The United States Supreme Court this past Thursday in Indiana v. Ahmad Edwards, held that where the mentally ill (but competent) seek to represent themselves at trial a State may require that they instead are represented by counsel. The very next day, and moments before the scheduled execution of James Earl Reed, a federal district court in South Carolina granted a stay in light of Edwards (Reed had represented himself at trial). The Fourth Circuit lifted the stay just minutes before the warrant was scheduled to expire and Reed was executed. . The daily blog will have more as details become available.

Just days before, in a similar stay battle, Charles Hood caught a break in Texas. The trial prosecutor and trial judge allegedly had an affair; the trial judge later went on to the Texas Court of Criminal Appeals. The scandal made the press. Ninety minutes before Hood's scheduled execution the judge who had been handling the matter (not the same judge who had handled the trial) withdrew the execution date and recused themselves. In the ensuing footrace to get the execution back on track, the State simply ran out of time, even after they got the execution date reinstated. Professor Andrew M. Perlman has more.

The stay wars weren't the only court related news. Perhaps most importantly is the survival of habeas corpus, however battered and beaten, in Lakhdar Boumediene v. Bush, where the Supreme Court held the Detainee Treatment Act attempts to eliminate habeas corpus review for Guantanamo Bay detainees ran afoul of the Suspension Clause. The Sixth Circuit in Joe D'Amberosio v. Bagley grants habeas relief after examination of the waiver of the defense of exhaustion ons a Brady claim that the government suppressed / withheld mitigating evidence. In Texas, the machinery of death was briefly shut down following the stay of execution litigation surrounding the Derrick Sonnier lethal injection bid; days later the Court of Criminal Appeals reversed course and effectively lifted the lethal injection stay that Sonnier had obtained. The Ninth Circuit in Fernando Belmontes, Jr. v. Ayers grants relief on the "failure to introduce adequate lay witness testimony," a damaging mitigation presentation, and "failure to introduce expert witnesses to testify to the relationship of the type of childhood traumas suffered by Belmontes to future criminal conduct." The North Carolina Supreme Court granted a new trial in State v. William Joseph Moore as the trial judge allowed Moore to represent himself and plead guilty without making sure that Moore understood the consequences of doing so, or even the nature of the punishment he faced. The Texas Court of Criminal Appeals returned to the postconviction trial court in Ex parte Cody Duane Davis and Ex parte Kim Ly Lim, for further factual development on ineffective assistance of counsel and Penry II claims, respectively. Finally, the Florida Supreme Court in Michael Rivera v. State remands for an evidentiary hearing as: (a) "the record does not conclusively refute Rivera's extensive factual allegations that the State knowingly presented false or misleading testimony in violation of Giglio and withheld favorable evidence in violation of Brady" and (b) the trial court should way that the weight of whether the evidence recovered from the crime scene contained DNA other than that of Michael Rivera.

Death Penalty Information Center has a new new weekly email service you can subscribe by clicking here and putting subscribe in the subject box. In honor of that new service three stories from DPIC. DPIC notes that the country's murder rate declined 2.7% in 2007, and decreased in all regions of the country save the South. [ More ] Similarly, "Mexico has returned to the International Court of Justice (ICJ) in seeking a stay of execution for Mexican-born inmates in the U.S. [ More ] California's new death row " is likely to require nearly $400 million, instead of the $220 million originally quoted, and it will provide even fewer cells than planned." [ More ]

In other news, Governor Timothy M. Kaine commuted the death sentence of Percy Levar Walton as "one cannot reasonably conclude that Walton is fully aware of the punishment he is about to suffer and why he is to suffer it." The Ohio judge in State of Ohio v. Ruben Rivera has ordered the state to eliminate two of the three drugs used in the lethal injection protocol and instead use a single anesthetic in future executions by lethal injection. [Boalt Hall's Death Penalty Clinic has the order.].

Looking ahead, albeit in an abbreviated manner, three favorable opinions are noted. In the aptly named State v. Darrell Edward Payne the Idaho Supreme Court holds that too much of the wrong type of victim impact evidence was put before the trial court and therefore a new penalty phase hearing must be had. In Comm. v. Kenneth J. Williams the Pennsylvania Supreme Court grants relief on a "layered" ineffective assistance of counsel relating to the failure of trial counsel to conduct an adequate investigation in to mitigation and, correspondingly, failing to present that same mitigation evidence to the jury. Finally, in Darlie Lynn Routier v. State the Texas Court of Criminal Appeals has granted DNA testing.


Finally, I'm teaching the "baby habeas" / "intro to habeas" at this year's ABCNY death penalty training. My handout for resources is here. The links are to resources for litigators from those who have never handled a habeas case to resource materials for those who have handled dozens of them.


As always, thanks for reading, and my apologies for the large number of typos in this edition. - karl keys