The Ninth Circuit's decision in Milo McCormick Stanley v. Schriro, leads off this double edition.  In Stanley the panel remands for an evidentiary hearing. Mr. Stanley killed his wife (for which he received a life sentence) and child (for which he received death). The panel remands as trial counsel seems to have failed to make adequate use of evidence, in the penalty phase, that Mr. Stanley suffered from a dissociative state at the time of the murders.  Specifically, counsel failed to adequately inform the defense expert as to evidence relating to Mr. Stanley's possible "dissociative reaction" at the time he killed his family.The panel holds that the dissociative state may have been used to lessen the degree of moral culpability and negated premeditation.

In a notable Tennessee opinion,  Timothy Terell McKinney v. State,  the Court of Criminal Appeals holds that the failure to present residual doubt evidence (at least on these facts) amounts to ineffective assistance of counsel. The Court also granted guilt phase relief on counsel’s likewise dismal performance in that phase of the trial.  Whether the holding as to residual doubt is an "alternate holding" or "mere dicta" will invariably be fodder for briefs for some time to come.

Three other defense wins likewise deserve mention. In  Jodey Wayne Waldrop v. State the Alabama Court of Criminal Appeals grants a new trial concluding "that the trial court should have given the jury a limiting instruction regarding the proper use of evidence about Waldrop's prior conviction." The Delaware Supreme Court in Craig Zebroski v. State holds a remand to the postconviction trial court as it failed to address whether either the interest of justice or the miscarriage of justice exceptions in Del. Super. Ct. R. Crim. P. 61(i)(2), (4), (5) required relief. Finally, in  State v. Clifford Wright  a rare published trial court opinion agonizing how at least one trial court judge weighs the issues of life and death, and in this case choices life, that is "life imprisonment without benefit of probation or parole." .

Two notable losses are also had.  In United States v. Carlos David Caro, a FDPA prosecution, a death sentence is affirmed, most interestingly, death eligibility was based solely on prior nonviolent conduct, violation of certain regulatory laws governing narcotics. The other is  In re Paul Ezra Rhoades, et.al., concluding that for Mr. Rhoades, and several others, that a death sentence imposed by a judge alone should not be disturbed in light of state retroactivity principles..

In one of the more high profile executions in the last few years, Monday the Board of Pardons and Paroles rejected a 60-day reprieve for Hank Skinner to allow time for DNA testing.  Wednesday should bring action from the Texas Governor on a 30 day reprieve and the United States Supreme Court on certiorari, and most likely, an original application.  Mr. Skinner is scheduled not to see  the dawn break on Thursday morning.

Elsewhere, DPIC notes that "The Chief Justice of the Georgia Supreme Court recently warned that cuts to the state budget are making it increasingly difficult for courts to carry out their constitutionally mandated duties. Chief Justice Carol Hunstein stated that the court's backlog has grown as money has dwindled.. . . [The problems are exemplified by] lawyers for Khanh Dinh Phan asked the Georgia Supreme Court to dismiss the charges against him or to bar the state from seeking the death penalty because the state has been unable to pay for Phan's defense." DPIC also  notes that "Taiwan’s Minister of Justice, Wang Ching-feng, recently resigned from her post after expressing her strong opposition to the country’s death penalty" and refusal to sign death warrants. The New Hampshire state senate has rejected the expansion of that state's death penalty.

As always, thanks for reading. -k

• Bloate v. United States, No. 08-728 (3/8/2010) "The time from September 7 to October 4, 2006, used as pretrial motion preparation time was automatically not excludable under 18 U.S.C.S. § 3161(h)(1) of the Speedy Trial Act of 1974; such time could have been excluded only if the district court had entered appropriate findings under § 3161(h)(7), which it did not."  [via Lexisone]

• Johnson v. US, No. 08–6925 (3/2/2019) “Defendant's sentence for a violation of 18 U.S.C.S. § 922(g)(1) which was enhanced under 18 U.S.C.S. § 924(e) was set aside because the phrase "physical force" meant violent force -- that is, force capable of causing physical pain or injury to another person. A conviction for simple battery, Fla. Stat. § 784.03, did not meet that standard.” [via Lexisone]

• Justin Anderson v. State, 2010 Ark. 138; 2010 Ark. LEXIS 167 (Ark 3/18/2010).Ordering rebriefing in light of "woefully" thin argument.

• United States v. Carlos David Caro, 2010 U.S. App. LEXIS 5511 (4th Cir 3/17/2010) (dissent) "Conviction of defendant for first degree murder of an inmate and sentence to death under the Federal Death Penalty Act is affirmed and defendant's various challenges rejected where: 1) while several possible errors are recognized, they were not widespread or prejudicial enough to have fatally infected defendant's trial or sentencing hearing; 2) the proceeding adhered to fundamental fairness; 3) each aggravating factor determined by the jury was well supported by the record; and 4) cumulative error could not have caused the jury to weigh the sentencing factors any differently. " [via FindLaw]

• Cleve Foster v. Thaler, 2010 U.S. App. LEXIS 5394 (5th Cir 3/15/2010) (unpublished) COA and relief denied on failure to adequately investigate, a challenge to the Texas statutory scheme giving "mixed signals" and nine procedurally defaulted claims that were not discussed on the merits.

• In re Paul Ezra Rhoades, 2010 Ida. LEXIS 52 (Ida 3/17/2010) Adopting the SCOTUS's holding in Teague to "conclude that Ring is not retroactive under Idaho law."

• Charles Raby v. Livingston,  2010 U.S. App. LEXIS 5411(5th Cir 3/15/2010) "In a 42 U.S.C. section 1983 action alleging that Texas' method for lethal injection violated plaintiff-death row inmate's right to be free of cruel and unusual punishment, summary judgment for defendants is affirmed where: 1) difficulty in starting an IV in the arm of inmates who had destroyed their veins through drug use was not indicative of a failure to adhere to the execution procedure; 2) there were no constitutional issues with regard to the monitoring of the inmate's appearance for visible signs that the inmate was awake following a sodium thiopental injection; and 3) plaintiff failed to establish that the Texas lethal injection protocol created a demonstrated risk of severe pain. " [via FindLaw]

• People v. Richard Cameron Gamache,  2010 Cal. LEXIS 1914 (Cal 3/18/2010) "A capital murder case, the trial court did not err during the penalty phase in redacting statements made by defendant to mental health experts that tended to incriminate his codefendants and in concluding that a joint penalty trial could still proceed." [via LexisOne]

• Eugene McWatters v. State, 2010 Fla. LEXIS 406 (FL 3/18/2010) "Convictions and sentences were affirmed. Given circumstantial evidence of premeditation, appellant's admission that he killed the women and testimony of witnesses who saw appellant with the victims shortly before their disappearances, the evidence was sufficient to support the first-degree murder convictions on the theory of premeditated murder." [via LexisOne]

• Stacey Ian Humphreys v. State,  2010 Ga. LEXIS 227 (Ga 3/15/2010) " Trial court erred in disqualifying for cause a prospective juror who was serving a probationary sentence under the First Offender Act, O.C.G.A. § 42-8-60 et seq., because he had not been convicted within the meaning of O.C.G.A. § 15-12-163(b)(5). However, this error was not a basis for reversal of defendant's murder convictions or death sentences." [via LexisOne]

• Ex parte Skinner, 2010 Tex. Crim. App. Unpub. LEXIS 145 (Tex. Crim. App. 3/17/2010)  (Unpublished) On subsequent writ, attempts to gain access to DNA testing summarily denied.

• Robert Carl Foley v. Commonwealth, 2010 Ky. LEXIS 53 (Ky 3/18/2010)* Relief as to declaratory judgment denied. "The gist of Foley's argument is that our Constitution identifies self-defense as a right, but was treated by the self-defense statues in effect at the time of his trial as a privilege. He contends that the "castle doctrine" as now codified in KRS 503.055 represents a proper implementation of the constitutional right, and  illustrates the unconstitutionality of the self-defense provisions in effect at the time of his trial."

• Robert Carl Foley v. Commonwealth, No.2008-SC-000909-TG  (Ky 3/18/2010) (unpublished) * Relief denied on attempts to reopen prior postconviction/new trial motion  based upon need for "expert witness funding for a ballistics expert and social worker expert because of a change in the law since his original [postconviction] case was decided."

• Timothy Terell McKinney v. State, 2010 Tenn. Crim. App. LEXIS 219 (Tenn Crim App 3/9/2010). In addressing the propriety of penalty phase relief the Court holds that failure to present residual doubt evidence (at least on these facts) amounts to ineffective assistance of counsel. Law geeks can argue whether this is merely obiter dicta or something much large as the Court also granted guilt phase relief on counsel’s likewise dismal performance in that phase of the trial.

• Milo McCormick Stanley v. Schriro, 2010 U.S. App. LEXIS 5175 (9th Cir 3/11/2010) "The 9th grants a remand for an evidentiary hearing on an IAC sentencing claim in this capital murder petition. The petitioner murdered his wife and young child in 1986. He got life on his wife's murder and death for the child's. The 9th affirms the denial of his guilt phase claims, holding that the state court's determination that he was not in custody during his confession was not unreasonable. There was a question as to the aggressiveness of questioning by the police -- but not enough to overturn the determination under AEDPA. As for sentencing, though, the 9th held that counsel's seemingly failure to make use of psychological evidence of a disassociative state could have had a prejudicial impact on mitigation. This evidence could well have gone to negate premeditation. The opinion also chides dissent's focus on the gruesome facts of the case as opposed to the legal standards, and rebukes the dissent for implying that the claims are too old, despite the fact that the petitioner met all his AEDPA deadlines, and it was the courts that held this case in deciding. B. Fletcher, concurring, would expand the remand to include a hearing on the failure to call any mental health experts at sentencing. In dissent, Kleinfeld argues that the issue is really about the supplementing of mental mitigation evidence already before the sentencing judge from the guilt trial. He also bemoans the length of time this case has taken, and recounts the factual basis of the offense at length." [via Ninth Circuit blog]

• Craig Zebroski v. State, 2010 Del. LEXIS 104, December 9, 2009 (Del 3/9/2009) "Because the postconviction court did not address either the interest of justice or the miscarriage of justice exceptions in Del. Super. Ct. R. Crim. P. 61(i)(2), (4), (5), a remand was necessary." [via LexisOne]  "In a capital habeas matter, the denial of petitioner's motion for postconviction relief is affirmed in part, but the matter is remanded where: 1) the superior court did not address the interest of justice exception, as defined in Weedon v. State, and 2) it did not address the Rule 61(i)(5) miscarriage of justice exception to the bar of Rule 61(i)(2). " [via FindLaw]

• Paul Ezra Rhoades v. Henry,  No. 07-35808 (9th Cir. 3/8/2010) (unpublished), Rhoades v. Henry, 2010 U.S. App. LEXIS 4794 (9th Cir. 3/8/2010),  &  Rhoades v. Henry,  2010 U.S. App. LEXIS 4808 (9th Cir. 3/8/2010) ". The 9th affirmed the denial of the petition of these two capital petitions, and one non-capital petition. The 9th found no Brady violations, no Miranda violations, and no IAC as to mitigation." [Ninth Circuit blog]  Paul Ezra Rhoades v. Henry (Haddon) "In a capital habeas matter, denial of the petition is affirmed where: 1) the deposition testimony and affidavits of both counsel supported the district court's finding that petitioner failed to show that defense counsel lacked the information contained in an allegedly withheld report; 2) petitioner pointed to no evidence that the judge was unable to preside over his case in a fair and impartial manner; and 3) petitioner offered insufficient authority to justify the application of a heightened standard of reliability to guilt phase issues. " [via FindLaw]  Paul Ezra Rhoades v. Henry (Baldwin) "In a capital habeas matter, denial of petitioner's petition is affirmed where: 1) an allegedly exculpatory confession by another witness was not reliable and was thus appropriately excluded; 2) there was no Brady violation when a defendant possessed the information that he claims was withheld; 3) defendant's statement that "I did it" came after his handcuffs were removed and while petitioner was being booked at the station, and in these circumstances no Mosley error occurred; and 4) the aggravating circumstances were too strong, and the new mitigating evidence added too little, to create a reasonable probability of a different outcome absent defense counsel's alleged ineffectiveness. " [via FindLaw] Paul Ezra Rhoades v. Henry (Michelbacher) "In a capital habeas matter, denial of petitioner's petition is affirm where: 1) no Brady violation could occur when a defendant possessed the information that he claims was withheld; 2) petitioner offered no support for his assertion that the district court should have held an evidentiary hearing on the Brady claim; and 3) it was not reasonably likely that a challenged instruction, in context of the instructions overall, caused the jury to misapply the state's burden of proof. " [via FindLaw] (Note I seriously quibble about the Rhoades decisions interpretation by FindLaw, however, for expediency sake I have included it here.)

• Darick Demorris Walker v. Kelly,  2010 U.S. App. LEXIS 4911 (4th Cir 3/9/2010)  (dissent) Dissent from en banc concerning notable Brady claims.   
  

• State v. Leroy Cropper,  2010 Ariz. LEXIS 16; 577 Ariz. Adv. Rep. 4 (Ariz 3/11/2010) The first jury assessing punishment against Mr. Cropper deadlocked. A second jury sentenced Mr. Cropper to death.  Relief denied on claims relating to "(A) [b]ecause the first jury to consider Cropper's penalty could not reach a verdict, he argues that the second penalty-phase trial violated his rights under the Ex Post Facto Clauses of the United States and Arizona Constitutions. U.S. Const. art. I, § 10; Ariz. Const. art. 2, § 25' (B) " prosecutor committed misconduct in his arguments regarding the (F)(6) cruelty aggravator;" (C) independent review of aggs & mits, as well as a death sentences propriety on these facts.

• People v. Jonathan Daniel D'Arcy, 2010 Cal. LEXIS 1808 (Cal 3/11/2010) "In a capital murder case, there was substantial evidence from which a rational jury could have found beyond a reasonable doubt that the victim's killing constituted torture murder. Admission of the victim's tape-recorded statements to police under the dying declaration hearsay exception did not violate defendant's right to confrontation." [via LexisOne]  "On automatic appeal from the conviction of defendant for first-degree murder in which he was sentenced to death after retrial of the penalty phase (the jury deadlocked at the first penalty phase), trial court's judgment is affirmed where: 1) defendant's various pretrial issues, including that he was denied a meaningful competency hearing, are without merit; 2) defendant's guilt phase issues including his argument that there was insufficient evidence to support his first degree torture-murder conviction because there was no evidence he formed the intent to inflict extreme and prolonged pain, fail as substantial evidence supports a conviction of first degree murder based on a theory of torture murder; 3) trial court did not abuse its discretion in admitting pre-autopsy photographs of victim's charred body; and 4) all of defendant's penalty phase claims of error are rejected. " [via FindLaw]

• Todd Zommer v. State, 2010 Fla. LEXIS 358 (FL 3/11/2010)  "Trial court properly found that murder was cold, calculated, and premeditated for purposes of sentencing because the evidence established that defendant was having homicidal thoughts, that defendant did not fly into a rage and attack his victim, but rather left to later return with the intent to kill her, and that he carefully formulated his plan." [via LexisOne]

• Tiffany Ann Cole v. State, 2010 Fla. LEXIS 359 (FL 3/11/2010)  "Even if trial court's admonition of defense counsel, when defense counsel asked a codefendant about his plea agreement, was error, such error was not fundamental because defense counsel was allowed to requestion the codefendant on the terms of the plea agreement, which enabled defense counsel to dispel any of the jury's confusion or prejudice." [via LexisOne]

• State v. Terrance Anderson, 2010 Mo. LEXIS 82 (Mo. 3/9/2010) Relief denied on a grab bag of issues including, claims seeking"a new penalty-phase trial because the trial court clearly erred in using an outdated version of MAI-CR 313.48A, the verdict-mechanics instruction, and the state did not show prejudice did not occur."

• Jason Michael Sharp v. State,  2010 Ala. Crim. App. LEXIS 18 ( Ala. Crim. App. 3/5/2010) "In accordance with the Supreme Court's holding, we remand this case to the circuit court for that court to determine whether the State's reasons for using its peremptory challenges against African-American veniremembers were race neutral. If the circuit court, following a hearing, determines that Sharp is entitled to relief, it is authorized to grant such relief as it deems necessary."

• Jodey Wayne Waldrop v. State, 2010 Ala. Crim. App. LEXIS 21 ( Ala. Crim. App. 3/5/2010) :"Based on the Alabama Supreme Court's decisions in Ex parte Minor and Ex parte Snyder, we conclude that the trial court should have given the jury a limiting instruction regarding the proper use of evidence about Waldrop's prior conviction. We cannot assume that the jury would have understood, without instruction, that it could use evidence about Waldrop's prior conviction only for impeachment. Rather, we must conclude that, under these circumstances, as was the case in Ex parte Minor, the evidence about Waldrop's prior conviction was presumptively prejudicial and its impact was egregious and that the trial court's failure to instruct the jury regarding the proper use of evidence about Waldrop's prior conviction rose to the level of plain error."

• State v. Clifford Wright,   2010 Del. Super. LEXIS 82  ( Del. Super. 3/5/2010) "Although defendant murdered the victims in a horrifying and gruesome manner and attempted to eradicate evidence of the crimes, because the aggravating circumstances did not outweigh the mitigating circumstances, pursuant to Del. Code Ann. tit. 11, § 4209, defendant was sentenced to life imprisonment without benefit of probation or parole." [via LexisOne]