Since the last edition ran three reversals -- either of the guilt or penalty phase verdict - are noted. The Florida Supreme Court in Mark Anthony Poole v. State grants relief as the State's questions to defense witnesses about unproven evidence, prior arrests and a "Thug Life" tattoo, as well as Poole's alleged lack of remorse were improper. "We reiterate the rule that the State cannot introduce inadmissible nonstatutory aggravation under the guise of impeachment.'

In State v. Nicole Diar the Ohio Supreme Court reverses in light of bad penalty phase instructions. "In (State v.) Brooks (1996), this court held that it is error for a trial court to require a jury to unanimously reject a death verdict before considering one of the life sentence options.. . . As a result, Brooks counseled courts to advise jurors in capital cases that `a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.'" The State concedes error despite a paucity of opinions from the Ohio Supreme Court granting relief under Brooks.

The final reversal is again from the Florida Supreme Court. In Gabby Tennis v. State the Florida Supreme Court grants relief as the trial court failed to adequately safeguard Mr. Tennis's request for self-representation. "In sum [ ] the trial court had no proper basis for failing to conduct a Faretta inquiry and that a Faretta inquiry was mandated after Tennis's unequivocal request for self-representation."


A life verdict was obtained in State v. Brian Nichols. Nichols"rose to infamy when he escaped from custody during his rape trial on March 11, 2005, and murdered the judge, the court reporter and a sheriff's deputy. After he escaped, he murdered a off-duty federal agent that night." The case punctuates yet again, that no case is "unwinnable," no defendant beyond hope with skilled attorneys and adequate resourcing. Congrats to counsel.


By a vote of 13-9 the Maryland Commission on Capital Punishment recommended Friday to abolish the death penalty in Maryland. The votes on the individual issues studied by the Commission where not nearly as close as the final tally suggests. For example by a vote of 20-1 the Commissioners found that race and jurisdictional differences infect capital cases in that state. By a vote of 17-4 that the death penalty is not a deterrent to crime in Maryland. By a vote of 19-2 "[d]espite the advance of forensic sciences, particularly DNA testing, the risk of execution of an innocent person is a real possibility." By a vote of 20-1, the Commissioners additionally concluded that death is harder on murder victims' family members than life without parole. DPIC has more.


During a recent meeting, the Tennessee Committee to Study the Administration of the Death Penalty "worked through more issues and produced more recommendations. The most dramatic of the recommendations made yesterday was the approval of legislation to recommend that the Tennessee General Assembly create an independent commission to oversee capital defense services in Tennessee. This commission would be charged with training attorneys and setting standards for those representing defendants in capital cases, monitoring workloads and performance, determining necessary defense services and resources, setting compensation rates, and recruiting qualified attorneys to serve as appointed counsel." [TCASK]


The Justice Department has promulgated the AEDPA opt-in/fast-track regulations. The regs appear to be effective as of January 10, 2008. States can now begin to ask the AG for certification. In light of the end of term time constraints the new administration, however, appears to be the one that will determine opt-in eligibili and may well revisit the regulations.


Death Penalty Information Center has released it's 2008 report, The Death Penalty in 2008: Year End Report. The use of capital punishment in the United States waned this year, as state and federal courts executed 37 inmates, a 14-year low with 111 people sentenced to death (so far) in 2008, the lowest number of new death sentences in three decades. Although the report doesn't mention it, back of the envelope calculations suggest that the total numbers on death row likewise dropped.


As always thanks for reading. - k




Pending Executions
January
14 Curtis Moore - Tex*.
15 Jose Briseno - Tex*.
15 James Callahan - Ala*
21 Frank Moore - Tex*.
22 Reginald Perkins - Tex*.
22 Darwin Brown - Okla*
28 Virgil Martinez - Tex*.
29 Ricardo Ortiz - Tex*.

February
4 David Martinez - Tex*.
4 Steve Henley - Tenn*
12 Johnnie Johnson - Tex*.
12 Danny Joe Bradley - Ala*

Recent Executions
December
5 Joseph Gardner - SC

Stays
December
3 Darold Stenson - Wash
8 Antoinette Frank - La.
9 Devin Banks - TN
10 Ronald Gray - Mil
19 Dale Easton - Wyo.

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







(Initial List) Week of December 8, 2008 – In Favor of the Defendant or the Condemned
Mark Anthony Poole v. State, SC05-1770 (FL 12/11/2008) A new penalty phase trial granted as "the questions on Poole`s lack of remorse, . . . presenting inadmissible nonstatutory aggravation of Poole`s criminal history and the content of his tattoo deprived Poole of a fair penalty phase. The combination of these errors had the effect of unfairly prejudicing Poole in the eyes of the jury because these errors created a risk that the jury would give undue weight to this information in recommending the death penalty.
Gabby Tennis v. State, SC06-730 (FL 12/11/2008) A new trial (both guilty and penalty) is ordered in light of the denial to self-representation.
State v. Nicole Diar, 2008 Ohio 6266 (Ohio 12/10/2008) State concedes error. "Brooks counseled courts to advise jurors in capital cases that 'a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors.' . . . [T]he state has elected to concede that the trial court's failure to provide such an instruction constitutes error, given the totality of the specific circumstances, and requires that the cause be remanded to the trial court for a new mitigation hearing."

(Initial List) Week of December 8, 2008 – In Favor of the State or Government


Anthony Doss v. State, No. 2007-CA-00429-SCT (Miss 12/11/2008) (dissents) Relief denied, most notably on issues relating to mental retardation & penalty phase ineffectiveness for failing to adequately investigate and present mitigation evidence. A set of stunning dissenta, most notably by Presiding Justice Diaz, appears to signal that Mississippi capital litigation is about to get a little more complicated.
Week of December 1, 2008 – In Favor of the Defendant or the Condemned


Ricky David Sechrest v. Ignacio, No. 04-99004 (9th Cir 12/5/2008) "With respect to the penalty phase, we hold that Sechrest's Sixth and Fourteenth Amendment right to a fair trial was violated by the prosecutor's gross misconduct. We also hold that Sechrest's Sixth Amendment right to effective assistance of counsel was violated when his trial attorney allowed Dr. Gerow to testify for the prosecution. Because we do not find either of these constitutional violations harmless, we reverse the district court as to Sechrest's sentence.. . .We also hold, however, that Sechrest's previously defaulted claims—which include both guilt and penalty phase claims—should not have been barred from federal habeas review. We remand these claims to the district court for appropriate consideration.. . . We also instruct the district court to order Sechrest removed from death row during the pendency of the proceedings."

Week of December 1, 2008 – In Favor of the State or Government


State v. Kevin Keith, 2008 Ohio 6187 (Ohio 3rd App 12/1/2008) "Motion for new trial was properly denied on ground that claim was barred by res judicata. Defendant's contention that the testimony of an eyewitness to defendant's escape as to color of getaway car matched car of drug dealer, whom defendant contended committed murders, could have been raised as error on direct appeal or in postconviction petition." [via LexisOne]
State v. Brandy Aileen Holmes, 2008 La. LEXIS 2758 (LA 12/2/2008) (dissent) Relief denied on numerous issues, most notably, on whether the condemned is mentally retarded. Determination of whether Holmes remains eligible for execution under Atkins v. Virginia relegated to postconviction analysis.
State v. James Trimble, 2008 Ohio 6409 (Ohio App 11th 12/5/2008) Relief denied on claims including failure to adequately investigate penalty phase issues, inadequate funding of the defense, and lethal injection

Week of December 1, 2008 – noncapital


William G. Scott v. State, 2008 Miss. LEXIS 589 (Miss 12/4/2008) Where defense counsel revealed to a trial judge in an ex parte conference that defendant had confessed to the capital murder and was intent on falsely testifying, the trial judge did not allow counsel to withdraw and did not commit manifest error in failing to recuse herself because the judge was not the ultimate trier of fact in the jury trial.

If you have problem with this edition it is available at http://capitaldefenseweekly.com/archives/081208.htm for printing. We'd simply ask that before printing consider our environment and saving our trees.

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, 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



SMALL PRINT


SUBSCRIBING & ARCHIVES: The summaries above are normally published forty (40) times (or so) a year. To subscribe: capital_defense_weekly-subscribe@yahoogroups.com. To unsubscribe: capital_defense_weekly-unsubscribe@yahoogroups.com

1997-2008 COPYRIGHT / FAIR USE NOTICE: In plain English, you can use these materials without attribution (although I would appreciate the attribution) for any noncommercial purposes you see fit, (such as professional education, your newsletter, etc.). You can't use the works created by others contained in this newsletter identified above (normally selected excerpts from the works of others) as I simply can't give away the rights of others to their intellectual property. Any derivative works must provide at least as equal or greater waiver of intellectual property rights. Nothing in this newsletter constitutes legal advice. The legalese, copyright, disclaimers, notices, & terms of usage are available in full here. Where in conflict with the plain English version of this disclaimer / copyright notice, please go with the legalese

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 "DEATH PENALTY" OR "CAPITAL MURDER" OR "SENTENCED TO DEATH" OR "PENALTY PHASE" OR "SPECIAL QUESTIONS" OR "SENTENCE OF DEATH" OR "SENTENCED TO DEATH" OR "DEATH SENTENCE" or "capital punishment" or "witherspoon" - please note, however, the terms "overproduce" results, including all federal habeas corpus cases.

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



__._,_.___