Capital Defense Weekly

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We have moved the site to Wordpress & capitaldefenseweekly.com. Our new feed is http://capitaldefenseweekly.com/blog/?feed=atom

Back again

Ok, it has been a weird few days trying to blog here. A back up site (that will eventually be moved here) is available at http://capitaldefenseweekly.com/blog. That site will be available whenever this one isn't. It is undergoing "testing" and should be ready in January -- or in case of emergency -- here. My sincerest apologies but I think Blogger! hates me.

Catching up

From around the web:

Death penalty cases in Bucks County, Pennsylvania this year took a crippling cost on taxpayers & the public defender's office. More here.

The Chinese government, in advance of modifications to that country's death penalty scheme in January of 2006, executed Chen Tao for leading a local protest against a dam project in Sichuan province. Chen Yongzhong learned of his son's fate only when police instructed him to collect the young man's ashes and pay a 50-yuan "bullet fee."

MVFHR, as detailed at StandDown Texas, has released a new report entitled "Creating New Victims: How executions hurt the families left behind." The report is the latest in their campaign No Silence, No Shame.

Death row numbers officially dropped for the fifth straight year (ending in 2005) . Those numbers are likely to drop again for 2006. The DoJ Report is here. The DoJ numbers are for 2005 & are quite stale -- DPIC called these same numbers in January 2006 & will do the same, if history repeats itself, this coming January.

ODPI has this post on the oral arguments in Cooey v. Taft before the Sixth Circuit this past week.

Finally, and way off point, while trying to figure out why the blogging software wasn't working I stumbled across this post. What followed was a list of thirty pieces of software that are the cream of the crop of open source software for Windows. Long story short, it is free software that replaces often quite expensive software that the average public interest lawyer's office can't afford. I have wanted to do a similar post for sometime, and while I don't agree with all the software suggestions, it is well worth the read if you are thinking about purchasing new software for the office, or even home computer.

Blogging problems

Sometime Friday the blogging software used here for the last year finally up and quit. The weekend was spent converting everything to Wordpress. Then, just as mysteriously as the problem started it was fixed. We will be eventually moving to Wordpress, just not this weekend. Thanks for sticking around and understanding. Unfortunately the weekly synopsis will not run.

Cert grants

Cert grants noted today. The questions presented are noted below. Two potentially present rather important unresolved habeas corpus related questions. Roper v. Weaver is a capital case about whether inflammatory closings by a prosecutor are cognizable on federal habeas review. I should also note there is a very substantial Article III question that the Court will either have to deal with now, or in a short-order in a future cert grant, relating to the constitutionality of the AEDPA should the Missouri's statutory construction argument be successful in Weaver. [For an outline of the AEDPA problem see Joseph Brunner's "Negating Precedent and (Selectively) Suspending Stare Decisis: AEDPA and Problems for the Article III Hierarchy." University of Cincinnati Law Review, Vol. 75, Fall 2006 Available at SSRN: http://ssrn.com/abstract=946132]. The question in Weaver is:

Since this court has neither held a prosecutor’s penalty phase closing argument to violate due process, nor articulated, in response to a penalty phase claim, what the standard of error and prejudice would be, does a court of appeals exceed its authority under 28 U.S.C. §2254(d)(1) by overturning a capital sentence on the ground that the prosecutor’s penalty phase closing argument was “unfairly inflammatory?”

Fry v. Plier is the second cert grant out of the Ninth Circuit. Fry was denied the opportunity to place third party guilty before a jury. The Court does not grant cert on whether on these facts the exclusion of third party guilt was improper, assumedly concluding that the exclusion of third party guilt was error. The question in Fry, despite the SCOTUSBlog's protests to the contrary, is how much does evidence of innocence matter on federal habeas corpus where the state court's didn't reach whether the error was harmless.

If constitutional error in a state trial is not recognized by the judiciary until the case ends up in federal court under 28 U.S.C. § 2254, is the prejudicial impact of the error assessed under the standard set forth in Chapman v. California, 386 U.S. 18 (1967), or that enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993)? Does it matter which harmless error standard is employed? And, if the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?

The final criminal case is Bowles v. Russell. That case, according to the SCOTUSBlog , tests whether a federal appeals court acting on its own may dismiss as too late an appeal that a District Court had authorized, out of the usual time limits but after the District Court had reopened the appeal time. Note the SCOTUSBlog notes the Court also granted cert in Leegin Creative Leather Products v. PSKS Inc. (a civil antitrust case) on the antitrust standard to be used when a product maker sets a price floor on its products when sold at retail & Credit Suisse First Boston v. Billing, et al. (a civil antitrust case) on whether the aftermarket trading in newly issued stocks is a field of economic activity immune to antitrust challenge due to it being closely regulated by the SEC & other entities.

Shooting dice in Ohio

[Note:Thanks to the sharp readers who realized that this post was miswritten on a technical point. Spirko was permitted intervenor status but denied a preliminary injunction.] Judge Gregory Frost, an Ohio federal district court judge, ruled Wednesday on John Spirko's request to intervene in the Ohio lethal injection litigation. Judge Frost declined to permit Spirko to receive a preliminary injunction but permitted him to join the lethal injection suit. In denying the preliminary injection he noted that the Sixth Circuit had reached opposite results on that exact issue in the cases Jerome Henderson & Jeffrey Lundgren about permitting intervenors -- in neither case, however, the Sixth Circuit lay out its rationale on why to grant or not to grant the right to intervene and/or a stay of execution. Henderson received a stay on the lethal injection issue & Lundgren executed.

It is thus unclear which appellate decision controls. It is also unclear what the relevant substantive law is. Such lack of clarity is most troubling because when our system of law includes unexplained decisionmaking, it loses the legitimacy that must guide the state-sanctioned taking of any human life. Although it is not this Court’s intent to find fault with any panel or judge of the higher court, it is this Court’s intent to respectfully request clarification on the serious issues involved in this litigation. This Court’s inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice.

Links here.

Executing the Innocent

Steve Hall tips us off to Executing the Innocent, an open letter to Justice Antonin Scalia published in the current issue of the National Law Journal by Keith Hampton.

I think I am sorry that I read your concurring opinion this summer in Kansas v. Marsh, 548 U.S. (2006), in which you label all who are concerned that innocent people have been executed as "sanctimonious" and ignorant, and suggest that everyone with such a concern is merely part of an "abolition lobby." That's a pretty breezy generalization, and it is as wrong as your proposition that there has never been "a single case-not one-in which it is clear that a person was executed for a crime he did not commit." You are either blind, or you aren't looking very hard.
****
The casualness with which you sweep people into the oblivion of insignificance must be somehow made easier when the execution involves someone else's child or brother or friend. It is far worse to convict an innocent person than to let a guilty person go free. You've reversed and perverted this long-standing principle and seem to believe it is far better to kill innocent people so long as we also get a greater number of guilty ones. I think we have different sets of values. To sum up: You're dead wrong that only stupid people would oppose executing the innocent, and you're morally wrong not to care. It is wrong for the government to kill innocent people, period. I can't believe a Supreme Court Justice thinks that is debatable.

Year end wrap up (pt. 1)

Although there are a few weeks left in the year and one contested execution remaining, the lessons of the year are now unavoidable. Slightly over 50 people were executed this year, the lowest number since 1994 and down nearly 50% from the highs of late 90s. Of 2006's executions well over 80% took place in the South. Of executions occurring outside the South, Ohio conducted more than half. Fourteen states had at least one execution in 2006. Texas killed the most followed by Ohio. The Northeast had no executions in 2006 with the death penalty barely hanging on (outside of Pennsylvania & Delaware) in that region of the country. Future trends in capital punishment are highlighted by (what is believed to be) just 14 new death sentences in Texas this year. In New Jersey a report on the death penalty's future in the Garden State is due soon. In November, criminal reform candidates, including ardent abolitionists, won widely. Several northeastern Republican candidates, in one of the electoral seasons sharpest surprises, used opposition to the death penalty as a way to court democratic & centrist voters. Electoral changes in Ohio makes continued widespread executions in the nation's second largest executing state (at least in recent years) seemingly less likely. Finally, legislative policy wonks tell the blog expect to see surprise legislative drives for repeal of the death penalty in one to three mid-Atlantic and/or New England state(s) (excluding New Jersey) this coming year with at least one of them passing; the odds of at least one state in 2007 legislatively repealing the death penalty are placed at 80%+. Additional post on the lessons of the year to follow.

"We need to be sure to immediately review our cases for clients who are being disadvantaged based on simple possession convictions"

The Supreme Court decided this morning Lopez v. Gonzalez. For those of us who dwell in the trial court realm this is huge. Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon, has an incredibly important post on this morning's Supreme Court holding in Lopez over at the Ninth Circuit blog. His conclusions is simple & needs repeating here -- "[w]e need to be sure to immediately review our cases for clients who are being disadvantaged based on simple possession convictions."

The Supreme Court issued an 8-1 decision today authored by Justice Souter holding that state convictions for simple drug possession, whether felony or misdemeanor, do not constitute an "aggravated felony" under the immigration statutes and, therefore, the federal sentencing guidelines. In Lopez, the Court found that the statutory incorporation of section 924(c)'s definition of drug trafficking crime foreclosed application to simple drug possession, which is a misdemeanor under federal law.

Stays in Ohio & Virgnia

Execution dates for Jerome Henderson in Ohio & Percy Walton in Virginia scheduled for this week are now off. The SCOTUS has upheld a stay entered last week by the Sixth Circuit for Mr. Henderson's execution in Ohio. In Virginia Governor Kaine has ordered the execution date for Percy Walton to be reset for June 2008 (with the possibility of additional stays) due to concerns about whether Mr. Walton is competent to proceed.

Roundup

From around the web:

DPIC notes "the November 2006 edition of the Texas Bar Journal published by the State Bar of Texas, the State Bar has adopted a Texas version of the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases." Those standards are here. [The Texas Bar Association's Legal Service to the Poor in Criminal Matters Committee also has additional resources on the topic.]

SSRN has added innumerable new criminal law related articles in the last few days. I will be rounding them up Tuesday after I have a chance to read more than their titles. There are at least two capital crimes related articles, at least two legal ethics, and at least two noncapital sentencing theory articles.

NYT reports Tyrone Williams, a truck driver, was convicted by a federal jury Monday in the deaths of 19 undocumented immigrants crammed into a sweltering tractor-trailer in the deadliest human smuggling attempt in U.S. history. The jury will return on Wednesday to begin hearing evidence on whether he will get the death penalty.

News reports of the federal prosecution Ronell Wilson, in progress before a jury in the Eastern District of New York, appears to be having problems. "It is not easy going."

The 25th anniversary of the death of Off. Daniel Faulkner that sent Mumia Abu-Jamal to death row is this Saturday, updates all week.

Latest email edition

The latest edition is now available. From the introduction:

This edition notes two "wins." On interlocutory appeal to the Indiana Supreme Court, the State's attempt to judge shop in Jeffrey Voss v. State is denied where the trial court had made statements prior to taking the bench that were critical of the death penalty. In Holly Wood v. Allen the Middle District of Alabama concludes that penalty phase relief is warranted based on trial counsel's performance; it remains unclear whether the State will appeal.
The Associated Press notes a federal magistrate in Tennessee has given attorneys for Rejon Taylor permission to access information detailing the the process of selecting federal grand jurors and trial jurors in East Tennessee as it may be flawed. In Kentucky Franklin Circuit Judge Sam McNamara held in recent days that the Commonwealth must bring its lethal injection scheme in line with that state's administrative procedures act, including public hearings. Press reports note unexpected budget shortages and skyrocketing legal fees may cause shortfalls in funding for death-penalty defense lawyers in Georgia and that the projected shortfall may already be causing problems with representation there.
A North Carolina trial court has stayed the execution date of Guy LeGrande and the Sixth Circuit has stayed, the Tuesday execution of Jerome Henderson, although it remains to be seen whether it holds.
Looking ahead to the next edition at one win will be noted. The Washington Supreme Court in State v. Allen Gregory reverses on two separate grounds. "Following Gregory's conviction of aggravated first degree murder, the case proceeded to the penalty phase of the trial." "The defendant's [prior] rape convictions were admitted at the penalty phase," however, those convictions were subsequently voided, and, as a result, Gregory's death sentence is reversed. On the second issue the prosecutor simply crossed the line in closing arguments having "blatantly violated" a trial court's order not to discuss certain topics and did so in a manner that was "flagrant and ill-intentioned." As always, thanks for reading. - k

Roundup

News from around the web of note:

Paul Dennis Reid was back in court Friday. Reid said he again wants to end appeals, so he can be executed. In June 2003 Paul Dennis Reid Reid was within hours of dying when he changed his mind and authorized an "appeal." The state court judge took Friday's testimony under advisement. [more here]

Press accounts note that James David Tulk died in his cell in San Quentin's death row Thursday night.

In Virginia, preparations are under way for the Dec. 8 execution of Percy Levar Walton. Gov. Timothy M. Kaine stopped Walton's June 8th execution with less than two hours to go and then granted him a six-month stay so experts could determine if Walton, said to be schizophrenic, was competent to be executed. Evaluations of Walton by 3 experts is still under way and it remains to be seen whether an additional delay will be required. [more here]

Unexpected budget shortages and skyrocketing legal fees may be breaking the bank for a state fund for death-penalty defense lawyers in Georgia. The new public defender system is being forced to cut fees it paid to private bar lawyers. Reports note that a shortfall of revenue from court fines and fees, which pay for the public defenders, coupled with unexpectedly costly defense in some matters, has lead to the shortfall.

An Editorial in the Daytona Beach News-Journal derides snitch testimony and the cost it has in human lives & perverted justice.