Leading off this edition is Wellons v. Hall.  In this per curiam opinion, the Court  grants certiorari and remands, in light  Cone v. Bell. As the ABA Journal notes: "[s]ome jurors hearing the case against defendant Marcus Wellons gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts. In a 5-4 ruling, the U.S. Supreme Court in a per curiam opinion ordered the Atlanta-based 11th U.S. Circuit Court of Appeals to reconsider whether Wellons is entitled to discovery and a hearing" in light of the claimed misconduct and Cone.

In the news, David Dow, the Director of the Texas Innocence Network at the University of Houston Law Center has written "The Autobiography of an Execution," being published next month by Twelve Publishers; Prof. Dow has a preview, likewise entitled The Autobiography of an Execution," at Huffington Post. Ronald Smith, Canada's only resident on death row USA, is now at the center of  a  lethal injection challenge to Montana's execution protocol. Texas Court of Criminal Appeals Presiding Judge Sharon Keller has effectively received a pass for her conduct that directly led to shutting the CCA to a lethal injection challenge on the day Baze was granted certiorari by the US Supreme Court.  "Shaken baby syndrome itself is put on trial in Fairfax court" is the title of a recent report in the Washington over whether "shaken baby syndrome" actually exists. In Pennsylvania, the Pittsburgh Post-Gazette looks at the Keystone state's failed experiment with capital punishment entitled, "Death row inmates stay indefinitely: No one has been executed in Pennsylvania since 1999."

• Ronnie Ferrell v. State,  2010 Fla. LEXIS 42 (FL 1/14/2010) (dissent).  At trial the defense waived presentation of available mitigation evidence. Trial counsel failed to adequately investigate what possible mitigation evidence existed and then failed to adequately advise their client prior to the waiver.  Additionally, counsel failed to object to  the State's over the top closing argument in the penalty phase that included comments to do their "duty," denigration of mitigation, misstatements of law,  "the statement that this case deserved the death penalty, the statements vouching for the credibility of various witnesses, and the mercy argument."

• Paul Beasley Johnson v. State,  2010 Fla. LEXIS 40 (FL 1/14/2010) (dissent) “We conclude that newly disclosed evidence shows the following. First, after Johnson was arrested and counsel was appointed, the State intentionally created a situation likely to induce Johnson to make incriminating statements to a jailhouse informant, James Smith, in violation of Johnson’s Sixth Amendment right to counsel. Because Johnson’s statements were impermissibly elicited, Smith’s testimony concerning those statements was inadmissible under United States v. Henry. Second, although the prosecutor at Johnson’s first trial knew that Johnson’s statements were impermissibly elicited and that Smith’s testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony. And third, because Smith’s testimony was admitted and later used–innocently but impermissibly–by a different prosecutor at Johnson’s 1988 trial, and because the State has failed to show that this error did not contribute  to the jury’s advisory sentences of death, we must vacate the death sentences under Giglio v. United States, and remand for a new penalty phase proceeding before a new jury. This result is dictated by the misconduct of the original prosecutor in this case, Hardy Pickard. His misconduct tainted the State’s case at every stage of the proceedings and irremediably compromised the integrity of the entire 1988 penalty phase proceeding. This is not a case of overzealous advocacy, but rather a case of deliberately misleading both the trial court and this Court.”

• William Joseph Burns v. Commonwealth, 2010 Va. LEXIS 19 (Va 1/15/2010) Remand ordered on issues relating to the intersection of Atkins and competency. Specifically, under Virginia law a determination that the condemned is indeed competent is required before making an Atkins determination. “Because the remanded proceeding was criminal in nature, the circuit court erred in ruling that Burns’ competence was irrelevant and in refusing to adjudicate Burns’ competence.” “Because a proceeding remanded pursuant to Code § 8.01-654.2 for determination of a claim of mental retardation by a person sentenced to death for a capital offense was criminal in nature, the circuit court erred in granting summary judgment to the Commonwealth and in ruling that the defendant’s competence was irrelevant, refusing to adjudicate his competence. The circuit court’s judgment is reversed and the case is remanded for further proceedings consistent with this opinion.” [Clerk's Office]

Week of January 11,  2010: In Favor of the State or Government

• Michael Angelo Coleman v. State,  2010 Tenn. Crim. App. LEXIS 36 (Tenn Crim App 1/13/2010) “The denial of the inmate’s motion to reopen his postconviction petition for the purpose of determining whether he was mentally retarded and thus ineligible for the death penalty was proper under Tenn. Code Ann. § 39-13-203(b) because he failed to meet the bright-line mark of 70 for establishing mental retardation at the time of the offense.” [Lexisone]

• Christopher Devon Jackson v. State,  2010 Tex. Crim. App. Unpub. LEXIS 30 (Tex Crim App 1/13/2010)(unpublished) Relief denied on direct appeal on a grab bag of claims including admission of the sheriff department's security precaution in moving Mr. Jackson between the jail and courthouse; "rosecutor's interjection of her opinion during closing arguments;" "trial court erred when it refused to submit a jury instruction on the issue of voluntariness ;" "admission of photographs depicting the victim at the crime scene and during the autopsy;" "admitting into evidence a summary of disciplinary infractions that he committed while he was incarcerated in Texas Youth Commission (TYC) facilities in 2003 and 2004;" and "trial court erred in excluding from evidence records from Child Protective Services (CPS) and from Twelve Oaks Hospital."
  

• People v. Tommy Jesse Martinez,  2010 Cal. LEXIS 111 (Cal 1/14/2010) "A trial court did not err in admitting all of defendant's statements at trial; given that defendant had been read his Miranda rights the night before detectives had approached him again and on at least four prior occasions, the record failed to support any inference that defendant was unaware of his rights and the significance of his waiver." [Lexisone]" Conviction of defendant for murder and rape of several women and other crimes, and sentence to death are affirmed where: 1) there is no prejudice in the trial court’s decision not to investigate further and to retain a juror; 2) defendant’s Miranda claims lack merit and the trial court did not err in admitting his statements at trial; 3) defendant failed to demonstrate prejudice with respect to instructional error as to the issues of consent; 4) defendant’s claim of prosecutorial misconduct during closing arguments is rejected; 5) defendant’s cumulative error claim is rejected; 6) given that none of the errors affected the guilt phase, defendant fails to show, under any standard, how these same errors could have affected the penalty phase; 7) defendant’s claim with respect to victim impact evidence is rejected; 8) trial court’s evidentiary rulings on adjustment potential were narrow; 9) any error with respect to prosecutorial misconduct at the penalty phase was harmless; 10) defendant’s claim that the special circumstance allegations as applied is unconstitutional is without merit; and 11) defendant’s constitutional challenges to California’s death penalty law are rejected as the statute adequately narrows the class of death-eligible offenders.”  [via Findlaw]

• Ivan Teleguz v. Warden of the Sussex I State Prison,  2010 Va. LEXIS 7 (Va 1/15/2010)(order) “Upon consideration of a petition for a writ of habeas corpus, respondent’s motion to dismiss the petition is granted. Petitioner’s various claims alleging ineffective assistance of counsel are rejected as not satisfying the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and his remaining claims are rejected as lacking merit or as being either procedurally barred or improperly raised. ” [Clerk's Office]

• Grover Reed v. Sec’y, Fla. Dep’t of Corr.,  2010 U.S. App. LEXIS 544 (11th Cir 1/11/2010) “Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1986 murder. The Court rejected the argument that counsel was ineffective at the penalty phase when he agreed with the prosecutor not to put on any mitigating evidence in exchange for the prosecutor’s agreement not to present aggravating evidence. The Court noted that counsel had done a reasonable investigation of Reed’s background, that the mitigating evidence would not have changed the outcome, and that Reed himself had instructed counsel not to put on mitigating evidence. Moreover, Reed could not show that he suffered prejudice as a result of counsel’s decision, pointing out that evidence about Reed’s background that would have come in would have included “devastating” instances of his attacks on his grandmother. ” [Defense Newsletter]
  

Noncapital

• State v. Tommy Holmes,  2010 Tenn. LEXIS 3 (Tenn 1/12/2009) “We granted permission to appeal in this case to address whether the trial court erred in ruling that an indigent defendant forfeited his right to counsel at trial by telling his appointed lawyer, “I know how to get rid of you,” and, at a subsequent meeting, physically assaulting his lawyer by striking the lawyer’s eyeglasses with his finger. The defendant was tried by a jury pro se and convicted of aggravated rape. We hold that, under the facts and circumstances of this case, the trial court committed reversible error in ruling that the defendant had forfeited his right to appointed counsel at trial. While the defendant’s physical attack on his lawyer was serious misconduct, it did not rise to the level of “extremely serious misconduct” sufficient to warrant an immediate forfeiture.”

• Sarah Ann Johnson, For Herself and On Behalf Of The Late Cecil Johnson v. Dr. Bruce Levy, et al, 2010 Tenn. App. LEXIS 14 (Tenn App 1/8/2010) Post-execution autopsy rejected.  “The Post-Mortem Act expressly authorizes the Medical Examiner to perform an autopsy of a prisoner executed in Davidson County, Tennessee. Sarah Ann Johnson opposes an autopsy based upon rights afforded under Tennessee’s newly enacted ‘Preservation of Religious Freedom’ statute, Tennessee Code Annotated § 4-1-407(c)(1) & (2). Tennessee’s religious freedom statute states “[n]o government entity shall substantially burden a person’s free exercise of religion unless it demonstrates that application of the burden to the person is: (1) Essential to further a compelling governmental interest; and (2) The least restrictive means of furthering that compelling governmental interest.’ We have determined that the Davidson County Medical Examiner may have a compelling governmental interest in performing autopsies of executed prisoners; however, the Medical Examiner has failed to establish by clear and convincing evidence under the specific facts of this case that performing an autopsy on Mr. Johnson is essential to furthering the articulated interest.

• State v. Ott, 2010 UT 1; 2010 Utah LEXIS 1 (Utah 1/5/2010)  Alford plea to life. “Mr. Ott brought several claims addressing his counsels’ ineffective assistance. Today, we address only the argument that his counsel provided ineffective assistance for failing to object to victim impact evidence. Specifically, we hold that counsel was objectively deficient for failing to object to victim impact evidence that addressed Mr. Ott’s character, chances for rehabilitation, and deserved sentence because such victim impact evidence clearly violates the Eighth Amendment when introduced in capital sentencing hearings. Counsels’ failure to object to this evidence also prejudiced Mr. Ott such that the objectively deficient counsel constitutes ineffective assistance of counsel. We remand to the trial court for a new sentencing hearing consistent with this opinion.”