No case has earned a top spot. Overall the edition is rather light on new case law development.

Looking elsewhere, the NAACP Legal Defense Fund released itsSummer 2005 update of Death Row U.S.A.late last week. The good news, death sentences continue to be way down, the bad news, we are still over 3000. This latest update of Death Row U.S.A. from LDF's Criminal Justice Project includes not only a wealth of information about death row inmates and executions, but also has a very helpful summary of recent Supreme Court decisions and pending cases related to capital punishment.

In the news, "[t]heDeath Penalty Information Centerrecently became aware of 2 older capital cases in which the defendants had been sentenced to death but were later acquitted at re-trial . . . Christopher McCrimmon of Arizona and Larry Fisher of Mississippi" and DPIC has added them to their "innocence list." TheHouston Crime Labreports havingjust found itemsfrom three capital murder cases that apparently were never brought to the attention of counsel during trial including evidence that apparently was never shown to counsel forPonchai Wilkerson. A recent decision by theAlabama Attorney General, under an arcane state statute, ruled that capital defense attorneys were being paid too much money to defend people accused of capital crimes and ordered their rates drastically cut, understandably there is a reportedexodus of private bar attorneys from capital defense work in that state.Sixty years after she was electrocuted, the Georgia Board of Pardons and Paroles granted Lena Baker apardon. San Quentin has banned sending print outs of emails toinmates.

Although this week is relatively light on good new case law (or indeed any new case law) next week already notes numerous wins.State v. Jimenez, 2005 N.J. Super. LEXIS 251 (NJ AppDiv 8/17/2005), offers New Jersey's take on standards for mental retardation holding that the prosecution must affirmatively disprove, beyond a reasonable doubt, the presence of mental retardation to a jury. Across the Delaware River in Pennsylvania, the state supreme court in Commonwealth v. Washington, 2005 Pa. LEXIS 1720 (PA 8/15/2005), has ordered an "evidentiary hearing on the claim that trial counsel breached his duty of loyalty to Appellant because of personal feelings of hostility that counsel harbored...." Several other wins are also noted onthe daily sheet.

Following up from last week's edition, Justice Stevens comments from the ABA's Thurgood Marshall Awards Dinner in honor of Abner Mikva, including his comments on the death penalty, are now availablehere. The NPR programFinding Fault with Forensicsshould have been linkedherefor the audio.

Over at the website, theCrim & CapDef Briefbankhas been updated. The briefbank, apparently last updated a few years ago (there was a link that appears to have been discontinued in 1998), now links every briefbank known on the web. If we missed your briefbank and you wanted it listed, you know what to do.

Please note that the Weekly will be shifting dates on which it is sent out to (most) Tuesday mornings starting (hopefully) next week. Look for other changes emerging here and at the website in the next few weeks.

Full edition archived athttp://capitaldefenseweekly.com/archives/050815.htm

As always, thanks for reading. - k

Executed

August

4 George Sibley Alabama

10 Gary Sterling Texas

11 Kenneth Turrentine Oklahoma

Serious X- Dates

August

23 Robert ShieldsTexas

31 Arthur Baird Indiana

31 Timothy Johnston

September14 Frances Newton Texas----female

20 John Spirko Ohio

22 Michael Lynn Riley Texas

22 John Peoples Alabama

27 Herman Ashworth Ohio----volunteer

Mixed Decisions

United States v. Mayhew, 2005 U.S. Dist. LEXIS 15935 (S.D. Ohio 8/5/2005) Pretrial ruling in this FDPA prosecution on the admissibility of certain, including an interesting discussion on dying declarations and the Confrontation Clause. More on the Confrontation Clause issues raised by dying declarations here.

United States v. Bodkins, 2005 U.S. Dist. LEXIS 16419 (W.D.Va 8/1/2005) Standard ruling on pretrial motions and reaffirming prior holding that the court will give a residual doubt instruction, if warranted.

United States v. Bodkins, 2005 U.S. Dist. LEXIS 16419 (W.D.Va 8/1/2005) Motion to increase peremptory challenges granted as was access to witnesses' criminal records and mental health history. The government's motions to introduce the victim's statement and a witness's non-testimonial statements were granted, as well as some 404(b) evidence.

United States v. Mayhew, 2005 U.S. Dist. LEXIS 15909 (S.D. Ohio 8/5/2005) Government required to prove that the alleged kidnapping proximately caused death. FDPA upheld, at least as applied here, as the prosecution had obtained an indictment that set forth aggravating factors.

Favoring Death

Michael v. Horn, 2005 U.S. App. LEXIS 16831 (3rd Cir 8/10/2005) (unpublished) Motion to recall mandate by the Warden granted. Michael has been vacillating over whether he wants to live or he wants to die. He had attempted to waive habeas below, on appeal wanted his habeas rights reinstated, then attempted to waive them yet again. The panel, in a split order, directed a remand to renew habeas proceedings. The panel, apparently on its own motion, recalls the mandate (panel splits 2-1) and orders additional oral argument including whether it should permit Michael to withdraw his habeas petition.

United States v. Webster, 2005U.S. App. LEXIS 16812 (5th Cir 8/11/2005) Fifth Circuit denies relief on claims arising out claims of mental retardation. Interesting here is the interplay alleged between the under funding of special education needs of black children and the requirements of showing mental retardation before the age of 18.

Bower v. Dretke, 2005 U.S. App. LEXIS 1689 (5th Cir 8/11/2005) (unpublished) The district court granted a COA on two issues (ineffective assistance of counsel as to both phases of the trial & Brady violations). Bower now seeks several additional grounds, which are denied.

Frazier v. Dretke, 2005 U.S. App. LEXIS 16792 (5th Cir 8/10/2005) (unpublished) COA denied on issues relating to the state trial judge's use of five disjunctive theories of guilt to the jury as one general capital murder charge permitting the jury to return a guilty verdict without unanimously believing him guilty on a single theory. Relief also denied on claims involving failure to investigate and present mitigation evidence. Claims were denied on procedural default and, in part, on a horrid decision relating to exhaustion.

Ventura v. Attorney General of Florida, 2005 U.S. App. LEXIS 16605 (11th Cir 8/9/2005) Eleventh Circuit panel holds that the Florida Supreme Court's holding on the claim that "state prosecutor's knowing failure to correct a key government witness's false testimony that he received no consideration in exchange for his testimony violated Ventura's due process rights, as established in Giglio v. United States" was not "contrary to nor an unreasonable application of clearly established federal law."

Battle v. United States, 2005 U.S. App. LEXIS 16723 (11th Cir. 8/10/2005) Relief denied "1) Whether the district court erred in finding Battle competent to stand trial and in failing to hold another competency hearing at the beginning of trial; (2) Whether Battle's Fifth and Sixth Amendment rights were violated by presentation of an insanity defense; (3) (a) Whether the indictment's failure to include capital statutory aggravating factors provides Battle with grounds for relief, and (b) Whether the Federal Death Penalty Act is unconstitutional; (4) Whether the district court erred in dismissing two jurors and seating alternate jurors for penalty phase deliberations; (5) Whether the district court erred in declining to have Battle's � 2255 motion randomly assigned to another judge; and (6) Whether the district court erred in limiting the scope of post-conviction discovery."

Woodward v. Epps, 2005 U.S. Dist. LEXIS 16205 (S.D. Miss 7/27/2005). Denial of expert funds for post-conviction purposes under 21 U.S.C. sec. 848.

Stephens v. State, 2005 Ala. Crim. App. LEXIS 139 (AlaCrimApp 8/12/2005) Relief denied on a grab-bag of issues including: voluntariness of statement to police; admission of prior conviction under404(b) to prove motive and intent; admission of inflammatory photos; failure to charge lesser included offenses; Ring; and consideration by jury of a nonstatutory aggravating circumstances.

State v. Glassel, 2005 Ariz. LEXIS 81 (Az 8/10/2005) Arizona Supreme Court affirms sentence on direct appeal on claims including denial of counsel's request for a continuance to more adequately prepare for the penalty phase, in part because Arizona had just changed its capital statute to permit jury sentencing.

Newman v. State, 2005 Ark. LEXIS 462 (Ark. 8/3/2005) Arkansas Supreme Court dismisses a post-conviction petition filed on Newman's behalf for lack of standing; the condemned had previously stated he wanted to explore filing a post-conviction petition, however he changed his mind and has renewed his efforts to be killed (he previously represented himself at trial, attempted to waive direct appeal & refused to permit a post-conviction petition to be filed).

Noncapital Opinions of Note

Bockting v. Bayer, 2005 U.S. App. LEXIS 16797 (9th Cir 8/11/2005) (en banc) Nine judges on the Ninth Circuit dissent on whether Crawford v. Washington is retroactive.

Park v. Hill, 2005 U.S. Dist. LEXIS 16246 (N.D. Iowa 8/8/2005) Resetting docketing schedule as capital prosecutions have consumed that court's docket forcing civil litigants to delay cases by at least eight months.

Unfortunately, owing to the court's involvement during April, May, and June in the second death-penalty case on its docket, United States v. Angela Johnson, CR 01-3046-MWB (N.D. Iowa), its prior involvement in its first death-penalty case during the preceding fall and winter, United States v. Honken, CR 01-3047-MWB (N.D. Iowa), and the resulting backlog of criminal cases with speedy trial requirements, this case cannot be reached for trial on August 15, 2005. Therefore, the court was forced to continue the trial in this matter to April 3, 2006, the first available date in its crowded docket that could be coordinated with the parties' schedules. The court, has, however, attempted to expedite resolution of Hill's motion for summary judgment, as soon as the court's schedule permitted.

Around the Web

The Death Penalty Information Centernotes:

Georgia Board To Pardon Woman 60 Years After Her Execution

The Georgia Board of Pardons and Paroles has announced that it will issue a formal pardon this month for Lena Baker (pictured), the only woman executed in the state during the 20th century. The document, signed by all five of the current board members, will note that the parole board's 1945 decision to deny Baker clemency and allow her execution was "a grievous error, as this case called out for mercy." Baker, an African American, was executed for the murder of Ernest Knight, a white man who hired her . Baker was tried, convicted, and sentenced to die in one day by an all-white, all-male jury. Baker claimed she shot Knight in self-defense after he locked her in his gristmill and threatened her with a metal pipe. The pardon notes that Baker "could have been charged with voluntary manslaughter, rather than murder, for the death of E.B. Knight." The average sentence for voluntary manslaughter is 15 years in prison. Baker's picture and her last words are currently displayed near the retired electric chair at a museum at Georgia State Prison in Reidsville. (Atlanta Journal-Constitution, August 16, 2005). See Race, Clemencyand Women.

Two Cases Added to DPIC Innocence List, Bringing Total to 121

The Death Penalty Information Center recently became aware of two older capital cases in which the defendants had been sentenced to death but were later acquitted at re-trial. We have added Christopher McCrimmonof Arizona and Larry Fisherof Mississippi to our innocence list, bringing the total number of people released from death row on the basis of innocence to 121 since 1973. McCrimmon is the eighth person to be exonerated from Arizona’s death row, and Fisher is the second death row exoneree from Mississippi. A brief description of the cases follows:

Christopher McCrimmonwas convicted and sentenced to death for a triple murder that occurred in Tucson's El Grande Market in 1992. Two other co-defendants, Andre Minnitt and Martin Soto-Fong, were also sentenced to death for the same crime. At McCrimmon’s trial, one juror hesitated about his vote for conviction. The trial judge met with the jury, which then shortly returned a unanimous guilty verdict. The Arizona Supreme Court overturned McCrimmon’s conviction in 1996 because of the judge’s undue pressure on the jury. (Arizona v. McCrimmon/Minnitt, 927 P.2d 1298 (1996)). Subsequently, it was discovered that the lead prosecutor against all 3 co-defendants, Kenneth Peasley, presented false evidence in the original case. With this knowledge, McCrimmon was quickly acquitted at his re-trial in 1997. (See Arizona v. Minnitt, 55 P.3d 774, 779 (2002) (vacating co-defendant Minnitt’s conviction and sentence and barring re-trial because of deliberate prosecutorial misconduct)).

In commenting on the prosecutor’s deceit, the Arizona Supreme Court wrote: “The record is replete with evidence of Peasley’s full awareness that [evidence he presented] was utterly false. Peasley’s misdeeds were not isolated events but became a consistent pattern of prosecutorial misconduct that began in 1993 and continued through re-trial in 1997.” (See J. Toobin, “Killer Instincts,” The New Yorker, Jan. 17, 2005). In 2004, the Court unanimously voted to disbar Peasley, stating that his behavior “could not have been more harmful to the justice system.” (Ibid.). Peasley had twice been selected as the state prosecutor of the year.

Both McCrimmon and Minnitt remained incarcerated on other unrelated charges. Soto-Fong, whose conviction has not been overturned, was removed from death row because he was a juvenile at the time of the crime. (See also, J. Barrios, “Case Discarded: Tucson Convict Off Death Row,” Arizona Daily Star, Oct. 12, 2002).

Larry Fisherwas charged with the rape and murder of an 18-year-old high school student in Meridian, Mississippi in 1983. A series of similar crimes had occurred in the same area and the pre-trial media coverage of the case was extensive. Fisher asked for a change of venue but was denied. He was convicted and sentenced to death in 1984. The Mississippi Supreme Court reversed his conviction and sentence because the saturation media coverage required a change of venue: “In a very real sense Fisher’s guilt was announced by the news media of Meridian, Mississippi, loudly and long before a Lauderdale County jury was ever impaneled to hear the case. By this he was denied his right to a fair trial before the trial began.” (Fisher v. Mississippi, 481 So.2d 203, 206 (1985)). Fisher was re-tried two months later in a different county and was acquitted of all charges. (See Fisher v. Mississippi, 532 So.2d 992, 994 (1988) (upholding his conviction in a different case)). Fisher remained incarcerated because of a separate rape conviction.

DPIC’s innocence list includes those former death row inmates who have been acquitted of all charges related to the crime that placed them on death row, who have had all charges related to the crime that placed them on death row dismissed, or who have been granted a complete pardon based on evidence of innocence. See Innocence.

Study Finds Texans Lack Confidence in Death Penalty, Support Halt to Executions

An article published in the September 2004 issue ofJustice Quarterlyrevealed that 64% of Texans support a halt to executions while questions of fairness and accuracy are addressed, and 48% of respondents lack confidence in the state's capital punishment system. The findings were based on the 2002 edition of the annual Texas Crime Poll and the survey examined five key areas of concern about the death penalty, including questions related to innocence, fairness, race, representation, and the appeals process. Researchers Scott Vollum, Dennis Longmire, and Jacqueline Buffington-Vollum of Sam Houston State University analyzed the results in their article, Confidence in the Death Penalty and Support for Its Use: Exploring the Value-Expressive Dimension of Death Penalty Attitudes. (21 Justice Quarterly 521 (2004)). See Public Opinion, Innocence, and Race.

NEW RESOURCE: The Death Penalty's Impact on U.S. Foreign Relations

A new law review article by international death penalty expert Mark Warren concludes that the retention of capital punishment in the United States distances the nation from its closest allies "in ways both symbolic and tangible, and the costs of that isolation are rising steadily." Warren's article, Death, Dissent, and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign Relations, examines a broad range of concerns, including treaty compliance and global security. Warren notes that in recent years, world leaders have become increasingly vocal about their opposition to the death penalty, and that the U.S. now finds itself on the wrong side of a fundamental human rights issue. Warren notes that some recent Supreme Court decisions narrowing the scope of the death penalty, as well as state efforts to identify flaws in the system, are steps in the right direction. (13 William & Mary Bill of Rights Journal 309 (2004)). See International Death Penalty. See also, Resources.

Size of Death Row Continues to Decline

According to the NAACP Legal Defense Fund's quarterly report, Death Row U.S.A., the number of people on death rows around the country declined again as of July 1, 2005. The latest count of inmates is 3,415, down from 3,452 as of April 1 and down considerably from the 3,692 inmates recorded on October 1, 2002. About 54.5% of those on death row are members of racial minorities. Pennsylvania (70%) and Texas (69%) had the largest percentage of minority defendants on death row.

Among the states with largest declines were Texas (-27), North Carolina (-5) and Alabama (-4). Some of the declines are due to juvenile offenders being removed from death row in accordance with the U.S. Supreme Court decision in Roper v. Simmons(2005). Not all such juveniles have been taken off death row. (NAACP Legal Defense Fund, Death Row U.S.A., Summer 2005(July 1, 2005). See also Death Row.

Around the blogs

Sentencing Law & Policywrites:

Significant New Jersey ruling on implementing Atkins

With great thanks to Howard for this tip, I see that a New Jersey appellate court has issued a very significant ruling concerning the procedures for assessing a capital defendant's claim of mental retardation. As discussed in helpful detail in this AP report, in New Jersey v. Jimenez, No. A-3737-04T2 (NJ App. Aug. 17, 2005) ( available here), the court held that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a resonable doubt.

The Jimenezruling runs (including a concurrence) a total of 67 thoughtful pages, includes an extended section on "The Effect of Apprendi, Ring, Blakely, and Booker," and ultimately rests its holding on state constitutional law grounds. Here is a key passage from the main opinion:

Although a lack of retardation would not constitute a threshold consideration in every case (or indeed, in most cases), when a defendant's mental status has been placed in issue, as here, we find a clear right on the part of a defendant to insist that a jury determine whether he is mentally retarded and thus whether that threshold to the imposition of a death sentence can be met, or whether he is barred from execution.

In re Winship, 397 U.S. 358 (1970), together with Ring, requires as a matter of due process, that the absence of retardation be established by the State beyond a reasonable doubt.

The thrust of the holding in Jimenezis also well summarized at the end of Judge Fisher's concurring opinion:

As a result of the uniqueness and irrevocability of the death penalty, those facts that permit the State to take the life of the accused may be resolved only by a process that requires the State to prove to a jury, beyond a reasonable doubt, that the accused is not mentally retarded.

Additional local press coverage of this important ruling can be accessed hereand here. One of these articles quotes the leading expert in this field, Professor Jim Ellis, as stating that of the "more than two dozen states that now have a law or court ruling dictating procedures for Atkinscases, New Mexico is the only other one that requires the prosecution to disprove mental retardation."

More on Roberts and capital punishment

Over at FindLaw, Elaine Cassel has this commentaryexploring the impact that a Justice Roberts could have on the Supreme Court's death penalty jurisprudence. I find the tone of the piece quite disconcerting: the chief goal seems to be to bash Roberts even though his record on the death penalty is virtually non-existent. ( ThisWashington Postarticleby Charles Lane from earlier this month provided a much more balanced review of these issues). Nevertheless, the FindLaw piece does spotlight a range of capital issues that could garner the Supreme Court's time and attention in coming terms.

I have discussed Roberts and the Supreme Court's capital punishment work in a number of prior posts, some of which are linked below:

• Stevens, Roberts, Gonzales and the death penalty
• Roberts, the cert pool, and sentencing jurisprudence
• Is Judge Roberts personally against capital punishment?
• Will O'Connor's replacement shift capital jurisprudence?
• Considering O'Connor's capital sentencing legacy
• The impact of SCOTUS's heightened scrutiny in capital cases

Updating the (declining) state of the death penalty

Thanks to this noticeover at the Death Penalty Information Center, I see that the NAACP Legal Defense Fund has released its Summer 2005 update of Death Row U.S.A. As DPIC notes, the number of inmates on death rows around the country as of July 1 is 3,415, which is "down from 3,452 as of April 1 and down considerably from the 3,692 inmates recorded on October 1, 2002.... Some of the [recent] declines are due to juvenile offenders being removed from death row in accordance with the U.S. Supreme Court decision in Roper v. Simmons."

This latest update of Death Row U.S.A. from LDF's Criminal Justice Project includes not only a wealth of information about death row inmates and executions, but also has a very helpful summary of recent Supreme Court decisions and pending cases related to capital punishment.

In a number of prior posts, some of which are linked below, I have documented recent declines in the use of the death penalty in the United States:

• The decline of death?
• The slowing pace of executions
• Death is definitely different this month
• More on the decline of death
• More evidence of the decline of death

Talk Leftwrites:

Death Row and Color in Alabama

Nancy Goldstein has a new article up on the Equal Justice Initiative and Alabama's death row. She asks, "If you are a poor person of color accused of a capital crime in Alabama, what stands between you and the death penalty?"

This very fine non-profit is trying to turn back the state's bad habit of routinely denying poor people decent legal representation, and then sentencing them to death without access to decent post-conviction appeal. The article also brings up the question of states' rights vs. federal oversight, particularly in Alabama, where almost all socially progressive decisions have been federally mandated, and where voters show a more than subtle inclination towards returning to the days of Jim Crow

A Pardon For Lena Baker

by TChris

It's easy to understand why Lena Baker shot her employer.

In her one-day trial, Ms. Baker, who was black, testified that E. B. Knight, a white man she had been hired to care for, had held her against her will and threatened to shoot her. She said she grabbed a gun and shot him when he raised a metal bar to strike her.

Sadly, it's also easy to understand why, in 1945, she was convicted.

She was convicted by an all-white, all-male jury.

Sixty years after she was electrocuted, the Georgia Board of Pardons and Paroles granted her a pardon. While that decision comes sixty years too late to benefit Baker, it may help ease the pain for family members who have labored to clear her name. More information about Lena Baker can be found hereand here.

CrimProf Blogwrites:

Death Row USA Continues to Decline

Stats in NAACP's newest report show the decline in past year, as well as fact that 54.5% on death row in the USA are racial minorities. Some of decline in past year due to juveniles being moved off death row after Roper. Story and report . . . [Mark Godsey]

Abolish the Death Penaltywrites

Executed for being gay?

Amnesty International today is blogging about protests that are taking place in five cities around the world -- London, Dublin, Paris, San Francisco and Montpelier in France. The protests are in response to the recent execution of two teenage boys in Iran. To read more go here.

THE SMALL PRINT

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