Leading off this week is John Thompson v. Harry F. Connick, et al, a civil case. Prosecutos in Thompson knowingly failed to turn over key exculpatory information. Fast-forward a few years Thompson gets sentenced to death, exhausts his normal rounds of of state and federal "appeals," and an execution date set. Defense investigators then discovered the suppressed evidence. The State, in light of the new evidence, agrees to a retrial. At the new trial a jury acquits in 35 minutes. Thompson sues and a jury awards him $14 million. The Times Picayune notes:


In trying to get Thompson's $14 million reward overturned, lawyers representing the district attorney's office pointed out that he had never been raped, was fed at all times and given necessary medicine, received visitors, became buddies with other inmates, got to watch television and play chess. Plus, they added, he had been in jail for little stuff before and describes himself now as being 'blessed.'

Thompson founded Resurrection After Exoneration, a nonprofit that helps exonerees from Louisiana and Mississippi readjust to normal society after incarceration.

The other opinion of note comes from the Fourth Circuit, United States v. Richard Stitt. The Government concedes error in Stitt. Specifically, it agreed with the Defense that trial counsel labored under a conflict of interest. The Government, however, argues on appeal that the trial district court, rather than imposing a sentence of life on its own, should have impaneled a jury and conducted a new sentencing hearing. The Fourth Circuit agrees, specifically, "we conclude that the district court erred by finding that § 848(g) was not saved by the general Savings Statute, 1 U.S.C.A. § 109."

In the news, DPIC notes that


In December 2007, New Jersey became the first state to legislatively abolish the death penalty in 40 years. In commenting on the absence of capital punishment for one year, a number of state prosecutors found no problems with the new system. "We have not viewed it as an impediment in the disposition of murder cases," said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that reviewed the death penalty. "As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases."

In Washington, the top medical officer at DoC resigned rather than participate in supervising those who will "carry out" executions there.

In CLE news, in coordination with the National Coalition to Abolish the Death Penalty's annual conference in Harrisburg, PA, January 22-25, 2009, there will be capital defense CLEs on Friday, January 23rd and on Saturday, January, 24th, 2009. Registration can be for one day or for both days. These programs are being taught by top-notch capital litigators. I encourage people to take a look and to register for these CLE programs. Info here. For those going to Harrisburg, run me down for happy hour Friday night.

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*

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

(Initial List) Week of December 22, 2008 – In Favor of the Defendant or the Condemned

United States v. Richard Stitt, 2008 U.S. App. LEXIS 26280 (4th Cir 12/24/2008) Government concedes error as trial counsel labored under a conflict of interest during the penalty phase of Mr. Stitt's trial. A remand, however, is ordered, as "the district court, after granting Stitt relief under 28 U.S.C.A. § 2255 as to the penalty phase of his trial and vacating his death sentence, erred by concluding that Stitt was no longer eligible for the death penalty because the statute under which Stitt's death sentence was imposed has since been repealed, see 21 U.S.C.A. § 848(g) (repealed 2006), and by sentencing Stitt to life imprisonment. We agree with the district court that Stitt is not entitled to relief as to his guilt-phase conflict of interest claim, but we conclude that the district court erred by finding that § 848(g) was not saved by the general Savings Statute, 1 U.S.C.A. § 109 . Accordingly, we vacate Stitt's life sentence and remand the case for a new sentencing hearing." [Note: I wasn't sure on whose behalf this is a "win" as a new penalty phase hearing was granted, BUT a life sentence that had been ordered was also vacated.]

Jerry Michael Wickham v. State, 2008 Fla. LEXIS 2430 (FL 12/23/2008) Revised opinion. Remand ordered for an evidentiary hearing. "Wickham raised numerous ineffective assistance of counsel claims against his trial counsel, Philip Padovano. Judge Padovano ran for a circuit court judgeship while Wickham's case was still pending and became a judge on the Second Circuit shortly after Wickham's trial. He served as a circuit court judge for almost eight years and was Chief Judge of the Second Circuit from 1993 to 1996. Currently an appellate judge on the First District Court of Appeal, Judge Padovano hears appeals from numerous judicial circuits, including the Second Circuit. After Judge Padovano's appointment to the appellate bench, his wife also joined the Second Circuit as a judge. Under these extraordinary circumstances, it is reasonable for a defendant in Wickham's position to fear that a Second Circuit judge hearing Judge Padovano's testimony in determining Wickham's ineffective assistance of counsel claims would be biased in favor of Judge Padovano and against Wickham. Thus, Wickham's motion to disqualify was based on a well- grounded fear and should have been granted."
(Initial List) Week of December 22, 2008 – In Favor of the State or Government

Kenneth Mosley v. Quarterman, 2008 U.S. App. LEXIS 26138 (5th Cir 12/23/2008)(unpublished) "Mosley seeks a COA on six issues: (1) whether trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence; (2) whether trial counsel rendered ineffective assistance by failing to object to purported victim impact evidence during the guilt phase of the proceedings; (3) whether trial counsel rendered ineffective assistance by failing to object to a witness's prior consistent statement; (4) whether trial counsel rendered ineffective assistance by failing to seek a limiting instruction when admitting the entirety of an expert's investigation to cross-examine the expert; (5) whether appellate counsel rendered ineffective assistance by failing to argue that the prosecution improperly impeached a defense witness; and (6) whether appellate counsel rendered ineffective assistance by failing to challenge the instruction that the jury received regarding Mosley's eligibility for parole."
Dwight Loving v. DOD, 2008 U.S. App. LEXIS 25856 (D.C. Cir. 12/23/2008)"[A]ppellant filed suit under the Freedom of Information Act seeking disclosure of Department of Defense and Army memoranda prepared for the President in connection with his statutory review of appellant's death sentence. The district court found the requested documents exempt from disclosure under FOIA Exemption 5 and granted the government's motion for summary judgment. For the reasons set forth in this opinion, we affirm."
Harry Jones v. State, 2008 Fla. LEXIS 2434 (FL 12/23/2008) Revised opinion. Relief denied on claims relating to: (A) Brady/Giglio violations; (B) failure to investigate and present mitigation information; (C) "summary denial of two claims of ineffective assistance of counsel: (1) failing to object to the use of shackles during voir dire; and (2) failing to object to improper prosecutorial argument;" (D) Ring; (E) jury instructions improperly shifted the penalty phase burden; and (F) undue dilution of jury's responsibility for a verdict.of death.
Commonwealth v. William Wright III, 2008 Pa. LEXIS 2316 (PA 12/22/2008) [via LexisOne] "Evidence sufficiently supported defendant's first-degree murder conviction pursuant to 18 Pa.C.S. § 2502(a) and death sentence; it showed defendant, jealous because wife he had impregnated had reconciled with husband, broke into their house heavily-armed, repeatedly shot husband, and fled, and that such conduct was captured on 911 call to police."

Luke Williams III v. Ozmint, 2008 S.C. LEXIS 347 (SC 12/22/2008) "Petitioner argues that he is entitled to habeas relief because the solicitor improperly stated that he "expected" the death penalty during his sentencing argument. We disagree."

State v. Roland T Davis, 2008 Ohio 6841(Ohio 5th App 12/23/2008) Relief denied on claims relating to whether: "the trial court dismissed his post-conviction petition on procedural grounds;" "the trial court denied motions that were necessary to fully and fairly litigate his grounds for post-conviction relief;" and "the trial court erred in dismissing appellant's post-conviction petition when he presented sufficient operative facts to merit relief or, at minimum, an evidentiary hearing."


Week of December 15, 2008 – In Favor of the Defendant or the Condemned

John Thompson v. Harry F. Connick, et al., No. 07-30443 (5th Cir. 12/19/2008) [via Fifth Circuit Civil News] "A jury awarded $14M in compensatory damages on finding, in a case under 42 U.S.C. § 1983, that the district attorney's office in New Orleans precipitated, by deliberate indifference to its obligation to train employees on their obligations under Brady v. Maryland, a failure to provide exculpatory blood-typing evidence from an armed robbery for which the plaintiff was convicted in April 1985. The same prosecutors accurately predicted that the April 1985 conviction would dissuade Thompson from testifying on his own behalf (in order to avoid impeachment with the conviction) in his trial a month later for a different armed robbery that ended in a murder. Thompson was convicted in the second trial and was sentenced to death. "Eighteen years later -- and one month before [Thompson's] scheduled execution -- Thompson's investigators uncovered the exculpatory evidence that indisputably cleared [him] of the armed robbery charge." The murder conviction was also set aside, on the ground that the prosecutors' misconduct deprived Thompson of his right to testify at that trial. When retried for the murder, Thompson was acquitted. The district court added about $1M in attorney's to the jury verdict, and denied the defendants' post-judgment motions. Holding: Affirmed for the most part. Among other holdings in a 48-page opinion, the Court held that Thompson's claim was not time-barred, that sufficient evidence supported the jury's verdict, that the withholding of evidence was not the unanticipated action of a single rogue prosecutor, that the jury instructions (and an answer to a jury question) on deliberate indifference were adequate, that the damages were not excessive, and that the fee award (which was half of what Thompson's counsel asked for) was not an abuse of discretion."
Ex Parte Michael Toney, NO. AP-76,056 (Tex Crim App 12/17/2008) CCA orders a new trial based on the failure of the State to divulge exculpatory information / "Brady error."
Ex Parte Joseph Prystash, No. WR-58,537-02 (Tex Crim App 12/17/2008) On a subsequent application for writ of habeas corpus, "applicant's claim that the State suppressed evidence with respect to the voluntariness of his co-defendant's confession - satisfies the requirements of Texas Code of Criminal Procedure Article 11.071, Sec. 5(a)."

Week of December 15, 2008 – In Favor of the State or Government
Stephen Michael West v. Bell, No. Nos. 05-5132/6219 (6th Cir 12/18/2008) (dissent) Relief denied most notably on an unusually strong ineffective assistance of counsel claim relating to trial counsel's lack of a meaningful mitigation investigation. Note: this is a case to watch as having either rehearing or cert potential due to the panel majority's treatment of the standards for IAC.
Julius Recardo Young v. Sirmons, 2008 U.S. App. LEXIS 25280 (10th Cir 12/16/2008) Relief denied on the four issues for which the district court granted a CoA; " (1) ineffective assistance of trial counsel for failing to adequately investigate and present mitigation evidence during the second-stage proceedings; (2) improper victim impact evidence; (3) improper admission of Young's "fish blood" statement; and (4) cumulative error. On appeal, Young has abandoned his challenge to the admission of his "fish blood" statement, but continues to pursue the remaining three issues.
Porter v. Attorney Gen. of Florida, No. 07-12976 (11th Cir 11/19/2008) [via FindLaw] "Death row inmate was improperly granted habeas relief on two claims of ineffective assistance of counsel. Having been found competent and having waived his right to counsel, Petitioner is not entitled to counsel at a second competency hearing; district court failed to give proper AEDPA deference to the Florida Supreme Court's adjudication and findings of fact relating to Petitioner's penalty phase claim."
Thomas Treshawn Ivey v. Ozmint, 2008 U.S. App. LEXIS 25531 (4th Cir 12/17/2008) (unpublished) Relief denied on whether the "district court erred in denying his § 2254 petition because (1) Young's responses to questions during voir dire show that she was not impartial about the application of the death penalty, (2) Culler's letter requesting withdrawal from representation of Patricia Perkins demonstrates that Culler had an actual conflict of interest adversely affecting his performance at trial, and (3) Savitz's failure to raise a Confrontation Clause challenge to the use of Neumon's prior testimony constituted ineffective assistance of appellate counsel."
Ex parte Rodney Reed, 2008 Tex. Crim. App. LEXIS 1569 (Tex Crim App 12/17/2008) [via the TCCA blog] "[T]he Court held that all reliable evidence old and new produced by Reed failed to compel the conclusion that it is more likely than not that a reasonable juror would not have voted to convict. Unlike most gateway innocence claims, Reed's lacked a cohesive theory of innocence. As the Court explained, "By focusing on a romantic relationship between himself and Stacey as well as pointing to several alternative suspects--Fennell, Lawhon, and some unknown dark-skinned man--the new evidence before the Court fails to tell a complete, rational exculpatory narrative that exonerates Reed." Because the evidence presented by Reed failed to meet this gateway standard, the Court refused to consider the merits of Reed's Brady claims."
Juan Ramon Meza Segunda v. State, 2008 Tex. Crim. App. LEXIS 1505 (Tex Crim App 12/10/2008) [via the TCCA blog] "The Court granted Segundo's mot0ion for rehearing to consider a point of error relating to the introduction of information contained in parole-revocation documents. The Court had235++. Consequently, Segundo pointed out that he'd filed a supplemental record containing the certificates, and the Court pointed out he failed to file a supplemental brief noting this. The Court granted his motion for rehearing and rejected his claim that the certificates contained testimonial statements that violated Crawford. The complained-of language in the certificates recited that Appellant "failed to fulfill the terms and conditions of said release, and is therefore not worthy of the trust and confidence placed therein," that he "has violated the conditions of administrative release," and that he was an "administrative release violator." This language did not violate Crawford because the language was mere "boilerplate" language on a pre-printed form. Unlike situations where such documents contained recitations of facts recounted by officers, these statements set out sterile and routine recitations of official findings. They merely set out that Segundo had violated his parole and he was subject to re-arrest. They had none of the features of a subjective incident report made by a law enforcement officer. These were public records like a record of a conviction, so the statements were non-testimonial."
Robert J. Bailey v. State, 2008 Fla. LEXIS 2389 (FL 12/18/2008) Relief denied "Bailey raises three claims: (1) whether the death penalty is disproportionate; (2) whether the prosecutor committed fundamental error by allegedly making inappropriate remarks before the jury; and (3) whether Florida's capital sentencing procedures are unconstitutional"
William Frank Davis v. State, 2008 Fla. LEXIS 2393 (FL 12/18/2008) Relief denied over claims "that (A) the trial court erred by instructing the jury on the aggravating circumstance of cold, calculated, and premeditated (CCP), by allowing the prosecutor to argue this aggravator to the jury, and by finding this aggravating circumstance; (B) the trial court erred in failing to consider and weigh evidence of Davis's impaired capacity as a nonstatutory mitigating factor; (C) the trial court erred in allowing the prosecutor to argue that school fights and Davis's conduct in jail after the homicide could be used to reduce the weight of the mitigating circumstance of no significant history of prior criminal activity and in reducing the weight of this mitigating factor based on that evidence; (D) the death penalty is not warranted in this case; and (E) the trial court erred in sentencing Davis to death because Florida's capital sentencing proceedings are unconstitutional under the Sixth Amendment of the United States Constitution pursuant to Ring v. Arizona, 536 U.S. 584 (2002)."
Comm. v. Roland William Steele, 2008 Pa. LEXIS 2268 (Penn 12/18/2008) Relief denied, most notably, on the admissibility of a juror affidavit that the juror held deep seated views of racial bias. [more here from Prof. Collin Miller] Other issues on which relief denied include: ineffective assistance of counsel stemming from hair analysis, voir dire (including failure to life qualify jury), jury instructions regarding identification testimony, unanimity instruction, inflammatory closings (both phases) by the Commonwealth, the defenses woeful closing in the penalty phase (capped by his leaving the court room at its conclusion never to return), failure to adequately investigate and present mitigation evidence, jury instructions on mitigation, victim impact, and instruction on torture aggravator.
Comm v. Ronald Clark, 2008 Pa. LEXIS 2264 (Penn 12/17/2008) [via Lexisone] "Inmate was not entitled to postconviction relief due to alleged ineffective assistance of counsel where, inter alia, counsel did not impeach witness with letter recanting identification because witness did not willingly and independent write letter and instruction on flight was supported by evidence and thus, any objection would have been futile."
Comm. v. Al Peoples, No. 482 CAP (Penn 12/18/2008) Grant of relief vacated, evidentiary hearing on ineffective assistance of counsel claims ordered.
If you have problem with this edition it is available at http://capitaldefenseweekly.com/archives/081222.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 opinions.es. Execution and other news information derived from Rick Halperin, DPIC, Steve Hall & media accounts.