Capital Defense Weekly      

Leading off this week is the Supreme Court's decision in Henry Skinner v. Switzer. As most people know, the decision's holding, "[a] convicted state prisoner seeking DNA testing of crime-scene evidence may assert that claim in a civil rights action under 42 U.S.C. 1983[,]" comes as a shock to almost no one.  Notable in this matter, however, is the unusual line-up of Justices with both the Chief Justice and Justice Scalia "signing-on" to the majority opinion by Justice Ginsburg. What the opinion, in practical terms, means is that DNA testing, even if unavailable under a sec. 2254 or sec. 2255 proceeding, may nonetheless be sought in certain circumstances in a federal civil rights suit. Congrats to all involved.

In the lower courts, in addition to numerous noncapital decisions of note this week, there is one capital decision, Jason Michael Sharp v. State. In Sharp the Alabama Court of Criminal Appeals grants a new trial as “the State exercised its peremptory strikes in a discriminatory manner against African-Americans, in violation of Batson.”

In the news, Illinois is expected Wednesday to join the rank of states who have repealed the death penalty. "If the governor signs the ban into law, he’ll end a capital punishment system beset by flaws and brought down by evidence that freed wrongfully convicted men who spent years on Death Row.  The ban would come about 11 years after then-Gov. George Ryan declared a moratorium on executions after 13 condemned inmates had been cleared since Illinois reinstated capital punishment in 1977. Ryan, a Republican, cited a Tribune investigative series that examined each of the state's nearly 300 capital cases and exposed how bias, error and incompetence undermined many of them."

Elsewhere in the news, California has had its 53rd death inmate die of natural causes during the modern era and yet no executions in the last five years. Barnes & Noble recently announced that David R. Dow  is the 2010 nonfiction Discover Award Winner for his captivating "Autobiography of an Execution."  The New York Times looks at the cost of automating litigation versus its cost savings – better equipment and software equals markedly fewer lawyers. The SCOTUSBlog has a fairly good analysis of last week’s Confrontation Clause decision in Michigan v. Bryant. Apparently those who do federal indigent defense pursuant to CJA appointments may go without paychecks until October. If you a federal panel attorney thinking about taking on some extra work to cover this bills, however, he ABA has this cautionary tale.  The British media is reporting "a third American prisoner died in agony after an anesthetic supplied by a British company failed to work properly, it has been claimed."

Finally, for those not aware of the resource, I would strongly encourage you to check out the NLADA's the Gideon Alert. The Alert has been focusing on rapid changes to the practice of indigent defense including issues of Public Defender independence in New Jersey and New Mexico, the scope of counsel in Michigan and Florida, as well as cost issues nationally and how one state, Massachusetts, has responded.

As always, thanks for reading. - k

Pending Executions
March
10 Johnie Baston* (Ohio)
29 Eric King* (Az)
31 William Glenn Boyd* (Ala)

April
5 Cleve Foster* (Tex)
5 Daniel Wayne Cook* (Az)
6 Wayne Kubsch (Ind)
12 Clarence Carter* (Ohio)

Stays & Commutations
February
9 Roy Blankenship* (Ga)
15  Edward Harbison*  (Tenn) (clemency)

SCOTUS

• Henry Skinner v. Switzer, No. 09-9000 (3/7/2011) "A convicted state prisoner seeking DNA testing of crime-scene evidence may assert that claim in a civil rights action under 42 U.S.C. 1983."
  

• Michigan v. Brant, No. 09–150 (2/28/2011) The Court below erred in excluding the victim’s statements as “testimonial” where the primary purpose was nontestimonial, the “ongoing emergency” and the actions/statements of the declarant and police gave “objective” reason to believe a purpose other than prosecution of the defendant. The NYT has more.
  

• Wall v. Kholi, No. 09-868 (3/7/2011) AEDPA's one year statute of limitations is tolled even where just a challenge to sentence is filed, so long as that challenge isn't just a direct appeal application.
  

Week of February 28, 2011: In Favor of the Prosecution or Warden

• Milo A. Rose v. Sec.DoC., 2011 U.S. App. LEXIS 4093 (11th Cir Mar 4, 2011) Relief denied on IAC related claims. “[H]ere the new mitigation is simply an extension of what the jury had heard, which is critically different from the above cases, in which  the new mitigation was not only powerful, but of a type that counsel did not present in the penalty phase at all.” “[W]hen we look at all the evidence in mitigation, both that presented at the penalty phase and in the 3.850 proceedings, together with the  aggravating evidence in this case, we conclude that Rose has not carried his burden to show a reasonable probability that he would have received a different sentence had Rouson investigated and presented the evidence Rose contends he should have. Our confidence in the outcome has not been undermined.  Because Rose has not shown prejudice, we need not decide whether his trial counsel’s penalty-phase performance was deficient.”

• Billy Dale Green v. State, 2011 Ark. LEXIS 82;2011 Ark. 92 (Ark Mar 3 2011) (dissent) Relief denied on this appeal prior to retrial on whether or not the double jeopardy should bar further prosecution.  Specifically, the prosecution failed to turn over key exculpatory evidence. “Intentional prosecutorial conduct motivated by a desire to obtain a conviction and not by a desire to provoke the defendant into moving for a mistrial may be grounds for a mistrial but it does not preclude retrial of the case.” Matter referred, however, to the disciplinary committee for investigation, and if necessary, appropriate disciplinary action.

• Ernest Johnson v. State, 2011 Mo. LEXIS 52 (Mo Mar 1, 2011) “It was reasonable trial strategy for the defendant’s counsel to present evidence from a special education expert that the defendant is retarded rather than calling a witness whose testimony would have been cumulative to other evidence in the record. It also was reasonable trial strategy for counsel not to present evidence that another person orchestrated the crime and that the defendant was acting under this person’s substantial domination. The defendant was not prejudiced by his counsel’s failure to admit into evidence an expert’s deposition and his mother’s mental health records, as both would have been cumulative to evidence already presented. It was reasonable trial strategy for the defendant’s counsel not to object to the admission of portions of a videotaped evaluation of the defendant. The circuit court did not clearly err in rejecting the defendant’s claim that his counsel should have objected to questions about an expert’s evaluation of whether he was competent to proceed to trial. Finally, the defendant failed to show the circuit court clearly erred in finding he did not show the statutory death penalty scheme is unconstitutional, especially given that the study on which he relied was “severely flawed,” and he failed to preserve for appellate review his claim that the county in which he was tried has a disproportionate number of death sentences.” [via the Missouri Supreme Court's Clerk Office]
  

• Robert Ybarra, Jr., v. State, , 2011 Nev. LEXIS 5;127 Nev. Adv. Rep. 4 (Nev Mar 3, 2011) Relief denied. “Ybarra failed to meet his burden of demonstrating bias based on Judge Dobrescu’s prior professional relationship with the murder victim’s family or the notoriety of his case [therefore] his disqualification motion was unsupportable and properly denied. As to Ybarra’s mental retardation claim, we conclude that he failed to prove by a preponderance of the evidence that he suffered from significant subaverage intellectual functioning and adaptive behavior deficits during the developmental period, which extends to 18 years of age. ”  [Oral argument here]

• Robert Lee Woodard v. Thaler, 2011 U.S. App. LEXIS 3912 (5th Cir Mar 1, 2011)(unpublished) “Assuming, without deciding, that pretrial identification procedures were impermissibly suggestive, a habeas petitioner had failed to demonstrate that under the totality of the circumstances, the suggestiveness led to a substantial likelihood of irreparable misidentification by a eyewitness and thus a violation of his Fourteenth Amendment rights.”  [via LexisOne]

Noncapital

• Henry Adamson v. Cathel, 2011 U.S. App. LEXIS 3819 (3rd Cir Mar 1, 2011) (noncap) Use of alleged co-conspirators’ statements inculpating Petitioner, without a limiting instruction, even where it was not raised at trial, was harmful error requiring a new trial.

• Harold C. Wilson v. City of Philadelphia, 2011 U.S. App. LEXIS 3909 (3rd Cir Mar 1, 2011) (unpublished) (civil) Exonerated death row inmate (who was given just a subway token after being set free from death row)  will be permitted to amend his amended complaint for compensation for the years he spent on death row.

• Lonnie Bailey v. State, 2011 Ala. Crim. App. LEXIS 15 (Ala. Crim. App. Feb. 25, 2011) (noncap) Trial court impermissibly admitted evidence of the planning of other crimes.  The State conceded that movant was “lured into [the other acts] by the investigators and their cooperating witness.” Despite knowing of the governments action, the State argued in closing, in a relatively weak case, that this other crimes evidence damned Bailey on the substance capital murder charge.

• In re Billy James Smith,  2011 Tex. LEXIS 188 (Tex. Mar 4. 2011) (civil)  [Oral argument here / brief] Compensation under the Texas wrongful conviction statute is not barred where the wrongful conviction “merely” causes a person to be incarcerated on either a probation or parole violation.

• State v. Richard J. Glassel,  2011 Ariz. App. LEXIS 24 (Ariz App.Mar 1, 2011) (civil) “Funds deposited in an inmate’s account by a family member could be used for the purpose of restitution payments to the victim’s spouse under Ariz. Rev. Stat. § 31-230(C) because that provision did not exempt funds deposited as a gift to the inmate and a donor did not retain control of money once a gift had been made.”  [via LexisOne]

Week of February 21, 2011: In Favor of the Accused or Condemned

• Jason Michael Sharp v. State, 2011 Ala. Crim. App. LEXIS 12 (Ala. Crim. App. Feb. 25, 2011) “[T]he State exercised its peremptory strikes in a discriminatory manner against African-Americans, in violation of Batson. Therefore, Sharp is entitled to a new trial.”

Week of February 21, 2011: In Favor of the Prosecution or Warden

• State v. Teodoro Baez, 2011 Ill. LEXIS 432 (Ill Feb 25, 2011) “ In the first proceedings in this case, Baez had a private attorney. This lawyer indicated that he had plans to be out of the country for some time. The trial court then found that the attorney was not ready to provide representation and appointed the public defender’s office instead. Defendant argued in this appeal that his constitutional right to counsel of choice had thus been violated. In this decision, the supreme court rejected this claim. Baez also contended that the trial court should have allowed him to represent himself, but the supreme court rejected this claim also, ruling that defendant did, eventually, accept the representation of appointed counsel. In the opinion issued today, the supreme court affirmed the circuit court in its denial of the motion to withdraw the plea.” On the issue of punishment “the wording of the death penalty statute was revised effective in November of 2003. The defendant complained that, in making a bench-trial finding half a year later that he should be sentenced to death, the court wrongly employed the earlier standard. The supreme court, in this decision, rejected this challenge, noting that the trial judge’s statements indicated an awareness of both standards and the court’s conclusion that the death penalty should be imposed under either standard. The supreme court also agreed with the trial court’s original finding that the defendant had not shown the mitigating factor that he was suffering from extreme mental or emotional disturbance at the time of the crimes. In view of all the evidence presented, the supreme court also found that the death penalty was not an excessive sentence.” [via the Court generated summary]

• Benito Ocampo Albarran v. State, 2011 Ala. Crim. App. LEXIS 14 (Ala. Crim. App. Feb. 25, 2011) “Defendant’s death sentence did not violate U.S. Const. amend. VIII due to mental retardation because defendant had owned his own farm in Mexico and successfully managed to illegally enter into the United States multiple times; defendant maintained a close relationship with his family, he was married, and helped raise his daughter.” [via LexisOne]
  

• Pablo San Martin v. Secretary, 2011 U.S. App. LEXIS 3529 (11th Cir 2/23/2011) Petitioner’s assertion that the “two-week delay in his receipt of actual notice of a United States Supreme Court order triggering the commencement of the one-year statute of limitations” under AEDPA does not change the fact that for purposes of the one year statute of limitations commenced on the day cert was denied. “In sum, the AEDPA statute of limitations cannot be tolled for the two-week period during which the United States Supreme Court had ruled on San Martin’s direct appeal but had not yet notified San Martin of that ruling; and San Martin is not entitled to equitable tolling in light of his own lack of diligence and the lack of extraordinary circumstances preventing his timely filing.”

• People v. Philian Eugene Lee, 2011 Cal. LEXIS 1830 (Cal 2/24/2011)  “Defendant’s attack on sufficiency of the evidence to support felony-murder theory of first-degree murder and attempted-rape special circumstance failed, as there was sufficient evidence from which jury could have concluded he forcibly attempted to rape victim and killed her because she was resisting his attempt to have sexual intercourse with her.” [via LexisOne]

• People v. David Leslie Murtishaw, 2011 Cal. LEXIS 1828 (Cal 2/22/2011)  “A trial court correctly refused to instruct a jury that it had the discretion to impose life without the possibility of parole even if the factors in aggravation outweighed the factors in mitigation because the concept of weighing factors in aggravation and mitigation was not part of the 1977 death penalty law under which defendant was tried.” [via LexisOne] Of note in this triple homicide,  exceptionally strong mitigating evidence and the condemned has spent somewhere in the ballpark of 30+ on death row and direct appeal to the state supreme court has only just now concluded.

• Comm. v. John C. Lesko, 2011 Pa. LEXIS 392 (Penn 2/24/2011)(dissent) Defendant loses where he won both guilt/innocence phase  & penalty relief in the postconviction trial court.  Most notably below the trial court granted relief on the failure to retain the appropriate expert to discuss the condemned’s organic brain damage. More next week.

• State v. Von Clark Davis, 2011 Ohio App. LEXIS 681 (12th Ohio App 2/22/2011) “ Pursuant to R.C. 2929.05, the death penalty was appropriate because the aggravating factors outweighed the mitigating factors. Years before murdering his girlfriend, defendant had murdered his wife. A 26-year delay in execution did not constitute cruel and unusual punishment under Ohio Const. art. I, § 9.”  [via LexisOne]

• Comm. v. Anthony Wright, 2011 Pa. LEXIS 391 (Penn 2/23/2011)(noncap)(dissent) Mere fact a person has confessed to a crime does not bar them from postconviction DNA testing. Innocence Project has more. Simple Justice also has more.
  

If you have problem accessing this edition it is available for your review in html format at http://capitaldefenseweekly.com/archives/110228.htm. Almost all cases can be found by going to Lexisone.com and typing in the appropriate lexis cite OR going to Google Scholar and typing in the name of the condemned. 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. To get a more thoughtful analysis of developing case law we've been selecting out takes of local bloggers and lawyers, where available, on certain breaking case law developments. As always, thanks for reading, and a 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. We also borrow heavily from the good folks at the Death Penalty Information Center and  the Crime Report.

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 the past co-chair, or the Fair Trial Initiative (website/donate) which provides trial level assistance to attorneys in North Carolina, the Equal Justice Initiative which assists trial and postconviction counsel in Alabama and surrounding states, Gulf Regional Advocacy Center, which provides exceptional mitigation services to those facing capital trial in the Gulf region, or Texas Defender Service, whose work speaks for itself. On most of the above links you're able to make a tax deductible donation and set up a monthly automated gift.

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OPEN RESEARCH DATA: We've been at this since 1997, thanks to all those whose time, efforts, and contributions have made it possible over the years. 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" or atkins," on Lexisone.com. Please note the terms dramatically "overproduce" results. FindLaw.com & various listservs are also used to cross-check results. Execution and other news information derived from DPIC, Steve Hall, Rick Halperin, & media accounts.
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