Leading off this week is the South Dakota Supreme Court's opinion in Briley Piper v. Weber. Mr. Piper was tried to the bench in the penalty phase. Prior to the bench trial the trial court misinformed Mr. Piper about South Dakota's unanimity requirement. Specifically, the Court informed Mr. Piper that all 12 jurors would have to agree on a sentence of life despite state law which requires a life sentence if even a single juror voted for life. ''Consequently, without an adequate explanation by the judge that one juror could, in effect, choose life, Piper's waiver of a jury trial on the death penalty cannot be considered knowing or voluntary."


In trial news, jurors in just 40 minutes decided that Myron Britt did not deserve the death penalty for the 2003 murder of his wife in North Carolina. Likewise, a jury sentenced John Franklin Hester to life without the possibility of parole for the murder of Randolph Hughes following which the Defendant addressed them, saying, "I want to thank you for sparing my life." In Nevada, Eugene Nunnery received a life sentence for first-degree murder and other charges following a jury deadlock


In other news, Juan Melendez - 6446, a new documentary released this week, looks at how Mr. Melendez came to be wrongly convicted of murder and sent to death row. On July 28 in Illinois, Brian Dugan plead guilty to the rape and murder of Jeanine Nicarico in Illinois that falsely sent Rolando Cruz and Alejandro Hernandez to death. The state senate vote on the North Carolina Racial Justice Act has been delayed; more here. Funding to establish the Texas Office of Capital Writs, with nine attorneys to litigate state habeas corpus petitions, recently became law and that office will open next year.


As always thanks for reading. Lexis & Westlaw appear to be still missing a large number of opinions. A special thanks to those who have been forwarding or posting new developments and opinions they have been invaluable. - k



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

September
3 William Wright (Penn) (stayed)
15 Romell Broom* (Ohio)
16 Stephen Moody* (Tex)
22 Christopher Coleman* (Tex)
22 Noel Matos Montlvo (Penn)
24 Kenneth Mosely* (Tex)
24 Donald Mitchell Tedford (Penn)
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)
[* indicates an execution date believed to be "serious"]


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

Briley Piper v. Weber , 2009 SD 66 (SD 7/29/2009) Trial court erred in telling Mr. Piper that a life verdict had to be unanimous when even a sole hold out would have resulted in life. ''Consequently, without an adequate explanation by the judge that one juror could, in effect, choose life, Piper's waiver of a jury trial on the death penalty cannot be considered knowing or voluntary."

(Initial List) Week of July 27, 2009 – In Favor of the State or Government

Anthony Bartee v. Quarterman, No. 08-70035 (5th Cir 7/31/2009) COA and request for remand denied. "Bartee contends this matter should be remanded to district court in the light of new evidence: genetic testing of blood and hair found at the murder scene which, he claims, establishes his actual innocence. In the alternative, he contends he is entitled to a COA for four claims: (1) the prosecutor's impermissible comment on Bartee's failure to testify; (2) the prosecution's failure to disclose Brady material; (3) denial of counsel and conflict of interest; and (4) ineffective assistance of counsel."

People v. Celesete Simone Carrington, No. S043628 (CA 7/27/2009) "Conviction and death sentence for first degree murder and other crimes are affirmed where: 1) the court did not err in denying defendant's motion to suppress evidence as there was probable cause for issuance of a warrant and it was lawfully executed; 2) the court did not err in denying defendant's motion to suppress her confessions; 3) purported constitutional error in selecting the grand jury was not prejudicial, and the grand jury had jurisdiction to indict her; 4) venue for the trial was not improper; 5) the evidence was sufficient to support the conviction for robbery; 6) the court did not err in the various instructions it gave to the jury; 7) the court did not err in its rulings related to the aggravating factor of attempted escape; there was no error in admitting victim impact evidence and in not giving a limiting instruction on victim impact evidence; and 9) California's death penalty statute does not violate the state or federal constitutions. The burglary convictions must be reversed as the evidence did not establish an entry." [via Findlaw]
People v. Shaun Kareem Burney, No. S042323 (CA 7/30/2009) "Conviction for first degree murder and other crimes and sentence to death is affirmed where: 1) the trial court properly denied the motion to quash defendant's indictment as there is no merit in defendant's claim that Asian-Americans were unconstitutionally excluded from the grand jury; 2) the court did not err in denying his motion for severance; 3) defendant was not prejudiced by the court's refusal to conduct sequestered voir dire, and was thus not deprived of a fair and impartial jury; 4) the court did not err in admitting evidence of the contents of the victim's wallet; 5) the court did not commit any instructional errors; 6) the evidence was sufficient to support his convictions; 7) the court did not err in refusing defendant's requested modified jury instruction; the court properly admitted victim impact testimony; the court did not err in any of its pattern instructions or special instructions to the jury during the penalty phase; and 10) the prosecutor did not! commit any misconduct. Defendant's sentence does not violate state, constitutional, or international law." [via Findlaw]

Phillip Hallford v. Allen, No. 07-15478 (11th Cir 7/30/2009) "In a 42 U.S.C. section 1983 action seeking to enjoin Alabama's lethal injection method of capital punishment, dismissal of the complaint is affirmed where plaintiff unreasonably delayed in filing the action because he knew, or should have known, when the suit was filed that an execution date would likely be set and come before the case could be litigated fully, unless a stay of execution was granted or the litigation was expedited." [via Findlaw]
Humberto Leal Garcia v Quarterman 2009 U.S. App. LEXIS 13085 (5th Cir 6/15/2009) (as modified on 7/29/2009) Leal is a foreign national on death row in Texas. Post-Avena but pre-Medellin Leal exhausted a Vienna Convention right claim and filed a habeas petition in federal court. The district court denied relief finding it did not have jurisdiction. The Leal Court holds that the district court had jurisdiction, but that nonetheless in light of Medellin Leal must lose.
(Initial List) Week of July 27, 2009 – Other of Note

United States v. James Ford Seale, 2009 U.S. App. LEXIS 16940 (5th Cir 7/30/2009) (en banc) Fifth Circuit certifies, at the suggestion of Mr. Seale, the following question to the United States Supreme Court: What statute of limitations applies to a prosecution under 18 U.S.C. section 1201 for a kidnapping offense that occurred in 1964 but was not indicted until 2007
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, 2009 Tex. Crim. App. Unpub. LEXIS 482 (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."
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.

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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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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