CAPITAL DEFENSE WEEKLY


Thanks as always for reading. - k

Pending Executions 
November

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)
17 Gerald Eldridge* (Texas)

December
 8 Kenneth Biros * (Ohio)

Recent Executions
November
5 Khristian Oliver* (Texas)
10 Yosvanis Valle* (Texas)
10 John Allen Muhammad* (Virginia)
17 Larry  Elliott* (Virginia)
18 Danielle Simpson*  (Texas)(V)
19 Robert Thompson* (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
  • Wong v. Belmontes (08-1263) (11/16/2009)  Per curiam, GVR, reversing and remanding, for the third time, a penalty phase grant of relief finding no prejudice in counsel's deficient penalty phase performance.

  • 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 9, 2009 – In Favor of the State or Government (initial list)
  • Reginald Clemons v. Crawford, 2009 U.S. App. LEXIS 24596 (8th Cir 2/11/2009) Arkansas' lethal injection protocol upheld. "Missouri death row prisoners challenging Missouri's execution protocol did not allege a sufficiently substantial risk of serious harm or a sufficiently imminent danger to state an Eighth Amendment claim, and the district court did not err, as a matter of law, in determining that the prisoners had failed to state a claim for violation of the Eighth Amendment; no error in denying motions to intervene." [via the Eighth Circuit's Clerk Office]
  • Manuel Pardo,Jr., v. Sec'y, Fla. Dep't of Corr., 2009 U.S. App. LEXIS 24644  (11th Cir 11/10/2009) Relief denied on "(1) whether the trial court erred by failing to sua sponte order a full competency hearing; (2) whether he was tried while incompetent; (3) whether he was denied effective assistance of counsel because his attorney failed to request a competency hearing, failed to discover the underlying cause for Pardo’s insanity, and waived severance of the murder counts; and (4) whether he was denied his right to adversarial testing during the guilt phase by the prosecution’s withholding of material evidence."
  • Gregory Christopher Decay v. State,  2009 Ark. 566; 2009 Ark. LEXIS 743 (Ark 11/12/2009) "Appellant Gregory Decay appeals from the judgment and commitment order of the Washington County Circuit Court, convicting him of two counts of capital murder and sentencing him twice to death. Decay argues fourteen points on appeal: (1) the circuit court erred in failing to suppress Decay's statements to law enforcement; (2) the circuit court erred in failing to suppress telephone calls made by Decay from the Washington County Detention Center; (3) the circuit court improperly excused four jurors for cause; (4) the circuit court erred by refusing to submit a jury instruction regarding Decay's good character; (5) the circuit court erred in prohibiting testimony and evidence of the victims' lives during the guilt phase of trial; (6) the circuit court erred by allowing the State to present a photograph of Decay holding an assault rifle; (7) the circuit court erred in admitting the testimony of a third  [*2]  party statement into evidence; (8) the circuit court erred by allowing the State to obtain two separate  [**2] sentences of death for the same aggravating circumstance; (9) the circuit court erred in rejecting Decay's proffered jury instruction regarding victim-impact testimony; (10) the jury erred by failing to find evidence presented that constituted mitigating factors; (11) the circuit court failed to limit victim-impact testimony presented by the State; (12) the circuit court erroneously limited evidence of mitigation; (13) the circuit court erred by allowing the prosecutor to make improper statements during closing arguments; and, finally, (14) this court should reverse for other issues after conducting a mandatory review pursuant to Rule 10 of the Arkansas Rules of Appellate Procedure--Criminal. We find no error and affirm."
  • Charles Grover Brant v. State, 2009 Fla. LEXIS 1922 (FL 11/12/2009) "On appeal, Brant argues that his death sentence is disproportionate. He does not raise any claims regarding the propriety of his pleas or his penalty-phase trial."
  • William Reaves v. State, 2009 Fla. LEXIS 1871 (FL 11/4/2009) (unpublished) "Reaves asserts that: (1) the trial court abused its discretion in denying his public records request for the "Mirman letter"; (2) the trial court erred in summarily denying his Eighth Amendment challenge to Florida's lethal injection protocols; and (3) the Department of Corrections improperly delegated its authority to create and implement lethal injection procedures to the Attorney General's Office in violation of the separation of powers doctrine."
  • Michael Allen Griffin v. McCollum,  2009 Fla. LEXIS 1872 (FL 11/2/2009) (unpublished) Relief denied as to a "belated petition for a writ of habeas corpus, alleging ineffective assistance of appellate counsel. Griffin asks this Court to address the merits of his habeas petition even though the petition is untimely, arguing that his postconviction counsel, through neglect, failed to file the petition."
  • Robert Owen Arrington v. State, 2009 Ga. LEXIS 690 (Ga 11/9/2009) Relief denied, most notably, on "whether the imposition of the death penalty in Georgia is “arbitrary and capricious.” “Georgia‟s death penalty statutes have been repeatedly upheld as constitutional,” the opinion says. The high court also rejects Arrington‟s contention that the “proportionality review” – comparing similar cases and sentences to determine whether the death penalty is excessive or out of line for the crime involved – failed to meet statutory and constitutional requirements. The Court notes that it has rejected similar arguments and that “Arrington has presented nothing that supports a contrary conclusion in this case.” And the Court rejects Arrington‟s claim that his constitutional rights were violated by the admission of evidence that he had pleaded guilty to killing his wife, Elizabeth, 15 years earlier. In another matter, Arrington‟s attorney objected during jury selection after the State used 70 percent of its peremptory strikes to remove African Americans from the jury. In response, the trial court did require the State to articulate its reasons for the strikes and subsequently accepted the State‟s basis for them. “Considering the totality of the circumstances, we cannot conclude that the trial court‟s Batson ruling was clearly erroneous,” the Supreme Court concludes." [via Georgia Supreme Court's Clerk Office]
  • State v. Millard Price, 2009 Del. Super. LEXIS 418 ( Del. Super. 11/9/2009) Defendant's motion to dismiss or to merge the weapons charges denied
  • State v. Millard Price, 2009 Del. Super. LEXIS 414(Del. Super.  11/9/2009) Defendant "has moved for an order compelling the State to provide Defendant with equal access to criminal records of the jury array or to preclude the State from possessing such records during jury selection." Relief denied.
  • State v. Millard Price, 2009 Del. Super. LEXIS 417 (Del. Super.  11/9/2009) In this capital murder case, Defendant Millard E. Price has moved to sever the first two counts, Murder First Degree and Possession of a Firearm During the Commission of a Felony, from the remaining 17 counts in the Indictment. He argues that joinder of all the counts against him would be unfairly prejudicial at trial. The State opposes the motion, arguing that the charges are properly joined and that Defendant has not established substantial prejudice. For the reasons explained below, the motion for severance is denied.  
  • State v. Millard Price, 2009 Del. Super. LEXIS 419 (Del. Super.  11/9/2009)  "Defendant asks the Court to declare the death penalty statute unconstitutional under the Sixth Amendment. For the reasons explained below, the Court finds § 4209 comports with the requirements of Apprendi v. New Jersey 1 and Ring v. Arizona, 2 as well as Delaware law. "

Week of November 2, 2009 – In Favor of the Accused or Condemned 

  • Ex parte Joe Nathan James, Jr.; (In re: Joe Nathan James, Jr. v. State of Alabama),  2009 Ala. LEXIS 260 (Ala11/6/2009) " In the present case, it is undisputed that the State did not plead the affirmative defense of the preclusionary grounds of Rule 32 concerning the majority of James's ineffective-assistance-of-counsel claims, thus waiving that affirmative defense, and that no "extraordinary circumstances" exist that would justify the Court of Criminal Appeals' sua sponte application of the procedural grounds to those of James's ineffective-assistance-of-counsel claims as to which the State did not plead the affirmative defense. The State concedes that the Court of Criminal Appeals' sua sponte application of the preclusionary grounds of Rule 32 to James's ineffective-assistance-of-counsel claims conflicts with Clemons and that its judgment should be reversed and the case remanded for that court to consider the merits of James's remaining ineffective-assistance-of-counsel claims. We agree. As Clemons establishes, the preclusionary grounds of Rule 32 are affirmative defenses that must be pleaded or they are waived; the preclusionary grounds do not affect the courts ' jurisdiction. The State concedes that it waived the preclusionary grounds by not pleading them as an affirmative defense in the circuit court. Therefore, we reverse the Court of Criminal Appeals' judgment and remand the case for that court to consider the merits of James's remaining ineffective-assistance-of-counsel claims.
  • 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)
  •  Commonwealth v. Sherwood,  2009 Pa. LEXIS 2359 (PA 11/6/2009) "In this appeal, Appellant asserts that he is entitled to relief because: 1) the evidence was insufficient to sustain his conviction for first-degree murder; 2) the verdict finding him guilty of first-degree murder was against the weight of the evidence; 3) the trial court erred in permitting the Commonwealth to introduce evidence of prior bad acts; 4) the suppression court erred in denying his motion to suppress his statements and the physical evidence seized by police; 5) there was no evidence of torture; 6) trial counsel was ineffective; and 7) a new trial should be granted on account of the number of errors extant in the trial. After careful review, we hold that Appellant is not entitled to relief on any of these claims"
  • 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.

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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