CAPITAL DEFENSE WEEKLY

Two Monday morning opinions from the Supreme Court dominate this edition.  The first is the per curiam decision in Bobby v. Robert J. Van Hook, No. 09-144.  The Court in Van Hook engages it so-called "error correction mode."  Specifically, the Court holds the Sixth Circuit trial counsel Van Hook, for purposes of the Sixth Amendment, did an adequate job.  Getting to that conclusion the Court takes two tacts. The first is that the Sixth Circuit panel relied too heavily on the ABA Guidelines from 2003 about what the standards for trial counsel are in a case that preceded at trial those standards by by well over a decade. Secondly, and clearly more important to the Court, is  that the Sixth Circuit gave improper weight to the decisions by trial counsel to forego certain unfruitful investigations and that the prejudice suffered by Van Hook, if any, was negligible. Whether Van Hook serves as a prelude to a decision in the argued case  Wood v. Allen or serves as its foil remains to be seen.

The other is the concurrence from denial of a stay in John Allen Muhammad v. Kelly  The issue in the Muhammad concurrence written by Justice Stevens is his long running opposition to the practice of setting execution dates less than 90 days from the denial of federal habeas corpus relief by a Court of Appeals.  Curiously, joining the concurrence are both Justices Ginsburg and Sotomayor. 

Two opinions from the lower courts are also noted. In the first, from the aforementioned Sixth Circuit, comes Gary Van Johnson v. Mitchell.  In Johnson the panel holds that trial counsel missed rather easily obtained mitigation information that could have spared his client a death sentence.  "To hold in this case that serious consideration of such evidence could not have "change[d] the calculation the jury previously made when weighing the aggravating and mitigating circumstances of the murder," [ ] is -- in our judgment -- to ignore reality."

The other noted lower court opinion is  Ricky Dale Newman v. State.  In Newman the Arkansas Supreme Court reinvests jurisdiction in the circuit court for writ of error coram nobis (postconviction) proceedings. Specifically, Newman claimed that the State suppressed a "trove" of highly favorable evidence "and that, had this evidence been disclosed, there is a reasonable probability that the jury would not have convicted him."  The Court remands as a threshold showing has been made for a Brady violations.

DPIC notes that the Tennessee Law Review recently published a compilation of articles and essays from its colloquium, "The Past, Present, and Future of the Death Penalty," held in February 2009. Contributors focused on issues that have influenced capital punishment throughout the course of history.

Please note that in a few days from now will mark the 12th anniversary of the email edition of Capital Defense Weekly. As  has been done from time to time during those 12 years I’m changing the day of the week the email goes out. For the foreseeable future, we’ll post a link Sunday nights to where a working draft can be found and the final edition will go out Monday nights.  Thanks as always for reading. - k

Pending Executions 
November
10 Yosvanis Valle* (Texas)
10 John Allen Muhammad* (Virginia)
17 Gerald Eldridge* (Texas)
17 Larry  Elliott* (Virginia)
18 Danielle Simpson*  (Texas)(V)
19 Robert Thompson* (Texas)

December
2 Cecil Johnson Jr.* (Tenn)
3 Bobby Woods& Texas)
9 Devin Banks (Tenn)
11 Eric Wrinkles* (Ind)

Recent Stays & Reprieves
November
4  Paul Johnson* (FL)
10 Darryl Durr* (Ohio)

December
 8 Kenneth Biros * (Ohio)

Recent Executions
November
5 Khristian Oliver* (Texas)

* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may exclude any recently added execution date
(note that none of the Pennsylvania dates listed are likely actual execution dates)

Supreme Court

  • Bobby v. Robert J. Van Hook, No. 09-144 (11/9/2009)  Sixth Circuit imprudently granted habeas relief as it used the wrong standards and misjudged the factual record before it as to trial counsel's choices.
  • John Allen Muhammad v. Kelly, No. 09–7328 (11/9/2009) Certiorari denied with three justices concurring as to the propriety of setting execution dates prior to completion of the first round of habeas review.
  • United States v. James Ford Seale,  2009 U.S. LEXIS 7651 (11/2/2009) Certification denied on certified question concerning "what statute of limitations applies to a prosecution under 18 U. S. C. §1201 commenced in 2007 for a kidnapping offense that occurred in 1964."

Week of November 2, 2009 – In Favor of the Accused or Condemned (initial list)

  • Gary Van Johnson v. Mitchell, 2009 U.S. App. LEXIS 24142; 2009 FED App. 0384P (6th Cir. 11/4/2009) "At trial, counsel's failure to investigate left Johnson with only his own unsworn, antagonistic statement to the jury to counteract the evidence of aggravating circumstances attendant to the crime. As a result, the jurors were left with no choice but to view Johnson as a calculating individual, apparently a loner without human connection even with his family, and willing to murder anyone standing in the way of his acquisition of money that could be used to purchase drugs or alcohol. The presence of other information easily uncovered by the investigation of an effective advocate, however, would have allowed the jurors to see that the petitioner's relatives did care about Johnson, that as a child he had endured many hardships and traumatic experiences, and that he suffered from a personality disorder that, although not absolving him of responsibility for his crimes, helped explain why certain circumstances would be viewed by the petitioner in certain ways and would prompt certain abnormal responses. The jury might also have seen Johnson as an individual struggling to act appropriately in the face of paranoia and a distorted world view, a struggle that was only exacerbated by drug abuse. To hold in this case that serious consideration of such evidence could not have "change[d] the calculation the jury previously made when weighing the aggravating and mitigating circumstances of the murder," [ ] is -- in our judgment -- to ignore reality."
  • Ricky Dale Newman v. State, 2009 Ark. 540; 2009 Ark. LEXIS 706 (Ark 11/5/2009) Petition to reinvest jurisdiction in the circuit court for postconviction/writ of error coram nobis proceedings granted."In sum, Newman claims that the State suppressed a trove of highly favorable evidence and that, had this evidence been disclosed, there is a reasonable probability that the jury would not have convicted him. Based upon the record before us, we conclude that it appears that there were possible Brady violations in this case. We are mindful of Newman's confessions; however, Newman has presented evidence that he might have been incompetent when he made the confessions. As such, we are in no position to determine whether, had the suppressed evidence been disclosed to the defense and presented at trial, there is a reasonable probability that the judgment of conviction would not have been rendered. This determination must first be made by the circuit court. We add that, for the reasons previously stated, Newman exercised diligence in his claim of Brady violations."

Week of November 2, 2009 – In Favor of the State or Government (initial list)
  • Micheal Webb v. Mitchell,  2009 U.S. App. LEXIS 24255; 2009 FED App. 0385P (6th Cir. 11/5/2009) Relief denied "where: 1) defendant's Brady claim is rejected as there is no reasonable probability that, had a certain police report been disclosed, the outcome would have been different; 2) defendant's ex post facto and due process violation claims are rejected; 3) defendant's ineffective assistance of counsel during the penalty phase claim is rejected; 4) defendant's Fifth Amendment violation claim based on prosecution's comment on his failure to testify is rejected; and 5) district court did not err in concluding that defendant procedurally defaulted two of his ineffective assistance of counsel claims." [via FindLaw]
  • Emanuel Fitzgerald Hammond v. Hall, 2009 U.S. App. LEXIS 24209 (11th Cir 11/4/2009) "In a capital habeas matter, denial of the petition is affirmed where: 1) a witness's testimony about her criminal history was literally accurate; 2) it was unclear what evidence petitioner claimed was suppressed by the state; 3) the district court's finding that the prosecutor did not bully petitioner into testifying was not clear error; 4) there was no evidence that the prosecutor received exculpatory test results and hid them; and 5) certain suppressed evidence was not material, given the overwhelming evidence of petitioner's guilt" [via FindLaw]
  • Mark Allen Davis v. State, 2009 Fla. LEXIS 1867 (FL 11/5/2009) Relief denied as "newly discovered evidence would not probably produce an acquittal on retrial or result in different sentences, and the claims under Brady v. Maryland,  Giglio v. United States,  and Strickland v. Washington, are facially insufficient."
  • Hall v. James Allyson Lee,  2009 Ga. LEXIS 670 (GA 11/2/2009) Trial "court's determination that trial counsel were ineffective for failing to adequately investigate and present life history and psychiatric mitigating evidence" reversed and death sentence reinstated.
  • State  vs. Leonard S. Taylor,  2009 Mo. LEXIS 530 (Mo 10/27/2009) "The trial court did not abuse its discretion in excluding certain statements as hearsay, in admitting the results of two scientific tests, in overruling [Mr. Taylor]’s motion to exclude the test results based on the timing of their disclosure before trial, in admitting into evidence portions of a detective’s interrogation of the man’s brother, or in overruling [Mr. Taylor]’s request for a mistrial when he was handcuffed and removed from the courtroom after the jury found him guilty. [Mr. Taylor] fails to show that the trial court violated his constitutional or statutory rights to a speedy trial, erred in striking a particular juror for cause or committed plain error in not intervening, on its own motion, in response to certain comments made during the state’s closing argument. Further, this Court’s independent proportionality review shows the imposition of the death penalty here meets the statutory requirements." [via the Clerk's Office]
  • Shannon Johnson v. State, 2009 Del. LEXIS 582 (Del 11/4/2009) Relief denied on claims relating to: the trial court's failure to suppress certain letters sent by Johnson to his then girlfriend while he was incarcerated, failure to sever certain weapons counts, admission of evidence suggesting Johnson's involvement in another shooting, limitations placed on cross examination of the state's lead witness, admission of hearsay evidence in the penalty phase concerning a prior rape conviction, failure to admit hearsay evidence relating to that prior conviction, admission of other crime evidence in the penalty phase, admission of victim's father testimony about pending legislation called "Cameron's Law", and statutory review.

  • Ex parte Norris,  2009 Tex. Crim. App. Unpub. LEXIS 741 (Tex. Crim. App. 11/4/2009) (dissent) Relief denied without substantive discussion.  Dissent notes that Norris recent case law suggests that Norris is not guilty of capital murder but rather mere murder.

Week of October 26, 2009 – In Favor of the State or Government

  • Cory Maples v. Allen, 2009 U.S. App. LEXIS 23580 (11th Cir 10/26/2009) (dissent) Relief denied on claims relating to whether "(1) Maples’s ineffective-assistance claims were procedurally defaulted because Maples did not timely file an appeal of the dismissal of his Rule 32 petition; (2) even if Maples’s default were the result of his three post-conviction counsel’s failing to file a Rule 32 appeal, such ineffectiveness could not establish cause for the default because there is no constitutional right to post-conviction counsel; and (3) the Alabama appellate courts’ decisions that Maples was not entitled to a sua sponte jury instruction on manslaughter due to voluntary intoxication was not contrary to, or an unreasonable application of, clearly established federal law." Dissent argues the procedural bar at issue is not “firmly established and regularly followed.” More at ATL.

  • State v. Gerald Bordelon,  2009 La. LEXIS 2968 (La. 10/16/09) "[W]e have granted defendant's motion to waive his direct appeal, and because our Rule 28 review reveals that the death penalty imposed on defendant is not excessive, the appeal of his conviction for first degree murder and sentence of death is hereby dismissed."
  • Paul Ezra Rhoades v. State , No. 35021 (Ida 10/19/2009) "Three main issues are presented on appeal: First, whether the grounds raised by Rhoades allow for equitable tolling of the limitation provided by I.C. § 19-4902; second, for grounds that would entitle him to equitable tolling, whether Rhoades has met his burden of pleading facts that would entitle him to that equitable tolling; and finally, whether this appeal was frivolous and whether, as a result, the state is entitled to an award of attorney fees.
  • Ex parte Preyor, 2009 Tex. Crim. App. Unpub. LEXIS 724 (Tex. Crim. App.  10/28/2009) Relief denied without substantive discussion of appellate IAC claims.

Week of October 26, 2009 – Other 

  • In re Std. Jury Instructions,   2009 Fla. LEXIS 1806 (FL 10/26/2009) Modification of the penalty phase sentencing instruction in light of the ABA's recommendations on Florida's death penalty.

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As a reminder,we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to a nonprofit involved in some aspect of the capital punishment issue, such as  Pennsylvanians for Alternatives to the Death Penalty  (website/donate)(where I'm currently the co-chair) or the Fair Trial Initiative (website/donate).  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.  As always, thanks for reading, and special thanks go to Steve Hall whose Stand Down website is often borrowed from here, as well as our "researchers" and "reporters" who have asked not to be named.  - k

SMALL PRINT
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OPEN RESEARCH DATA: Search terms for the weekly are "capital habeas" or "capital postconviction" or "DEATH PENALTY" OR "CAPITAL MURDER" OR "SENTENCED TO DEATH" OR "PENALTY PHASE" OR "SPECIAL QUESTIONS" or "SENTENCE OF DEATH" OR "DEATH SENTENCE" or "capital punishment" or "witherspoon"- please note, however, the terms "overproduce" results, including all federal habeas corpus opinions. Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts. Thx - karl keys