As previously noted we are closing down.  Starting Labour Day weekend this site will automatically redirect to an archive of the website.

In response to several emails asking to take over Weekly, I’m not sure yet of the final direction I’ll head with this, however, I suspect the ethics aspect of ending CDW will force me to release everything into the public domain & not permit CDW to go forward in any way. The final determination, however, has not yet been made.

Finally,  for those looking to replicate what we’ve done here – I use the following keywords at LexisOne.com  ”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.  I’m more than happy to help those who are looking to “go forward” with the concept developed here, however, I simply can’t lend my, or this website’s name to any other effort for ethical reasons, which Mark Bennett and  Eric Turkewitz explain better than I ever could.

As announced in the last edition, the weekly email edition is done.  The archives will be stored in a new site with a “resurrection” of a project abandoned years ago, the “Toolbox,” which is a collection of guides and source materials on a wide variety of subjects, some of which will be original works, most will not.  When that next phase is ready this page will automatically forward you there.

From this week’s intro:

Leading off this edition is John Wayne Conner v. Hall from the Eleventh Circuit. As Tim Cone notes, here “[t]he district court had rejected Conner’s challenge to his execution on the grounds of mental retardation because it found that Conner had procedurally defaulted this claim in the Georgia state courts. The Court noted that the procedural default bar only applies to State procedural rules that were consistently applied. The Court found that Georgia did not consistently apply a procedural bar to persons who claimed they were mentally retarded and should not be executed. The Court therefore remanded the case to the district court.”

In two separate cases, Roy Phillip Ballard v. State and Kevin Jerome Scott v. State, the Florida Supreme Court found imposition of the death penalty to be disproportionate. In Ballard the one aggravator was held to be outweighed by  nonstatutory mitigation and three statutory mititgators: “(1) the defendant was under the influence of extreme mental or emotional disturbance at the time the capital felony was committed, (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (3) the age of the defendant.”  Scott “was not a case with substantial mitigation” but “the aggravation is dissimilar to other robbery-murder cases where the imposition of the death penalty was upheld, this case is unlike those where the most aggravating circumstances exist.”

Other decisions of note include, the Ninth Circuit in Richard D. Hurles v. Ryan granted relief on a judicial bias claim on the “highly unusual facts of this case — in which the trial judge became involved as a party in an interlocutory appeal, was denied standing to appear as an adversary, and then proceeded to preside over a murder trial and single-handedly determine Hurles’s death sentence.” In Roth  v. Dep’t of Justice the D.C. Circuit granted access to certain FBI reports that could show “whether the federal government is withholding information that could corroborate a death-row inmate’s claim of innocence.” In State v. Gary Haugen the Oregon Supreme Court has ordered a competency evaluation prior to execution. Finally, in  David Eugene Matthews  v. Parker the Sixth Circuit has granted relief on issues relating to extreme emotional distress and  prosecutorial “comments during closing arguments regarding (Matthews’) supposed exaggeration of EED, and collusion with his attorney and doctor.”

DPIC notes”[b]etween January and June 2011, there have been 25 executions in nine states. Of the 25 executions, only eight were carried out using the drug sodium thiopental, while the rest involved a new drug, pentobarbital. Earlier in 2011, Hospira Inc., the sole U.S. manufacturer of sodium thiopental, announced that it will no longer manufacture the drug, forcing states to search for alternative sources or alternative drugs for their lethal injection protocols. Many states, inlcuding Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina, have used pentobarbital instead of sodium thiopental in their executions in 2011. Ohio is the only one of those seven states to use pentobarbital as the sole drug in its lethal-injection process. Additionally, at least five states (Alabama, Georgia, Kentucky, Tennessee, and South Carolina) that acquired sodium thiopental through an overseas source have had the drug seized by the U.S. Drug Enforcement Administration. In the first half of 2011, there have been 18 death cases in which a clemency was granted, commuting the defendant’s sentence to life without parole. Fifteen of such pardons were in Illinois, where Governor Pat Quinn signed a bill that repealed the state’s death penalty statute.” DPIC has also released Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Reinstatement in 1976.

A federal judge on Friday delayed the execution of Kenneth Smith who was scheduled to be executed  mid-month in Ohio.  Lundbeck has put substantial new controls on pentobarbital to prevent its use in executions. The latest edition of the NAACP Legal Defense Fund’s “Death Row USA” is out, and again shows the slow withering of  the death penalty in the United States. John Edward Green, whose challenge to the last year to Texas’ death penalty, resulted in international attention, has been permitted to plead guilty to a term of years. Finally, and in contravention of American treaty obligations, Texas executed Humberto Leal.

Paul Raskind, in his usual brilliance, has a wrap of the current Supreme Court term.

Finally, this is the last edition, at least for now, of the newsletter.  CDW’s been going since 1997 and it is  time to move on.  My practice has simply moved away from capital litigation and with each edition it has become harder and harder to justify taking times away from my current clients, my kid, and other interests I have. The website will stay up for a few more months, with an occasional post or two until it is eventually migrated elsewhere.   Be sure, as we go dark, to check out the work of Steve Hall, DPIC, Jeff Gamso, Tim Cone at Defense Newsletter, Jon Sands (and crew) at the Ninth Circuit blog, CapDefNet, and Doug Berman.  Thanks to all those who have contributed behind the scenes, introduced themselves over the years ,and especially those who, while I was in private practice, sent a referral or two my way in light of the newsletter.   Its been fun, and, as always, thanks for reading. – karl

Running really late, in part due to a large number of opinions. From the next edition:

Relief granted

• Roy Phillip Ballard v. State, 2011 Fla. LEXIS 1521 (FL 6/30/2011) “[I]mposition of the death penalty in this case to be disproportionate. This Court has previously stated that CCP is one of the weightiest aggravating circumstances.  However, this Court has also held that the death penalty is reserved only for those circumstances where the most aggravating and the least mitigating circumstances exist. This is not such a case. In this case, the trial court found CCP to be the only aggravating circumstance. The trial court also found three statutory mitigating factors— (1) the defendant was under the influence of extreme mental or emotional disturbance at the time the capital felony was committed, (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (3) the age of the defendant. Additionally, the trial court considered numerous nonstatutory mitigating factors. Accordingly, we find the death sentence to be disproportionate when comparing this case to other death penalty decisions.” (internal citations omitted)

• Kevin Jerome Scott v. State,   2011 Fla. LEXIS 1524 (FL 6/30/2011)  “After considering these circumstances with the mitigating evidence presented and similar other capital cases, we concluded that the crime committed by Johnson was “not among those for which the death penalty is specifically reserved.” “Like the defendant in Johnson, Scott was convicted under both premeditated and felony-murder theories and his penalty-phase proceeding produced comparable mitigation. As in Johnson, the evidence here certainly supports a finding of two aggravating circumstances; however, those aggravators are simply not compelling when the circumstances surrounding Scott’scontemporaneous felony are adequately considered: the prior violent felony was predicated upon an aggravated battery occurring at the same time as the murder, it involved a relatively limited use of violence, and was not charged until the eve of trial. Moreover, the facts of the murder are less compelling than in Johnson, where the record reflected that Johnson shot the victim multiple times and then, without provocation, again shot the victim in the jaw. Here, Scott shot Binjaku only once, and, by Scott’s account, the shot was in response to Binjaku rushing at him with a chair.” (internal citations omitted)

• State v. Gary Hauge, No. S05951 (Ore 6/29/2011) “[C]ommanding the trial court either:  (1)(a) to vacate findings, rulings and orders relating to the competency of defendant Haugen and to vacate the death warrant authorizing the execution of defendant Haugen; and (b) to take or agree to take action, by the close of business on July 7, 2011, to order an assessment of defendant’s mental capacity and to conduct an evidentiary hearing to address the competency of defendant Haugen before issuing a death warrant; or, (2) in the alternative, to show cause for not doing so. [Headnotes]

• David Eugene Matthew  v. Parker, 2011 U.S. App. LEXIS 13091 (6th Cir 6/27/2011) (dissent)* The trial  courtmisinterpreted Kentucky’s law on an extreme emotional distress and permitted prosecutors to claim during closing arguments that Matthews and his attorneys concocted the issue in an attempt to avoid conviction.”The prosecutor’s comments during closing arguments regarding (Matthews’) supposed exaggeration of EED, and collusion with his attorney and doctor, were both improper and flagrant.” Continue reading →

This weeks edition improperly listed both Sutton v. Bell and Apanovitch v Bobby incorrectly as “wins.” Call it wishful thinking or a Freudian click or whatever, it was erroneous and will be cleaned up in the archives.

This week’s  edition is here.

We’ve been gone a few weeks and there is more than a little catching up to do. Leading off is Terrell M. Johnson v. Secretary from the Eleventh Circuit.    The Defense Newsletter’s Tim Cone notes that  the court granted “federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.”

In Evans v. McNeil, No. 2:08-cv-14402-JEM (S.D. Fla. June 20, 2011), a federal district court judge has declared that Florida’s method of imposing the death penalty is unconstitutional because jurors are not required to make specific findings on the aggravating factors that increase a sentence from life in prison to death. Doug Berman @ OSU Law has uploaded the opinion.

In the news, the Arkansas Supreme Court has stayed all executions in that state pending the outcome of a state constitutional claim involving lethal injection and improper delegation of the authority under the separation of powers doctrine. In Rhode Island, Governor Chafee has done the virtually unthinkable,  refused to hand over a state detainee to federal prosecutors to face capital trial, choosing instead to try him in state court. In California, the LA Times notes that the the state is spending roughly $184 million a year on the death penalty above the cost of noncaloric murder and that “taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then.” Iowa Law Professor David Baldus has died. DPIC has released Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976 covering a fair number of the “hot issues” in capital punishment. Texas has killed Milton Mathis despite unusually strong evidence that he was intellectually disabled. Nevada’s Governor has vetoed a cost study bill of the death penalty in that state. In Ohio, Governor Kasich has commuted to life in prison the death sentence of Shawn Hawkins. DPIC reports that the Atlantic Center for Capital Representation recently petitioned the Pennsylvania Supreme Court to ensure that lawyers appointed in death penalty cases in Philadelphia have adequate resources to defend their clients.

From the Supreme Court, in Balentine v. Texas the High Court granted a stay pending disposition of a cert petition. The Court has granted cert in Martel v. Clair on the issue of how much say should a condemned inmate have in the selection of federal habeas counsel.  At the very end of this edition is the first of two “wrap-ups” of the SCOTUS term, this time looking at cert grants for next term with links to the SCOTUSBlog’s links to petition, briefs, and related materials. Term recap of all criminal cases will happen next week in the email edition and sooner on the blog.

This edition was unduly delayed when I got called out, very unexpectedly, to trial.  The “two-three day” “back-up” trial ended up lasting much, much longer. As always a heartfelt thanks for reading and a special thank you to Steve Hall from which must of the news is drawn. – k

The first look at the next, trial delayed, edition. Still working through the various SCOTUS developments and a case from California.

SCOTUS

• Balentine v. Texas, No. 10-11036 (10A1226) (6/15/2011) Stay granted pending disposition of a cert petition.

• Lee Andrew Taylor v. Texas, No. 10-11056 (10A1236) (6/16/2011) 5-4 denial of cert

In Favor of the Accused or Condemned

• Terrell M. Johnson v. Secretary,  2011 U.S. App. LEXIS 11996 (11th Cir 6/14/2011)  “ Florida death row inmate, convicted of a 1979 murder, was entitled to federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.” [via Tim Cone]

• Ex parte Carl Brad Ward; (In re: Carl Brad Ward v. State of Alabama), 2011 Ala. LEXIS 87 (Ala 6/3/2011) On postconviction review, a Rule 32 petition,  “Ward has sufficiently pleaded a claim of newly discovered material facts and that he is entitled to an opportunity to prove his allegations.”

• Charles & Jennifer Bowen v. Hon. Carnes, 2011 Tex. Crim. App. LEXIS 827 ( Tex. Crim. App. 6/15/2011) “Trial court erred in interfering with charged individuals’ Sixth Amendment right to retain counsel of their choosing. The disqualification of counsel based on his prior representation of a State witness was an abuse of discretion as the witness was not a current client, the potential for a conflict was not serious, and mandamus relief was ordered.” [via LexisOne]

Continue reading →

Georgia botched the execution of  Roy Willard Blankenship Thursday night, apparently badly. From wire sources:

Georgia execution botched tonight, apparently badly. “As the injection began, he jerked his head toward his left arm and made a startled face while blinking rapidly. He soon lurched to his right arm, lunging with his mouth agape twice. He then held his head up, and his chin smacked as he mouthed words that were inaudible to observers.”

We’ll be back this weekend.

We’re running a tad late since Karl is on trial. As soon as the defense closing is in we’ll run next.

David C. Baldus, a giant among legal academics, has passed. He is missed by all who know him or his work, but perhaps he will missed most by our clients.

Unexpectedly on trial, weekly will run next week.

From the next edition:

From the current edition:

Leading off this week is the Florida Supreme Court’s decision in Michael Coleman v. State.  Trial counsel at a postconviction evidentiary hearing “testified that he was convinced Coleman was innocent and indicated he had no reason to believe he needed to pursue mitigation for the penalty phase.” Trial counsel also “admitted that he never inquired into whether Coleman (1) was in special education classes; (2) abused drugs; or (3) suffered a head injury,” in addition to other mitigation, rather he focused the penalty phase defense on residual doubt.  The jury recommended life but the trial court overrode that recommendation. The State on appeal argued that “Coleman did not provide Stokes with any mitigation, and such mitigation may have been harmful to Coleman‘s case.”  The  Coleman holds, however, if trial counsel “had properly presented the aforementioned mitigating evidence, the trial judge would have had to view it in light most favorable to the defendant and would have been precluded from overriding the jury.”   As Mr. Coleman “has demonstrated that the mitigation presented would have provided a reasonable basis for the jury recommendation, the defendant is entitled to a life sentence.”

Leading off the news, in New York, despite a multimillion dollar federal death penalty, Vinny “Gorgeous” Basciano’s defense team quickly secured a life sentence  based on the federal government’s use of witnesses who were much more sullied than the Defendant and because more morally culpable participants in the murder received life.  In Texas, prosecutorial misconduct has led both parties in the Chelsea Richardson appeal to seek a a new penalty phase. A clemency request has been filed with the Texas Board of Pardons and Paroles for Humberto Leal Garcia by the Mexican National Human Rights Commission. In Montana, counsel have filed a high profile challenge to the state’s death penalty statutes under Ring. Also in Montana the state legislature has granted a supplemental budget item, approximately $1 million from the 2011 Montana Legislature specifically to defend death penalty cases.   The Nevada Senate passed a bill authorizing a legislative audit of the cost of the state’s death penalty.

As always a heartfelt thanks for reading and a special thank you to Steve Hall from which must of the news is drawn. – k

From the first draft of the next edition:

• Eugene Tyrone Decastro v. Branker, 2011 U.S. App. LEXIS 11199 (4th Cir 6/3/2011) “In a petition for habeas relief from a conviction of first degree murder, judgment of the district court denying relief is affirmed where applicaton on the grounds of ineffective assistance of counsel and state violations of Eighth Amendment and due process rights fail because state court’s decisions did not constitute an unreasonable application of clearly established federal law or an unreasonable determination of the facts” [via FindLaw] Continue reading →

This week’s edition is available:

Leading off this edition is Sean Carter v. Bradshaw from the Sixth Circuit.  A split panel in Carter holds that Petitioner incompetent to proceed in federal habeas proceedings. Specifically,  “Carter had refused to meet with his attorneys to discuss collateral attacks on his conviction” and his “attorneys also claimed that Carter could not understand the proceedings or assist counsel in his defense.” The panel’s majority found that a district court may hold a competency evaluation for habeas proceedings and the court below did not abuse its discretion in so doing.  Further, “the district court also did not abuse its discretion in finding that there was reasonable cause to believe that Carter was incompetent, and in further finding that he was incompetent to assist his counsel.” “[W]ith respect to Carter’s ineffective assistance claims, the habeas proceedings should be stayed until Carter is competent. . . The district court must examine the remainder of Carter’s claims to determine whether Carter’s assistance is essential to their full and fair adjudication. If not, the court should appoint a next friend to litigate those claims. “

As always a heartfelt thanks for reading and a special thank you to Steve Hall from which must of the news is drawn. – k

Following a long holiday weekend, here is the first look at cases from the next edition:

In favor of life or liberty:

• Sean Carter v. Bradshaw, 2011 U.S. App. LEXIS 10572  (6th Cir. 5/26/2011) (dissent) Petitioner incompetent to proceed in federal habeas proceedings. Note: this is an unusually complex decision not easily dissected.

Continue reading →

Three related, but off-topic points:

1.  There has been a meme floating around the net of late concerning the so-called Rakofsky v. Internet (which concerns a lawyer who fell flat in his first trial — a federal murder trial — whose internet advertising suggested he was exceptionally experienced but in reality had been practicing for less than a year and had never handled a murdered as even second chair).  As any lawyer who no longer can be described as a “young attorney” would note, such lessons are always humbling

2.  Some time ago I wrote a checklist about what I thought was important in hiring a lawyer.  While fire in the belly, like Rakofsky exhibited, is always important, competence is even more so.

3.  Which leads me to a reminder, although this blog is called “Capital Defense Weekly” I have noted repeatedly that although I have handled innumerable criminal cases including involvement in more than a few capital cases, I no longer am involved in capital defense.  Like everything else net, whether that be hucksters like Rakofsky, or even this site, please do your own due diligence.

This week’s edition is out:

Leading off this edition are two rather straightforward decisions, State v. Thomas Sparks, Jr. from the Louisiana Supreme Court and  Ex parte Andrew Anthony Apicella from the Alabama Supreme Court. In Sparks a remand for an evidentiary hearing is ordered on the issue of trial counsel’s performance, however, the Court’s disposition of the matter suggests that if the trial court grants relief the State will not be allowed to appeal. In Apicella that Court held that the postconviction court below erred in dismissing a “third petition” rather than permitting him to amend a then pending application before the courts below.

Two Supreme Court cases are also noted. In Brown v. Plata, in an unusually blunt language, the Court holds the Eighth Amendment requires something more than warehousing inmates, while “prisoners may be deprived of rights that are fundamental to liberty.. . . [they] retain the essence of human dignity inherent in all persons.” In Kentucky v. King the Court held the Fourth Amendment’s exigent circumstances exception is broad enough to permit evidence seized when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.

In the news, the Arizona Supreme Court on Wednesday considered briefly an appeal by convicted murderer Donald Beaty’s last-minute arguments, then lifted the stay, paving the way for Beaty’s execution by lethal injection.  The current issue of the National Law Journal has a  must-read  on habeas corpus entitled “The gutting of habeas for state defendants,”  by John Blume, Sheri Johnson and Keir Weyble; professors at Cornell Law School. China has apparently introduced new standards to reduce the number of criminals it executes.  with the Supreme People’s Court — the highest in China — ordering lower courts to suspend death sentences for two years where there is no need for “immediate execution.”  In Illinois pending DNA tests could exonerate nine men in two separate murder cases.  Berkeley Law’s Death Penalty Clinic has received the 2011 Abolition Award from Death Penalty Focus.  The Ohio Department of Rehabilitation & Corrections recommends, 7-0 clemency for Shawn Hawkins. The Nebraska  Supreme Court has stayed Carey Moore’s June 14 execution date. Texas Senate OKs bill standardizing eyewitness procedures to help prevent wrongful convictions and the bill is off to the Governor’s desk for signature. As always, Steve Hall has the wrap-up of lethal injection developments.

As always a heartfelt thanks for reading. – k

From the next edition:

SCOTUS

• Brown v. Plata,  2011 U.S. LEXIS 4012 (5/23/2011) In an unusually blunt language Court holds the Eighth Amendment requires something more than warehousing inmates.

• Kentucky v. King, No. 09- 1272 (5/16/2011)  “In a Fourth Amendment dispute involving the scope of the exigency rule, judgment of the state supreme court is reversed where the rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment” [via FindLaw]

In favor of the Accused or Condemned

• State v. Thomas Sparks, Jr. (a/k/a Abdullah Hakim El Mumit), 2011 La. LEXIS 1122 (La. 5/10/2011) Remand ordered to conduct an evidentiary hearing on failure to investigate and present mitigation evidence

• Ex parte Andrew Anthony Apicella; (In re: Andrew Anthony Apicella v. State of Alabama), 2011 Ala. LEXIS 74 (Ala 5/13/2011) “As postconviction relief (PCR) court’s dismissal of inmate’s second PCR petition was reversed, when he then filed his third petition, no final judgment was in effect; thus, under Ex parte Rhone, fact that his third petition stated a new claim was not grounds to deny him his right under Ala. R. Crim. 32.7 to file an amended PCR petition.”  [via LexisOne]

Continue reading →

This week’s edition is running late, my apologies. – k