Cone v. Bell dominates this edition. Turning to the experts,

After the State discredited Cone's defense that he killed two people while suffering from acute psychosis caused by drug addiction, he was convicted and sentenced to death.. . . Later, in a second petition for state postconviction relief, Cone raised the claim that the State had violated Brady v. Maryland by suppressing witness statements and police reports that would have corroborated his insanity defense and bolstered his case in mitigation of the death penalty. The state postconviction court denied him a hearing on the ground that the Brady claim had been previously determined, either on direct appeal or in earlier collateral proceedings.. . . The Sixth Circuit . . . but considered itself barred from reaching the claim's merits because the state courts had ruled the claim previously determined or waived under state law. The Supreme Court reversed, holding that the state courts' rejection of Cone's Brady claim does not rest on a ground that bars federal review. Neither of the State's asserted justifications for such a bar–that the claim was decided by the State Supreme Court on direct review or that Cone had waived it by never properly raising it in state court–provides an independent and adequate state ground for denying review of Cone's federal claim.. . . The Supreme Court found unpersuasive the State's alternative argument that federal review is barred because the Brady claim was properly dismissed by the state courts as waived. Those courts held only that the claim had been previously determined, and the Supreme Court would not second-guess their judgment. Because the claim was properly preserved and exhausted in state court, it is not defaulted. Although the Court did not believe that the withheld evidence sustained Cone's insanity defense at the guilt phase, it did hold the lower federal courts failed to adequately consider whether the withheld documents were material to Cone's sentence.. . . Because the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted.

Both Paul Rashkind's analysis (partially quoted above) and HAT's forthcoming analysis are must reads.

In the news, although it goes without saying, is Justice Souter's retirement & potential replacement. In Colorado, the repeal bill, having passed one chamber and all committees in the other, is headed to the Colorado Senate Floor. In Nebraska, the Lethal Injection bill, LB 36, (redefining lethal injection as Nebraska's method for execution) hits the floor this week. In Maryland, a substantial reform bill has inched closer to passage.

As always thanks for reading. Longer editions should hopefully return by the end of spring. - k

Pending Executions
May
5 Donald Gilson - Okla* (reprieve to consider clemency until at least May 14th)
8 Thomas Ivey - SC*
13 John Richard Marek - FL*
14 Willie McNair - Ala*
19 Michael Lynn Riley - Tex*
20 Dennis Skillcorn - Mo*
27 David Eugene Johnston - FL*

Recent Executions
April
28 William Mark Mize - GA*
30 Derrick Johnson - Tex*

* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin & press accounts]

SCOTUS -- Week of April 27, 2009

Gary Cone v. Bell, No. 07–1114 (4/28/2009) The Sixth Circuit improperly concluded that Mr. Cone's potentially meritorious Brady claim was procedurally defaulted. Note that the opinion, depending on one's jurisdiction, is a potentially substantial expansion of the Brady line of cases.

Kansas v. Ventris, No. 07-1356 (4/29/2009) Conviction upheld where the State unlawfully obtained a confession following the appointment of counsel and subsequently used that statement to impeach the Defendant's trial testimony. USSCt blog has more.
Dean v. US, No. 08-5274 (4/29/2009) 18 U.S.C. section 924(c)(1)(A)(iii), relating to the discharging of firearm, requires no separate proof of intent for its 10-year mandatory minimum applies. Even if a gun is accidentally discharged in the course of a violent or drug trafficking crime the 10 year mandatory minimum applies. USSCt Blog has more.

(Initial List) Week of April 27, 2009 – In Favor of the State or Government

In re Derrick Lamone Johnson, 2009 U.S. App. LEXIS 9272 (5th Cir 4/30/2009) (unpublished) "Motion for authorization to file a successive habeas petition and for a stay of execution based on a claim that he is mentally retarded and thus ineligible for the death penalty under Atkins v. Virginia" denied as "time-barred."
Gerald Eldridge v. Quarterman, 2009 U.S. App. LEXIS 9199 (5th Cir 4/28/2009) (unpublished) COA denied. "The evidence in the record does not support Eldridge's contention that his alleged mental retardation had an onset before age eighteen." "The district court concluded that "[t]he evidence shows that Eldridge does not have significantly subaverage intellectual functioning or significant deficits in adaptive functioning. It necessarily follows that such symptoms did not manifest before Eldridge turned 18 years old." Eldridge's standardized tests and academic performance support such a conclusion. In the second grade, Eldridge tested in the forty-sixth percentile on the Peabody Picture Vocabulary Test (PPVT), which is within "normal" range. According to the PPVT, Eldridge's mental age was one month behind his chronological age. Additionally, as noted earlier, Eldridge was a peer tutor for kindergartners when he was in the third grade. Further, Eldridge was not in special-education classes, was not held back to repeat a grade, and graduated from high school in the seventieth percentile of his class. Finally, none of his friends or family, nor any medical professional, gave any indication before Eldridge turned eighteen that they believed Eldridge was mentally retarded."
Ex parte Michael David Carruth (In re: State of Alabama v. Michael David Carruth), 2009 Ala. LEXIS 78 (Ala 4/24/2009) "[A] defendant who is sentenced to death and who failed to timely file a petition in this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals, the proper means to request permission to file an out-of-time petition is to make the request in a Rule 2(b), Ala. R. App. P., motion in this Court and not in a Rule 32 petition in the trial court. Indeed, Carruth filed a Rule 2(b), Ala. R. App. P., motion in this Court, and it was denied by order on February 28, 2008. A Rule 32 petition simply cannot provide the relief requested by Carruth; therefore, this writ is quashed."
David Brian Magnan v. State, 2009 OK CR 16 (Okla. Crim. App. 4/22/2009) (dissent) Waiver of trial, sentencing and appeal affirmed as the waivers were knowing and voluntary, as well as the sentence of death permissible under State law. Dissent posits the crime was committed in Indian country.
N.C. Dep't of Corr. v. N.C. Med. Bd., No. 51PA08 (NC 5/1/2009) (dissent) Medical Board improperly extended to itself disciplinary authority over licensees who participate in administration of the death penalty. "[W]e hold that N.C.G.S. § 15-190, by its plain language, envisions physician participation in executions in some professional capacity. Defendant's Position Statement exceeds its authority under Chapter 90 of the North Carolina General Statutes because the Statement directly contravenes the specific requirement of physician presence found in N.C.G.S. §15-190. Because plaintiffs have standing, a genuine controversy exists, the issue is ripe for decision, and the trial court did not impermissibly decide questions of fact or fail to allow additional presentation of evidence; and because the Position Statement is an invalid exercise of defendant's statutory powers, we affirm the decision of the trial court."
(Initial List) Week of April 27, 2009 – Noncapital

Richards v. Quarterman, No. 08-10934 (5th Cir 4/27/2009) "In a murder prosecution, the grant of Petitioner's habeas petition is affirmed, where the District Court did not abuse its discretion in holding an evidentiary hearing on Petitioner's ineffective assistance allegations or finding ineffective assistance, considering the evidence of counsel's serious failure to present exculpatory evidence." [via FindLaw]

Week of April 20, 2009 – In Favor of the Defendant or the Condemned


John Adams v. Quarterman, No 06-70044 (5th Cir 4/22/2009 ) (unpublished) District court's grant of sentencing phase relief affirmed. Specifically, the panel granted relief as trial counsel failed to adequately investigate & present mitigating evidence. The panel denied all other relief. CapDefNet has more.


Week of April 20, 2009 – In Favor of the State or Government

Robert Hunt v. Houston, 2009 U.S. App. LEXIS 8395 (8th Cir 4/23/2009) "District court erred in its handling of a claim related to prosecutor's misconduct, as the Nebraska Supreme Court determined the claim was defaulted because it had not been raised in Hunt's first habeas; in order to overcome a state procedural default finding, Hunt must show either that the ruling resulted from an exorbitant application of an otherwise sound rule, which he had not, or cause and prejudice; Hunt had knowledge of all of the facts surrounding his claim of prosecutorial misconduct, and he could not establish cause for his failure to include it in his first post-conviction filings; nor could Hunt establish prejudice because the statements related to the misconduct were not admitted at trial (the prosecutor removed information that Hunt had requested counsel at the end of his first statement, thereby making the admissibility of his second statement problematical; however, the state told the court and Hunt before trial that it would not introduce the second statement and it did not use the statement at trial); trial counsel's failure to adequately investigate the conduct and report it to ethics authorities did not result in any prejudice; the possibility of prejudice is further undercut by the strength of the state's case, and Hunt has failed to show that there is a reasonable probability that the outcome of his trial would have been different; claim that his trial counsel's closing arguments amounted to a complete denial of Hunt's right to counsel was properly rejected by the district court; claim that the state court improperly admitted evidence as a result of the second statement was properly rejected; grant of habeas relief is reversed, and the matter is remanded with directions to dismiss the petition." [via Clerk's Office]
John Forest Parker v. Allen, 2009 U.S. App. LEXIS 8275 (11th Cir 4/20/2009) Relief denied. " Parker raised twenty-four issues, including: (1) the prosecutor's use of his peremptory strikes in violation of Batson; (2) the prosecutor's failure to disclose a witness's other convictions and the favorable treatment he received in exchange for his testimony in violation of Brady v. Maryland ; (3) the illegality of the warrantless search of his home; (4) the involuntariness of his post-arrest statement; (5) improper prosecutorial closing arguments; and (6) his court-appointed counsel's lack of required experience." CapDefNet has more.
People v. Carlos Anthony Hawthorne, No. S064769 (Cal 4/23/2009) "Conviction for first degree murder, attempted murder and robbery and sentence of death is affirmed where: 1) record supports the trial court's decision to grant prosecution's race-neutral peremptory challenges against jurors; 2) trial court did not err in denying plaintiff's motion to suppress evidence of his confession as defendant impliedly voluntarily and knowingly waived his Miranda rights; 3) prosecution's penalty phase cross-examination did not constitute prosecutorial misconduct; 4) trial court did not err in admitting the 911 tape as victim impact evidence, as it was not cumulative of other evidence and was more probative than prejudicial; and 5) the death penalty statute is not unconstitutional." [via FindLaw]





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As a reminder, if you find this email useful, feel free to forward it or excerpt it. We prefer attribution, but don't require it. Likewise, we don't charge a subscription fee, but if you find the weekly useful we'd appreciate even a nominal tax deductible donation to one of favorite nonprofits involved in some aspect of the capital punishment issue: Pennsylvanians for Alternatives to the Death Penalty, Death Penalty Information Center, Fair Trial Initiative, GRACE, Southern Center for Human Rights, & Texas Defense Services. These groups were selected as each have demonstrated an ability to make a difference, usually on a shoestring budget, meaning even the smallest donation goes a long way. On each of the above links you're able to donate as little or as much as you want, or even set up a monthly automated giving amount. If there is a group you think should be added please drop us a line. - k

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