Leading off this edition is the stay issued by the United States Supreme Court in Paul Powell v. Kelly. The case involves application of the Double Jeopardy Clause to findings of aggravating circumstances in a capital case. News accounts note:


Powell is claiming to be the victim of double jeopardy. In his first trial, he was sentenced to death, but that sentence was overturned on appeal, and the Virginia Supreme Court ordered him to be retried on a first-degree murder charge. However, prosecutors tried him again for capital murder after he wrote a taunting letter in which he admitted to the crime.


The opinion below is here.

The case law news of the week is otherwise brief. The Florida Supreme Court in Leonardo Franqui v. State remanded for a trial court hearing on an Atkins claim


In the news, despite a bad economy big city murders and other crime is down, markedly down. An odd twist of bad planning kept Kennth Mosley from being the 1000th person put to death by letal injection last week when both Texas's Governor and Lieutenant Governor were out of the state forcing a new date. DPIC notes that "five exonerations so far in 2009 demonstrate risks of death penalty." The Ohio Parole Board Friday recommended clemency for Trumbull County death row inmate Jason Getsy Friday,

The National Institue of Military Judstice has released Military Commission Reporter, Volume 1. The almost 500 page text is available for free here. Hard copies are available for $40. "The Military Commission Reporter includes every publicly available decision, order, and ruling issued by the military commissions conducted at the U.S. Naval Base, Guantánamo Bay, Cuba, and all known substantive opinions and rulings of the United States Court of Military Commission Review from October 2006 through June 1, 2009." [via CAAFLog]


As always, thanks for reading. Please note that Lexis & Westlaw seem to be missing a large number of cases from Alabama, Florida, Mississippi, and Texas of late. Since the weekly relies heavily on those sources for decisions from those jurisdictions my apologies in advance if a case got missed. - karl



Pending Executions
July
14 Paul Warner Powell* (VA) (stayed)
16 Kenneth Mosley* (Tex) (stayed)
21 Marvallous Keene* (Ohio)
23 Roderick Newton* (Tex)
28 Clifton Lamar Williams (Tex) (stayed)
28 Junious Diggs (Penn)
30 Ralph Trent Stokes (Penn)

August
7 Kenneth Baumruk (Mo)
13 Tracy Lane Beatty (Tex) (stayed)
18 Jason Getsy* (Ohio)
20 David Wood* (Tex)

Recent Executions
July
9 Michael DeLozier (Okla)
14 John Fautenberry (Ohio)


SUPREME COURT

Paul Powell v. Kelly, No. 09-21/O9A19 (7/13/2009) Stay granted on double jeopardy grounds and its relationship to aggravating factors.

(Initial List) Week of July `13, 2009 – In Favor of the Accused or Condemned

Leonardo Franqui v. State, SC05-830 (FL 7/16/2009) The Florida Supreme Court remands on an Atkins claim. "Having reviewed the record in this case, including prior proceedings, we reverse the summary denial of Franqui's claim for mental retardation and temporarily relinquish jurisdiction to the circuit court for ninety days for an evidentiary hearing to be held on Franqui's mental retardation claim."

(Initial List) Week of July `13, 2009 – In Favor of the State or Government

Dwight Loving v. United States, No. 06-8006 (CAAF 7/17/2009) The majority assumes, without deciding, that trial defense counsel's performance was objectively unreasonable, then denies relief due to lack of prejudice. CAAFLog has more. Thanks go out to the reader who spotted this over at CAAFlog.

Uuno Mattias Baum v. Rushton, 2009 U.S. App. LEXIS 15761 (4th Cir 7/16/2009) (dissent)alRelief denied on double jeopardy claim where the victim's body was found during the course of the trial and the trial judge declared a mistrial rather than granting a continuance of the trial. "In habeas proceedings following a murder prosecution, denial of a habeas petition is affirmed where retrying petitioner following a mistrial due to the discovery of the victim's body did not violate the Double Jeopardy Clause because petitioner failed to rebut a factual determination that the victim's body did not constitute "critical" prosecution evidence." [via FindLaw]
Henry Skinner v. Quarterman, 2009 U.S. App. LEXIS 15570 (5th Cir 7/14/2009) Relief denied on claims "that counsel should have made use of a blood-spatter report at trial and failed to discover and present testimony from a particular potential witness." "In capital habeas proceedings, denial of the habeas petition is affirmed where: 1) it was not reasonably probable that blood spatter evidence defense counsel failed to introduce would have caused the jury to acquit petitioner; and 2) petitioner failed to show that counsel ignored evidence that suggested a witness might have useful information." [via FindLaw]
People v. Michael Lamar Bramit, No. S064415 (CA) "Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) a decision to excuse a prospective juror for cause was supported by substantial evidence; 2) the court did not err in its instruction to the jury on premeditated murder and felony murder; 3) the court did not err in admitting evidence of defendant's prior violent juvenile misconduct; 3) the court did not err in the admission of testimony from the victims' and testimony from victims of defendant's uncharged bank robberies; 4) the defendant failed to prove prosecutorial misconduct; 5) a jury instruction on victim impact evidence was proper and the court had no sua sponte duty to give defendant's requested instructions on the matter; and 6) the court did not err in its instruction on the governor's commutation power and in two pattern instructions it gave regarding the penalty decision." " [via FindLaw]
People v. Michael Bernard Lewis, No. S069959 (CA 7/16/2009) "Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) the trial court did not abuse its discretion in allowing the admission of postmortem photographs of the victim and in the admission of evidence of defendant's prior rape; 2) the evidence presented at trial was sufficient to support the conviction and the finding of the special circumstance that the murder was committed during the commission of a rape; 3) the court did not err in its jury instructions related to defendant's prior rape, or in declining to instruct the jury that the prosecution was required to prove that he harbored the intent to rape her while she was alive; 4) the court's failure to dismiss a juror based on a conversation the juror had outside the courtroom did not violate defendant's right to an impartial jury; 5) the court did not abuse its discretion in declining to grant defendant a continuance of one day; 6) the court did not err in the disputed instructions i! t did and did not give to the jury during the penalty phase of the trial; and 7) California's death penalty statute does not violate the state or federal constitution." [via FindLaw]
John F. Mosley v. State, SC06-1408 (FL 7/16/2009) Relief denied on postconviction appeal on claims relating to whether: "(1) the due process clause of the Florida Constitution provides more protection to criminal defendants than the United States Constitution; (2) the prosecutor made improper and inflammatory remarks that deprived Mosley of a fair trial; (3) the trial court erred in admitting the recorded husband-wife jail conversations; (4) the trial court erred in denying Mosley‟s motion for a continuance and for a mistrial based on a defense witness who failed to appear at trial; (5) the trial court erred in including a videotape of the defendant in shackles and jail garb among the materials delivered to the jury room; (6) the trial court erred in effectively ruling that a double murder automatically suffices as the "previously convicted of another capital felony" aggravating circumstance; (7) the trial court erred in denying Mosley‟s motion for judgment of acquittal; (8) the trial court erred in denying Mosley‟s motion for a new trial because the guilty verdict was contrary to the weight of the evidence; (9) the trial court erred in denying Mosley‟s request for the standard jury instruction which concerns pressure or threat against a witness; (10) Florida‟s death penalty scheme violates the Sixth Amendment and Ring v. Arizona, 536 U.S. 584 (2002); (11) this Court‟s comparative proportionality review of death sentences is unconstitutional; (12) Mosley‟s sentence of death is disproportionate; and (13) lethal injection and Florida‟s lethal injection procedures are unconstitutional."

John Richard Marek v. State, SC09-1080 (FL 7/16/2009) Relief denied on three claims relating to this successive postconviction motion. "He argues that newly discovered evidence demonstrates (A) that both his murder conviction and death sentence are constitutionally unreliable; (B) that he was denied due process in the clemency process; and (C) that he was denied due process in his initial postconviction proceedings"
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]

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) After receiving evidence as to aggravation and after reviewing mitigation evidence that appeared in the record, the trial court sentenced Gill to death. Again, Gill sought the death penalty in this case.
On appeal, Gill`s appellate counsel raises three penalty phase claims. He contends (1) that because of Gill`s mental illness and brain abnormality, the trial court erred in finding that the murder was committed in a cold, calculated and premeditated manner; (2) that Gill`s death sentence is disproportionate when compared to other capital cases; and (3) that Gill`s sentence was improperly imposed in violation of the principles set forth in Ring v. Arizona, 536 U.S. 584 (2002).3

Curtis W. Beasley v. State, SC06-2375 (FL 7/9/2009) Relief denied on ineffectiveness claims including: (1) "failure to consult with, and present the testimony of, expert witnesses in the areas of forensic crime scene investigation or blood spatter to support the defense theory that the bloody shirt had been planted after the crime scene technicians released the scene to the family;" (2) failure to challenge chain of custody; () failure to adequately cross-examine certian evidence; (3) failure to adequately & timely secure evidence of factual innocence; (4) failure to adequately & timely develop an alibi defense; (5) failure to present certain evidence that could have resulted in a failure to demonstrate a reasonable hypothesis of innocence.;(6) "counsel interfered with his right to testify by failing to adequately prepare him for examination, which caused him to waive his right to testify in his own defense;" and (7) "trial counsel should have tested the State`s case by presenting a coherent, alternative theory for the murder by highlighting a discrepancy in a witness`s testimony and by implicating another individual as a possible murder suspect."


Fred Anderson, Jr. v. State, SC07-648 (FL 7/9/2009) Anderson contends that (1) trial counsel was ineffective for failing to uncover evidence that Anderson was sexually abused as a child; (2) trial counsel was ineffective for failing to ensure an adequate and thorough mental health evaluation that would have uncovered additional mitigating evidence; (3) trial counsel was ineffective for failing to seek the jury instruction regarding merging aggravating factors; (4) trial counsel was ineffective for failing to object to or seek to limit the admission of the victims` photographs or both; (5) trial counsel was ineffective for failing to object to witness testimony regarding the victims` condition; (6) trial counsel was ineffective for failing to properly object to the admission of blood spatter evidence; (7) trial counsel was ineffective for failing to object to prosecutorial statements regarding the balancing of aggravating and mitigating factors; (8) trial counsel was ineffective for failing to properly object to and preserve certain comments by the prosecutor during closing argument; (9) Anderson was denied due process when he was shackled at trial; (10) the trial court erred in denying Anderson`s motion to interview jurors; (11) Anderson was deprived of a competent mental health evaluation; and (12) the combination of procedural and substantive errors deprived Anderson of a fundamentally fair trial. Specifically, Anderson contends that appellate counsel was ineffective for (1) failing to raise the trial court`s denial of Anderson`s motion to change venue; (2) failing to ensure a complete record on appeal; (3) failing to raise a claim regarding the presence of Anderson and the trial judge when the jury was sworn; and (4) failing to raise as an issue the absence of the jury instruction regarding merging aggravating factors. Additionally, although he concedes that the claim is not yet ripe, Anderson asserts that he is incompetent to be executed. We address each claim in turn and conclude that none of Anderson`s claims merits relief.


Samuel L. Smithers v. State, SC07-2258 (FL 7/9/2009)appeal, Smithers argues that the postconviction court should have found that trial counsel provided ineffective assistance by failing to (A) strike a prospective juror for cause; (B) seek exclusion of a portion of Smithers` statement to law enforcement; (C) adequately investigate mental health mitigation; and (D) call an independent medical examiner as a defense expert.
InSmithers raises five claims in his petition for a writ of habeas corpus. He claims that (A) the rules prohibiting counsel from interviewing jurors are unconstitutional; (B) the jury was not adequately instructed, and counsel was ineffective for failing to litigate the sufficiency of the instructions; (C) Florida`s capital sentencing scheme was unconstitutional as applied, and counsel was ineffective for failing to litigate this issue; (D) cumulative errors deprived him of a fundamentally fair trial; and (E) he may be incompetent at the time of execution.

Jeffrey G. Hutchinson v. State, SC08-99 (FL 7/9/2009) Hutchinson appeals the denial of postconviction relief to this Court raising three issues. He contends (1) trial counsel rendered ineffective assistance during the guilt phase by failing to present evidence that Hutchinson`s voice was not on the 911 audio tape; (2) trial counsel rendered ineffective assistance during the guilt phase by failing to introduce into evidence the nylon stocking found at the crime scene; and (3) the trial court erred in summarily denying Hutchinson`s claims of actual innocence and conflict of interest.


(Initial List) Week of July 6, 2009 – Summary Disposition

State v. Neyland, 2009 Ohio 3356 (Ohio 7/8/2009)Motion to unseal records granted.

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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 & 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