According to Capital Defense Weekly, we may have some good news in Texas for Robert Springsteen and Charles Raby, as far as death row exonerations! Hooray!

Does anyone know about a stay for Kenneth Mosley for this Thursday in Texas? He was scheduled to be the 1000th person to be executed by lethal injection but his atty told an abolitionist last week that he had won a stay. Can't find it in the news anywhere. Don't know which court granted this stay. Help!

Attorneys for Nanon Williams (juvenile taken off Tex dearh row in 2005) will meet with the state's attys and the federal judge next week to set a date for an evidentiary hearing. Nanon won in the 5th Circuit and they sent his case back to federal district court. Yahoo!

gloria

From: karlkeys <karl@karlkeys.com>
Subject: Capital Defense Weekly for cases decided June 22, 2009 to July 6, 2009
To: capital_defense_weekly@yahoogroups.com
Date: Monday, July 13, 2009, 9:40 PM

Leading off this edition is Herman Lindsey v. State. In Lindsey the Florida Supreme Court ruled 7-0 insufficient evidence existed to find Herman Lindsey killed the victim. The State's case was based completely on circumstantial evidence. Lindsey was arrested in 2006, almost 12 years after the killing at bar.

DPIC's Innocence List will allegedly reach 135 exonerees with additions of Ronald Kitchen from Illinois and Herman Lindsey from Florida. Exonerated last week, these two men bring 2009's total of people freed from death row to 5, with Kitchen being the 20th exoneree from Illinois and Lindsey the 23rd from Florida since 1973. Prospectively, Kevin Keith (Ohio), Robert Springsteen (Texas), and Charles Raby (Texas) all appear likely candidates to join the list by the end of the year.

John Holdredge, director of the ACLU Capital Punishment Project writes, "Sentenced To Death Because Of Where You Live: The Death Penalty's Geographic Bias," at the ACLU Blog of Rights. The Pennsylvania Senate has approved (umpteen years later) a bill that would establish a pretrial process to determine whether a defendant potentially facing the death penalty is mentally retarded (by way of disclosure the undersigned is the co-chair of death penalty repeal group in Pennsylvania, PADP). The Judicial Conference appears ready to submit major changes to prosecutorial obligations in the federal cases. Ty Alper's, "The Truth about Physician Participation in Lethal Injection Executions," is at SSRN and soon to be published in the North Carolina Law Review. Double Tradegies is the title of a new report issued by the National Alliance on Mental Illness, available here. A bill aimed at reducing racial disparities in the imposition of the death penalty, the "North Carolina Racial Justice Act, advanced another step in the N.C. General Assembly yesterday. The recent California hearings on proposed changes to the method of execution veered into a discussion of why solutions to the state's budget crisis ought to include the abolition of capital punishment, it was another example of how divided our attitude on this issue remains. The Supreme Court has agreed to review a sequel to its decision last week limiting the use of crime lab reports as evidence in criminal trials, Briscoe, et al., v. Virginia, 07-11191. The latest issue of the report, "Death Penalty for Female Offenders," has been released by Professor Victor Streib of the Ohio Northern University School of Law.
As always, thanks for reading. A special thank you to DPIC & Steve Hall for the material "borrowed" this week. - karl




Pending Executions
July
14 John Fautenberry* (Ohio)
14 Paul Warner Powell* (VA) (stayed)
16 Kenneth Mosley* (Tex) (rumours of a stay)
21 Marvallous Keene* (Ohio)
23 Roderick Newton* (Tex)
28 Junious Diggs (Penn)
30 Raph Trent Stokes (Penn)
August
7 Kenneth Baumruk (Mo)
18 Jason Getsy* (Ohio)
20 David Wood* (Tex)
* "serious" execution date / (s) stay believed likely / (V) Volunteer [Sources include: DPIC, Rick Halperin & press accounts]

Executions
July
9 Michael DeLozier* (Okla)





(Initial List) Week of July 6, 2009 – In Favor of the Accused or Condemned

Herman Lindsey v. State, SC07-1167 (FL 7/9/2009) Conviction vacated and judgment of acquittal entered as State failed to prove this circumstantial case beyond a reasonable doubt.

Michael Paredes v. Quarterman, No.. 07-70009 (5th Cir 7/6/2009) COA granted on issues regarding whether "the trial court violated his federal constitutional rights by not requiring the jury to agree unanimously on precisely which of the victims Paredes could be held responsible for killing" and "counsel should have objected on due process grounds, because the instructions did not ensure the jury was unanimous as to precisely whom Paredes murdered." Confrontation Clause issues for which a COA was previously issued rejected. "In a capital habeas matter, the denial of Petitioner's petition is affirmed, where defense counsel's allegedly ineffective performance due to his failure to raise a hearsay objection did not prejudice Petitioner, because the state presented overwhelming evidence that Petitioner committed capital murder." [via Findlaw]
(Initial List) Week of July 6, 2009 – In Favor of the State or Government


Jeffrey Matthews v. Workman, 2009 U.S. App. LEXIS 14923 (10th Cir 7/7/2009) "In a capital habeas matter, the denial of Petitioner's petition is affirmed, where 1) an allegedly improper juror communication did not prejudice Petitioner, because the defense made no appeal to residual doubt in the penalty phase; and 2) the prosecutor did not reference any extra-record evidence in his argument." [via Findlaw]
Michael Jeffrey Land v. Allen, No. 08-15254 (11th Cir) "Regarding the conviction, he argues that his habeas petition should be granted because: (1) an incriminating statement, allegedly made as a result of police coercion, was admitted at trial in violation of the Fifth and Fourteenth Amendments; (2) the trial court violated Land's due process rights when it instructed the jury that the incriminating statement was made voluntarily, thereby tainting the jury's ability to fulfill its duty of reaching a credibility determination regarding that statement; (3) the prosecutor violated Land's right to a fair trial by arguing facts unsubstantiated by the record; and (4) his Sixth Amendment right to effective assistance of counsel was violated when his defense attorneys failed to object to the prosecutor's factually unsubstantiated arguments. With reference to his death sentence, Land claims that his counsel were constitutionally ineffective during sentencing for failing to reasonably investigate and present mitigation evidence." "In a capital habeas matter, the denial of Petitioner's petition is affirmed, where the State met its burden of demonstrating by a preponderance of the evidence that Petitioner's confession was a result of voluntary choice." [via Findlaw]
John Fautenberry v. Mitchell, No. 09-3819 (6th Cir 7/10/2009) "Fautenberry has asked this Court for a stay of execution to permit him to obtain the neurospsychological examination and then to present the results to the governor. He has not, however, cited any legal authority upon which we could base a stay of the State's right to execute its judgment. Although "some minimal procedural safeguards" may apply to state clemency proceedings, allowing federal judicial intervention where "a state official flipped a coin to determine whether to grant clemency" or "arbitrarily denied a prisoner any access to its clemency process," we are not presented with such a situation here."" "In a capital murder matter, the District Court's order denying Petitioner's motion seeking funds to hire a neuropsychologist to assist in the preparation of his state clemency petition is affirmed, where Petitioner advanced no evidence from which the District Court could find that the proposed evaluation would not be duplicative. " [via Findlaw]
Ricardo I. Gill v. State, SC06-1572 (FL 7/9/2009) To be covered next edition.
Curtis W. Beasley v. State, SC06-2375 (FL 7/9/2009) To be covered next edition.
Fred Anderson, Jr. v. State, SC07-648 (FL 7/9/2009) To be covered next edition.
Samuel L. Smithers v. State, SC07-2258 (FL 7/9/2009) To be covered next edition.
Jeffrey G. Hutchinson v. State, SC08-99 (FL 7/9/2009) To be covered next edition.
Week of June 29, 2009 – In Favor of the Accused or Condemned


Derrick Smith v. Sec'y, Dept. of Corr., 2009 U.S. App. LEXIS 14226 (11th Cir 6/30/2009) Remand ordered for the limited purpose of the district court to make a cumulative prejudice analysis of certain suppressed Brady evidence. " The district court's judgment was affirmed except as it concerned viable Brady claims. As to those Brady claims, the district court's judgment was vacated, and the case was remanded for the limited purpose of having the district court conduct for those claims a cumulative prejudice analysis. Depending on the outcome of that analysis, the district court should then enter a new judgment either granting or denying the habeas petition."

Week of June 29, 2009 – In Favor of the State or Government

Brian Thomas v. Horn, 2009 U.S. App. LEXIS 14285 (3rd Cir) Third Circuit reverses the grant of penalty phase and remands for an evidentiary hearing on trial counsel's pretrial workup for the penalty phase. " District court's denial of petition for habeas relief as to petitioner's guilt phase claims is affirmed where: 1) the court's reasonable doubt jury instruction may have lessened the prosecution' s burden of proof, but was not unconstitutional; 2) the Commonwealth' s closing argument at sentencing did not violate petitioner's due process and Eighth Amendment rights; and 3) counsel's failure to ask the jury life-qualifying questions did not constitute ineffective assistance of counsel. The court's grant of sentencing relief is vacated where petitioner cannot demonstrate that his counsel was deficient at sentencing based on the evidence on the record, and remand the case for an evidentiary hearing concerning the extent of petitioner's counsel's pre-sentencing investigative efforts to obtain mitigating evidence." [via FindLaw]
Davy Stephens v. Branker, 2009 U.S. App. LEXIS 14158(4th Cir 6/30/2009) " In a capital habeas matter, the denial of Petitioner's petition is affirmed where Petitioner's ineffective assistance claim failed, because he did not demonstrate that the conflict of interest allegedly affecting his counsel adversely affected counsel's trial performance. " [via FindLaw]
Harbison v. Little, 2009 FED App. 0227P (6th Cir.) " In a 42 U.S.C. section 1983 action challenging Tennessee's lethal injection protocol under the Eighth Amendment, judgment for Plaintiff is vacated where Baze v. Rees, 128 S. Ct. 1520 (2008), addressed the same risks identified by the District Court, but reached the conclusion that they did not rise to the level of a constitutional violation." [via Findlaw]
Richard Bibble v. Ryan, 2009 U.S. App. LEXIS 14296 (9th Cir 7/1/2009) Ninth Circuit affirms the denial of penalty phase relief as there was no reasonable probability that the sentencing judge would have reached a different result even if defense counsel had performed adequately. "In a capital habeas matter, the denial of Petitioner's petition is affirmed, where Petitioner was not prejudiced by any of his counsel's alleged errors during the sentencing phase of his trial, because there was no reasonable probability that the sentencer would have reached a different result in the absence of the alleged errors." [via Findlaw]
Noel Doorbal v. Dept. of Corr. No. 08-15869 (11th Cir 6/29/2009) Eleventh Circuit denies relief, most notably on procedural default grounds ."In a capital habeas matter, the denial of Petitioner's petition is affirmed where Petitioner's claim of ineffective assistance of counsel was barred from federal review because the state supreme court had applied a state rule of procedure to refuse to adjudicate his claim on collateral review." [via Findlaw]
Derrick Tyrone Smith v. Sec'y, Dept. of Corr., No. 07-14173 (11th Cir 6/30/2009) "In a capital habeas matter, the denial of Petitioner's petition is affirmed in part, where there was no possibility of prejudice due to the prosecutor's alleged misconduct in a prior trial because a new trial was conducted; but reversed in part, where the prosecution did not disclose in the later trial that a witness told the prosecutor that in exchange for testifying again, he wanted help with charges he faced." " [via Findlaw]
People v. Raymond Jay Rogers, 2009 Cal. LEXIS 5914 (CA 7/6/2009) In missing person case turned homicide, ""exigent circumstances" [ ] negated the requirement for a warrant because it was an "emergency situation" that "require[d] swift action to prevent imminent danger to life." Yes, a full month had passed, and yes, they were in no rush to investigate initially. But once they realized they had no probable cause, and even though there was nothing at all to suggest that a live (or even dead) person was in the storage area, you never know. Hence you can bust the doors down to your heart's content, and use the evidence that you just "happen" to find therein." [via CalApp Blog] "Conviction for first and second degree murders and sentence to death is affirmed where: 1) trial court's voir dire on the death penalty was adequate and did not violate his due process rights, and the warrantless entries into defendant's house were justified by exigent circumstances; 2) witness's testimony describing defendant's nonverbal conduct was properly admitted, and the court did not err in admitting victims' photographs and autopsy photographs; 3) the court did not err in failing to give the jury an instruction on voluntary manslaughter and in instructing the jury on CALJIC No. 2.06; 4) any conceivable error in the substitution of judges upon the trial judge's temporary absence was harmless beyond a reasonable doubt; 5) the death sentence is not authorized for second degree murder, and thus the judgment must be modified to reflect the appropriate sentence; 6) the court properly refused to give a lingering doubt instruction and did not instruct the jury with an incorrect version of CALJIC No. 8.85 or 8.88; and 7) California's death penalty statute is not unconstitutional. " [via FindLaw]
Gregory Russeau v. State, 2009 Tex. Crim. App. LEXIS 878 (Tex. Crim. App. 7/1/2009) ""The CCA upheld Russeau's Smith County death sentence after a remand for a new punishment hearing. The Court addressed nineteen issues, and specifically held the evidence was sufficient for a juror to find future danger. Click here for a more detailed summary." [via the CCA Blog]
Victor Dewayne Taylor v. Comm., 2009 Ky. LEXIS 147 (Ky 6/25/2009) On these facts, movant not entitled to DNA discovery under governing state statute.
State v. James E Trimble, 2009 Ohio 2961 (Ohio 6/30/2009) Relief denied, most notably, on claims "that the trial judge should have granted a requested change of venue because of prejudicial pretrial publicity; and that the trial court improperly allowed the state to display before the jury a collection of 19 firearms owned by Trimble that were not used in the murders with which he was charged." [via the Clerk's Office]
Ex parte Patrick Murphy, 2009 Tex. Crim. App. Unpub. LEXIS 473 (Tex. Crim. App. 7/1/2009) (unpublished) Denial of postconviction relief without substantive discussion.
Ex parte Rodney Reed, 2009 Tex. Crim. App. Unpub. LEXIS 469 (Tex. Crim.. App. 7/1/2009) (unpublished) "This application fails to meet the gateway standard of Schulp and Section 5(a)(2), fails to make a prima facie showing of actual innocence under Elizondo and Herrera, and fails to show a Brady violation."
Ex parte Tong, 2009 Tex. Crim. App. Unpub. LEXIS 472 (Tex. Crim. App. 7/1/2009) (unpublished) Denial of postconviction relief without substantive discussion.


Week of June 22, 2009 – In Favor of the State or Government
Terrry Alvin Hyatt v. Branker, 2009 U.S. App. LEXIS 13441 (4th Cir 6/22/2009) "(1) Fifth and Fourteenth Amendment rights in refusing to suppress incriminating statements made by Hyatt without the benefit of counsel, (2) his Sixth Amendment rights by denying his request to discharge his court appointed attorneys after the trial began, and (3) his Fourteenth Amendment due process rights by failing to instruct the jury on a lesser-included offense." "Habeas petition was properly denied as there was no basis for court to disturb state court's holding that inmate waived Fifth Amendment right to counsel during custodial interrogation as, inter alia, state court's holding that his statement did not unequivocally express desire for attorney did not constitute unreasonable application of federal law." [via Lexis] " In a capital habeas matter, the denial of Petitioner's petition is affirmed, where: 1) a law enforcement officer did not hear Petitioner make an unequivocal request for counsel prior to making his confession; and 2) the state court did not err in holding that Petitioner waived his right to counsel during a custodial interrogation. " [via FindLaw]
Kenneth Wayne Thomas v. Quarterman, 2009 U.S. App. LEXIS 14973 (5th Cir 6/22/2009) (unpublished) "This court granted Thomas's motion for authorization to file a successive petition for writ of habeas court on his mental retardation claim. His successive petition was denied by the district court, which found that the state court's evidentiary hearing provided Thomas a full and fair opportunity to present his claims and that the state court finding that Thomas was not mentally retarded was reasonable based on the evidence. Thomas subsequently filed an application for a Certificate of Appealability (COA) on the issue of his entitlement to an evidentiary hearing and the merits of his Atkins claim, which the district court denied. He now applies to this court for a COA. We deny his application for a COA."

Marshll Lee Gore v. State, No. SC05-1848 (FL 6/25/2009) Relief denied on claims including: "(A) Gore was incompetent at the time of his trial and postconviction proceedings; (B) the trial court erred in finding that Gore waived his allegations of ineffective assistance of counsel during sentencing and the trial court erred in finding that Gore voluntarily waived an evidentiary hearing on his claim of ineffective assistance during the Spencer hearing; (C) the trial court erred in refusing to allow postconviction counsel complete and unfettered access to available public records or sufficient time for a full investigation into the records made available; (D) the trial court erred in failing to conduct a cumulative error analysis that fully considered Gore`s allegations of constitutional error; (E) the trial court erred in striking Gore`s initial postconviction motion without permitting him leave to amend; and (F) the trial court`s summary denial of claims I, II, III, V, VI, IX and X was error; Florida`s capital sentencing procedures violate Ring v. Arizona, 536 U.S. 584 (2002); and Gore cannot be executed because he is insane."
Juan Carlos Chavez v. State, No. SC07-952 & Juan Carlos Chavez v. McNeil (FL 6/25/2009) Postconviction appeal and habeas corpus denied.. Claims denied inclued: "(1) the postconviction court erred in ruling that a lawyer who had studied the Cuban legal system was not qualified to offer opinion testimony concerning the Cuban and American criminal justice systems; (2) the postconviction court erred in determining that counsel was effective despite the failure to present evidence of mental health mitigation through the testimony of a psychologist; [ ] (3) there was a per se denial of effective assistance of trial counsel because discord amongst the defense team rendered the adversarial process inherently unreliable" " [4] ineffective appellate representation occurred during the direct appeal for the failure to challenge the constitutionality of Florida`s lethal-injection protocol; [5] counsel failed to assert that Florida`s standard penalty-phase jury instructions unconstitutionally shift the burden of proof to the defendant; [6] counsel failed to challenge the penalty-phase jury instructions with regard to minimizing and denigrating the role of the jury; and [7] cumulative errors deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. "
Thomas Bartlett Whitaker v. State, 2009 Tex. Crim. App. LEXIS 873 (Tex. Crim. App. 6/24/2009) "The CCA affirmed this capital murder case. There were numerous issues, but the most prominent was a complaint that the State should not have referred to the defendant's attempt to plead guilty in exchange for two life sentences even though that evidence made up a significant portion of the defendant's mitigation case. Click here for a more detailed summary." [via the CCA Blog]
Week of June 22, 2009 – Noncapital


Phelps v. Alameida, 2009 U.S. App. LEXIS 13685 (9th Cir 6/25/2009) Petitioner was repeatedly denied relief on procedural grounds without ever having the merits of his claims addressed.. The procedural hurdles thrown in his way subsequently were held improper in unrelated litigation but only after his case had wound its way (first it was timeliness, then whether a Rule 60(b) motion was subject to 2244) through the system. After repeatedly trying to use Rule 60(b) to "get back in to Court" a panel remands -- after it had originally denied a COA -- and orders the district court to address his substantive claims for relief, some 11 years after the petition was initially filed.
State v. Siller, 2009 Ohio 2874; 2009 Ohio App. LEXIS 2434 (Ohio 8th App. 6/18/2009) New trial granted. "Thomas Siller [ ]has been convicted twice by juries based in part on false forensic testimony. Siller and another man were convicted of a 1997 murder based in part on testimony from forensic analyst Joseph Serothwik, whose false testimony also contributed to the wrongful conviction of Anthony Michael Green, who was exonerated by DNA testing in 2001. DNA testing in Siller's case now implicates a man who testified against him at trial." [via the Innocence Project blog]
David Hammer v. Ashcroft, 2009 U.S. App. LEXIS 13804 (7th Cir 6/25/2009) (dissent) Affirming BoP's press access to inmates policy for death sentenced persons.


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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: Death Penalty Information Center, Fair Trial Initiative, GRACE, Southern Center for Human Rights, Pennsylvanians for Alternatives to the Death Penalty (where I'm currently the co-chair), & Texas Defender Service. 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

SMALL PRINT
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OPEN RESEARCH DATA: Search terms for the weekly are "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"- please note, however, the terms "overproduce" results, including all federal habeas corpus opinions.es. Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts. - karl keys