hearing in this case."

• Donald Hardcastle v. Horn, 2009 U.S. App. LEXIS 13026 (3rd Cir 6/17/2009)(unpublished) On return from remand for an evidentiary hearing, habeas relief properly finding that six (yes six) of prosecutor's peremptory strikes violated  Batson.

• Humberto Leal Garcia v Quarterman 2009 U.S. App. LEXIS 13085 (5th Cir 6/15/2009) Leal is a foreign national on death row in Texas.  Post-Avena but pre-Medellin Leal exhausted a Vienna Convention right claim and filed a habeas petition in federal court. The district court denied relief finding it did not have jurisdiction. The Leal Court  holds that  the district court had jurisdiction, but that nonetheless in light of  Medellin Leal must lose. The daily blog has more.

• Kenneth Wayne Thomas v. Quarterman, No. 08-70036 (5th Cir 6/19/2009) COA denied as "[t]he district court did not err in denying Thomas an evidentiary hearing or in accepting as reasonable the state court’s finding that Thomas was not mentally retarded.
  

• Ronnie Lee Gardner v. Galetka, No. 07-4104 (10th Cir 6/19/2009) "In a capital habeas matter, the denial of Petitioner's petition is affirmed where: 1) defense counsel made an objectively reasonable strategic decision in not investigating further or presenting psychological evidence at trial; and 2) a post-trial examination of the gun Petitioner used did not indicate it was faulty in any material way that would have caused it to accidentally discharge."[via FindLaw]

• People v. Joseph Avila, No. S078664 (CA 6/15/2009)  "In a capital murder matter, Defendant's conviction is affirmed where: 1) because defense counsel did not request Keenan counsel, the trial court did not fail to rule on such a request; and 2) Defendant pointed to no particular characteristic of the participants in the photo lineups at issue that made the lineups impermissibly suggestive." [via FindLaw]

• People v. Earnest Edward Dykes, Jr., No. S050851 (CA 6/15/2009) In a capital murder matter, Defendant's conviction is affirmed where: 1) the trial court's credibility determinations regarding the voluntariness of Defendant's conviction were amply supported by the evidence; and 2) Defendant failed to object to the alleged bolstering of a prosecution witness's credibility." [via FindLaw]

• People v. Raymond Oscar Butler, No. S05550 (CA 6/18/2009) "Defendant's capital murder conviction is affirmed where: 1) the trial court did not abuse its discretion in finding that joining Defendant's case with an unrelated jailhouse murder charge against Defendant would create unnecessary complexity; and 2) there was no merit in Defendant's complaint that the jury would be surprised if it learned about the jailhouse killing at the penalty phase." [via FindLaw]

• Ramiro Gonzales v. State, 2009 Tex. Crim. App. Unpub. LEXIS 424 (Tex.Crim.App. 6/17/2009) (dissent) Relief denied on whether there existed sufficient evidence absent Appellant's confession to convict; whether future dangerousness predictions rest on sufficient scientific foundations, as well as the normal jury instructions and preservation issue claims. 

• United States v. Donald Fell,  2009 U.S. App. LEXIS 13029 (2nd Cir 6/17/2009) (denial of en banc) A sharply divided court denies rehearing on the first Second Circuit direct capital appeal in decades.
  

• Earl Forrest v. State,  2009 Mo. LEXIS 136 (Mo 6/16/2009) Postconviction appeal denied on claims relating to (1) failure to adequately investigate and present mitigating evidence including retention/usage of jurors; (2) failure to object; (3) admission of inflammatory evidence; as well as (4) challenges to both lethal injection & clemency that are turned aside as not yet ripe.
  

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: Death Penalty Information Center, Fair Trial Initiative, GRACE, Southern Center for Human Rights, Pennsylvanians for Alternatives to the Death Penalty (where I'm currently the co-chair), & Texas Defender Service. 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

SMALL PRINT
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