The StandDown Texas Project

More on Kerry Max Cook

The Southwest edition of the New York Times carries, "Released but Never Exonerated, a Man Fights for Freedom," by Michael Hall.  It's also posted at the Texas Tribune, which partners with the Times for expanded Texas coverage.  Here's an extended excerpt:

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

And:

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Earlier coverage of Kerry Max Cook's effort to fully clear his name begins at the link.  As I always point out, Texas Montly journalist Michael Hall and I are not related.

Kerry Max Cook's 2007 book is Chasing Justice.

Legislative Update - South Dakota, Virginia

We have brief AP reports from South Dakota and Virginia.

From South Dakota, the Rapid City Journal posts, "SD Legislature passes limit on inmate appeals."

The South Dakota Legislature has given final approval to a measure aimed at preventing death-row inmates from filing repeated appeals in an effort to delay their executions.

The House voted 60-5 to approve a bill that has already been passed by the Senate. It will become law if signed by Gov. Dennis Daugaard.

Attorney General Marty Jackley proposed the measure, saying limits are needed in death-penalty cases because some cases are tied up in appeals for two decades.

Virginia's WRIC-TV posts, "House Committee Voting On Death Penalty Expansion."

Legislation to expand the death penalty in Virginia is up for a key vote at the General Assembly.

The Republican-backed bill would redefine the so-called triggerman rule, which in most cases restricts the death penalty to the person who does the actual killing. The bill would allow the death penalty for accomplices who share the intent to kill.

Del. Todd Gilbert's bill is on the docket for Wednesday afternoon's Senate Courts of Justice Committee meeting.

Two weeks ago, the Senate's own version of the bill died in the courts committee on a 7-7 party line vote, with one Republican abstaining because he accepts court appointments to represent capital murder defendants. The same vote on the House bill would doom the triggerman revision for the fifth consecutive year. 

Earlier legislative coverage from South Dakota and Virginia at the links.  Related posts are in the state legislation index.

11th Circuit Hears Troubling Alabama Case

"Condemned Ala. man claims evidence clears his name," is Greg Bluestein's AP filing.  It's via the Athens Banner-Herald.

An Alabama death row inmate's attorneys came to the federal appeals court in Atlanta on Monday with a ream of new evidence they say helps exonerate their client. But the three-judge panel was more than a little skeptical about the arguments.

Billy Kuenzel was convicted of the November 1987 murder of Linda Jean Offord, a convenience store clerk in Sylacauga, Ala., and sentenced to die a year later. The 49-year-old refused to take a plea deal and has long maintained his innocence, and his attorneys say they uncovered new evidence in 2010 that backs his claim.

That's where they run into a legal roadblock. Prosecutors insist Kuenzel had a fair trial, and say the new information isn't enough to prove his "actual innocence," a stringent legal standard. Kuenzel's attorneys, though, asked the 11th U.S. Circuit Court of Appeals to give them a chance to "salvage what time remains of his life."

All three judges on the panel on Monday did little to boost Kuenzel's hopes.

Circuit Judge J.L. Edmondson raised concerns about whether Kuenzel missed key deadlines to file the appeal, and said "it's close to impossible" to overturn a federal judge's ruling against his client. And Chief Judge Joel Dubina suggested the new details wouldn't be enough to change any juror's mind.

"The jury heard all of this, weighed all the evidence, chose who to believe, and found against your client," Dubina said.

Defense attorney David Kochman quickly responded: "Respectfully, the jury did not hear all the evidence."

"Questions loom in Alabama death-penalty case," is by Bill Rankin for the Atlanta Journal-Constitution.

Kochman said Kuenzel's case is unlike no other, largely because his initial post-conviction appeal was found to have been filed six months too late, which has barred the introduction of newly discovered evidence.

In the meantime, Kuenzel's lawyers have uncovered grand jury testimony that throws into question the trial testimony of a key state witness and have learned that Venn, shortly before Offord's killing, may have borrowed a .16-gauge shotgun -- the kind used to kill Offord -- from a man who later told his wife he was worried the shotgun may have been the murder weapon.

Innocence claims such as those raised by Troy Anthony Davis, executed last year in the killing of a Savannah police officer, face enormous legal hurdles. Davis, after being denied a hearing for years, was finally granted one through an extraordinary ruling by the U.S. Supreme Court. Even then, a judge rejected his case.

In 1995, the U.S. Supreme Court said condemned inmates asserting their actual innocence have to show "it is more likely than not that no reasonable juror would have found [the inmate] guilty beyond a reasonable doubt." Such inmates must support their innocence claims "with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence -- that was not presented at trial."

On Monday, all three appellate judges indicated Kuenzel had not cleared such a threshold.

From Utah

Today's Deseret News reports, "State won't oppose death by firing squad in Archuleta case."  It's by Randall Jeppesen.

Utah death row inmate Michael Archuleta has chosen the firing squad to carry out his April 5 death sentence for a 1988 murder.

Utah Attorney General Mark Shurtleff says the state won’t oppose it.

Archuleta was sentenced to death for the Nov. 22, 1988, murder of Southern Utah University student Gordon Ray Church, 28.

At his original conviction he chose lethal injection, but changed his mind and opted for the firing squad in 1994. Even though the state did away with the firing squad in 2004, Shurtleff says Archuleta made his choice before the law changed, so it will stand.

“The courts have held that the method of execution is the choice, if there is a choice … of the condemned person,” Shurtleff said.

Archuleta can change his mind and say he no longer wants the firing squad, but if he insists on the firing squad, Shurtleff says the state won’t oppose it and that’s how he’d be executed.

There are four other death row inmates who opted for the firing squad before the law changed.

And:

Convicted killer Ronnie Lee Gardner was the last person executed in Utah by firing squad. Gardner had been on Utah's death row since October 1985 and was executed on June 18, 2010. He was the third person executed by firing squad in Utah — or anywhere else in the U.S. — since the death penalty was reinstated in 1976.

"Judge signs death warrant; Utahn to die April 5 by firing squad," by Roxana Orellana and Aaron Falk is from Thursday's Salt Lake Tribune.

A judge on Wednesday signed a death warrant for Michael Anthony Archuleta, for now at least setting the course for his execution by firing squad on April 5.

The signing by 4th District Judge Donald Eyre, however, is the third time a judge has set an execution date for Archuleta, 49, who has been on Utah’s death row since being convicted in December 1989.

Archuleta’s family, who was at the hearing, wept as the judge assigned the date.

"For a while you kind of just go with the flow but when things like this happen, it all comes back and opens up all the wounds. It’s hard,"said Archuleta’s mother, Stella Archuleta after the hearing, adding that her son has a lot of regrets. "It doesn’t just affect him and the victim’s parents, it affects everyone who cares about him."

Archuleta’s attorney, James Slavens said his client still has appeal options. While the state appeals have all been exhausted, he has yet to begun his federal review, Slavens said.

After the hearing Assistant Attorney General Thomas Brunker appeared to echo Slavens, saying he didn’t think it was likely that Archuleta’s execution will proceed in April.

There was extensive news coverage and commentary on the Gardner firing squad execution in 2010; it begins at the link.

Georgia Execution Stayed; Volunteer Opts to Pursue Appeal

Today's Atlanta Journal-Constitution reports, "Execution halted for condemned Paulding County killer."  It's by Bill Rankin.

After refusing for years to challenge his execution, condemned killer Nicholas Cody Tate on Tuesday changed his mind just hours before he was to be put to death.

And:

After the Georgia Supreme Court upheld the death sentence in Tate's automatic direct appeal, which is required in all capital cases, Tate said he wished to file no further appeal, which are routine in most all death-penalty cases and, on occasion, result in new trials.

During one hearing, Tate told a judge he had been caught "red handed" and that none of his rights had been violated. "I choose to waive any and all future appeals," Tate said.

Last week, as the execution neared, Tate's brother sought to file an appeal on Tate's behalf. But that was abandoned after psychiatrists examined Tate and found he was competent to decide on his own to forgo his final appeals.

"Judge Postpones Execution," is the AP report, via Georgia Public Broadcasting.

A judge halted the execution of a Georgia man less than an hour before he was set to die for the 2001 murders of a woman and her 3-year-old daughter, acting after the inmate signaled he would file a new round of appeals.

Butts County Superior Court Judge Thomas Wilson postponed Nicholas Cody Tate's execution until further notice about 45 minutes before Tate was scheduled to receive a lethal injection at the state prison in Jackson on Tuesday evening for the murders of Chrissie Williams and her daughter Katelyn. It's unclear how long his execution would be delayed, but it often takes this type of appeal years to work through the court system.

Reuters posts, "Judge halts Georgia execution of man who killed woman, child," by David Beasley.

Tate, who had been scheduled to die on his birthday, declined a special last meal. He would have been the 35th person Georgia has executed by lethal injection.

Tate's execution would also have been the third in the United States this year, following Rodrigo Hernandez in Texas and Gary Welch in Oklahoma, according to the Death Penalty Information Center. Last year, 43 people were executed.

Thirty-four U.S. states currently have the death penalty, the center said.

Earlier coverage of the Tate case begins at the link.  Related posts are in the volunteer index.

South Dakota Legislation Update

The Sious Falls Argus Leader reports, "Attorney general argues for limits on death penalty appeals."  It's written by Steve Young.

South Dakota’s top prosecutor has introduced Senate Bill 42, an attempt to curb what he calls frivolous and repetitive delays at the back end of the state’s criminal justice system. Patterned after similar federal law, Jackley’s bill puts a cap on how often indigent defendants can argue that their court-appointed lawyers are ineffective, and the time frame in which they can make that claim.

It is legislation, defense lawyers and law professors counter, that is an assault on individual constitutional rights.

Jackley’s bill passed 5-1 out of the Judiciary Committee after it was amended to give defendants two years after their direct appeal to the state Supreme Court to argue ineffective counsel and make other claims. Jackley first had wanted the statute of limitation at one year, as it is at the federal level. The proposal also was amended to allow claims to be made after two years if new evidence arises or if changes to constitutional law would affect the conviction and sentence.

It now goes to the full state Senate.

And:

While defense lawyers seem amenable to improvements, they’re not lining up yet behind this proposal, said Lindsey Riter-Rapp, a Pierre lawyer and lobbyist for the state Association of Criminal Defense Lawyers.

Riter-Rapp said her group could accept a two-year period for habeus corpus action, which is the same amount of time defendants have to come in after they have been convicted and ask for a modification of their sentence.

Defense lawyers also were glad to see protections added to the proposal to allow for a habeas action to come after the two-year period if new evidence arises, or if a Supreme Court ruling changes a law affecting a defendant’s case.

But Riter-Rapp and others are particularly troubled by Jackley’s insistence on limiting defendants to one habeas action questioning the effectiveness of their trial or appellate lawyers. They’re also bothered by language that gives judges discretion in deciding whether to appoint counsel for a post-conviction claim.

Donald E. Wilkes Jr., a professor at the University of Georgia School of Law for 40 years and author of five books on post-conviction remedies, said more than 30 states have enacted similar time restraints since the federal law was enacted in 1996. But few states are removing a statutory right to counsel in post-conviction proceedings as Jackley is seeking.

More information on Senate Bill 42 is available from the South Dakota Legislature website.

Earlier coverage of the South Dakota legislation to limit appeals is at the link.

Georgia Roundup

"Georgia Supreme Court chief urges lawmakers to fund new clerk for death penalty cases," is an AP report via the Republic.

The Georgia Supreme Court is asking state lawmakers to fund a new clerk who would only work capital cases.

Chief Justice Carol Hunstein on Wednesday urged lawmakers to approve the request for about $80,000 to hire a new capital case docket clerk for those cases.

She said "I don't think anyone outside the judiciary understands how complicated and complex these cases are."

Georgia executed four people in 2011, including Troy Davis, whose claims of innocence attracted international attention.

There is also news of an execution date set for a volunteer, an inmate who has waived his appeals.  "Ga. death row inmate refuses to file habeas appeal," is by AP writer Greg Bluestein.  It's via the Rockdale Citizen.

Nicholas Cody Tate could delay his execution at the end of this month for years if he filed a new round of appeals. But his refusal to do so has made his death sentence for the murders of two people one of the fastest-moving in recent memory in Georgia.

In the glacial-paced world of death penalty law, Tate’s death sentence for the 2001 killings of a woman and her 3-year-old daughter moved through the appeals process quickly. That’s because he refused to challenge his conviction and sentence by filing a habeas appeal in state or federal court.

His current and former attorneys won’t comment on why Tate, who is 31, won’t let them file the appeal. But the transcript from a 2009 court hearing helps illuminate his thoughts on the process.

“You caught me red-handed,” he said during the hearing, when he waived his motion for a new trial. “None of my rights were violated ... I choose to waive any and all future appeals.”

A Paulding County judge last week cleared the way for his execution, and state officials on Tuesday scheduled the lethal injection for Jan. 31 at 7 p.m. Death penalty opponents say Tate’s case highlights the problems with capital punishment.

“The appeals process exists as a safeguard to protect the integrity of the judicial process,” said Kathryn Hamoudah, who chairs Georgians for Alternatives to the Death Penalty. “Proceeding without is tantamount to allowing state assisted suicide.”

"Tate execution set for Jan. 31," is an AP brief, also via the Rockdale Citizen.

The Georgia Department of Corrections has set a Jan. 31 execution date for Nicholas Cody Tate, who killed a Paulding County woman and her daughter in 2001.

Tate is to be put to death by lethal injection at 7:00 p.m. at the Georgia Diagnostic and Classification Prison in Jackson.

And:

Tate pleaded guilty to the murders in 2005 and waived a trial by jury. After a sentencing hearing, the trial judge sentenced Tate to death. Tate's case is highly unusual in that he has not challenged his conviction and sentence through a petition of habeas corpus in either state or federal court.

Related posts are in the judiciary and volunteer indexes.

South Dakota Legislation Aimed at Limiting Appeals

Today's Sioux Falls Argus Leader reports, "Proposal targets criminal appeals."  It's by Steve Young.

Attorney General Marty Jackley wants to rein in criminal cases that drag on for years with appeals and cost taxpayers hundreds of thousands of dollars.

The state’s top prosecutor is pushing Senate Bill 42, which would curtail what he calls frivolous and repetitive filings by people after they have been convicted, sentenced for their crimes and have made their direct appeal of those actions to the state Supreme Court.

A person convicted of murder can argue on direct appeal to the Supreme Court that his lawyer was ineffective, but shouldn’t be able make that claim on every lawyer that represents him afterward, Jackley said. His office is proposing a one-year statute of limitations on state court appeals after the direct review. It wants the court to be able to decide whether a defense lawyer has to be appointed on every appeals claim. And it wants to limit repetitive proceedings.

The bill gets its first hearing at 8 a.m. today before the Senate Judiciary Committee in Pierre.

“What we’re proposing is modeled after current existing federal law,” Jackley said. “The reason that’s important is, there’s no way there could be constitutional challenges to what we do because that’s what the feds do. It really comes down to two things. ... you have to file your appeals in one year, and you can’t do repeat fillings.”

His office has met with officials representing the South Dakota Association of Criminal Defense Lawyers to see whether they can agree on tweaks and amendments that would make the legislation more palatable. Lindsey Riter-Rapp, a Pierre lawyer and lobbyist representing defense lawyers, said her constituency isn’t adverse to discussing the issue, but they’re not entirely on board at this point, either.

Riter-Rapp said one of the most problematic provisions in the bill is the one-year statute of limitations for appeals after the direct review by the state Supreme Court. There is wording in the current statute that refers to a five-year timetable, she said.

More information on Senate Bill 42 is available from the South Dakota Legislature website.

The Office of Capital Writs at One Year

"Agency scrutinizes state's capital murder trials for legal fairness," is the title of Michael Graczyk's AP report.  It's via the Austin American-Statesman.  Here's an extended excerpt from the beginning:

Brad Levenson wasn't thrilled to watch the condemned prisoner die, but he believed it was his duty to his client and to the state-funded agency he leads, charged with defending people who have been sentenced to death.

It was the first execution he'd seen.

"No matter how many pictures you see and other attorneys describing it, it's just a surreal experience," Levenson said of the lethal injection this year of convicted killer Cary Kerr.

"I was haunted by that for weeks, thinking there was something we could have done," he said. "I don't want this to sound insensitive. I needed to see an execution to do the work I do. \u2026 I had to see the start and the finish."

After years of handling death penalty cases as a federal public defender in California, which has the nation's largest death row but rarely carries out the ultimate punishment, Levenson now heads the year-old Texas Office of Capital Writs, an independent state agency tasked with scrutinizing capital murder trials to ensure that they were legally proper.

The Texas Legislature created the office two years ago after repeated instances of shoddy legal work by appeals attorneys representing capital murder convicts. The agency now handles the state appellate process for nearly all new Texas death penalty cases.

"So far, I think we are seeing the system work as we intended and hoped," said Sen. Rodney Ellis, the Democrat from Houston who sponsored the measure that created the agency. "Considering the mistakes made in Texas to date, we should pay for this safety net and pray it's adequate enough to get the job done right."

More than a dozen states have similar operations, but Texas was the largest without a public office to address death penalty appeals. None of the other states with capital punishment executes people as frequently as Texas.

The primary method of getting a new trial following a criminal conviction is to file a habeas appeal, which argues that a major legal mistake was made during the first trial. In Texas, courts generally will hear only one habeas appeal, and attorneys should raise claims early, as the cases wind through the judicial system.

Andrea Marsh, executive director of the Texas Fair Defense Project, a group that works to improve legal help for poor Texans accused of crimes, said the role of habeas attorneys is crucial.

Earlier coverage of the OCW begins at the link. All coverage is in the Office of Capital Writs index.

Judge Rejects DNA Testing in David Wood Case

Today's El Paso Times reports, "Judge rules against serial killer David Leonard Wood's DNA petition."  It's by Diana Washington Valdez.

A visiting judge for the 171st Judicial District Court has ruled against convicted serial killer David Leonard Wood's petition involving DNA test results.

Wood, who received a stay of execution two years ago, had expanded his death penalty appeal to include a petition for a new finding of his 1992 conviction.

He requested, and was granted, new DNA tests of items from 1987 victims of the notorious desert deaths in Northeast El Paso.

"The court finds that the results of the DNA analysis do not establish that, had the results been available during the trial of offense, it is reasonably probable that (Wood) would not have been convicted," according to Judge Bert Richardson's ruling dated Aug. 17.

According to court records, prosecutors did not rely on DNA evidence to try Wood.

And:

A separate hearing has not been set to determine whether Wood meets the legal threshold of mental retardation.

Earlier coverage of this month's hearing in El Paso begins at the link.

An Update on the David Wood Hearing in El Paso

"Judge to rule today on David Leonard Wood's DNA tests," is the title of Adriana M. Chávez' report in today's El Paso Times.

A visiting judge is expected to rule today on whether DNA test results would have made a difference in the conviction of David Leonard Wood had they been presented during his 1992 jury trial.

A Dallas jury convicted Wood in the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. The same jury sentenced Wood to death, but his execution was postponed two years ago after his defense attorneys claimed he was mentally disabled.

During a hearing that started Tuesday and ended Wednesday, Wood's attorneys claimed DNA evidence found on a yellow sundress belonging to victim Dawn Smith matched her and the DNA of an unknown man. Two other tests on evidence belonging to victims Rosa Casio and Angelica Frausto were deemed inconclusive.

Visiting Judge Bert Richardson of San Antonio said he would make his ruling today and notify the Austin-based attorneys on both sides by next week.

Also on Wednesday, Richardson tentatively scheduled a hearing in October to determine whether Wood is mentally disabled. That hearing is expected to take less than a week and may include testimony from those familiar with Wood.

At the October hearing, attorneys may also discuss a potential request from defense attorney Gregory Wiercioch to test additional evidence, including up to 100 items, for DNA.

However, Assistant Attorney General Georgette Oden argued in court that many of those items may now be unable to be tested because of deterioration over time.

Earlier coverage of the state habeas hearing in David Wood's case begins at the link.

New Questions Raised in El Paso Case

This morning's El Paso Times reports, "Convicted serial killer David Leonard Wood attends hearing on expanded appeal."  It's written by Adriana M. Chávez.

Attorneys for convicted serial killer David Leonard Wood argued Tuesday that Wood is innocent in the deaths of six girls and women because recently conducted DNA tests were inconclusive or did not match his DNA.

A Dallas jury in 1992 convicted Wood of the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. All of them died in 1987 after Wood was paroled from prison for the second time on sex-assault convictions.

The same jury sentenced Wood to death.

Wood's execution was postponed two years ago after defense attorneys claimed Wood is mentally disabled. In 2002, the U.S. Supreme Court ruled that the death penalty should not be applied to mentally disabled people because it violates the Constitution.

But during a court hearing Tuesday, defense attorney Gregory Wiercioch of the Texas Defender Service argued that DNA evidence found on a yellow swimsuit belonging to victim Dawn Smith matched her and an unknown man. Two other tests, conducted on a piece of a blue-green blouse belonging to victim Rosa Casio and a fingernail belonging to victim Angelica Frausto proved inconclusive.

Wiercioch also argued the DNA tests may have proved Wood's innocence if they had been presented during his jury trial, which may be the basis for a new trial.

Visiting District Judge Bert Richardson of San Antonio may make a decision today on whether the DNA tests would have made a difference.

A preview of the hearing, "Convicted serial killer David Leonard Wood expands appeal; hearing to be held today," by Diana Washington Valdez appeared in the Tuesday edition of the Times.

Convicted serial killer David Leonard Wood has expanded his death penalty appeal to also having his 1992 capital murder verdict overturned.

Several records in his file that previously were unsealed show that he requested an expert review of DNA evidence from his trial, and for his investigators to interview witnesses and collect documents to prove that he is mentally retarded.

Wood will have a hearing Tuesday in the 171st District Court to determine his fate. He is expected to be present for the proceeding.

The Texas Criminal Court of Appeals granted Wood a stay of execution two years ago, a day before he was set to be executed by lethal injection.

And:

He also asked for forensic DNA testing of items pertaining to several of the 1987 victims, Frausto, Casio and Smith, as well as documents related to Salvador Martinez and Edward Dean Barton.

Martinez, an acquaintance of Wood's, did not pass a 1987 polygraph test about the disappearances and murders of young women in El Paso.

Barton, who resembled Wood, told the FBI in 1989 that he killed four women in the El Paso area between May and December 1987.

Earlier coverage of the case of David Leonard Wood is at the link.

National Law Journal Commentary on Habeas

The current issue of the National Law Journal has two must-reads on habeas corpus.

"The gutting of habeas for state defendants," is by John Blume, Sheri Johnson and Keir Weyble; professors at Cornell Law School.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "[f]ederal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

And:

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

"Federal habeas corpus & actual innocence; As shown in the Jeffrey MacDonald case, a shake-up of the federal post-conviction system is long overdue," is by attorneys Philip G. Cormier, Andrew Good, Barry C. Scheck and Harvey A. Silverglate.

Two murders in North Carolina, separated by 21 years and 50 miles, have recently been united by the ability of scientific testing to cast doubt on the convicted. In one case, handled by state authorities, a special commission helped exonerate the wrongfully convicted. The other, under federal jurisdiction, has seen courts view piecemeal claims of innocence and reject, until late last month, pleas to consider the evidence as a whole. Taken together, the two cases highlight the procedural hurdles of the federal system that serve to unacceptably hinder claims of innocence.

Dr. Jeffrey R. MacDonald, a Green Beret physician convicted in 1979 of murdering his wife and two daughters at his apartment near Fort Bragg, N.C., in 1970, asked the U.S. Court of Appeals for the 4th Circuit last March for a full review of the findings unearthed in the decades since his first trial — both the forensic evidence and the prosecutorial misconduct (resulting in suppressed evidence) that have put into question his conviction. After courts for decades examined one by one the steady trickle of exculpatory evidence — and rejected MacDonald's request for a new trial each time — the 4th Circuit on April 19 ordered the long-overdue and heretofore elusive review of the "evidence as a whole."

In stark contrast, Gregory F. Taylor, accused of murdering a prostitute in Raleigh in 1991, became the first person freed with the help of the North Carolina Innocence Inquiry Commission last year. Established in 2006 after a wave of wrongfully convicted state prisoners were exonerated by DNA evidence, the commission helped bring to light faulty blood tests and implausible testimony in Taylor's case. On Feb. 17, 2010, after spending 6,149 of his adult days behind bars, Taylor was exonerated by a three-judge panel.

Even when scientific evidence casts serious doubt on culpability, procedural roadblocks can still prolong the prison terms of the demonstrably innocent. The state of North Carolina has taken seriously this formula for injustice; the federal criminal justice system, on the other hand, has been largely immune from having its defects exposed. The 4th Circuit's ruling in U.S. v. MacDonald rolls back this immunity, marking a significant step toward fairness, and the pursuit of truth, in the federal system.

And:

Without the powerful — and, in a federal case, unusual — tool of modern DNA technology, MacDonald's post-conviction team and its amici supporters would not have gotten far enough to even earn this chance to present a full evidentiary picture to a habeas court. It is time to recognize that the federal criminal justice system is equally prone to error as are the various state systems, and to sweep aside, by both legislative and judicial fiat, the accumulated barriers to habeas corpus review of claims of factual innocence.

MacDonald should be the last prisoner — state or federal — to have to spend 32 years (and counting) in prison while dodging one procedural pitfall after another. In a society that holds itself up as free, nothing should block the presentation of overwhelming evidence not only of wrongful conviction, but of actual innocence.

Related posts are in the AEDPA and habeas indexes.  Earlier coverage of the North Carolina Innocence Inquiry Commission begins at the link.

Eyewitness ID Reform Measure Passes House Committee

"Eyewitness ID legislation aims to prevent conviction of the innocent in Texas," is the Dallas Morning News report written by Erin Mulvaney.

A bill meant to streamline eyewitness identification procedures, approved Tuesday by a House committee, would bring the state a step closer to fixing a key problem with the criminal justice system, advocates said.

Under the legislation, police departments would have to adopt uniform standards for eyewitness identification.

The House Criminal Jurisprudence Committee approved the bill unanimously after hearing from criminal justice officials and emotional testimony from half a dozen exonerees from Dallas, who spent years in prison for crimes they did not commit. The measure will now go to the full House for consideration.

“This bill has special importance for Dallas County, has tremendous public interest and support,” said Rep. Will Hartnett, R-Dallas. “It deserves a head start to get it passed and out of the House.”

The exonerees made emotional appeals to lawmakers. James Giles, a Dallas man exonerated in 2007, told the lawmakers that he was picked out of a lineup and accused of rape, although he had never seen the victim before. He spent 10 years in prison and 14 years as a registered sex offender on parole.

“[The victim] picked me out of all the guys in the photo book she was given,” Giles said. “The system will work, but it takes one person to say what is right and, believe you me, everyone will follow.”

Policies for gathering eyewitness identification would have to be based on scientific research on memory, along with relevant policies and guidelines developed by the federal government and other states. Policies would have to address the selection of photographs, lineup filler photographs or participants and instruction given to witnesses. The Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University would create a model policy to be distributed to local law enforcement agencies.

Texas has had 42 exonerations, 38 in cases that had been based on false eyewitness identification. The tally accelerated when the Legislature created a clear pathway for requesting DNA testing in 2001, said Edwin Colfax, a project manager at the Task Force on Indigent Defense.

Four states — Ohio , North Carolina , New Jersey and Wisconsin — have implemented legislation similar to the eyewitness identification bill.

Criminal Court of Appeals Judge Barbara Hervey, a member of an expert panel that was commissioned by the Legislature in 2009 to study the causes of wrongful convictions and make recommendations, called the bill a great step forward.

And:

Cory Session, the brother of Timothy Cole, who died in prison in 1999 and was posthumously exonerated, and for whom the panel studying wrongful convictions was named, warned that without the bill, the criminal justice system will continue to make too many mistakes.

“It is time for us to move forward and get out of the dark ages with wrongful convictions,” said Session, a policy director for the Texas Innocence Project.

He suggested enforcing a procedure used by the Dallas Police Department for identification — a sequential, double-blind lineup. In this process, the administrator does not know which participant is the suspect and presents suspects to a witness one by one.

The method has been proved more effective in other states, Session said.

The committee also discussed two other bills related to preventing convictions of the innocent. One would require law enforcement officers to record interrogations for violent, serious crimes. The other addresses writs of habeas corpus, which order that people in custody be brought before a court. The proposed measure would extend the limit for the writs filed under certain circumstances.

The AP report, by Sommer Ingram is,  "Bill to reduce wrong convictions passes committee."  It's via the Houston Chronicle.

A Texas House committee advanced legislation Tuesday that would require law enforcement agencies to standardize the way eyewitnesses identify suspects in an effort to reduce the number of wrongful convictions.

The House Criminal Jurisprudence Committee voted to require agencies to adopt a written policy based on a model or create something similar to determine how they conduct photographic or live lineups. Currently only 12 percent of agencies in the state have written policies.

To avoid unintentionally influencing the witness, the person administering the lineup would be prohibited from knowing who the suspect in the case is. The procedures would be written based on reliable research on eyewitness memory and relevant policies developed by other governments and agencies.

Advocates say the issue is one of the most important in criminal justice, and lawmakers have long seen a need for reform in this area of the system. Texas leads the nation in the most convicts exonerated by DNA evidence, with more than 40 people released from prison since 1994.

Seven men who spent decades imprisoned for crimes they didn't commit testified before the committee in support of the legislation. They said they wouldn't have lost years of their lives behind bars if the lineup process had been conducted differently.

And:

The bill's author, Rep. Pete Gallego, D-Alpine, said mistaken eyewitness identification is the leading cause of wrongful convictions and amending the identification process is a crucial step to fixing the problem. Ohio, North Carolina, New Jersey and Wisconsin have implemented similar reform legislation.

"The idea is to establish a fairly uniform way of doing things across the state, whether in a small town or a large county, so we have some understanding of this process," Gallego said.

Gallego said if an agency doesn't comply with the law, its non-compliance could be acceptable as evidence in court but does not bar admission of the eyewitness identification testimony.

The bill grows out of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was wrongly convicted of a rape he did not commit in 1986 and died of complications from asthma in 1999 while serving his 25-year sentence.

The article also notes that Governor Perry has pledged to sign the bill.

Details of HB 215 are available from Texas Legislature Online.

The other two bills considered by the Committee, also recommended by the Timothy Cole Advisory Panel on Wrongful Convictions, are HB 219 and HB 220.  Both bills are also sponsored by Gallego.  HB 219 deals with electronic recording and admissibility of certain custodial interrogations.  HB 220 deals is procedures for applications for writs of habeas corpus based on relevant scientific evidence.  Those two bills remain in the Committee, but are likely to be voted out at its next meeting.

Earlier coverage begins at the link. More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.  Earlier coverage of the Task Force on Indigent Defense, Texas Criminal Justice Integrity Unit, and the Timothy Cole Advisory Panel on Wrongful Convictions, at the links.

A Challenge to Post-Conviction Indigent Defense in Mississippi

Today's Jackson Clarion-Ledger reports, "State's legal help for death row inmates called failure," by Jimmie E. Gates.

Mississippi consistently has appointed unqualified, underfunded and overburdened attorneys to represent death row inmates in their appeals, a petition filed Monday with the state Supreme Court says.

The brief was filed on behalf of 15 death row inmates challenging the systemwide failure to provide them with competent counsel during their appeals after conviction.

The death row inmates are: Steve Knox, Michelle Byrom, Blayde Grayson, Benny Joe Stevens, Jan Michael Brawner, Rodney Gray, Jeffrey Harvard, Richard Jordan, Thong Le, Willie Manning, William Mitchell, Stephen Powers, Larry Matthew Puckett, Gary Carl Simmons and Alan Dale Walker.

"The remedies sought ... are to correct the harm they suffered as a result of the state's failure to do what it promised to do: provide them with competent and conscientious counsel before executing them," according to the 51-page document filed by Jackson attorney Jim Craig and attorneys from Chicago, New York and Washington, D.C.

An injunction is sought to ensure that all prisoners sentenced to die receive competent and conscientious counsel for future proceedings.

In May, a lawsuit was filed in Hinds County Chancery Court on behalf of 16 death row inmates, including Gerald James Holland, who was facing execution.

Chancery Court Judge William Singletary dismissed the suit, citing lack of jurisdiction, and Holland was executed days later.

Court papers filed with the state high court argue that the Chancery Court erred in its decision.

And:

Glen Swartzfager, director of the Office of Capital Post Conviction Counsel, has acknowledged in court papers that some death row inmates appeals weren't adequately represented during previous administrations.

Swartzfager, who became director in 2008, was out of the office Monday and unavailable for comment.

The office was created in 2000. From the inception of the Office of Capital Post Conviction Counsel, the state set out to destroy the office's ability to provide competent and conscientious representation, the lawsuit says.

The appeal says the state:

# Failed to provide essential staff.

# Failed to provide critical funding.

# Appointed the office to represent more death-sentenced prisoners than it could competently and ethically represent at one time.

# Interfered with the performance of the duties of the director and the staff of the office.

# Failed to take corrective action once it became obvious that the office was failing to provide competent and conscientious counsel.

"15 Mississippi death row inmates challenge legal help's adequacy," is the AP report, via the Clarion-Ledger.

The original lawsuit included 16 inmates. One of the plaintiffs, Gerald James Holland, was executed May 20.

None of the remaining 15 inmates has had an execution date set through Monday.

The lawsuit claims the Mississippi Office of Capital Post-Conviction Counsel was inadequately staffed and funded and its attorneys were not versed in handling death row appeals.

The state office was created in 2000 to lift the burden off counties to pay for continuing death row appeals.

The attorney general's office will file a response to the appeal sometime later.

In the appeal, which gives only one side of the legal argument, Jackson attorney Jim Craig said the state has consistently appointed unqualified, underfunded and overburdened attorneys who cannot provide the "competent and conscientious" post-conviction counsel mandated by law.

The Office of Capital Post Conviction Counsel represents death row inmates in state post-conviction proceedings. In a post-conviction petitions, an inmate argues about new evidence – or a possible constitutional issue – that could persuade a court to order a new trial.

The inmates allege in the complaint that the Supreme Court itself has faulted MOCPCC counsel for filing petitions that are incomplete, contain misspellings and lack in key arguments and evidence.

Related posts are in the indigent defense index.

A Mailroom Mix-Up That Could Cost a Life

That's the title of Adam Liptak's latest Sidebar column in the New York Times.  It appeared in the Tuesday paper.  LINK

Sullivan & Cromwell is a law firm with glittering offices in a dozen cities around the world, and some of its partners charge more than $1,000 an hour. The firm’s paying clients, at least, demand impeccable work.

Cory R. Maples, a death row inmate in Alabama, must have been grateful when lawyers from the firm agreed to represent him without charge. But the assistance he got may turn out to be lethal.

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened.

One envelope had “Return to Sender — Left Firm” written across the front along with a stamp that said “Return to Sender — Attempted Not Known.” The other was stamped with slightly different language: “Return to Sender — Attempted Unknown.”

Two associates handling Mr. Maples’s case had indeed left the firm, but it seems that no one bothered to tell the court or the mailroom that new lawyers there had stepped in. By the time Mr. Maples’s mother called, her son’s time to appeal had run out.

The firm’s name did not appear on the papers it had submitted in Alabama. The reason for that is not clear, but it may have been to avoid offending corporate clients. It certainly added to the confusion in the mailroom.

Sullivan & Cromwell has worked hard to undo the damage, but it has so far failed to persuade the courts to waive the deadline for filing an appeal. After losing in the federal appeals court in Atlanta, the firm persuaded a former United States solicitor general, Gregory G. Garre, to represent Mr. Maples in the Supreme Court.

Last month, Mr. Garre asked the justices to hear the case. The core of his argument — one that might convince a schoolchild if not a federal judge — is that Mr. Maples should not be blamed for a mistake he did not commit.

Variations on Mr. Garre’s argument arrive at the Supreme Court all the time. For the most part, they are rejected, on a theory that is as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

And:

A spokesman for Sullivan & Cromwell declined to comment on the case, citing the pending Supreme Court petition.

That petition discussed a precedent that might seem instructive.

In 2006, in Jones v. Flowers, the Supreme Court considered what sort of notice must be given when the government wants to sell a home for unpaid taxes. If a letter is returned unopened, Chief Justice John G. Roberts Jr. wrote for the majority, officials must try harder to reach the owner.

“This is especially true,” he wrote, “when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.”

Earlier Sidebar columns are noted beginning with this post.

Death Row Defender

That's the title of an editorial in the Sunday Houston Chronicle.  It's subtitled, "Those convicted of capital offenses get a much-needed advocate."

With Texas far and away the leading practitioner of capital punishment in the nation, criticism of the quality of defense for those facing the ultimate punishment has steadily mounted. It focuses on the fact that a higher percentage of poor defendants represented by court-appointed counsel are executed than those who can afford their own defense lawyers. A similar disparity in execution rates exists between minorities and Anglos charged with capital murder.

In a welcome step to provide better defense for those condemned to death by lethal injection, Texas has hired Brad D. Levenson, currently a federal public defender in Los Angeles, to run the state's newly created office for death row appeals. Levenson will head up an operation with a $1 million annual budget and a small team of lawyers.

The public defenders will assist death row prisoners filing state writs of habeas corpus, generally the last chance for prisoners to raise arguments related to innocence claims or mishandling of their cases during the legal process that led to conviction.

In an interview with the Chronicle's Lise Olsen, Levenson said his goal is "to represent indigent defendants as if they had private attorneys."

Earlier coverage of the office begins with this post.; related posts are in the indigent defense index.

Fifth Circuit Orders Evidentiary Hearing in John Balentine Case

The AP filing by Michael Graczyk is, "Condemned killer wins hearing in triple slaying," via the Austin American-Statesman.

A Texas prisoner who came within a day of execution last year for a triple slaying in Amarillo has won a court hearing to determine if his trial lawyers' poor performance unfairly contributed to his death sentence.

Convicted killer John Balentine is entitled to an evidentiary hearing after his appeals lawyer argued trial attorneys failed to develop mitigating evidence to show a jury Balentine's childhood of poverty, domestic violence and abuse, the 5th U.S. Circuit Court of Appeals ruled.

Balentine, 41, was condemned for the 1998 slayings of Mark Caylor Jr., 17, and 15-year-olds Kai Brooke Geyer and Steven Watson. Caylor was the brother of Balentine's former girlfriend, and prosecutors said the slayings capped a feud between Caylor and Balentine.

And:

Last September, the 5th Circuit halted Balentine's punishment in a one-paragraph order a day before he was scheduled for lethal injection. The court's latest ruling Friday continues the reprieve and orders a hearing to decide if there were "serious concerns that constitutionally ineffective lawyering occurred" because of the trial lawyer's failure to investigate evidence at the punishment phase of his 1999 trial in Amarillo.

The appeals court also criticized Balentine's initial appeals attorney for making "a weak assertion" that argued the trial lawyer failed to present mitigating evidence.

Balentine's current lawyer, Lydia Brandt, who took her arguments to the 5th Circuit and won the reprieve last year, said Monday that the evidentiary hearing would be set before a federal judge.

In arguments as Balentine's execution date neared, Brandt said the claims about the lack of punishment phase evidence weren't raised earlier but had been blocked in the state courts because of a broken system.

"The state corrective process as a whole was ineffective," Brandt said.

The opinion in Balentine v. Thaler is available in Adobe .pdf format.

Director Hired for Texas Office of Capital Writs

"Chief hired for state public defense office," is the title of Lise Olsen's report in today's Houston Chronicle.

Texas has hired an experienced California attorney to run its first-ever public defense office for death row appeals known as state writs of habeas corpus — considered a death row defendant's best opportunity to raise final arguments about mistakes, unheard innocence claims or misconduct.

Brad D. Levenson, now a deputy federal public defender based in Los Angeles, will get a $1 million annual budget and small team of team of lawyers to handle a dozen or more new death cases each year across the Lone Star State.

The office was created by the Texas Legislature after a series of scandals generated by ill-prepared and mostly poorly-paid death row defense lawyers assigned to handle writs of habeas corpus across Texas. Some filed poorly written documents filled with typos, factual errors and photocopied cookie cutter arguments. Others repeatedly blew important deadlines – forfeiting the rights of their clients to have any arguments considered by either state or federal courts before executions.

Only seven candidates applied for the job, said Phil Wischkaemper, an attorney who was one of five members of a special state selection committee that both included judges and defense attorneys.

And:

Wischkaemper said the selection committee unanimously supported Levenson: "We thought he was very well-qualified - even though he doesn't have the Texas experience," he said. Managing the complex investigations that can result in successful writs of habeas corpus is a skill that translates well across state lines, he said.

"The key is looking under every rock and every bush and finding out what the lawyers at trial might have missed because of negligence or because it was hidden from him purposefully," said Wischkaemper.

In an interview, Levenson promised his new office would take an aggressive approach to re-investigating all capital cases to make sure that men and women sentenced to death in Texas receive "high quality" representation and that relevant legal arguments get presented to the courts before executions occur. Levenson said his aim was to "represent indigent defendants as if they had private attorneys."

Earlier coverage of the office begins with this post.

Federal Review of State Death Sentences

"Congress must rewrite the law governing lawyers for poor death-row inmates," is the title of an editorial in today's Washington Post.

THERE IS something disturbing and distasteful about allowing states to take shortcuts in their quests to put convicts to death. But that is the essence of a deal Congress struck with the states in the mid-1990s. States that guaranteed and paid for a robust system of legal representation for poor death-row inmates could fast-track federal appeals of state capital-punishment convictions. To qualify, a legal defense program had to be certified as acceptable by the federal courts.

After nearly a decade, not a single state qualified. Some in Congress blamed the courts, arguing that judges were either imposing standards that were impossible to meet or were blocking certification because they objected to shortened court deadlines. In truth, the few states that applied for the program often had the biggest death-row dockets and the worst indigent defense systems. The courts, in other words, were right to reject these applications.

This did not sit well with some in Congress, which changed the law in 2006 to give the U.S. attorney general -- and not the courts -- the authority to certify the programs. The attorney general now is obligated to approve an application if the state has "established a mechanism for the appointment of counsel for indigent prisoners under sentence of death" and has set up a "mechanism for compensation" for appointed attorneys.

These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test. In its waning days, the Bush administration only made matters worse by issuing rules for implementing the law that failed to provide clear and robust guidance or standards.

Earlier coverage begins with this post; related posts are in the federal legislation index.

News Coverage of Holland v. Florida

The Holland v. Florida opinion is in Adobe .pdf format.  The ScotusWiki file, with all briefing, is here.

Tony Mauro writes, "Justices deliver rare victory to death penalty defendants," for National Law Journal.

The U.S. Supreme Court on Monday sympathized with a Florida death row inmate whose lawyer missed a deadline for his habeas appeal and failed to communicate with him for years despite numerous written pleas for help.

By a 7-2 vote in Holland v. Florida, the Court said that the lawyer's misconduct may entitle convicted murderer Albert Holland to "equitable tolling," or a delay in what otherwise would have been a one-year statute of limitation for filing the appeal under the Antiterrorism and Effective Death Penalty Act of 1996.

The lawyer's failures, wrote Justice Stephen Breyer for the majority, "seriously prejudiced a client who thereby lost what was likely his single opportunity for habeas review."

The Court sent the case back to the U.S. Court of Appeals for the 11th Circuit to determine if in fact the conduct of the lawyer, Bradley Collins of Fort Lauderdale, Fla., was egregious enough to pause the deadline for Holland's appeal. Collins did not return phone calls for comment.

The decision represented a rare procedural victory for defendants under the AEDPA that won applause from those concerned about inadequate legal representation for death row inmates on appeal. "The Court is starting to understand there are some very bad lawyers out there that the client should not pay the penalty for," said Virginia Sloan, president of the nonpartisan Constitution Project. "The fact that they have found an exception to AEDPA is a great thing."

And:

After the U.S. Supreme Court first denied review in October 2001, the one-year clock began to run. In November of that year, Florida appointed Collins to represent Holland for his appeals. The following September, Collins filed for state post-conviction relief, which stopped the clock with only 12 days left. After that, Breyer said, relations between lawyer and client "began to break down." Without Holland even being aware it was happening, the Florida Supreme Court considered his case in February 2005 and in November denied relief. Collins did not reply to numerous letters from Holland. The federal clock resumed, and soon Holland was out of time for the federal habeas review. Collins never filed an appeal.

Holland filed on his own, blaming the missed deadline on his lawyer, but both the U.S. District Court for the Southern District of Florida and the 11th Circuit ruled that the lawyer's behavior did not amount to a circumstance warranting tolling of the statute of limitations.

Breyer said that was too narrow a view of the AEDPA, which he said, "did not seek to end every possible delay at all costs." Breyer said the Court should be cautious before interpreting the AEDPA's silence on an issue as "indicating a strong congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open."

"Justices Ease Deportation Rule in Minor Drug Cases," is the title of Adam Liptak's report for the New York Times.

The question in the case was whether Mr. Collins’s conduct was sufficient to suspend a deadline in a 1996 law limiting death penalty litigation. The court did not decide that question, but it said the appeals court had used too narrow a standard in saying that a lawyer’s negligence was never enough.

Justice Breyer’s opinion was joined by Chief Justice John G. Roberts Jr. and Justices Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Alito largely agreed but said the majority had not laid down a clear standard of its own. He suggested that the salient facts in the case, Holland v. Florida, No. 09-5327, were Mr. Collins’s apparent abandonment of his client and prosecutors’ insistence that only Mr. Collins could speak for Mr. Holland.

Justice Scalia, joined by Justice Thomas, dissented. He said the court was powerless under the Constitution to rewrite the law.

“The court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with the technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence,” Justice Scalia said. But he added that “unelected judges” must resist such impulses.

Today's Miami Herald carries, "Death Row inmate gains case review in Pompano Beach killing," by Michael Doyle of McClatchy News Service.

The high court's decision Monday creates a little more flexibility for prisoners and judges alike. Prompted by complaints about highly litigious inmates, Congress in 1996 tightened various restrictions on prisoner lawsuits. Prisoners now must file their habeas corpus petitions within one year of their conviction and the exhaustion of all state appeals.

A habeas corpus petition challenges the constitutional legality of an inmate's imprisonment.

``We know that the system is flooded with habeas petitions,'' Florida Solicitor General Scott Makar told the Supreme Court during oral arguments.

Under the 1996 law, the one-year habeas clock can start and stop depending on various legal developments. The Supreme Court's ruling Monday further modifies this, to allow what is called ``equitable tolling.'' This means that standard deadlines can be waived when prisoners have been diligent about pursuing their rights but have been impeded by their lawyers' ``extraordinary'' actions.

The 11th U.S. Circuit Court of Appeals, in reviewing Holland's case, determined that filing deadlines could not be waived even if the attorney was ``grossly negligent,'' unless the attorney also was shown to have exhibited bad faith, dishonesty, mental illness or the like.

``In our view, the court of appeals' standard is too rigid,'' Breyer said, adding that in the Holland case, ``we are not considering a garden variety claim of attorney negligence.''

Justices Antonin Scalia and Clarence Thomas dissented, saying strict deadlines should be respected.

The decision is a blow to Texas, Idaho, Kentucky, Washington and about 20 other states that had joined Florida in arguing against giving inmates more freedom to miss deadlines in challenging their incarceration.

The Constitution Project and the ACLU Capital Punishment Project issued news releases praising the ruling.

Earlier coverage begins with this post.

5th Circuit Judge Notes "Kafkaesque" Result in Capital Case

That's the title of John Council's report in today's Texas Lawyer.  LINK

In a decision one judge referred to as "Kafkaesque," a 5th U.S. Circuit Court of Appeals panel found that new evidence of a prison inmate's alleged mental retardation is not enough to prevent his execution under the federal death penalty statute.

The Supreme Court outlawed the death sentence for the mentally retarded in 2002's Atkins v. Virginia , finding that such executions violate the Eighth Amendment's ban on cruel and unusual punishment.

The 5th Circuit's April 28 decision in In Re: Bruce Carneil Webster shows how strict the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) can be in limiting successive petitions for writs of habeas corpus by death row inmates who do not challenge their guilt but rather the application of the death penalty, according to two death-penalty experts. That law, which was designed to limit the circumstances in which federal courts can grant relief to death row inmates, can lead to troubling results for inmates who allege they have new evidence that they are mentally retarded, they say.

But a former U.S. attorney urges caution before assuming the new evidence would result in a finding of mental retardation.

And:

According to a concurring opinion in the April 28 decision in Webster , Webster only recently obtained records from the Social Security Administration — records his trial counsel had requested long before Webster's 1996 trial. Webster applied for benefits in 1993, a year before he was indicted for capital murder. To determine his eligibility for those benefits, three separate government physicians performed medical and psychological examinations on him. All three physicians separately concluded that Webster is mentally retarded. While an IQ score of 70 or below is generally considered to be the threshold of mental retardation, one of the government doctors found Webster's IQ score to be 69 or lower, another concluded that Webster's IQ score was 59, and a third simply concluded that Webster suffered from "mental retardation."

Nevertheless, the majority on the 5th Circuit panel found that Webster was not eligible for relief under §2255 even in light of newly discovered evidence. Section 2255 allows appellate courts to hear subsequent or successive habeas motions that contain: "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

The majority took issue with Webster's argument in his motion that, while §2255 applies to newly discovered evidence that would lead to a defendant being found not "guilty of the offense," it should also encompass "a claim that the petitioner is 'innocent of the death penalty.' "

Related posts are in the mental retardation index; more on Atkins v. Virginia, via Oyez.

Oral Argument in Magwood v. Patterson

Yesterday, the Supreme Court heard Magwood v. Patterson, an Alabama death penalty case.  The transcript is in Adobe .pdf format.

Today's New York Times reports, "Court Weighs Timing of Death Row Appeal."  It's written by Adam Liptak.

As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Justice Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case.

“Let me just ask,” Justice Stevens said, “is this the case in which the claim is he’s ineligible for the death penalty?”

Corey L. Maze, Alabama’s solicitor general, said that was so.

“The merits of the claim have never been decided?” Justice Stevens went on.

Mr. Maze said no, adding that the question should be left unresolved and that the inmate should be executed because his lawyers had raised the issue too late.

The other justices had been focused solely on that procedural question, and it was not clear whether Justice Stevens’s attempt to reorient their thinking had had any effect.

The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in 1979. At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed “aggravating circumstances.”

Though Mr. Magwood’s crime did not fit any of those circumstances, he was sentenced to death in 1981. In 1985, a federal judge ordered Mr. Magwood resentenced for unrelated reasons, and he was again sentenced to death the next year.

Over the years, Mr. Magwood’s lawyers have challenged his sentence on various grounds, but it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law in the first place.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a second petition challenging Mr. Magwood’s original 1981 death sentence would almost certainly be barred.

But Jeffrey L. Fisher, a lawyer for Mr. Magwood, said his client was challenging his 1986 resentencing for the first time.

“You can’t waive something by failing to raise it in a different case,” he said. “This is an entirely different case.”

"Court to decide if man can fight death sentence," is the AP report by Jesse Holland, via Google News.

The Supreme Court on Wednesday questioned whether an Alabama death row inmate can challenge his second death sentence with an argument state officials said he didn't use when he was first sentenced to die for shooting a county sheriff.

Lawyers for Billy Joe Magwood want to argue that Alabama law was changed to make Magwood's crime a capital offense after it had already been committed.

Defendants aren't allowed to appeal using arguments that could have been brought in the original case, but Magwood's lawyers say that since he was sentenced to die a second time, he should be able to use a new argument in his second round of appeals.

"If it's the second time around, then it's just barred," Justice Anthony Kennedy said.

"Well, it shouldn't be barred. Because it's a new judgment, the defendant should be able to get relief the second time around," said Jeffrey L. Fisher, Magwood's lawyer.

Magwood, 58, has been on Death Row since 1981 for the shooting death of Coffee County Sheriff Neil Grantham in 1979. He got that death sentence thrown out, but then was resentenced to death.

A federal judge overturned the new death sentence after Magwood complained that state law was changed to make his crime a capital offense after it had already been committed. But the 11th U.S. Circuit Court of Appeals in Atlanta reinstated the death penalty, saying Magwood should have complained about the change in Alabama state law in his first round of appeals.

The Birmingham News has, "Some U.S. Supreme Court justices express reservations as Alabama Death Row inmate seeks new appeals opportunity," by Mary Orndorff.

Earlier coverage begins here.

Sam Millsap on the Skinner Case

Today's Houston Chronicle carries an OpEd, "DNA testing works, but not if we fail to utilize it," written by Sam Millsap, the former Bexar County District Attorney.  Here's an extended excerpt from this must-read:

Last week, Gov. Rick Perry granted the state's first posthumous pardon to a man who was innocent of a crime for which he had spent 13 years in prison. DNA testing cleared Tim Cole of a rape he did not commit, but unfortunately it came too late — nine years after he had died in prison. The state must do everything it can to prevent this kind of tragedy from happening again.

On March 24, Texas plans to execute Henry Watkins Skinner even though untested DNA evidence could show we've got the wrong man. DNA testing could resolve doubts about Skinner's guilt in the 1993 Pampa slayings of his girlfriend and her two sons, but the state inexplicably has blocked that testing for more than a decade.

I'm not an advocate for Hank Skinner. I'm an advocate for the truth. If DNA tests could remove the uncertainty about Skinner's guilt — one way or the other — there's not a good reason in the world not to do it.

Some taxpayers may grumble at spending the public's money on DNA tests for individuals on death row. That argument doesn't hold water in Skinner's case. In 2000, the investigative journalists at the Medill Innocence Project offered to pay for the DNA tests. Ten years later, that offer still stands. There may be other objections to testing the evidence, but they don't outweigh the potential horror of executing an innocent man.

It is cases like Skinner's that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

Tim Cole is only a recent example of the frailties in our criminal justice system. Several years ago, this newspaper argued persuasively that Ruben Cantu, a defendant I prosecuted who was put to death in 1993, may well have been innocent. Twenty years after Cantu's trial, my star witness recanted his trial testimony. Many people consider his recantation credible because he had nothing to gain by reversing his position except a whole lot of trouble.

That case brought home to me, in a way that nothing else could have, that the system we trust to determine who may live and who must die simply doesn't work in all cases. Other investigative stories have revealed that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd Willingham, executed in 2004, were almost certainly innocent.

Since 1973, 139 people in 26 states have been released from death row based on evidence of their innocence. Eleven of them were in Texas. Many of these people were freed because of DNA evidence. But DNA testing works only if we use it.

Skinner's execution date is just a few days away, but key pieces of evidence have never been tested, including two knives, one of which might be the murder weapon; a man's windbreaker, which had blood, sweat and hair on it and was found next to the victim's body; the victim's fingernails, which may have DNA evidence under them; and samples from a rape kit.

Skinner has steadfastly maintained his innocence, but his trial counsel did not seek DNA testing. His attorney also failed fully to investigate the potential involvement of another suspect. That man, a relative of Skinner's girlfriend, had a violent criminal history and an incestuous relationship with the victim. He had been seen stalking her at a party on the night of the murder and left the party shortly after she did. His whereabouts for the rest of the night remain a mystery.

And:

Attorneys for Skinner have filed an appeal with the U.S. Supreme Court asking the court to stop Skinner's execution in order to decide whether prisoners can use the Civil Rights Act to compel post-conviction DNA testing. That's Skinner's last chance, and I hope the court intervenes. But frankly, I'd rather see Texas clean up its own house on this one. Before we send a man to his death, shouldn't we do everything in our power to be certain of his guilt?

Jordan Smith has written, "Death Row Case Evidence May Never Be Tested," for the Austin Chronicle.  The March 12 edition has already been web-posted.

Unless the U.S. Supreme Court intervenes, it is likely that 47-year-old death row inmate Hank Skinner will be executed on March 24 without key pieces of physical evidence in his case ever having been tested. "We continue to hope that the court will intervene to ensure that Mr. Skinner is not executed before the troubling doubts about his guilt can be resolved through scientific evidence," Skinner's attorney, Rob Owen – who is also director of the Capital Punishment Clinic at the University of Texas' law school – told the Associated Press earlier this month.

And:

Gray County District Attorney Lynn Switzer has objected to any testing of this evidence, saying that Skinner had a chance to do so before his 1995 trial but didn't take it – whether that evidence would reveal that she and her predecessors were wrong about Skinner's guilt – allowing a killer to remain on the loose for more than a decade – is apparently none of her concern.

It would seem that the Court of Criminal Appeals, which has so far denied Skinner's appeals to conduct the DNA testing that could either clear his name or definitively prove his guilt, is of the same opinion. In 2001 state lawmakers penned a post-conviction DNA testing law that would allow inmates to have biological evidence tested for cases in which there had previously been no access to testing, advancements in testing might produce more probative results, or, "through no fault of the convicted person," the evidence had not been previously tested, but "the interests of justice require DNA testing." While the third standard would seem to apply to Skinner's case, the courts so far have not agreed: Apparently it is Skinner's "fault" that his lawyer had not previously had the evidence tested. The ruling is troubling to Owens; for starters, it doesn't make sense that Skinner could have waived his right to testing years before the law even existed. But more disturbing, perhaps, is the court's apparent interpretation of the term "fault." In "most places where the law uses the concept of fault it implies ... a lack of diligence" or other culpable state, he said. The CCA's ruling here is a "jarring" redefinition of fault that suggests that if a lawyer advises his client not to conduct testing, for whatever reason, and the client agrees, that could be considered a complete waiver of the right to ever have the evidence tested. "It seems to me they're exalting technicalities over the substance" of the law.

Whether Skinner will ever get a chance to have that evidence tested remains entirely unclear – indeed, he has been seeking access to the evidence since 2000. In November 2009, Owen filed a federal civil suit against Switzer, seeking access to the evidence, arguing that Skinner's right to due process has been violated. The district court and U.S. 5th Circuit Court of Appeals have to date ruled that he is not entitled to that evidence under the federal statute. An appeal of that decision is currently pending before the high court. If the court accepts the case and rules in Skinner's favor, the case will go back to district court, where Skinner will have a chance to argue, once more, that he should be allowed access to the as-yet-untested evidence.

Earlier coverage of the Skinner case begins with this post.

Update on the Hank Skinner Case

Attorneys for Hank Skinner have filed a Motion for Remand with the Texas Court of Criminal Appeals.  Skinner is scheduled to be executed March 24.

Earlier the month, without a hearing, the state district court with authority over the case rejected Skinner's state habeas petition.  The motion seeks to have the Texas Court of Criminal Appeals send the case back to the district court for meaningful review, or to stay the execution and examine the procedural history of the case.

The trial court dismissed Skinner’s habeas corpus application on the ground that he had previously unsuccessfully sought relief in state court – despite the fact that the record clearly shows that his claims --  including his claim of actual innocence -- have never been reviewed by the Texas courts.

The events of the past month highlight how little has changed since Todd Willingham was put to death in 2004 despite powerful scientific evidence casting doubt on his guilt which was available before Willingham's execution. Texas authorities remain shockingly indifferent to the risk of executing an innocent man, placing finality above justice.

Skinner is seeking post-conviction DNA testing which his lawyers say will establish Skinner's innocence.

One of Skinner's attorney's is Rob Owen, Co-Director of the Capital Punishment Center at the University of Texas School of Law.  The Medill Innocence Project at Northwestern University is also active in his case.

Professor David Protess, the Director of the Medill Innocence Project, and eight of his journalism students conducted an extensive investigation of Mr. Skinner’s case in 2000. Their findings and additional background on the case can be found here.

Earlier coverage begins with this post.

Update on the Hank Skinner Case

Allen Turner writes, "Supreme Court refuses to hear Texas killer's case," in today's Houston Chronicle.

The U.S. Supreme Court on Monday refused to hear the case of Texas killer Henry Skinner, sentenced to die March 24 for the bludgeoning death of his live-in girlfriend and the fatal stabbings of her two adult sons.

The Pampa case has generated national furor in anti-death penalty circles after an investigation by student journalists from Chicago's Northwestern University uncovered evidence they believe suggests Skinner may be innocent.

Skinner, 47, was convicted for the 1993 New Year's Eve deaths of Twila Busby, 41, and her sons, Elwin Caler, 22, and Randy Busby, 20. Twila Busby was strangled and beaten on the head at least 14 times, probably with an ax handle.

The court declined the case without comment.

Skinner's petition asked the judges to review the manner in which the U.S. Court of Appeals for the Fifth Circuit analyzed his claim of insufficient counsel. It also sought review of the court's ruling knocking down Skinner's claim that his lawyers failed to adequately investigate another possible suspect in the case.

Pending before the high court is a second petition asking that unanalyzed crime scene evidence be subjected to DNA testing.

Skinner's lead attorney, Robert Owen of the University of Texas' Capital Punishment Center, said the condemned man's hope now rests on the DNA issue and a new appeal filed Monday in state court. In Pampa, Gray County District Attorney Lynn Switzer could not be reached for comment.

Rob Owen, Skinner's attorney, issued the following statement:

"We are disappointed that the Supreme Court chose not to hear this petition.  The most serious question raised by Mr. Skinner's case, however, is why the State continues to refuse the DNA testing that could substantiate Mr. Skinner's longstanding claim of actual innocence.  That question remains pending before the Supreme Court.  We continue to hope that the Court will intervene to ensure that Mr. Skinner is not executed before the troubling doubts about his guilt can be resolved through scientific evidence."   

A state habeas petition was filed with the state district court in Gray County on Monday.  Details of  Skinner's innocence claim are in the pleading beginning on page 8.

Earlier coverage of the case begins with an editorial noted in this post.

News Coverage of Holland v. Florida"

Marcia Coyle writes, "Justices Debate Whether Lawyer Negligence Can Extend Habeas Deadline," for National Law Journal.  ScotusWiki has full briefing in Holland v. Florida.

The U.S. Supreme Court on Monday struggled with just how bad a lawyer must be to warrant stopping the clock on the time for filing a prisoner's federal habeas petition.

In Holland v. Florida, the justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock.

The issues stem from the death penalty conviction of Albert Holland in 1991. After his conviction became final in 2001, Holland had 365 days to file a federal habeas petition. The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations. That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction motion was denied -- leaving him only 14 days in which to file the federal petition. Collins ultimately missed that deadline.

On Monday, Todd Scher of the Law Office of Todd G. Scher in Miami Beach, Fla., told the justices that the 11th U.S. Circuit Court of Appeals was wrong when it held that attorney negligence, even gross negligence, does not entitle a habeas petitioner to a tolling of the limitations period absent additional allegations of "bad faith, dishonesty, divided loyalty, mental impairment or so forth."

What happened in Holland's case, Scher said, "goes beyond garden-variety negligence." He recounted how Holland repeatedly told Collins that he wanted to preserve his right to file a federal petition if his state petition was denied. Collins did not keep in close communication with Holland. The death row inmate made several pro se motions in attempts to remove Collins from his case. Holland, with an eye on the federal filing deadline, also contacted the clerk of the Florida Supreme Court several times to check on the status of his post-conviction appeal when Collins was nonresponsive. His pro se motions were dismissed because, the state argued successfully, he was represented by counsel. More than a month after the Florida Supreme Court issued its decision, Holland learned of the decision after getting access to the prison's library.

When pressed by Justice Samuel Alito Jr. on what the test should be for tolling the limitations period in situations involving attorney negligence, Scher replied, "Extraordinary circumstances coupled with the petitioner's diligence. It's a case-by-case determination. Here we had lack of notice to the petitioner that the state court decision had issued and a failure to communicate."

And:

Eleven circuits agree that equitable tolling is available under the federal statute. The Supreme Court has never explicitly ruled on the issue.

Texas Office of Capital Writs Searching for Director

The Office of Capital Writs, created by the Texas Legislature in 2009, is on about looking for a director.  Here's the posting:

Job Posting:  Director, Texas Office of Capital Writs Brand new Texas Office of Capital Writs seeks a Director.  The state-funded office, with a $1 million approximate annual budget, will be based in Austin.  This is a capital post-conviction office, charged with representing death sentenced inmates in state post-conviction habeas corpus and related proceedings.  The Director will be responsible for opening the office, hiring, and supervising the staff and the litigation.  This is an extraordinary opportunity to make a difference in Texas.

By the terms of the legislation establishing the Office, the Director must “exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases, as described by the Guidelines and Standards for Texas Capital Counsel.”  See the legislation establishing the Office; 69 Tex. B. J. 966 (2006) (Texas Guidelines and Standards for Capital Counsel).  

Desired Qualifications. Membership or eligibility for admission to the Texas Bar;. Significant experience in the defense of death-sentenced inmates;. Qualified to serve as lead counsel in a Texas capital habeas case (see http://www.courts.state.tx.us/courts/ajr.asp );. Commitment to the highest level of quality representation of indigent criminal defendants;. Experience training and supervising other attorneys; . Experience managing and administering an office, ideally in a public defender agency setting (e.g., hiring staff, budgeting, financial reporting, creating effective practices and policies, and dealing with other agencies whose work intersects with that of the Office, such as the courts).. Familiarity with and connection to the national capital defense community, such that s/he will have immediate and ongoing access to the developments and resources necessary to facilitate the highest quality legal representation;. Experience with and commitment to a client-centered approach; . Experience with and commitment to a team-based approach that includes attorneys, mitigation specialists, investigators, experts, and staff; and. Experience and training concerning mental health issues that commonly arise in quality capital defense litigation;

Salary:  $89,682 to $147,976, DOE.

How to Apply:
By March 1, 2010, Applicants should submit Application, a statement of interest and a resume / CV (with references noted) to: Maurie Levin at mlevin (at)law (dot) utexas (dot) edu.

Earlier coverage of the Office of Capital Writs begins with this post.

U.S. House Judiciary Subcommittee Examines Habeas Restrictions in Capital Cases

Right now the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties is holding a hearing to, "Consider the Impact of Federal Habeas Corpus Limitations on Death Penalty Appeals."  Unfortunately, it's not being webcast.  The Subcommittee is chaired by Jerrold Nadler of New York.

The Witnesses are:

Stephen F. Hanlon
Partner, Holland and Knight, LLP
Washington, DC

Hon. Gerald Kogan
Chief Justice (Retired), Florida Supreme Court
Co-Chair, Constitution Project Death Penalty Committee
Miami, FL

Michael E. O'Hare
Supervisory Assistant State’s Attorney, Civil Litigation Bureau
Office of the Chief State’s Attorney
Hartford, CT

John H. Blume
Professor of Law, Director, Cornell Death Penalty Project
Cornell University Law School
Ithaca, NY

The Constitution Project has issued a news release, "Constitution Project Representatives Urge Congress to Restore Habeas Corpus for Death Penalty Cases."

Two representatives of the Constitution Project will testify before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties this afternoon at a hearing to consider the impact of limits on federal habeas corpus in death penalty cases. Stephen F. Hanlon, Chair of the Constitution Project’s Board of Directors, Chair of the American Bar Association’s Death Penalty Moratorium Project Steering Committee, and partner at Holland and Knight, will testify on behalf of the ABA. The Honorable Gerald Kogan, Co-Chair of the Constitution Project’s Death Penalty Committee and former Chief Justice of the Florida Supreme Court, will testimony on behalf of the Constitution Project. Both will provide testimony on the urgent need to restore habeas corpus for death penalty cases.

 In his testimony submitted to the Subcommittee, Chief Justice Kogan states in part:

 

“Federal habeas corpus is an enormously important element of our justice system with deep roots in our constitutional tradition. In particular, the federal courts’ authority to adjudicate constitutional claims advanced by state prisoners is a valuable means by which the Bill of Rights is enforced in criminal cases. Scarcely anyone contends that the federal courts should not have this authority. The policy debate is over the proper arrangements for habeas corpus litigation in the federal forum.”

 

Mr. Hanlon adds in part:

 

“[S]tate governments have failed for many years to implement the necessary reforms to address long-standing and systemic problems in our death penalty counsel systems. Mistakes that occur at trial as a result of these failures are aggravated by ever-tightening restrictions on federal court review, making it difficult, if not impossible, for federal courts to correct even the most serious deprivation of constitutional rights. A system that wrongly sentences people to death and then erects considerable obstacles to bar judicial review of their cases is not a system that comports with our principles of justice. It should not surprise us that one consequence is a loss of public confidence in the integrity and accuracy of our legal system.”

Justice Kogan's complete testimony is here; Hanlon's here; both in Adobe .pdf format.

The Constitution Project’s Death Penalty Committee’s consensus report, Mandatory Justice: The Death Penalty Revisited, will be submitted for the Subcommittee's record.

Related posts are in the federal legislation and habeas index.

Beard v. Kindler Decided

The Supreme Court has ruled in the unusual Pennsylvania case.  The AP reports, "Supreme Court tells lower courts to reconsider death penalty for Kindler," via the Los Angeles Times.

The Supreme Court will let lower courts consider reinstating a death sentence for a convicted murderer who twice escaped from prison after being found guilty of killing a man who was planning to testify against him.

The high court overturned a lower court decision throwing out the death sentence against Joseph Kindler for killing one-time accomplice David Bernstein in 1982.

The 3rd U.S. Circuit Court of Appeals had said Kindler's lawyer was ineffective and also found problems with the jury instructions.

State courts had never decided on Kindler's claims. Instead, those courts said Kindler forfeited the right to be heard on those issues because of his escapes.

Chief Justice John Roberts said the state court decision has to be considered by the federal courts.

The ruling is here; the ScotusWiki file, here.  Earlier coverage of the case is here.  Lyle Denniston will post a report at SCOTUS Blog, following this morning's oral arguments at the Court.

Selective Empathy

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog.  LINK It's a must-read. Several excerpts:

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question: Is selective empathy better than no empathy at all?

And:

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

And:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

An earlier Opinionator post by Greenhouse, the retired Times Supreme Court correspondent, is here. More on Porter v. McCollum is here.

In the Aftermath of the Simpson Execution

Chuck Lindell writes,"Questions about late death penalty appeal," for today's Austin American-Statesman.

Lawyer David Dow was called before the state Court of Criminal Appeals on Wednesday to explain why he blew a court-imposed deadline by filing an appeal within 48 hours of his client's execution.

The inmate, Danielle Simpson, was executed Nov. 18, but those particulars weren't the main reason a small crowd gathered in the Capitol-area courtroom where the state's highest criminal court normally toils in obscurity. Dow drew an audience because of his role in another late appeal on behalf of convicted murderer Michael Richard, whose 2007 case resulted in misconduct charges that are pending against the court's presiding judge, Sharon Keller.

Richard was not mentioned at the Wednesday hearing, but his presence was felt. Dow was one of the Texas Defender Service lawyers who tried, unsuccessfully, to file a late appeal for Richard in 2007 — leading to charges that Keller improperly closed the court to the inmate on his execution day.

Dow also testified at Keller's August trial on the charges; the judge in that case has not delivered his findings to the State Commission on Judicial Conduct.

Keller did not participate in the hearing and will not join the court's opinion — to be issued at a future, unspecified date, said Judge Lawrence Meyers, who directed the proceedings in Keller's absence.

And:

Dow blamed the missed deadline on a conflict with Simpson's court-appointed lawyer, Wes Volberding, and on what was described as Simpson's increasingly erratic behavior. Simpson variously asked for the Texas Defender Service to replace Volberding and directed Volberding to abandon all appeals, said Dow's lawyer, University of Texas law professor Jordan Steiker.

When it was sorted out, Dow and co-counsel Katherine Black received Volberding's case files — in 15 poorly organized boxes — only nine days before Simpson's execution date, Steiker said.

At first, Dow and Black anticipated filing a petition stating that Simpson was ineligible for execution because he was mentally ill. But a review of the files found another potential claim: that prosecutors had improperly excluded black jurors at Simpson's trial for kidnapping and killing an 84-year-old Anderson County woman in 2000. Simpson was black.

Additional death row visits to assess Simpson's mental health further delayed the appeal, Steiker said.

"This is not a case in which the lawyers were sitting on this claim for months or years," Steiker said.

Earlier coverage begins with "this post.

More on the Case of Bobby Woods

Chuck Lindell has posted, "Shoddy legal work alleged as execution nears," at the Austin American-Statesman's Focal Point blog.

Back in 2006, I did a two-day series on embarrassingly bad legal representation provided by court-appointed appellate lawyers for death row inmates.

One of those lawyers, Richard Alley, is back in the news as attorneys for Bobby Wayne Woods — slated for a Thursday execution — are seeking to delay the lethal injection based in part on Alley’s “blatantly incompetent” representation. (Read the Alley story here.)

Woods’ new lawyer, University of Texas adjunct law professor Maurie Levin, argues that Woods cannot be executed because he is mentally disabled — a practice banned by the U.S. Supreme Court in 2002.

“As soon as you meet him, you know he’s mentally retarded,” Levin says.

(To see Woods and judge for yourself, click here for the Texas Observer’s videos of an interview with the inmate.)

Accusing Alley of failing to fully and properly plead the inmate’s mental disability case in state and federal appeals, Levin is asking the Texas Board of Pardons and Paroles to recommend a 60-day reprieve so members can judge for themselves whether Woods is mentally competent for execution.

“(Alley) has been suspended by the state bar and rebuked by and suspended from practice in the federal courts for his egregious missteps and incompetence as an appellate and post-conviction attorney for those condemned to death,” reads a petition for clemency to the parole board.

“Not surprisingly, that attorney committed numerous grave errors that hamstrung Mr. Woods’ chances for relief,” the petition states.

As linked above, you can read Chuck Lindell's December 2006 series on abysmal performance by court-appointed habeas lawyers, "Writs gone bad."  Here's a snippet:

Richard Alley, a Fort Worth lawyer suspended for one year from practicing before his hometown federal court for repeated unprofessional and unethical behavior. A U.S. judge also removed Alley from a federal death row case, questioning his competence in habeas matters.

Earlier coverage begins with this post.

At the CCA

"CCA Show Cause Order Directs Lawyers to Explain Untimely Filing," is the title of Mary Alice Robbins' report for Texas Lawyer.

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Keller faces ethics charges filed by the State Commission on Judicial Conduct in connection with her statement that the CCA clerk’s office would close at 5 p.m. on Sept. 25, 2007. TDS had sought to file a stay of execution and writ of prohibition in Michael Richard’s case that day after the clerk’s office’s normal business hours. Dow represented Richard, whom the state executed later that day. Keller denies the commission’s allegations; she has contended she did nothing wrong and only responded to an inquiry as to whether the CCA clerk’s office would remain open past 5 p.m., which was merely an administrative matter. [“See Tough Fight at Sharon Keller’s Ethics Hearing,” Texas Lawyer, Aug. 24, 2009, page 1.]

According to the CCA’s order in In Re Dow and Black, the two TDS attorneys filed a subsequent application for a writ of habeas corpus and a motion to stay the Nov. 18 execution of Danielle Simpson in the 3rd District Court in Anderson County at 4:08 p.m. Nov. 17. Under the CCA’s Miscellaneous Rule 08-101, adopted June 23, 2008, any motion relating to a death sentence is deemed untimely if filed less than 48 hours before 6 p.m. on the scheduled execution date. The rule requires an attorney who seeks to file an untimely motion meant to stop an execution to “attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally or factually impossible to file a timely request or motion.”

Simpson was executed November 18, as noted in this post.

The Case of Bobby Woods

The Texas Observer has streaming video of Bobby Woods to complement Renee Feltz' report, "Possibly Retarded Prisoner Faces Execution."

When Texas reopens its execution chamber after a Thanksgiving break, the first man set to die may be mentally retarded. A 2002 Supreme Court ruling bans the execution of mentally retarded prisoners. But after years of being represented by a discredited attorney who ruined any chance for an appeal based on his disabilities, the fate of Bobby Wayne Woods rests with the state Board of Pardons and Paroles which can recommend clemency or a reprieve to Gov. Perry. "It's a long shot at best," Woods' attorney Maurie Levin says of the clemency request, "but I think it's very important to do."

Test scores during his childhood and incarceration show Bobby Woods has an IQ that hovers at or below 70 — the cut-off point for mental retardation. He reads at a second grade level and writes childlike letters — many of which are photocopied and presented as evidence in his clemency request. Levin asked the board to grant a 60-day reprieve so that she can produce a videotape of Woods "to adequately present a full picture of his limitations." She has sued Texas prison officials over their refusal to allow her to record such a video herself. The Texas Observer captured Woods on tape last week during an on-camera interview, and now you can watch the video that Levin wants the clemency board to see.

Woods was sentenced to die in 1998 for kidnapping, raping and murdering 11-year-old Sarah Patterson. He disputes his guilt, saying his cousin is responsible for cutting Patterson's throat. But the cousin committed suicide the week following Woods' arrest. Levin acknowledges "the facts of this crime are very difficult," but she notes the ban on executing the mentally retarded applies no matter how heinous the offense. Levin and students with the Capital Punishment Center at the University of Texas Law School began working on Woods' case just before he was scheduled to be executed in October 2008. Their efforts followed years of cringe-worthy legal representation by Richard Alley, one of just two attorneys the Texas Court of Criminal Appeals has removed from its list of lawyers qualified to represent death row prisoners in their appeals. He visited Woods only once during the nearly 10 years he represented him.

"For the state of Texas to appoint a lawyer who they then removed from the list — who was being taken to task in a federal court at the very same time he's being appointed to represent Bobby in his federal proceedings, and then for Bobby — a mentally retarded man — to suffer the consequences of that appointment is atrocious. It infuriates me," Levin says.

Alley had a habit of recycling direct appeal claims in his state capital habeas cases. While he raised 28 issues in Woods' state habeas appeals, just two were actually new and neither was backed by useful evidence. In contrast, Levin and her students were able to contact family members who described how Woods was a slow child who suffered from learning disabilities and was called "retard" by his classmates, and "always needed to live with someone who could take care of him" when he was older. Their investigations revealed that while Woods had held a steady job as a short-order cook at Waffle House, he had to have the orders read aloud to him.

Alley did file an appeal claiming Woods was mentally retarded, but it was poorly put together and the court rejected it.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

The poor performance of some lawyers in state habeas proceedings for Texas death row inmates has been well documented in recent years, sparking State Bar action, legislation, and new rules by the Texas Court of Criminal Appeals.  Chuck Lindell  wrote the Austin American-Statesman's 2006 series noted  here.  Maro Robbins' earlier coverage of habeas issues in the San Antonio Express-News is here and here.

The Texas Defender Service report, Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts, highlighted problems with the performance of attorneys appointed in the state habeas phase of post-conviction review of death sentences.  It's avaialble at the TDS website.  It was published in 2002.

What the Law Commands

That's the title of a post by Linda Greenhouse at the New York Times Opinionator blog.  LINK  As with anything the retired Times' Supreme Court correspondent writes, it's a must-read.  I'm going to focus on one section of her post.

The proof of how alike the two justices really are, of course, will lie not in their rhetoric, but in their votes. The Supreme Court term is off to an unusually slow start, with little evidence of what is happening behind the scenes. But little is not none. Last week, the court was faced with deciding whether to grant a stay of execution to John Allen Muhammad, better known as the sniper who killed 10 people in the Washington area during a few terror-filled weeks in the fall of 2002.

The justices were scheduled to consider Mr. Muhammad’s final appeal at their regular conference on Nov, 24. But Virginia nonetheless set the execution date for Nov. 10, an unseemly practice of rushing the clock that death-penalty states have engaged in for years and that has been a long-running source of tension within the court.

The justices were unanimous in turning down the stay, finding the request without legal merit. But Justice John Paul Stevens, who has objected to similar artificially created deadlines in the past, issued a statement complaining of “the perversity of executing inmates before their appeals process has been fully concluded.” The court should stay an execution any time the justices have not had a chance to consider whether to grant review of the inmate’s initial habeas corpus petition, Justice Stevens said, adding that it was a matter of avoiding “irreversible error” and “preserving basic fairness” to give death-row inmates “the same procedural safeguards that ordinary inmates receive.”

Two other justices signed Justice Stevens’s statement: Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Ginsburg has signed similar statements in the past, so her action was essentially foreordained. But Justice Sotomayor was writing on a clean slate, in a case in which she had no ability to influence the outcome. Justice Stephen G. Breyer, often an ally of Justices Stevens and Ginsburg, did not sign. It is not certain whether Justice Sotomayor’s predecessor, Justice David H. Souter, would have signed either.

Clearly, Justice Sotomayor found the rushed execution date troubling. But that does not fully explain her decision to stand with Justices Stevens and Ginsburg in calling publicly for a change in the court’s procedure. Joining in the implicit criticism of a majority of her new colleagues could not have been a casual decision. Something deeper must have been at work. Was she sending a signal? If so, of what?

Perhaps this case gave the new justice a chance to acknowledge, obliquely but publicly, that she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave. As a great judge, Benjamin N. Cardozo, expressed it 90 years ago: “We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.”

Earlier coverage, with an additional link to Justice Stevens' statement, is here.

Magwood v. Culliver From Alabama

"30 Years After Murder, Is His Appeal Too Late?" is the title of Adam Liptak's report in today's New York Times.

The Supreme Court agreed Monday to decide whether it is too late for an Alabama man to argue that the murder that sent him to death row was not a capital crime when he committed it.

The inmate, Billy Joe Magwood, shot and killed Sheriff Neil Grantham in 1979 in front of the Coffee County jail. At the time, Alabama law imposed two requirements before the state’s judges could sentence defendants to death: the commission of one of 14 listed offenses and the existence of certain “aggravating circumstances.”

The murder of a peace officer like a sheriff was a listed offense. But Mr. Magwood’s crime did not satisfy the second requirement. The question before the Supreme Court is whether he took too long to raise the argument that he could not have lawfully been sentenced to death.

Although Mr. Magwood’s lawyers challenged his sentence on other grounds over the years, it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law. In the meantime, a federal judge, acting on other grounds, ordered Mr. Magwood resentenced in 1985. He was again sentenced to death the next year.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a petition challenging Mr. Magwood’s original death sentence might well be barred, given his earlier challenges. But Mr. Magwood argues that he is challenging his 1986 resentencing for the first time.

A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled in January that since Mr. Magwood could have challenged his original sentence on the grounds he now asserts, he cannot raise them now.

In urging the Supreme Court not to hear the case, Magwood v. Culliver, No. 09-158, Attorney General Troy King of Alabama said Mr. Magwood’s argument “unquestionably could have been, but was not, raised during his first round of litigation 20-plus years earlier.”

There appears to be little dispute that a literal reading of the law in effect at the time of the murder did not allow Mr. Magwood to be sentenced to death.

In a 1981 decision in another case, the Alabama Supreme Court acknowledged that “a literal and technical reading of the statute” would forbid the death penalty in circumstances like Mr. Magwood’s. But the court called that result “completely illogical” and “an anomaly in Alabama’s death penalty statute” that could not have been intended by the State Legislature.

Lyle Denniston posted, "Court adds one new case," yesterday at SCOTUS Blog.

The new habeas case that the Court will hear involves an Alabama death-row inmate, Billy Joe Magwood of New Brockton.  He was sentenced to die for murdering a county sheriff in front of the county jail.  He has long suffered from paranoid schizophrenia, and believed that the Army had sent him orders through a surgically implanted device that the sheriff and other authorities were interfering with completion of his “mission.”

After an original death sentence for Magwood was overturned in 1986, he was again given a death sentence following a new proceeding in state court.  After state courts rejected his challenge to the new sentence, Magwood’s lawyers filed for federal habeas, contending that he had had no notice that a state court ruling adverse to his case would be applied retroactively, and thus to his case.  A federal judge ruled in his favor, but the Eleventh Circuit Court overturned that result.  The Circuit Court ruled that the claim of a lack of fair warning was a second or successive habeas claim, and thus was barred.  The claim could have been raised at Magwood’s initial sentencing, that court decided.

In taking the case on to the Supreme Court, Magwood’s counsel argued that habeas petitions brought against new sentences should be treated as initial, first challenges when an inmate has succeeded in winning a chance for a new sentence.  Oral argument of the case is likely to be in March.

All briefing in Magwood v. Culliver is via ScotusWiki.

Minnesota Lawyers Protect Rights of Those on Death Row

That's the title of Sam Barr's Behind the Bar column at MinnPost. LINK  Here's an extended excerpt from the beginning of the article.

About 3,300 people are on death row right now. Few are represented by competent lawyers at public expense, despite the need to be sure — certain, if possible — that only the guilty will be executed. Most death row inmates desperately need a lawyer.

At its annual awards ceremony a week ago, the Minnesota Justice Foundation highlighted the injustice that pervades the death penalty in the United States and recognized the Minnesota lawyers and law firms that donate time and money in the pursuit of justice for those on death row.

According to U.S. Magistrate Judge Jeffrey Keyes, "the criminal justice system, by and large, is infected with error. In a death penalty case, all of those inherent flaws are multiplied."

So it would seem: at least 17 people have been exonerated by DNA evidence after they were sentenced to die for crimes they did not commit. Minneapolis law firm Maslon Edelman Borman & Brand, LLP, may be representing the next one.

Douglas Armstrong was convicted of murder in south Texas. He claims he came on a man lying in a pool of blood, and tried to drag him to help. His story has never changed. Someone saw him, and he gave it up, only to be arrested shortly afterward. His trial counsel gave a half-hearted effort, and Armstrong was convicted. He was sentenced to death because the police claimed they found the victim's Medicaid card on Armstrong, and called that an aggravating factor. Maslon won the right to test the DNA evidence, which could refute the state's evidence and exonerate Armstrong.

But DNA evidence is not available in all cases.

Further, according to University of Minnesota law professor Carl Warren, the criminal justice system targets, convicts and executes minorities far more than whites. Warren points to research suggesting that the death penalty is a legal replacement for lynchings in some southern states. Panelists at MJF's seminar on death penalty litigation noted the frequency with which prosecutors pack the jury of a black defendant with white jurors.

Numerous other errors come up again and again in death penalty cases, from prosecutorial misconduct to incompetent defense counsel and more.

The only way to correct errors is on appeal, but there is little assistance available to those sentenced to die. During its 1995-96 term, Congress eliminated funding for resource centers that provided post-conviction representation. The same year, it shortened the time convicts had to file an appeal. Only a handful of states provide any assistance after conviction. Since 99.5 percent of those on death row are impoverished and cannot afford a lawyer, most errors go uncorrected.

Worse, some of those sitting on death row probably should not be there. Until 2002, the mentally retarded could be executed. But proving mental retardation takes a competent lawyer and expensive experts. Robin Maher, director of the American Bar Association's Death Penalty Representation Project, believes many of those on death row will be executed even though they are mentally retarded

Maher says she is angry. "I know how much there is to be angry about." Like a defense lawyer who told the jury his client's life was not worth saving. Or other defense counsel who were drunk or high during their clients' trials. Or U.S. Supreme Court Justice Antonin Scalia, who said the innocent may be executed as long as the proprieties are observed. (Scalia also says he does not believe anyone who is innocent has ever been executed.) Or judges in Alabama who often overrule juries when the juries decline to sentence the convicted defendant to death. Or the fact that until 2005, children could be sentenced to death.

Those on death row are in desperate need of lawyers to ensure that justice — whatever that may mean in a particular case — is done.

U.S. Lawmaker Pushes Death Penalty Appeals Overhaul

That's the title of a news report from AFP, via Google News.  LINK

A US lawmaker has introduced legislation to end "inhumane and unconstitutional" rules that prevent death row inmates from presenting newly discovered evidence to dispute their guilt.

"We've got folks on death row with no opportunity to show compelling new evidence of innocence," Democratic Representative Hank Johnson of Georgia said upon unveiling his proposal this week.

Johnson's measure, hailed by human rights group Amnesty International, would allow federal courts to give death row prisoners more opportunities to present newly discovered evidence that demonstrates probable innocence.

It would also let inmates file more habeas corpus appeals challenging their detention if and only if they offer new evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant a habeas corpus petition, the case would likely return to the court where it was first tried for a retrial, supporters of the legislation say.

Underlining that current restrictions on appeals may lead to innocent people being executed, Johnson warned: "The status quo is inhumane and unconstitutional."

The bill is H.R. 3968, the Effective Death Penalty Appeals Act.  You can view the text via the Library of Congress.  The bill is co-sponsored by: Constitution Subcommittee Chairman Jerrold Nadler (D-NY), Judiciary Committee Chairman John Conyers [D-MI], Crime Subcommittee Chairman Bobby Scott [D-VA], Rep. Anthony Weiner [D-NY] , Rep. Sheila Jackson Lee [D-TX], and Ways and Means Subcommittee Chairman John Lewis [D-GA]

Congressman Johnson's office has issued a news release, "Hank: Bill to protect innocent Americans from execution."

Under current law, an inmate on death row can be stranded with no procedural options to appeal a conviction, even if there is compelling new evidence that he or she is innocent.

The Effective Death Penalty Appeals Act would:

(1) empower federal courts to grant habeas corpus relief for a prisoner on death row who presents newly discovered evidence that demonstrates probable innocence; and

(2) allow prisoners on death row to file successive federal habeas petitions if, and only if, they present newly discovered evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant such a habeas corpus petition, the case would likely return to its original jurisdiction for retrial.

“We’ve got folks on death row with no opportunity to show compelling new evidence of innocence,” said Johnson, Chairman of the Court and Competition Policy Subcommittee. “The status quo is inhumane and unconstitutional.”

“The Effective Death Penalty Appeals Act would prevent the execution of possibly innocent people where there is new evidence of innocence,” said Constitution Subcommittee Chairman Nadler. “If the death penalty remains the law of the land, then, at the very least, our legal system must never ignore evidence that could exonerate the accused. Death is different from all other penalties; it is irreversible. Those on death row must have the opportunity to bring forward all of the available evidence.”

“Unfortunately, errors in death penalty cases are not discovered until after the defendant is already incarcerated,” said Judiciary Committee Chairman Conyers. “In some terrible cases, the system may well be allowing some innocent defendants to be executed.”

“We have learned in Georgia,” said Rep. Lewis, “from the injustice of cases like that of Troy Anthony Davis, where legal technicalities prohibit new, important evidence from being heard. The value of a human life overrides any inconvenience of law. We have a duty and an obligation to ensure that those who may be innocent have every opportunity to be heard.”

“When it comes to a human life, the courts must always be able to take a closer look at evidence that supports claims of innocence,” said Johnson. “We should never put someone to death if there are innumerable doubts or omissions.”

And:

Two cases – one present, one past – demonstrate the necessity of this legislation.

Today, Troy Anthony Davis sits on death row in Georgia. He was convicted of murder in 1991, but nine of eleven eyewitnesses have subsequently recanted their testimony. Because Davis has exhausted his appeals at the state level and federal law offers him no path to relief, he is unable to present the new evidence that might exonerate him. 

The Supreme Court has relied upon its original jurisdiction to order the U.S. District Court for the Southern District of Georgia to grant Mr. Davis an evidentiary hearing.  However, the law in its current form does not necessarily give the District Court authority to grant Mr. Davis’ habeas petition, even if they find that the new evidence supports his innocence claim.

And:

In 2004, Cameron Willingham was executed by the State of Texas for the murder of his children by arson. After Willingham’s conviction, a widely-respected forensics expert reviewed the case and concluded in a report that there was “no evidence of arson.”  The report was sent to Governor Rick Perry and the Texas Board of Pardons and Paroles with Willingham's appeal for clemency. Willingham was executed anyway. Subsequent investigations have cast even more doubt upon the conviction. Newly discovered evidence never got the full hearing it deserved.

Related articles are in the federal legislation index.  Earlier coverage of Troy Davis is here; Todd Willingham, here.

News Coverage of Wood v. Allen & Prosecutorial Immunity Case

You can read the transcripts in Pottawattamie County v. McGhee and Wood v. Allen, via the Court's website.

Adam Liptak writes, "Justices, in Aftermath of 2 Murder Cases, Hear Claims of a Process Gone Wrong," for today's New York Times.

The Supreme Court heard arguments Wednesday in two cases involving claims that the criminal justice system had gone badly awry.

In one, Iowa prosecutors are accused of fabricating evidence that sent two innocent men to life imprisonment for murder. In the other, an Alabama prisoner attributed his death sentence to an appointed defense lawyer’s failure to present evidence at the sentencing phase of his trial.

In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court’s determination in 2003 that the main witness against them was “a liar and a perjurer.”

The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued.

It is well established that prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. The question in the Iowa case, Pottawattamie County v. McGhee, No. 08-1065, is whether that immunity extends to prosecutors’ pretrial conduct.

Stephen S. Sanders, a lawyer for the Iowa prosecutors, acknowledged that police officers can be sued for fabricating evidence later used to obtain a conviction. So too, Mr. Sanders said, can prosecutors who had nothing to do with presenting the fabricated evidence at trial. But trial prosecutors, he said, should enjoy complete immunity for anything they do before or during trial.

Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.

“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”

And:

The Alabama case, Wood v. Allen, No. 08-9156, arose from the appointment of a lawyer who was less than a year out of law school to help defend Holly Wood, convicted in 1994 of murdering his former girlfriend. The lawyer, Kenneth B. Trotter, failed to pursue or present evidence that Mr. Wood was mentally retarded, though he had a competency report in hand that said as much.

Wednesday’s argument in the case was almost entirely concerned with a 1996 law that limits the claims federal courts can hear from death row inmates.

“It is just repetitive, and it gets people mixed up,” Justice Stephen G. Breyer said of two seemingly duplicative provisions of the law, the Antiterrorism and Effective Death Penalty Act.

Justice Kennedy was also frustrated. “So I have a choice of something that is counterintuitive or superfluous,” he said, “and I don’t know which one to take.”

Various solutions were proposed about how to harmonize the two provisions, but they seemed only to complicate matters further.

Adopting one of those solutions, Justice Breyer said, would lead to confusion and litigation in equal measures. “There will only be four professors in the country who understand which is which,” he said, “and they will each say different things.”

It was not clear, though, that any answer to the question of how to read the dueling provisions would be of help to Mr. Wood.

Some justices said his best argument, under yet a third provision of the law, was not properly before the court. Others said Mr. Wood would have been no better off had his defense worked harder.

"High Court Justices Weigh Tradition of Prosecutorial Immunity Against Potential Civil Rights Violations," is the title of Tony Mauro's report for National Law Journal.

Police who manipulate evidence have only qualified immunity, but prosecutors have long enjoyed absolute immunity, at least for their actions at trial. At issue in the Iowa case is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity. County Attorney David Richter and an assistant county attorney, Joseph Hrvol, were targeted in the lawsuit, which alleges prosecutorial wrongdoing through the investigation that carried into the trial.

Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court. "We're worried about the chilling effect on the prosecutors," said Chief Justice John Roberts Jr. at one point.

The former Iowa inmates had an unusual advocate making their case Wednesday: former Bush administration Solicitor General Paul Clement, who represented the Bush Justice Department in 49 previous arguments before the Court.

Now with King & Spalding, Clement agreed to represent the two pro bono to make the point that even prosecutorial immunity has its limits, and that the Iowa prosecutors' misdeeds were beyond the pale.

"The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial."

Clement added that it would be "really perverse" to have a system where police acting alone could be sued for fabricating evidence, but the misdeeds would be immunized from suit if a prosecutor joins in the wrongdoing.

But Clement, along with the justices, struggled to define the point at which prosecutors doing police-like investigative work at early stages of a case are transformed into prosecutors whose actions should not be challenged.

For their part, the lawyers arguing in favor of immunity said the Court needed to hold the line on lawsuits against prosecutors, to prevent litigation by every disgruntled defendant who can poke holes in the government's case.

Jurist posts, "Supreme Court hears arguments in prosecutorial immunity, capital cases," by Jaclyn Belczyk.

In Wood v. Allen, the Court heard arguments on whether the state court erred in concluding that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision. The US Court of Appeals for the Eleventh Circuit reversed a district court decision that had granted the defendant Holly Wood's habeas petition. Counsel for the petitioner Wood argued, "that there was no strategic decision here, that in fact it was a failure to investigate in violation of this Court." Counsel for the respondents argued that the AEDPA was applied correctly.

Earlier coverage begins with this post.  All briefing is at the ScotusWiki pages for Pottawattamie County v. McGhee and Wood v. Allen.

Attorneys for DC Sniper Appeal to Supreme Court

"Supreme Court is asked to spare sniper," is the report in today's Washington Post.  It's written by Maria Glod and Josh White.

Attorneys for sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial.

Muhammad, 48, who teamed up with Lee Boyd Malvo, now 24, in a series of random shootings that left 10 people dead, suffers from mental illness and brain damage caused partly by childhood beatings, defense attorney Jonathan P. Sheldon and others on the defense team wrote.

As he prepared for his 2003 trial, Muhammad was "amnesic of the events surrounding the crimes" and thought he was being framed in an elaborate scheme, the attorneys wrote. He believed that he was a prophet and said Malvo discovered an herbal cure for AIDS. He also said the military had trained him in "urban warfare" at "secret schools." The attorneys said that because of Muhammad's brain damage, he has trouble following a logical line of thought and "lacks sufficient ability to distinguish truth from falsity."

The argument to the Supreme Court contends that attorneys Peter D. Greenspun and Jonathan Shapiro were ineffective because they failed to object to Muhammad's demand to represent himself at trial. Had the pair argued that Muhammad's mental problems made him unfit to present his own defense, there is a "reasonable probability" that the judge would have found Muhammad incompetent to stand trial altogether, Sheldon wrote.

"Trial counsel knew that Muhammad had been diagnosed with severe mental illness, and personally observed Muhammad's struggle with severe psychiatric disorders prior to the start of the trial," the attorneys wrote. "Muhammad's trial attorneys had a duty to request a competency evaluation, and their failure to do so was unreasonable and below prevailing professional norms."

"Plea to delay execution in sniper case," is the title of Lyle Denniston's post at SCOTUS Blog.

Seeking to slow down the famed “rocket docket” in federal trial courts in Virginia, at least when a death-row inmate is testing his state conviction and sentence, attorneys for John Allen Muhammad asked the Supreme Court on Tuesday to delay his execution and then hear and decide his challenges.  Muhammad faces execution in one week, on Nov. 10,  for a Manassas, Va., murder that was one of ten he and a youthful compansion allegedly carried out in a wave of 16 sniper shootings in the Washington area seven years ago.

Besides testing a practice in the Virginia federal district courts of shortening the time to file an initial federal habeas plea, Muhammad’s counsel are challenging lower courts’ rulings that he was not harmed legally by representing himself for part of his trial, even though lawyers advising him knew of evidence that would indicate he was not mentally competent to understand what was happening at the trial.

His stay application (09A423) is here.  Along with it, he filed a petition for review (Muhammad v. Kelly, 09-7328).  The papers were filed initially with Chief Justice John G. Roberts, Jr., who is the Circuit Justice for emergency orders in the federal Fourth Circuit, which includes Virginia.  He has the authority to act alone or share action with his colleages on the stay application.  The full Court will consider the certiorari petition.

In seeking to put off the Nov. 10 execution, Muhammad’s attorneys argued that “Virginia is alone in its practice of always setting an execution date just prior to the Supreme Court’s consideration of a petition for a writ of certiorari from an appeal of a first habeas petition.”  The application noted that Justices John Paul Stevens and Ruth Bader Ginsburg protested that practice two years ago.  That complaint is separate from the challenge to the federal district courts’ refusal, on first habeas petitions like Muhammad’s, to allow the full year to file that is specified under federal law.

Because the execution date would fall 20 days before Muhammad’s petition would even be due in the Supreme Court under normal scheduling, his lawyers filed it at the same time as their stay application.   The application argued that the Court should adopt as a routine practice the staying of all executions that a state schedules before the Supreme Court has a chance to complete review of a first federal habeas case.

Today's Allentown Morning Call, in Pennsylvania, carries an OpEd by Brian Gilmore, "D.C. sniper should not be executed."  Gilmore is a writer for Progressive Media Project.

John Allen Muhammad, the infamous Washington sniper, should not be put to death.

But Muhammad will die on Nov. 10 by lethal injection. He will be executed under the laws of the state of Virginia. No one will save him. Not the U.S. Supreme Court. Not Virginia Gov. Tim Kaine. Not President Obama. Each could do so but won't.

I understand why families of Muhammad's victims want him to die: He terrorized a city, he ruined lives and he destroyed futures. I was living in Washington at the time, and I can still recall my own fear for myself, my family and my friends that there was a random shooter on the loose.

But the justified anger of the victims' kin does not justify state-sponsored killing.

Capital punishment is morally wrong and irrational.

At the Supreme Court

Beard v. Kindler, a Pennsylvania case will be heard in the Supreme Court this afternoon.  Erin Miller writes a preview, "When Can States Preclude Federal Habeas Review?" for SCOTUS Blog.

Beard v. Kindler is a capital case with an unusual twist: the defendant appealing his sentence, Joseph Kindler, escaped twice from prison.  A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled.  But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.

In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims.  In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary.

And:

In 1996, Kindler sought state post-conviction relief, but both the trial court and the state supreme court denied relief, holding that he had waived his right to post-conviction relief when he fled.  Kindler then sought federal habeas relief, which the district court granted.  It held that because the Commonwealth’s fugitive-forfeiture rule was discretionary, it was “inadequate” to bar federal review, and it then ruled in Kindler’s favor on the merits of his claims.  On appeal, the Third Circuit affirmed. The State filed a petition for certiorari, which the Court granted on May 18.

In Utah

Today's Salt Lake Tribune reports, "'Elegant' plan may help curb death-penalty appeals without Utah Constitution revision."  It's written by Stephen Hunt.

Lawmakers and prosecutors seeking to limit death-penalty appeals won't have to amend the state constitution to do it, according to information presented Thursday to a legislative advisory panel.

The appeal process can be streamlined with a simple change to Utah Supreme Court rules and passing a small change to a state statute, Rep. Kay McIff told the Utah Constitutional Revision Commission. The commission -- which has been wrestling with the issue for two years -- unanimously approved the proposal.

Chairman Jon Memmott, a 2nd District judge, said the panel would draft a letter to the Legislature recommending the plan, which commission member Byron Harward called "elegant."

Meanwhile, a proposed change to a court rule that addresses post-conviction relief has already been posted for comment on the state court's Web site, http://www.utcourts.gov, and could be approved by the high court by December.

Many death-penalty appeals are prolonged when state court judges reject appeals for technical reasons, such as failing to file them on time, but also comment on the merits of a case. Those comments trigger follow-up reviews on the federal court level, causing cases to "bang back and forth between the courts," said McIff, who has been working with a task force of lawmakers, lawyers, legal experts and court representatives.

The proposed rule change provides that if a state court judge comments on the merits of a post-conviction appeal, the judge shall "first clearly and expressly" determine whether the claim is independently precluded from further appeal for procedural issues.

The proposed change to the state statute would allow an exemption for defendants claiming their lawyers provided ineffective assistance.

Earlier coverage from Utah begins with this post.  The article notes that 10 men currently reside on Utah's death row.

Texas: The Kinder, Gentler Hang 'Em High State

That's the title of Hilary Hylton's article for Time.  LINK

Tim Cole couldn't tell his own story and so his family recounted the saga to the hard-bitten Texas legislators last spring. The convict had insisted he was innocent right up to the day he died. He had refused parole because that would have required him to admit he was guilty of raping a fellow student at Texas Tech University. The ordeal was wrenching: Cole wept during the nights as he awaited a trial that would sentence him to 25 years in jail. Twice during his prison term he was found unconscious in his cell, the result of the asthma that had plagued him since childhood. The third time he suffered an attack, Dec. 2, 1999, he died from heart failure. Then, in 2007, another man confessed to the crime and Cole was declared innocent. The Texas lawmakers wept at the tale; and as a result, the state that has the reputation of being toughest on crime came up with one of the most generous and supportive programs to compensate those wrongfully convicted: the Tim Cole Act.

"I think Tim Cole's story moved a lot of people," says Lubbock attorney Kevin Glasheen, who represents 12 men exonerated after serving lengthy terms for rape. "As far as the politicians go, there are a lot of Republicans who do not like abusive government power." But the legislators from both parties did more than shed tears. Apart from the Tim Cole Act, they passed a second law this spring creating a well-funded office of expert appellate lawyers to represent death row inmates, a move to overcome the tales of sleepy defense attorneys and inept lawyering. The two new laws are now being implemented and their backers hope they will mitigate the state's hang 'em high image. (Read a story about the decline in the number of death sentences in Texas.)

The Tim Cole law provides $80,000 for each year of wrongful incarceration and adds free college tuition, and financial and personal counseling. Unlike past lump sum payments, the new compensation will be paid out in a mix of monthly payments, an upfront lump sum and an annuity which can be passed on through a recipient's estate. The new law also sets up an investigative panel, the Tim Cole Advisory Panel on Wrongful Convictions. (Read how the tide is shifting against the death penalty.)

Glasheen's 12 clients are among 38 Texas prisoners cleared by DNA testing thanks to the efforts of the New York-based Innocence Project. He filed federal civil rights lawsuits on behalf of his clients against several Dallas-area police departments and municipalities. Facing a long, arduous legal process, Glasheen also proposed a legislative solution to Dallas area civic leaders. The legal fight would be expensive for both sides, Glasheen told them, and the fundamental question was one of fairness. This spring, State Senator Rodney Ellis, a Houston Democrat and a longtime champion of the innocence projects, and State Senator Bob Duncan, a Republican and, like Cole, a Texas Tech alumnus, sponsored the Tim Cole Act.

Glasheen, a self-described Republican from the "Libertarian wing of the party," hopes new DNA testing on old evidence will free more prisoners. However, that hope is limited: Dallas County kept evidence on file, hence the large number of exonerated prisoners from that area, but evidence in Houston was lost in a flood, and smaller counties across Texas did not keep evidence once the appeals process ran out. "There's a whole bunch of guys down there who were convicted on just eyewitness identification," Glasheen says, as Cole was. There is now a national campaign to press a best practices written policy for lineups and eyewitness evidence. Dallas has adopted the new standards.

The second law passed by the legislature will set up new standards and funding for indigent defense appellate counsel programs. Texas was embarrassed by the 2001 U.S. Supreme Court ruling that ordered a new trial for a death row inmate whose lawyer slept through much of his proceedings in Houston in 1984. It responded after the ruling by boosting funds for indigent counsel. Despite that, studies showed death row inmates were still often badly served by appellate counsel. "Since 2004, 2005 there has been documented some horrible lawyering," says Andrea Marsh, executive director of Texas Fair Defense Project. In one case, a habeas appeal was filed by an attorney who simply cut and pasted an old appeal and changed the defendant's name, leaving the facts of the old case in place, Marsh says.

More on Tim Cole is here.  Earlier coverage of the Office of Capital Writs, expected to begin operations next year, is here.  The

In Forida

Today's St. Petersburg Times carries the OpEd, "Florida death penalty system needs reform."  It's written by Raoul G. Cantero III and Mark R. Schlakman.  Cantero is a former Florida Supreme Court justice appointed by Gov. Jeb Bush.  Schlakman is the board chair for the Innocence Project of Florida and served on the ABA's Florida Death Penalty Assessment Team.

Florida State University's Center for the Advancement of Human Rights will host a forum today to coincide with the three-year anniversary of the release of the ABA report.

Three years ago, the American Bar Association released a Florida Death Penalty Assessment Team report that raised concerns about the state's death penalty process. Since then, neither the government nor the Florida Bar has done much to remedy the problems.

To study Florida's death penalty, the ABA assembled a highly credentialed eight-member team that was diverse and balanced to reflect prosecutorial, defense, judicial and academic perspectives. The report was developed after almost two years of research and analysis, and findings and recommendations had to be unanimous to be included in the report.

The report neither supports nor opposes capital punishment. However, individual team member perspectives regarding capital punishment ran the gamut. Simply put, the report's findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to one's views on capital punishment.

Among the report's findings was that legal representation of death penalty defendants in postconviction proceedings, particularly by certain private registry counsel, is often abysmal. The report makes several related recommendations, including reinstating the capital collateral regional counsel office, or CCRC, in the Northern Region of Florida. That office was disbanded as part of a still-ongoing pilot project launched during Jeb Bush's tenure as governor. It in effect privatized the northern office of the CCRC, thereby relying almost exclusively upon private registry counsel to handle postconviction appeals in death penalty cases.

Gov. Charlie Crist has expressed support for reinstating the northern CCRC office.

Another one of the report's major recommendations embraces a Florida Supreme Court opinion that unanimously called upon the Legislature to revisit the state's death penalty statute. The report, like the opinion, observed that Florida is the only one of 35 death penalty states that allows a jury to decide that aggravating factors exist and to recommend a sentence of death by a majority vote. Despite the court's strongly worded opinion, however, the Legislature has been unresponsive.

And:

The challenge for those who hold and aspire to elected office, including Florida's 20 state attorneys, is to ensure that personal perspectives pertaining to capital punishment, and the public outrage arising out of heinous crimes, do not overshadow the fact that Florida's death penalty process is fraught with problems. Floridians expect a system of justice that engenders confidence based upon fairness and accuracy. With regard to the state's death penalty process, in many respects that standard has proven to be elusive. We hope that this election cycle will provide an opportunity to openly and honestly discuss these issues and to seriously consider possible solutions for the problems identified in the report.

Utah AG Continues Push to Limit Appeals in Capital Cases

"Passing the gavel; Let judges handle death row appeals," is the title of a Salt Lake Tribune editorial that appeared on August 19.  Here's an extended excerpt:

Frustrated that Utah inmates are growing old on death row while filing appeals for post-conviction relief, Utah Attorney General Mark Shurtleff and other death penalty supporters will press their case for allowing voters to amend the state constitution to allow the Legislature to limit the issues on which convictions and sentences in capital cases can be appealed. That would be a mistake. Adjudicating criminal cases is a judicial, not a legislative, responsibility.

It's an idea that's already been defeated. Last year, the House rebuffed a resolution that would have asked the electorate to transfer the power to limit appeals from the courts to the Legislature. Unfortunately, double jeopardy doesn't apply, and Shurtleff, who claims to represent the frustrated families of murder victims, has renewed the campaign.

Now, a pair of Utah attorneys -- Troy Booher of Salt Lake City and former Utah Supreme Court Justice Michael Zimmerman -- are proposing a pre-emptive amendment of their own, a lesser of two evils, if you will.

While the pair wisely favor leaving the constitution unaltered and the separation of powers intact, they have given the Utah Constitutional Revision Commission, a legislative advisory body that will report to the Legislature this fall, an alternative amendment to ponder. Instead of limiting the scope of appeals, the pair's proposal would limit to three years the time frame in which appeals can be filed.

Perhaps that will be enough to appease Shurtleff, who has railed against the "frivolous manipulation" of the legal system that "extends for decades the execution of the death penalty and the suffering of the victims."

What Shurtleff and his supporters seem to forget is that we're not executing the death penalty; we're executing a human being. And we're not carrying out the sentence primarily on behalf of the loved ones of the victims, but for the benefit, however dubious, of society.

No doubt, the wheels of justice turn slowly when it comes to strapping a human being to a gurney and injecting a lethal cocktail of drugs into a vein. For that, we should all be grateful, not frustrated. While Booher's and Zimmerman's amendment would be better, the status quo is better yet.

Today's Tribune carries a response from Attorney General Mark Shurtleff.

The editorial "Passing the gavel: Let judges handle death row appeals" (Our View, Aug. 19) does not deny that our justice system is broken, it just wants it to stay that way. If the real objection is the death penalty, then advocate for repeal rather than trying to keep a broken system broken.

And

The Utah Constitution belongs to the people. Why not let them speak? Once the proposed amendment passes the Legislature, voters can decide about it. Then we will know whether Utahns want the system to stay broken or agree that victims of the most heinous murders in our state have waited long enough for justice. 

Earlier coverage of the controversial Utah proposal begins here.

Fifth Circuit Panel Reverses Earlier Decision, Allows Appeal

"Justices reverse decision barring death row appeal," is the title of Lise Olsen's report in today's Houston Chronicle.

The Fifth Circuit Court of Appeals has reversed itself in a surprising new opinion that revives an appeal by a Texas death row inmate that previously had been denied for being filed one day too late.

The unusual about-face does not give a new trial to Keith Thurmond, a Montgomery County man convicted in 2002 of killing his estranged wife and her lover during a child custody dispute, but it grants him the right to argue the case for his appeal in federal court.

Thurmond's case had received statewide publicity because of problems with the legal defense he received after conviction. His first court-appointed appellate attorney was inexperienced and filed a bare bones state appeal. His next court-appointed attorney filed his federal appeal late in 2006, blaming a broken after-hours filing machine. U.S. District Judge David Hittner rejected it as “time-barred.”

The Fifth Circuit initially upheld Hittner's decision.

In March, the court said Houston attorney Jerome Godinich should have known about the broken filing machine because he'd had trouble with it in an earlier federal death penalty appeal, also filed one day late. In the other case, the inmate was executed after his appeal was ruled to be “time-barred.”

On Friday, the Fifth Circuit announced it would withdraw its March opinion and issued a new one ordering a hearing for Thurmond. The new opinion blasts Texas state prosecutors for falsely claiming Godinich could have used electronic filing to meet his deadline. Electronic filing was not approved in the Southern District of Texas until months after Thurmond's appeal was due in 2006, court records show. The court also noted that the state's lawyers had previously apologized for making that same “mistake and misstatement” in federal district court, but repeated the false claims anyway.

And:

Godinich, who has been criticized for filing three federal death row appeals late, has previously said in a letter to the Chronicle that the system itself is broken. In another late case, a different federal judge waited so long to appoint Godinich that he was out of time before he'd begun to work on the appeal, records show.

The Fifth Circuit order is here.

Office of Last Chance

That's the title of an editorial in today's Houston Chronicle praising legislation that will create a state Office of Capital Writs.  LINK

Death-row appeals are life-and-death matters. Starting next year, Texas will finally make sure that they're done right.

“The status quo has been an international embarrassment,” state Sen. Rodney Ellis, D-Houston, said recently, and we agree. Private lawyers appointed by the courts have too often done lousy jobs.

As reported in a series of stories by the Chronicle's Lise Olsen, Texas inmates have lost their death-row appeals because their court-appointed attorneys missed deadlines, didn't file appeals, or filed skimpy “skeletal” writs that appeared to have been cut and pasted from other cases.

But no more.

Under a new state law, sponsored by Ellis, Texas will establish the Office of Capital Writs, a nine-person office whose staff lawyers will manage death-row appeals in state court.

The office will be funded by redirecting money that the state already budgets for indigent defense.

That new state office is a good start, but it won't fix all the problems with Texas' death-row appeals. It won't handle federal appeals; it's up to federal judges to make sure that those lawyers are up to snuff.

And the new office will only handle new appeals, not ones that court-appointed lawyers have already screwed up.

Sadly, it's those older cases that show how much we need better death-row lawyering.

Keith Thurmond, for instance, says that he's innocent of the 2001 murders of his wife and her lover.

His appeal first went astray when an inexperienced court-appointed lawyer botched his state writ of habeas corpus, the most important step in appealing the conviction. Then a different court-assigned lawyer blew the deadline for filing Thurmond's federal appeal.

Earlier coverage is here.  Friday afternoon I attended the State Bar of Texas' ABA reception in Chicago.  I talked with one Bar leader about the pending Office of Capital Writs.  He said that the quality of post-conviction representation had been, "a black eye for the state," and looked forward to seeing the new office up and running.

New Office to Handle Texas Capital Habeas Filings

"State to handle capital appeals," is the title of Lise Olsen's report in the San Antonio Express-News.  It appeared in the Sunday edition.

Texas, which executes more convicts than any state in the nation, will open its first capital defense office next year to manage appeals for death row inmates after years of reports that appointed private attorneys repeatedly botched the job.

“The status quo has been an international embarrassment,” said state Sen. Rodney Ellis, D-Houston, who sponsored the law that created the office. It was supported by an unusual alliance between the State Bar of Texas, the Court of Criminal Appeals and public defense advocates, who all backed it in the last legislative session.

The law was inspired by a series of stories about Texas inmates who lost crucial appeals after court-appointed attorneys missed deadlines or filed only so-called “skeletal” writs — documents with little information often copied from other cases. It represents a significant reform for Texas, one of the only capital punishment states that lack a public defender to oversee key death row appeals known as state writs of habeas corpus.

The office, with an annual budget of about $1 million and a staff of nine, won't open soon enough to help any of the inmates whose appellate rights were squandered recently.

And:

Ellis first introduced the bill in 2007 in response to reports about how death row inmates' lawyers had mismanaged appeals. But the bill was blocked then by last-minute lobbying from Harris County's former district attorney.

In the aftermath, appellate mistakes continued. The Houston Chronicle reported earlier this year that three attorneys had repeatedly blown state or federal appellate deadlines for their death row clients, effectively surrendering their clients' rights to appeal. The Court of Criminal Appeals recently found two attorneys in contempt of court for their shoddy work, including Castillo's lawyer, Suzanne Kramer, and referred them to the State Bar of Texas for possible disciplinary action.

Kramer has not responded to repeated requests for comment.

By the 2009 legislative session, remaining opposition to establishing a state capital defense office had virtually disappeared, Ellis said. The law was approved late in the session and signed by the governor last month.

“I think that everyone agrees (death row inmates) deserve one fair shot at presenting their issues, whether they're meritorious or not,” said Andrea Marsh, executive director of the Texas Fair Defense Project. “We saw too many cases where poor state habeas representation forced people to lose appeals.”

The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account, already earmarked for indigent defense. Ultimately, its attorneys will likely handle most state appeals — about 10 a year, if the current pace of death sentences continues.

The new law was introduced as SB 1091 in the Texas Legislature.  Related articles are in the habeas category index.

A Supreme Court Nomination Stirs Up Bad Memories

That's the title of an article in today's New York Times, written by Fernanda Santos.  LINK

Jeffrey Deskovic heard a TV talk show host announce President Obama’s nominee for the Supreme Court last month, and his mind raced. That name; he remembered that name.

He emerged from bed and riffled through the boxes of motions, appeals and letters he had accumulated in the 16 years he spent in a New York prison for a rape and murder he did not commit.

And there it was, a ruling from the United States Court of Appeals for the Second Circuit, dated April 26, 2000, and barely two pages long. It was co-written by Sonia Sotomayor.

“We have considered all of petitioner-appellant’s arguments and find them to be without merit,” the ruling said.

Imprisoned at the age of 16 for the killing of a high school classmate, Mr. Deskovic, now 35, filed a habeas corpus petition in 1997 in Federal District Court contesting his conviction. The court denied the request because the paperwork had arrived four days late. Mr. Deskovic and one of his lawyers — who he said had been misinformed about the deadline for filing — appealed the decision to the federal appellate court on which Ms. Sotomayor sat.

Ms. Sotomayor, along with the other judge on the panel, ruled that the lawyer’s mistake did not “rise to the level of an extraordinary circumstance” that would compel them to forgive the delay. There was no need to look at the evidence that Mr. Deskovic insisted would affirm his innocence, they said.

Mr. Deskovic spent six more years behind bars, until DNA found in the victim not only cleared him, but connected another man to the crime.

Habeas corpus petitions are rarely granted, and Mr. Deskovic knew that all along. Federal judges routinely deny them, including for purely procedural reasons. But he listened as President Obama, in seeking a new Supreme Court justice, talked about how he wanted a judge with not only great intellect, but also great empathy, a judge who knew how the real world worked and who could apply some common sense.

And so Mr. Deskovic is angry. All over again.

And:

Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas corpus petitions must be submitted no more than a year after a conviction becomes final or, as the courts later determined, no more than a year from the act’s implementation if the conviction became final before that. Mr. Deskovic was convicted in 1990. He had until April 24, 1997, to turn in his request. It arrived four days after that.

In court papers, the lawyer who drafted the petition said that a clerk had provided the wrong deadline. Ms. Sotomayor and her colleague, Judge Rosemary S. Pooler, ruled that the “alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk” amounted essentially to neglect.

“There was at least an explanation, which was all the more powerful because of the question of innocence raised by the DNA evidence, but the court paid no attention to it,” said another of his lawyers, Eleanor Jackson Piel , who handled the appeal.

There were aspects of Ms. Sotomayor’s career that might have given Mr. Deskovic hope. She had spent years on the board of a public-interest law group, adopting an aggressive stance on issues like police brutality and the death penalty. She also had a record of concern for the quality of lawyers assigned to represent indigent defendants.

But the odds were stacked against Mr. Deskovic. A 2007 report by Vanderbilt University Law School and the National Center for State Courts, for example, showed that out of 2,384 randomly selected habeas corpus petitions filed by state prisoners in noncapital cases in 2003 and 2004, only seven had been granted.

Also, it is rare for appellate judges to reverse a lower court’s decision that is based on precedent and stands on solid procedural grounds, explained Jamal Greene, a professor at Columbia Law School.

“She’s a very careful judge and as far as I can tell, very much believes in the rule of law,” Mr. Greene said of Ms. Sotomayor.

Earlier coverage of the Sotomayor nomination is here.  National Law Journal has an excellent web page devoted to the nomination.