http://www.capitaldefenseweekly.com/blog/?p=4215
My apologies as I am currently on trial / in trial (depending on your region of the country), for what will be my fifth week of the new year. More precisely, I’m three weeks in to a murder trial on the most recent trial, and my attention is understandably drawn there rather than cranking out the weekly email edition. The normal schedule of publication should resume starting with the next edition, or at worst, in two weeks.
Since the last edition, as most know, Attorney General Mukasey’s Department of Justice’s “opt-in / fast track” regulations died thanks to very heads up litigation from the Habeas Corpus Resource Center. Habeas Corpus Resource Center v. U.S. Department of Justice, No. C:08-2649 CW (N.D. Cal.):
For the reasons stated in open court, Defendants are temporarily restrained and enjoined from making effective the rule entitled “Certification Process for State Capital Counsel Systems,” published at 73 Fed. Reg. 75,327 (Dec. 11, 2008), without first providing an additional comment period of at least thirty days and publishing a response to any comments received during such period. This temporary restraining order will remain in effect until January 22, 2009, unless it is first superseded by a preliminary injunction.
Attorney General Holder’s Department of Justice promulgated a new sixty-day comment period for the “opt-in / fast track” regulations for chapter 154. The DOJ concedes, albeit implicitly, that its prior Final Rule is now invalid.The DOJ “has decided to solicit further comment on all aspects of the final rule.” More info here.
The Texas Court of Criminal Appeals in Ex parte Billy Frederick Allen, granted relief using “actual innocence as a procedural gateway through which to [address] his otherwise barred constitutional claim of ineffective assistance of trial counsel.” After finding an actual innocence exception it finds grant of relief appropriate as:
trial counsel rendered ineffective assistance of counsel for failing to: (1) properly investigate the case and discover that the victim Sewell had named someone other than applicant as his attacker; (2) move for a continuance at trial to investigate the matter when he was surprised by Officer Clary’s testimony regarding Sewell’s statement to Clary in the ambulance; and (3) raise in his motion for new trial the issue of the newly discovered evidence that he discovered when he did have the matter investigated after trial.
In other opinions, the Ohio Supreme Court Disciplinary Counsel v. Stuard, Becker, & Bailey holds a judge and prosecutor should be publicly reprimanded for engaging in ex parte communications with a prosecutor during which the prosecutor was asked to, and did, prepare an opinion for the judge in upholding a death sentence. The Tenth Circuit in Charles Taylor v. Workman grants habeas relief as Mr. Taylor at his trial was entitled to “a correct jury instruction on the lesser-included offense of second-degree murder and that the error was not harmless.” The Florida Supreme Court orders a new trial in Thomas William Rigterink v. State as the admission at trial of Mr. Rigterink’s videotaped confession since he was in custody, the right-to-counsel warning was materially deficient, and the error was not harmless beyond a reasonable doubt. The Fifth Circuit grants the right to file a successive habeas petition in In re Swearingen (and in most normal editions this case probably would have lead off the edition) as to his Giglio claim and two Strickland claims. The Nevada Supreme Court in State v. Curtis Bonilla stayed a”district court order granting the State’s motion for production of discovery pursuant to NRS 174.245, including materials to be presented during the penalty phase in a death penalty case.”
A number of relatively routine grants of relief are also noted. For example, relief is noted on Batson / Miller-El claims in Jonathan Bruce Reed v. Quarterman (the only notable thing about this grant of relief is that it is from the Fifth Circuit). Similarly, a grant of relief is noted on failure of trial counsel adequately investigate in mitigation including, Gaylon George Walbey, Jr. v. Quarterman (5th Cir). Finally on the routine front, an “Atkins” grant is noted in Glenn Holladay v. Allen (11th Cir) and a remand for hearing is ordered in Andrew Sasser v. Norris (8th Cir).
On the legislative front, legislation in Colorado has been introduced to end the state’s death penalty and to use the resultant savings to investigate the state’s more than 1,300 unsolved crimes. After Gov. Martin O’Malleycalled for a “fair up or down vote” on the death penalty during his State of the State address top lawmakers began discussing strategies for how that could happen this year; Maryland may be on the verge of joining New Jersey as a legislative repeal state. A bill to abolish the death penalty in New Mexico has won several key committee votes and appears headed for a showdown on the floor of the legislature according to local media. Finally in Montana a repeal bill in committee appears to have a better than fair chance at rolling back that state’s death penalty.
I would be remiss for not noting that Jeffrey HIll in Ohio has received a 8-0 recommendation for clemency.
As always thanks for reading & my apologies for relying (due to time constraints) so heavily this week on FindLaw & Lexis’ summary, both of which (more so the former than the latter) are occasionally incorrect. My apologies as well for an unusually bad bit of butchery of the English language this edition when materials aren’t being “borrowed” from other sources.
