Leading off this edition is the Delaware Supreme Court's decision in James Cooke v. State. The Court granted relief on the breakdown of the attorney-client relationship, counsel's decision to use a guilty but metnally ill defense rather than a more traditional denial of guilt defense sought by the Accused, and the trial court's failure to step in to the fray between counsel and client. The opening paragraph encapsulates well the gist of the opinion:
In this capital case, we address whether defense counsel may introduce evidence incriminating their client at the guilt/innocence phase and then argue that a competent defendant is "guilty but mentally ill" of the crimes charged when the defendant expressly objects to this strategy, asserts his factual innocence, denies mental illness, and so testifies before the jury. We also address whether the trial judge, in these extraordinary circumstances, may choose not to intervene when the conflict between defense counsel and the defendant over the objectives of the representation so plainly appears and the defendant testifies that he has "fired" his attorneys and "I'm defending my own self." We conclude that defense counsel's strategy infringed upon the defendant's personal and fundamental constitutional rights to plead not guilty, to testify in his own defense, and to have the contested issue of guilt beyond a reasonable doubt decided by an impartial jury. Defense counsel's conduct in this case, and the trial court's refusal to intervene and provide a remedy, so undermined the proper functioning of the adversarial process contemplated by the Sixth Amendment and the Due Process Clause that the trial cannot be relied upon as having produced a just result.

In the notable decision, the Texas the Court of Criminal Appeals issued a stay for Roderick Newton's scheduled execution in Ex parte Roderick Dashad Newton. Stay of execution and permission to file a subsequent application for writ of habeas corpus was granted on two issues. The chief reason for the stay appears to be that police withheld a written statement that contradicted the State's key witness, Mr. Newton's co-defendant who received a lesser sentence in exchange for his testimony. The other issue of note was an assertion of mental retardation. The Dallas County district attorney's office agreed with Mr. Newton's assertion and request for a stay.


Two notable reports were released in recent da ys The first report is from the Innocence Project, entitled Reevaluating Lineups Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification. "This report provides a historical overview of how eyewitness misidentification came to be recognized as a leading cause of wrongful conviction, it examines the shortcomings of traditional eyewitness identification procedures, and it describes how simple improvements to procedures can alleviate the problem, with examples of cities and states across the country that have successfully implemented procedural reforms."


The second is from the the Sentencing Project entitled No Exit: The Expanding Use of Life Sentences In America. No Exit documents the 1 in 11 prisoners that are now serving life sentences. The report collects the first ever national data on life sentences documenting race, ethnicity and gender. The report notes that 29% of persons serving a life sentence (41,095) have no possibility of parole, 1,755 were juveniles at the time of the crime, 66% of all persons sentenced to life are non-white, and 77% of juveniles serving life sentences are non-white.

In the news, N.C. House legislators have approved legislation whereby the death penalty would be removed as a sentencing option for a murder defendant with a severe mental disability. The Ohio Parole Board has recommended clemency for Jason Getsy. The Senate Tuesday passed an amendment to the Matthew Shepard Hate Crimes Prevention Act that would allow the death penalty to be applied in hate crimes cases under some circumstances. DPIC notes that the Brian Nichols murder trial, which resulted in a life sentence for the so-called "Atlanta courthouse shooting," cost Georgia tax payers in excess of three million dollars. Finally, last week's execution of Marvallous Keene in Ohio marked the 1000th person executed by lethal injection in the United States.

As always thanks for reading. - k



Pending Executions
August
7 Kenneth Baumruk (Mo)
13 Tracy Lane Beatty (Tex) (stayed)
18 Jason Getsy* (Ohio) (clemency recommended)
19 John Richard Marek (FL)
20 David Wood* (Tex)

September
3 William Wright (Penn) (stayed)
15 Romell Broom* (Ohio)
16 Stephen Moody* (Tex)
22 Christopher Coleman* (Tex)
24 Kenneth Mosely* (Tex)
30 John Balentine* (Tex)

Recent Stays
July
14 Paul Warner Powell* (VA)
16 Kenneth Mosley* (Tex)
23 Roderick Newton* (Tex )
28 Clifton Lamar Williams (Tex)
28 Junious Diggs (Penn)
30 Ralph Trent Stokes (Penn)

August
7 Kenneth Baumruk (Mo)
13 Tracy Lane Beatty (Tex)

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


(Initial List) Week of July 20, 2009 – In Favor of the Accused or Condemned

James Cooke v. State, No. 289 & 324 (Del. 7/21/2009) Relief granted on the breakdown of the attorney-client relationship, counsel's decision to use a GBMI defense rather than a more traditional denial of guilt defense sought by the Accused, and the trial court's failure to step in to the fray between counsel and client
Ex parte Roderick Dashad Newton, No. WR-54,073-02 (Tex. Crim. App. 7/22/2009) (unpublished) Stay of execution and permission to file a subsequent application for writ of habeas corpus granted. Issues involved limited to two issues "In his first allegation, applicant asserts that he is mentally retarded and his execution would violate the United States Supreme Court's opinion in Atkins v. Virginia. In his second allegation, applicant asserts that the State violated Brady v. Maryland, by withholding material, exculpatory evidence from the defense."
(Initial List) Week of July 20, 2009 – In Favor of the State or Government

Lenard Philmore v. McNeil, No. 07-13637 (11th Cir 7/23/2009) "In a capital habeas matter, denial of the habeas petition is affirmed where 1) defense counsel's allegedly ineffective representation occurred before petitioner's Sixth Amendment right to counsel had attached with respect to the murder at issue; and 2) petitioner's Batson challenge to jury selection was barred by a state procedural rule." [via FindLaw]
People v. Jack Wayne Friend, No. S027264 (7/20/2009) "Conviction for first degree murder and robbery and sentence of death is affirmed where: 1) the prosecutor did not commit prosecutorial misconduct, and any misconduct that did occur was harmless in light of the evidence of defendant's guilt; 2) defendant failed to show that the testimonies of certain witnesses were unreliable, and thus properly admitted the testimonies; 3) the court did not err in allowing the prosecutor to present the testimony of one of the witnesses' attorneys in rebuttal; 4) defendant was not denied effective assistance of counsel; and 5) defendant's other claims of error in the trial phase are without merit. At defendant's second trial: 1) the court did not err in excusing prospective jurors based on their views concerning the death penalty; 2) the prosecutor did not commit misconduct; 3) the trial court did not err in determining that a witness was unavailable as a witness and admitting his testimony from the first trial; 4) the court did not err in the! instructions it did and did not give to the jury; 5) during the penalty phase, the prosecutor did not commit misconduct and there was no error in the admission of challenged evidence; and 6) California's death penalty statute does not violate the state or federal constitution." [via FindLaw]

Michael Adam Sigala v. Quarterman, 2009 U.S. App. LEXIS 16026 (7/20/2009) (unpublished) Relief denied on claims relating to purported "violations of Sigala's right to individualized sentencing, ineffective assistance of counsel in preserving that right, and ineffective assistance of counsel in developing and investigating mitigating factors at sentencing." There is an interesting, albeit pro-prosecutor, discussion on the interplay of Lockett and limitations that can be placed on expert testimony in the sentencing phase of a trial.

Comm. v. James W. Vandivner, No 528 CAP (Penn 7/22/2009) Reargument denied on claims " (1) that this Court erred in holding that the national consensus against executing mentally retarded persons recognized in Atkins v. Virginia does not apply to persons who, in appellant's view, are functionally indistinguishable from persons with mental retardation, or, in the alternative, that this Court erred in not finding that the Equal Protection Clause of the 14th Amendment requires equal treatment for mentally retarded persons with an age of onset before age 18 and those who, in appellant's view, are functionally indistinguishable from such persons; and (2) that this Court's statutory review of the penalty verdict for passion, prejudice or any other arbitrary factor, see Pa.C.S. § 9711(h)(3)(i), overlooked that appellant proved two of the three diagnostic criteria for mental retardation to the trial court, which, appellant believes, established inherently mitigating evidence to which the jury failed to give mitigating effect."

In re Jesse Morrison, 2009 Cal. LEXIS 6963 (CA 7/15/2009) Order to show cause entered as to claim why Mr. Morrison's death sentence should not be vacated in light of Atkins v. Virginia.
In re David Keith Rogers, 2009 Cal. LEXIS 6940 (Cal 7/15/2009) Order appointing referee & instructions on which issues the Court seeks to have an evidence adduced.
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.

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.

Uuno Mattias Baum v. Rushton, 2009 U.S. App. LEXIS 15761 (4th Cir 7/16/2009) (dissent) Relief 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."

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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

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DISCLAIMER: In plain English, due your own due diligence. Legalese: Use does not constitute establishment of attorney-client relationship. On a semi-regular basis cases in which the writer(s) have participated in one manner or another (including as counsel of record) may be covered here. As always, the views expressed here represent an attempt to show what a given Court held, not whether a particular court reached the right decision The opinions noted above are normally "slip opinions" that may be modified or withdrawn by the issuing court without notice. Note the citation method we use is to permit readers to readily find opinions either from a given court, Lexis, or the free Lexis product Lexisone.com.

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. Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts. Thx - karl keys