|
CAPITAL DEFENSE WEEKLY
Leading off this belated double
edition is the Supreme Court's holding
in Beard
v. Joseph Kindler. The Court in Kindler
remands this habeas case
back to the Third Circuit. The Pennsylvania state courts found that the
fugitive forfeiture rule would bar relief on Mr. Kindler's
claims. Nonetheless, the
Third Circuit granted relief. The Kindler
Court holds that the
Third Circuit should reevaluate whether that the procedural rule
applied by the Pennsylvania state courts should serve
as an adequate ground to bar federal habeas relief.
The Ninth Circuit, en banc,
granted penalty phase relief in Scott
Lynn
Pinholster
v.
Ayers. "[T]he California Supreme Court’s "postcard" denial
of Pinholster’s
penalty phase ineffective assistance claim constituted an objectively
unreasonable application of the clearly established federal law in Strickland. Pinholster’s
attorneys performed even more deficiently than the lawyers in Terry Williams, Wiggins, and Rompilla;
and the balance between the available mitigating evidence and the
aggravating evidence, for purposes of showing prejudice, is materially
indistinguishable from that in Terry Williams and Rompilla."
The Supreme Court in Cecil Johnson v. Bredesen
denied certiorari concerning the issue of prolonged incarceration on
death row as a potential bar to execution. On the final round of review
by the Supreme Court Justices Stevens and Breyer, here, sharply argued the Court should have granted
certiorari on the issue. Justice Thomas here, just as forcefully replied.
On the lethal injection front,
since the last edition Ohio managed to
not botch its new one drug protocol in the execution of Kenneth
Biros.
Meanwhile,
Rommell Broom's future, Ohio's last botch execution, is being
fought in federal court.
Elsewhere, Franklin Zimring
(William G. Simon
Professor of Law and Wolfen Distinguished Scholar at the UC Berkeley
School of Law) over at the National Law Journal looks at the decision
by the American
Law Institute to withdraw the MPC on capital punishment in an article
entitled "Pulling
the
plug
on capital punishment." Henry
"Hank"
Skinner "has sued a [Texas] prosecutor, alleging she is
denying him access to DNA
evidence that has never been tested and could prove he is innocent of
murdering three people in 1993." Linda
Greenhouse at the
New
York Times Opinionator
blog compares the Court's decisions in VanHook & Porter and
asks,whether the Court is too sparingly dispensing empathy. DPIC notes
that Andrea Lyon has a forthcoming book entitled Angel
of
Death
Row: My Life as a Death Penalty Defense Lawyer reflecting on
her career as a capital litigator.
Finally, DPIC
was kind enough to pick up on a op-ed bylined by Bill
Pelke and me concerning military service and the death penalty.
Both
of us are vets, Bill of VietNam and me of last war
with Iraq. The
editorial looks at two cases James Floyd Davis and Manny Babbitt,
veterans who
received Purple Hearts for their service in the Vietnam War but were
sentenced to death nevertheless. The piece is available at DPIC
& AlterNet.
As always, thanks for reading. - k
Pending
Executions
December
16 Carlton Gary (GA)*
16 John Amos Small (Penn)
17 Antoine Ligons (Penn)
January 2010
7 Abdullah Sharif Kaazim Mahdi (f/k/a Vernon Lamont
Smith)* (Ohio)
7 Gerald Bordelon * (LA)(vol)
7 Kenneth Mosley* (Texas)
12 Gary Johnson* (Texas)
14 Julius Young* (Okla)
February
4 Mark Brown* (Ohio)
24 Hank Skinner* (Texas)
Recent Executions
December
8 Kenneth Biros (Ohio)
11 Eric Wrinkles (Ind)
* "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
- Beard v.
Joseph Kindler, 2009 U.S. LEXIS 8944 (12/8/2009) "Where an
inmate's challenges to his capital murder conviction
and death sentence were denied in state court based on Pennsylvania's
fugitive forfeiture rule, but his federal habeas petition was granted,
remand was warranted because a discretionary state procedural rule
could serve as an adequate ground to bar federal habeas review." [via
Lexis]
- Porter
v.
McCollum, No. 08-10537 (11/30/2009) Per curiam, GVR, trial
counsel erred in not adequately investigating Mr. Porter's military
background and presenting the strong evidence of his war time military
service as a mitigator to the state's case. Court notes, along
the way t hat where there is no state court adjudication on a prong of
the Strickland review
is de novo. Strong language on the power of military service as
mitigation.
Week
of December 7, 2009: In
favor of the Accused or Condemned
(initial list)
- Scott
Lynn
Pinholster
v.
Ayers, 2009 U.S. App. LEXIS 26850 (9th Cir
12/9/2009) (en banc) (dissent) Relief granted as trial counsel's
penalty phase performance was unduly wretched. The Ninth Circuit blog
has more.
- People
v.
Butler, 2009 Cal. LEXIS
12407 (Cal 12/10/2009) "In
a case in which defendant was sentenced to death for stabbing another
inmate, trial court erred in deciding that he could not adequately
represent himself because of jail restrictions resulting from
disciplinary infractions. Although defendant was a security risk, there
was no showing that his pro. per. status increased the risk in any
way."
[via Lexis]
Week
of December 7, 2009: In Favor
of the State or
Government
(initial list)
- People
v.
Ervine, 2009 Cal. LEXIS
12406 (Cal 12/7/2009) "In
the absence of evidence that confidential information was actually
conveyed to prosecution as result of the reading of defendant's
privileged legal materials by unrelated jail personnel from another
county, defendant had no claim that his Sixth Amendment rights were
violated; there was no evidence he was prejudiced in preparation of his
defense."
- Daniel Wilkes v. State, 2009 Ind. LEXIS 1516 (Ind.
12/10/2009) Relief denied on direct appeal over claims that "I. The
trial court erred in admitting transcripts and
recordings of four interviews in which he acknowledged his guilt; II.
The trial court erred in admitting evidence of his molesting of Avery,
expert testimony regarding a presumptive test for blood, and opinion
testimony on guilt; III. Indiana's death penalty statute violates the
Indiana Constitution's requirement of separation of powers and the
Federal Sixth Amendment; and IV. Wilkes was not sentenced properly."
- Tiequon
Aundray
Cox
v.
Ayers, 2009
U.S. App. LEXIS 26892 (9th Cir 12/10/2009) "Tiequon
Aundray Cox was convicted in California state court, and sentenced to death, for the
murders of four victims. In this habeas proceeding, brought pursuant to
28
U.S.C. sec 2254, he challenges his convictions and death sentence
on the grounds that (1) the state trial court's decision to shackle him
during the guilt phase of the trial prejudiced the jury during both the
guilt and penalty
phases and (2) that he received ineffective assistance of
counsel during the penalty phase. Because Petitioner
was not prejudiced by the trial court's decision to
shackle him during the guilt phase of the trial, and because Petitioner
received
constitutionally sufficient assistance of counsel at the penalty phase,
we
affirm."
- Lisa
Coleman
v.
State, 2009 Tex. Crim. App. Unpub. LEXIS
792 (Tex. Crim. App. 12/9/2009) (unpub) Relief denied on suffiency;
failure of the indictment to allege aggravating factors; "admitting
statements she made to CPS investigators while she was in custody;"
jury instructions on parole; gal sufficiency of the evidence
supporting the jury's determination regarding the future-dangerousness;
sufficiency of the state's penalty phase presentation and jury
instructions on the weight of mitigation.
Week
of November 30, 2009: In
favor of the Accused or Condemned
- Charles
Ray
Crawford
v.
Epps, 2009
U.S. App. LEXIS 26243 (5th Cir 12/2/2009) (unpublished) '[W]e grant
Crawford a COA on his claim that he was subjected to a
psychiatric evaluation of his competency without the benefit of counsel
in violation of the Sixth Amendment.
To permit the district court an opportunity to develop the record, if
necessary, and reconsider the merits of Crawford's claim, we vacate
that portion of its order denying relief on this basis and remand for
further proceedings."
- Mark
Gill v.
State, 2009 Mo. LEXIS 540 (Mo 12/1/2009) "Although a
victim's character is not typically an issue, when the State introduced
evidence of the victim's good character in the penalty phase, Gill's
counsel should have rebutted the State's good character evidence with
the sexually explicit contents of the victim's computer. Because his
counsel failed to discover the sexually explicit contents of the
victim's computer, Gill's counsel were ineffective. This Court affirms
the denial of the Rule 29.15 motion as to the guilt phase of the trial,
but reverses the denial of the motion as to the penalty phase insofar
as Gill had ineffective assistance of counsel for failing to
investigate the victim's computer. The case is remanded."
Week
of November 30, 2009: In Favor
of the State or
Government
- Frederick
Cummings
v.
Sec'y for the Dep't of Corr., 2009 U.S. App. LEXIS
26616 (11th Cir 12/4/2009) "[W]e reverse the district court's grant of
a writ of habeas corpus to Cummings on his claim of ineffective
assistance in the investigation and presentation of mitigation evidence
in the penalty phase. We affirm the district court's denial of the
remaining claims in Cummings's § 2254 petition."
- Henry
Louis Wallace v. Branker, 2009 U.S. App.
LEXIS 26206 (4th Cir 12/2/2009) (unpublished) "We granted a certificate
of
appealability on two of Wallace's claims: (1) that pretrial publicity
and the state court's denial of his motion for a change of venue
deprived him of an impartial jury and (2) that delayed administration
of Miranda
warnings rendered his confessions involuntary and therefore
inadmissible. After considering these claims, we affirm the district
court's denial of the writ." "Habeas petition was properly denied
because denying motion to
change venue based on pretrial publicity did not deprive inmate of
impartial jury under Sixth Amendment because, inter alia, state court
reasonably found that pretrial publicity would not have made inmate's
trial a hollow formality and that voir dire provided best indicia of
prejudice." [via LexisOne]
- State
v.
Kerry
Perez, 2009 Ohio 6179 (Ohio 12/2/2009) (dissent)
Relief denied, most notably, on use of taped conversations between
Appellant and his spouse (the Perez Court here greatly expands the type
of materials admissible under the State's marital privilege) and use of
the “course of conduct” death penalty specification (which draws
a dissent).
- Commonwealth
v.
Cletus
Rivera,
2009 Pa. LEXIS 2490 (Penn 11/30/2009) "There
was sufficient evidence to support appellant's conviction for
first-degree murder and the imposition of a death sentence as the
testimony at trial established that he was the aggressor who shot and
killed a police officer, who had not drawn his weapon, and his use of
force was not justified under 18 Pa.C.S. § 505."[via Lexis]
Week
of November 30, 2009: Other
- In
re
Death
Penalty Sentencing Jury Rules, 2009 NMSC 52 (NM
11/30/2009) Excercising its inherent powers, the New Mexico Supreme
Court holds for
the limited number of capital cases that remain in that state "that
providing the option of having two separate juries – one to determine
innocence or guilt and one to determine sentencing – for the limited
number of death penalty cases that remain pending in New Mexico may
address some of the concerns expressed by the Governor, the
Legislature, and others regarding the death penalty system in New
Mexico."
- In re
Death Penalty Sentencing Jury Instructions, 2009 NMSC 53 (NM
11/30/2009) Excercising its inherent powers, the New Mexico Supreme
Court holds for the limited number of capital cases that remain in that
state "that providing the option of having two separate juries – one to
determine innocence or guilt and one to determine sentencing – for the
limited number of death penalty cases that remain pending in New Mexico
may address some of the concerns expressed by the Governor, the
Legislature, and others regarding the death penalty system in New
Mexico."
Week
of November 23, 2009: In
Favor of the Accused or Condemned
- Thomas
Clyde Bowling v.
Ky. Dep't of Corr., 2009 Ky. LEXIS 291 (Ky 11/25/2009)
Kentucky's
lethal injection protocol fails as it was not adopted in accordance
with the Commonwealth's Administrative Procedure's Act. "Having
reviewed the applicable law, it is apparent that the lethal injection
protocol implements KRS 431.220, Kentucky's lethal injection statute
and, further, that significant portions of the protocol are not matters
of internal management for the Department but rather statements of
general applicability and policy which affect private rights. Pursuant
to KRS 13A.100, the Kentucky General Assembly has required [*4]
that
such portions of the protocol be adopted as an administrative
regulation."*
Week
of November 23, 2009: In
Favor
of
the
State
or
Government
- Richard
Cooey,
II,
Kenneth
Biros
v.
Strickland, No. 09-4300 (6th Cir
11/25/2009) "In granting a stay of execution, the district court based
its reasoning on concerns related to the old procedure. Because the old
procedure will not be utilized on Biros, no basis exists for continuing
the stay previously in effect. Whether a stay is warranted under the
new protocol is not before us at this time. Should Biros bring a new
challenge on this ground, the district court and we can consider
whether he has met the requirements for granting a stay, including the
requirement of establishing a likelihood of success on the merits."
- James
Hunt
v.
Commonwealth, 2009 Ky. LEXIS 292 (Ky 11/25/2009) " Trial
court
did not err in refusing to instruct the jury on criminal trespass under
Ky. Rev. Stat. Ann. § 511.060 as a lesser offense of burglary
under Ky.
Rev. Stat. Ann. § 511.060 because defendant intended to commit a
crime;
if defendant did not intent to murder the victim, he at least intended
to harass, threaten, or wantonly endanger her." [via Lexis]
- Dale
Wayne Eaton v. State, 2009 WY 144 & 2009 WY 145 (Wyo
11/24/2009)
Summary denial of postconviction petition of Wyoming's death row inmate
and remand to set execution date.
- Ex
parte
Ramiro
Hernandez,
WR-63,282-02 (Tex Crim App 11/25/2009) Relief denied without a
substantive discussion of the merits.
- Troy
Victorino
v.
State, 2009 Fla. LEXIS
1954 (FL 11/25/2009) Relief denied. "Regarding the guilt phase,
Victorino
argues that the trial court erred in (A) denying his pretrial motion to
suppress DNA samples and nail scrapings, which he claimed were forcibly
obtained from him; (B) denying his motion to suppress physical evidence
seized from his Fort Smith Boulevard residence; (C) denying his motion
to sever his trial from that of his two codefendants; (D) admitting
evidence of uncharged misconduct; (E) using the "and/or" conjunction
between the names of the codefendants when instructing the jury; (F)
moving the trial within the Seventh Circuit from Volusia County to St.
Johns County after granting a motion to change venue; (G) denying his
request for additional peremptory challenges; (H) denying his motion
for mistrial when his codefendant testified; (I) denying his motion for
judgment of acquittal; and (J) denying him due process in his arrest
and service of the warrant and admitting irrelevant evidence." "With
regard to the penalty phase, Victorino argues on
appeal that both the HAC and CCP aggravators are unconstitutional and
inapplicable in his case; that the statutory mental health mitigator
applies in his case; and that his sentences are disproportionate to
those of his codefendants. He also contends that Florida's death
penalty scheme is unconstitutional and that he should be retried
because of the cumulative effect of the errors
that occurred in the trial court. As explained below, each of his
claims is meritless." " There was sufficient evidence to support the
first degree
murder convictions and application of the of the heinous, atrocious, or
cruel aggravator was appropriate because the victims were acutely aware
of their impending deaths as they were beaten with baseball bats and
the murders were both conscienceless or pitiless and unnecessarily
torturous." [via Lexis]
If you
have problem with this
edition it is
available
at http://capitaldefenseweekly.com/archives/091207.htm
for printing. We'd simply ask that before printing consider our
environment and saving our trees. If you find this
email
useful, feel free to forward it or excerpt it. We prefer attribution,
but don't require it.
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
We've been at
this 11+ years now. Thanks to all
those whose time,
efforts, and contributions have made it possible.
*Indicates prior representation or other involvment in the
case by the author.
SUBSCRIBING
& ARCHIVES:
The
summaries above are normally published
forty (40) times (or so) a year. To subscribe: capital_defense_weekly-subscribe@yahoogroups.com.
To
unsubscribe:
capital_defense_weekly-unsubscribe@yahoogroups.com
1997-2009COPYRIGHT
/ FAIR USE NOTICE: In plain English,
you can use these materials without attribution (although I would
appreciate the attribution) for any noncommercial purposes you see fit,
(such as professional education, your newsletter, etc.). You can't use
the works created by others contained in this newsletter identified
above (normally selected excerpts from the works of others) as I simply
can't give away the rights of others to their intellectual property.
Any derivative works must provide at least as equal or greater waiver
of intellectual property rights. Nothing in this newsletter constitutes
legal advice. The legalese, copyright, disclaimers, notices, &
terms of usage are available in full here.
Where in conflict with the plain English version of this disclaimer /
copyright notice, please go with the legalese
DISCLAIMER:
In
plain
English,
due
your
own
due
diligence.
Legalese:
Use
does
not
constitute
establishment
of attorney-client relationship. On a semi-regular basis
cases in which the writer(s) have participated in one manner or another
(including as counsel of record) may be covered here. As always, the
views expressed here represent an attempt to show what a given Court
held, not whether a particular court reached the right decision The
opinions noted above are normally "slip opinions" that may be modified
or withdrawn by the issuing court without notice. Note the citation
method we use is to permit readers to readily find opinions either from
a given court, Lexis, or the free Lexis product Lexisone.com.
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
|