The StandDown Texas Project

Kansas DA to Retry Case, Rather Than Appeal

The Topeka Capital-Journal reports, "D.A. won't challenge new trial order for Cheatham; New trial for convicted killer must start 90 days after high court mandate."  It's by Sherman Smith.

The Shawnee County District Attorney’s Office said Tuesday it would be “ill-advised” to appeal Phillip Cheatham’s overturned conviction in a 2003 murder case.

The decision clears the way for a new trial after the Kansas Supreme Court’s ruling in January that Cheatham had received ineffective assistance from his attorney. District Attorney Chad Taylor said in a news release Tuesday he was “extremely disappointed” by the court’s decision.

Taylor had announced his intention in early February to appeal the Kansas Supreme Court decision to the U.S. Supreme Court, and the deadline to do so is Thursday. But “after exhaustive research” of case law from across the nation, he changed his mind.

And:

Among the most serious problems was Hawver informing jurors of Cheatham’s 1994 manslaughter conviction, which prosecutors wouldn’t have been allowed to mention. Hawver told jurors Cheatham was a “professional drug dealer” and “shooter of people.”

Because of those comments, the high court said in its ruling this year, “our confidence in the outcome of the jury’s verdict is shaken to its core. These particular errors cannot be excused and require a new trial.”

Earlier coverage of the Philip Cheatham case begins at the link; also available, non-case related news from Kansas.

Florida Legislation Update

WFSU-FM reports, "Bills Streamlining Florida's Death Penalty Process Pass Another Committee."  It's by Sascha Cordner.  There is audio at the link.

Florida lawmakers are looking to streamline the death penalty process to avoid the lengthy appeals they say are currently plaguing the system. Two measures aiming to do just that cleared another committee Thursday, and are one step closer to coming up for a vote by the full Legislature.

Most states in the nation impose the death penalty. Florida is one of them, but it’s also a state that’s known for its lengthy death penalty process. It’s behind only California, the state in the nation with the most number of people facing the death penalty.

Today, there are more than 400 death row inmates in Florida—nearly half have been on death row for more than 20 years. And, Republican Representative Matt Gaetz of Shalimar is the sponsor of a bill that aims to speed up that process.

And:

His bill to cut down on the lengthy appeals process has several parts. It includes a provision that aims to cut down on “insincere” claims, like a death row inmate falsely claiming they have a conflict of interest with their attorney. Another type of appeal that Gaetz says contributes to delays in the process is from lawyers who say they were ineffective as counsel, and that a death row inmate now would have to get a new lawyer.

Earlier coverage of Florida legislation begins at the link.

New Trial Recommended for Manuel Velez

"Retrial closer for convicted killer," is the Brownsville Herald report written by Mark Reagan.

State District Judge Elia Cornejo Lopez has recommended Brownsville resident Manuel Velez, who was convicted of murdering a toddler, get a new trial. Lopez issued the order Tuesday.

Velez had been convicted of killing 1-year-old Angel Gabriel Moreno in October 2008. He received the death sentence.

“After a thorough and critical review of the evidence presented, Judge Lopez found that Mr. Velez’s trial counsel was ineffective for, among other reasons, failing to investigate and present medical evidence exculpating Mr. Velez,” said pro bono attorney Tami Goodlette. “She further concluded that this and other failures undermine confidence in the jury’s verdict.”

Velez was convicted and sentenced to death, but the Texas Court of Criminal Appeals threw out the sentence last June because expert witness testimony on future dangerousness of the defendant was deemed inaccurate.

In Lopez’s ruling, she wrote that a new trial should be granted because of ineffective assistance of counsel.

“Mr. Velez has now shown that, at the time of his 2008 trial, compelling medical evidence was available to refute the theory on which he was convicted,” Lopez wrote in her finding. “His trial counsel, Hector Villarreal and O. Rene Flores, inexplicably failed to develop and present to the jury this exculpating evidence. These failures were not the result of sound trial strategy.”

In December, Velez appeared before Lopez for an evidentiary hearing to determine whether Lopez would or wouldn’t recommend a new trial for him.

During that hearing, pro bono attorneys said there is no evidence that Velez struck the child and said new medical evidence shows the child sustained the injuries that killed him while Velez was out of town, working in Memphis, Tenn.

The Court of Criminal Appeals will rule on Judge Cornejo's recommendation.

Earlier coverage of  Manuel Velez' case begins at the link.  Related posts are in the forensics and expert witnesses category indexes.

9th Circuit Reinstates 1980 Conviction & Death Sentence

The ruling by the U.S. Court of Appeals for the Ninth Circuit in Walker v. Martel is available in Adobe .pdf format.

The Silicon Valley Mercury News reports, "Condemned Santa Clara County killer to stay on death row," by Howard Mintz.

Citing "horrendous crimes," a federal appeals court on Thursday reinstated the murder conviction and death sentence of condemned Santa Clara County killer Marvin Pete Walker Jr., one of the longest serving inmates on California's death row.

The 9th U.S. Circuit Court of Appeals overturned a federal judge's previous ruling that set aside Walker's 1980 murder conviction and death sentence. The Circuit Court rejected the argument that the jury's verdict was tainted by Walker having been improperly shackled in front of jurors throughout the trial. It was not "reasonably probable" the shackling influenced the jury's decision, the appeals court concluded.

Walker's shackling was "trivial in comparison to the magnitude of his crimes," 9th Circuit Judge Barry Silverman wrote for the court.

Judge Ronald Gould partially dissented from the decision, saying he would have left the murder conviction intact but overturn the death sentence. Gould wrote that he had "grave doubt about whether Walker still would have been sentenced to death" if the jury had evaluated his case without seeing him in leg shackles during the trial, given his background and the fact he was a teen at the time of the crime.

U.S. District Judge Saundra Brown Armstrong in 2011 overturned Walker's death sentence, saying that forcing him to "wear visible and painful restraints ... undermined the dignity of the judicial process."

"Death penalty restored for San Jose man," by Bob Egelko for the San Francisco Chronicle.

A federal appeals court reinstated the death sentence Thursday for a San Jose man who killed a teenage employee during a 1979 liquor store robbery, saying the verdict was not affected by shackling that forced defendant Marvin Walker to limp to and from the witness stand.

U.S. District Judge Saundra Brown Armstrong had granted Walker a new trial in 2011, saying the jury may have been swayed by a plastic knee brace that sheriff's officers had fastened under one of Walker's pant legs. The trial judge never stated any reason for the shackling, and the jury deliberated at length on both Walker's guilt and his sentence, Armstrong noted.

In overruling Armstrong, the Ninth U.S. Circuit Court of Appeals said the shackle was unobtrusive, the evidence of Walker's guilt was strong and his crimes were "unspeakably cruel" - killing one employee and wounding two others during one robbery, and pistol-whipping, molesting and shooting a woman during another holdup a month later.

The panel voted 3-0 to reinstate his convictions and 2-1 to reinstate his death sentence.

"Leg Shackle Didn't Bias Jury, 9th Circuit Rules," is the Courthouse News Service report by Annie Youderian.

The leg shackle on a man convicted of capital murder likely did not sway the jury at trial, the 9th Circuit ruled Thursday, reinstating his convictions and death sentence.

The federal appeals panel in San Francisco overturned a federal judge's decision to grant the habeas petition of Marvin Pete Walker after he lost his appeal at the state level.

Walker had argued that his lawyer's failure to object to the knee restraint he wore under his pants at trial amounted to ineffective assistance of counsel, because the brace made him walk with a limp.

An Update on Florida Legislation

"WFSU-FM reports, "Lawmakers Looking To Streamline Florida's Death Penalty Process."  It's by Sascha Cordner, and there is audio at the link.  Here's an extended excerpt, but those watching Florida legislation will want to read the entire report.

Florida is one of the top states in the nation with the most number of people facing the death penalty—Close to half of which have been on death row for at least 20 years. And, a group of lawmakers is now trying to streamline the death penalty process through a couple of measures, but it’s facing much opposition.

Today, there are about 400 people on death row in Florida. That’s more than any other state aside from California. On average, it’s estimated that Florida death row inmates spend about 13 years on death row prior to execution, and Republican Representative Matt Gaetz says something has to be done.

“Our focus was on streamlining the process so that we didn’t have these cases lingering for 14, 15, 25 years,” said Gaetz.

Gaetz as the chair of the House Criminal Justice Subcommittee is spearheading an effort to streamline the death penalty process in Florida. Gaetz says it’s the lengthy appeals process that is contributing to delays in executions. So, through a proposed constitutional amendment, he hopes to only allow lawmakers to have rulemaking authority over the post-conviction appeals process, rather than courts.

He also has another proposal that outlines steps on how the Legislature should go about cutting down on the lengthy appeal process. That includes a provision that he hopes will stop “insincere” appeals from lawyers who say they were ineffective as counsel.

And:

But, Rex Dimmig with the Florida Public Defenders Association says he understands the need to punish lawyers who deliberately make those claims. But, the bill forces lawyers who sincerely admit they were ineffective to stop practicing for five years. And, Dimmig says that’s unfair.

“Honestly, capital cases take weeks to try. Mistakes can be made, and they are mistakes," Dimmig emphasized. "To take one of our lawyers—and capital lawyers have to have special qualifications, have to be specially trained—to take the limited resources we have of capital attorneys because someone has made a mistake and say for five years they cannot practice as a capital attorney, we believe is too harsh."

Another provision in the bill would eliminate publicly-financed clemency counsel for death row inmates. And, some like, Judge Belvin Perry, a Circuit Judge from the 9th Judicial Circuit, that’s not a solution to systemic problem and warned the state could have a legal challenge on its hands.

Earlier coverage of Florida capital punishment legislation begins at the link; also available, coverage of the case of Paul Howell, who has received no federal habeas review of his conviction and sentence.

Supreme Court Upholds 9th Circuit Stay of Arizona Execution

The Arizona Republic reports, "Arizona inmate's stay of execution upheld by court."  It's written by Michael Kiefer.

Wednesday morning, Edward Harold Schad, the man who was twice convicted of Grove’s murder, was supposed to be executed by lethal injection at the Arizona State Prison Complex in Florence.

But his appeals went down to the last minute. On Tuesday around 8 p.m. Arizona time, the U.S. Supreme Court upheld a stay of execution by the 9th U.S. Circuit Court of Appeals. That court also ordered the District Court in Arizona to re-evaluate Schad’s case in light of a Supreme Court decision to see if it mattered that Schad’s trial attorney had failed to present his mental illness as a good reason not to sentence him to death.

At issue are overlapping Supreme Court decisions controlling when new evidence resulting from “ineffective assistance of counsel” can be introduced in federal appeals. And on Tuesday night, the high court determined that Schad’s case did merit another look.

"Court refuses to clear way for AZ execution," is the AP report, via the Arizona Daily Star.

The 9th U.S. Circuit Court of Appeals had blocked Schad's execution while a judge considers his claim that he was denied effective legal representation after his conviction. The state had asked the U.S. Supreme Court to let the execution go ahead as planned.

Earlier coverage of this Arizona case begins at the link.

Reasonable Doubt: The Manuel Velez Case

That's the title of Pamela Colloff's latest article for Texas Monthly.  Here's the sub-head: A Brownsville construction worker named Manuel Velez was sent to death row in 2008 after he was convicted of killing his girlfriend’s baby. Five years later, new testimony from a number of forensic experts suggests that the medical evidence against Velez was deeply flawed. 

Colloff's 2010 TM article, "Innocence Lost," brought critical attention to the case of Anthony Graves.  He was exonerated shortly after her article appeared.

Here's the beginning of her reporting on Manuel Velez:

When a child dies from suspected abuse or assault, law enforcement officers typically focus their investigation on the last person who was with the victim. This is logical reasoning; but recent developments in forensics have shown that a child’s fatal injuries could actually have been inflicted hours, days, or even weeks before he or she is rushed to the emergency room. The evolving science of head trauma, for example, has upended long-held beliefs about “shaken baby syndrome” and has recently resulted in a number of exonerations of people convicted of murdering children.

At least three women in Texas have had their cases thrown out or convictions reversed when misinterpreted medical evidence was re-evaluated. And the case of Manuel Velez is now drawing attention for the same reasons.

Earlier coverage of Manuel Velez' case begins at the link.  Related posts are in the forensics and expert witnesses category indexes.

Arizona Clemency Hearing Canceled Following 9th Circuit Order

The

U.S. Court of Appeals for the Ninth Circuit's order in Schad v. Ryan is available in Adobe .pdf format.

The Arizona Republic reports, "Ariona death-row inmate's clemency hearing canceled."  It's by Michael Kiefer.

Edward Schad, scheduled to be executed a week from today for the 1978 murder of a Bisbee man, was to appear today before the Arizona Board of Executive Clemency at the state prison in Florence to ask that his life be spared.

But the hearing was canceled late Tuesday because of a ruling in the U.S Ninth Circuit Court of Appeals. The appellate judges did not issue a stay of execution, but ordered that the U.S. District Court in Arizona reconsider Schad’s claims of ineffective assistance of counsel at his trial.

And:

[A]t Schad’s trial, his defense attorney failed to bring up Schad’s mental illness, which might have persuaded a judge to impose a sentence of life in prison instead of death.

Earlier appeals based on that information were denied in the courts. But a recent U.S. Supreme Court decision redefined when allegations of ineffective assistance of counsel can be raised in federal court. Normally such issues must first be raised in state court before they can be considered in federal court.

Tuesday’s Ninth Circuit order asked the lower court to reevaluate Schad’s argument in light of the U.S. Supreme Court decision.

The Supreme Court case referenced is Martinez v. Ryan; more via Oyez.

At the Supreme Court

There's a lot of news coverage today coming from the Supreme Court.  A Texas death penalty case, Trevino v. Thaler was argued at the Court, yesterday, along with a non-capital case involving a missed filing deadline; the Court has accepted a death penalty case from Kansas, to be argued in the next term; and, there is widespread coverage of criticism of a prosecutor's words from Justice Sotomayor, a former prosecutor, herself.

I'm going to break these into several posts.  Let's begin with the Texas case, Trevino v. Thaler; that link will take you to the SCOTUSblog case file, with all briefing in the case.  You can also read the oral arguments transcript in Adobe .pdf format.

The Trevino case has not received much press attention, perhaps because of its limited scope.  In 2012, the Supreme Court ruled in Martinez v. Ryan, that prisoners who have compelling claims of ineffective assistance of trial counsel can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, however, later ruled that Martinez does not apply to Texas, in the case of Ibarra v. Thaler, thereby preventing prisoners from the country's most active death penalty state from having access to Martinez's protections. 

Does Martinez apply to Texas cases?  That's the question that the Supreme Court should answer in Trevino.

Earlier coverage of Carlos Trevino's case begins at the link; that will also get you to earlier coverage of Martinez v. Ryan.

Prior to yesterday's oral argument, SCOTUSblog posted the argument preview, "On the vagaries of post-conviction capital criminal procedure in Texas," written by Steve Vladeck.

The non-capital case heard yesterday involving a missed deadline is McQuiggin v. Perkins.  The oral arguments transcript is at the link.  Adam Liptak writes, "Justices Hear Arguments on Missed Deadline in Murder Case," for the New York Times.

Floyd Perkins, a Michigan man serving a life sentence for murder, says he has evidence proving his innocence and should be allowed to present it long after a one-year filing deadline has passed.

The Supreme Court has never resolved whether such deadlines may be waived when prisoners file federal habeas corpus challenges to state-court convictions based on evidence of innocence. Judging from the justices’ questions on Monday in Mr. Perkins’s case, their eventual decision is not likely to bring much additional clarity to the situation.

There was some support from the bench for the abstract proposition that deadlines ought not be too rigid. But there was less sympathy for Mr. Perkins himself.

Mr. Perkins was convicted based largely on the testimony of Damarr Jones, who said he saw Mr. Perkins stab a third man in the head in 1993 after the three of them left a house party in Flint, Mich. The third man, Rodney Henderson, was found dead on a wooded trail.

Mr. Perkins testified that he had parted from the other two men before the killing and later saw his accuser under a streetlight, bloody and agitated. The jury believed Mr. Jones.

Over the years, from behind bars, Mr. Perkins collected three sworn statements from people who said they had evidence that Mr. Jones was the actual killer. Their basic contention was that Mr. Jones had taken a bloody pair of orange pants to a dry cleaner the day after the killing.

Though Mr. Perkins obtained the last statement in 2002, he did not ask a federal judge to throw out his conviction until 2008. The judge refused, saying it had been filed too late and that, in any event, the statements were just an elaboration of a claim the jury had rejected — that Mr. Perkins “was being framed by the prosecution’s lead witness, who himself was responsible for the murder.”

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, reversed the part of the ruling concerning the deadline and ordered the trial judge to take another look at the evidence.

Stay Issued in Florida Case with No Federal Habeas Review

TheU.S. Court of Appeals for the Eleventh Circuit stay in Howell v. Secretary, Florida Department of Corrections is available in Adobe .pdf format.

"Florida asks Supreme Court to lift killer's execution stay," is the AP report, via the Tampa Tribune.

The state is asking a U.S. Supreme Court justice to lift a stay of execution obtained by a South Florida drug trafficker who was convicted of killing a state trooper with a pipe bomb 21 years ago.

Paul Augustus Howell was set for execution Tuesday at Florida State Prison near Starke, but the Atlanta-based 11th U.S. District of Appeal on Monday temporarily blocked it.

"Paul Howell Granted Temporary Stay Of Execution One Day Before Scheduled Lethal Injection," is by Hunter Stuart at Huffington Post.

Paul Howell, the 47-year-old man convicted of killing a state trooper in 1992, was granted a stay of execution on Monday, just one day before he was scheduled to be given a lethal injection.

One of Howell attorney's, Michael Ufferman, told The Huffington Post on Monday that he had received an order from the 11th Circuit Court of Appeals that Howell's execution would be temporarily stayed because the district court had granted Howell's certificate of appealability.

Ufferman said the court was currently deciding whether or not Howell would have the opportunity to have his case heard in federal court, an opportunity he has not yet had.

HuffPost reported on Friday that Howell would be put to death Feb. 26 without having his final federal review, a routine right universally recognized for prison inmates, because a former attorney had missed a filing deadline for a crucial piece of paperwork.

Although that filing deadline is stated clearly in the Antiterrorism and Effective Death Penalty Act of 1996, a U.S. Supreme Court decision from 2010 ruled that that deadline can be relaxed in certain circumstances, such as the misconduct of a state-appointed attorney, like Howell's.

Earlier coverage of Paul Howell's case begins at the link; also available, coverage of Florida legislation and editorial calls for reforms.

Pending Florida Execution in the Spotlight

Today's Bradenton Herald reports, "Execution of murderer raises new questions about the death penalty in Florida."  It's written by Mary Ellen Klas.

The execution of Paul Augustus Howell scheduled for Tuesday has put Florida’s death penalty process under the microscope again.

Howell, 42, was convicted in 1992 of the pipe-bomb killing of Florida Highway Patrol Trooper Jimmy Fulford in Jefferson County, east of Tallahassee. If he dies by lethal injection as scheduled, his attorneys say, he will be the first Florida inmate to die without his case having been reviewed in federal court under a habeas corpus appeal. They argue Howell deserves that review — and a chance to seek another trial.

They say the court never heard about the conflict of interest involving his trial attorney, the failure to tell the court of Howell’s brain damage, his paranoia, child abuse or his lost court files. And the court never heard about Howell’s inadequate representation from the appellate lawyer who missed a crucial deadline for his federal review.

“Lawyers who never met the client in the 13 years they represented him lost his records in a flood and haven’t asked for new ones,” said Sonya Rudenstine of Gainesville, a new attorney hired by the inmate’s family. “If it weren’t so tragic, it would be a comedy of errors.”

The Florida Supreme Court rejected an appeal last week by Howell’s new attorneys. The court said it could not address claims he may raise in federal court. His attorneys have filed a new request in federal court in Tallahassee.

The habeas corpus review is routine in death-penalty cases in which the federal government provides inmates with an experienced, federally funded lawyer to have his case presented before a federal court as a final layer of protection before execution.

Howell’s last-minute appeal for more time comes as the Florida Legislature is moving in the other direction — toward limiting the time inmates should have to get their cases reviewed.

The latest AP report is, "Execution final act in 1992 Florida traffic stop," by Bill Kaczor.  It's also via the Bradenton Herald.

What began as a routine traffic stop on Interstate 10 in rural north Florida quickly escalated into the killing of a state trooper and launched a multi-state investigation that unraveled a major crack cocaine ring 21 years ago.

That chain of events is set to end with the execution Tuesday of South Florida drug trafficker Paul Augustus Howell for murdering Florida Highway Patrol Trooper Jimmy Fulford with a pipe bomb on Feb. 1, 1992.

Howell's execution is scheduled for 6 p.m. at Florida State Prison near Starke pending a last-ditch stay his lawyers were seeking in state and federal courts.

"Florida To Execute Death Row Prisoner Paul Howell Without Giving Him Final Federal Appeal," is by Hunter Stuart at Huffington Post.

A man currently sentenced to death will be executed next week by lethal injection without receiving his final federal review, a routine right for prison inmates that is universally recognized across the country.

Michael Ufferman, one of the lawyers representing Paul Howell, a 47-year-old man on death row for killing a state trooper in 1992, told The Huffington Post that Howell was wrongfully denied an appearance in federal court because his previous attorney missed a filing deadline for the appeal.

Ufferman says there is mitigating evidence that needs to be considered. For example, he says Howell suffers from mental health issues and was abused as a child.

The Florida Supreme Court denied Howell's appeal for a stay of execution on Tuesday, NBC local affiliate WESH reports.

Gov. Rick Scott, who got rid of a state committee that monitored capital punishment in order to save $400,000 a year, has the power to withdraw the death warrant for Howell, Ufferman said. But so far, Scott has not done so.

When asked if the governor had plans to grant a stay of execution, his spokesman sent HuffPost the following statement: "Under Florida law, it is the Governor’s duty to make decisions on cases involving capital punishment, and he takes this solemn duty very seriously."

"Mr. Howell is not getting a second look to see if the state court made any mistakes or didn't follow clearly established federal law," said Rick Sichta, an attorney on the board of directors at the Florida Capital Resource Center, which provides support to prisoners facing death sentences. "We're just taking the state court's word for it right now. It's common that when you get up to the federal level, federal courts have a different opinion."

Earlier coverage of the Florida case of Paul Howell begins at the link.

Florida Execution Looms in Case with No Federal Habeas Review

Today's New York Times reports, "Lawyers Seek Final Appeal for Man Due to Be Executed."  It's written by Lizette Alvarez.

Lawyers for a man scheduled to be executed in Florida on Feb. 26 for killing a state trooper filed a motion in federal court on Wednesday arguing that the prisoner had been wrongly denied his final appeal because of a missed filing deadline.

If Paul Augustus Howell, 47, is executed next week, he would become the first Florida inmate to die by lethal injection without receiving his final federal appeal, called a habeas petition, since 2008. That year, the United States Supreme Court stated that a lawyer’s misconduct or “gross negligence” may be enough to override the one-year filing deadline for final federal appeal under the Antiterrorism and Effective Death Penalty Act of 1996.

Mr. Howell’s lawyers say that his original trial lawyer had a “substantial conflict of interest,” that began with a reported death threat. An additional 30 Florida inmates on death row have also missed federal habeas petition filing deadlines and could face similar situations when their execution dates arrive.

On Tuesday, the Florida Supreme Court rejected Mr. Howell’s appeal and his request for a stay of execution. The justices said they could not address claims that Mr. Howell may raise in federal court.

Michael Ufferman, one of Mr. Howell’s new appellate lawyers, said executing someone before Mr. Howell, or any other offender, received a habeas review was not a precedent that Rick Scott, the Florida governor, should set.

“He has never had the opportunity to have this issue reviewed in federal court,” Mr. Ufferman said. “We are pushing that issue with the governor’s office.”

The Florida Supreme Court ruling in Howell v. Florida is available in Adobe .pdf format.

"Paul Augustus Howell update: Appeal unanimously denied for Florida state trooper killer," is the AP report filed by Bill Kaczor.  It's via WPTV-TV.

The Florida Supreme Court on Tuesday unanimously denied a post-conviction appeal and stay sought by a drug trafficker who is facing execution on Feb. 26 for killing a state trooper with a pipe bomb.

An attorney for Paul Augustus Howell, 47, said additional appeals, though, will be filed in state and federal courts.

And:

"The key issue in this case was a substantial conflict of interest by his trial attorney," said Michael Ufferman, one of Howell's appellate lawyers.

Ufferman said Frank Sheffield, now a state circuit judge in Tallahassee, had a conflict that came because of a telephoned death threat Sheffield said his wife, then also his secretary, had received.

It came after Sheffield had told Howell the evidence against him was overwhelming in a separate drug trafficking case then pending in federal court. Sheffield said the anonymous caller asked to leave a message saying that "if Paul Howell goes down, Mr. Sheffield is going down also."

The federal judge let Sheffield withdraw from the drug case. Howell subsequently was convicted of drug trafficking and sentenced to life in prison.

Sheffield, though, declined to withdraw from the murder trial that followed although prosecutors and Howell asked for him to be removed. The state judge allowed him to remain. The state prosecutors also said their investigation indicated the threatening phone call never happened.

Ufferman said the new appeals will be filed in federal court in Tallahassee and in state court in neighboring Jefferson County.

The trial lawyer conflict issue has never before been heard in federal court because Howell's initial appellate lawyer, Danielle Jorden, missed a filing deadline, Ufferman said.

Earlier coverage from Florida begins at the link.  Related posts are in the post-conviction review category index.

Kansas Death Penalty Conviction Overturned

TheKansas Supreme Court ruling in Kansas v. Cheatham is available in Adobe .pdf format.

The Republic posts the AP filing, "Kansas Supreme Court orders new trial for man in 2003 murders, cites ineffective legal counsel."  It's written by John Milburn.

A Topeka man convicted of two 2003 murders deserves a new trial in part because his previous attorney provided ineffective representation, the Kansas Supreme Court ordered Friday.

Phillip D. Cheatham was convicted in Shawnee County in 2005 of killing Annette Roberson and Gloria Jones and wounding a third victim, Annetta Thomas, at a Topeka home.

Justice Dan Biles wrote in Friday's opinion that Cheatham was denied a fair trial in part because his attorney at the time, Dennis Hawver of Ozawkie, did not put enough effort into preparing for the case. The justices said the 200 hours Hawver spent working on Cheatham's defense was "appallingly low for a death penalty defense and even more stunning when all but 60 of those hours, as Hawver testified, were spent in trial."

"Specifically, we hold that counsel's performance was deficient in several respects, which were most seriously problematic when he volunteered to the jury that Cheatham had a prior voluntary manslaughter conviction and referred repeatedly to his client as a 'professional drug dealer' and 'shooter of people.' This denied Cheatham his right to a fair trial," Biles wrote.

And:

Biles wrote that the court found it "distressing" that Hawver didn't familiarize himself with the rigors of a death penalty defense and seek assistance or necessary resources to defend his client.

"It flies in the face of common sense that he so effortlessly dismissed the offer from the BIDS executive director to publically provide assistance," Biles wrote.

Cheatham's case is the second death penalty sentence to be reversed by the Kansas Supreme Court in the past year.

Related posts are in the ineffective assistance of counsel category index.

Manuel Velez Post-Conviction Hearing Concludes

"Velez hearing comes to end," is Mark Reagan's Brownsville Herald report.

Judge Elia C. Lopez in 30 to 60 days will tell the Texas Court of Criminal Appeals whether she thinks convicted murderer Manuel Velez should have another day in court.

Velez was convicted in October 2008 of killing 1-year-old Angel Gabriel Moreno. He was sentenced to death, but the Texas Court of Criminal Appeals threw out the sentence in June because expert witness testimony on future dangerousness was deemed inaccurate.

The child’s mother, Acela Moreno, pleaded guilty to striking Angel Gabriel Moreno on or about Oct. 31. She served five years of a 10-year sentence and testified against Velez during the trial. She received a plea deal and pleaded guilty to injury of a child.

Lopez listened to five days of testimony detailing what Velez’s pro bono habeas counsel said were critical mistakes by his defense attorney, Hector Villarreal, that included not exploring medical evidence or failing to call witnesses who might have cast doubt as to whether Velez was responsible for the child’s death.

Brian Stull of the ACLU Capital Punishment Project has blogged the hearing.  "Velez Hearing Day 4: Plight of Victim’s Family Shows That Death Penalty is the Wrong Priority," is his post at the ACLU Blog of Rights.

Day 4 of the Manuel Velez innocence hearing on Friday in Brownsville, Texas, brought into focus the plight of the poor, depressed, and overwhelmed young mother of the child victim who died -- a mother who desperately needed help but never found it.

At a 2008 trial, Manuel was convicted and sentenced to death for killing 11-month-old Angel Moreno.  Before Friday’s testimony, most of this hearing’s evidence has been the testimony of experts who showed that the child’s injuries were caused at a time when Manuel was not involved with the family and had no access to the child.

Witnesses Friday described the months leading up to the boy’s death, and the struggles his mother, Acela Moreno, faced.  A friend testified that troubles started when Moreno came to her home at 3:00 a.m., with one of her three children in her arms.  Moreno asked for money so she could flee the home of Juan Chavez, the father of the victim in this case, who was abusing her.  The friend had provided money to Moreno in the past.  On another occasion, the friend drove Moreno to a battered women’s shelter.

"Velez Hearing Day 3: A Portrait of Constitutionally Inadequate Counsel," is Stull's earlier post.

In Day 3 of the Velez hearing in Brownsville, Texas, I want to take a moment to explain the legal context – the rule of constitutional law – that will entitle Manuel Velez to relief if the judge, the Hon. Elia Cornejo Lopez, credits the facts presented.

The legal journey starts 50 years back with the U.S. Supreme Court’s landmark ruling in Gideon v. Wainwright.  There, the court held that the Constitution entitles poor people facing possible imprisonment counsel appointed at the state’s expense.  In later decisions, the court clarified that a poor person’s right to appointed counsel is a right to effective counsel.

So how does an appellate court, after a conviction, test whether the prisoner had effective counsel?  The law gives a two-step test.  First, counsel’s alleged mistakes must be serious errors, not Monday-morning complaints that a different strategy would have worked better. Second, the prisoner has to show that the trial attorney’s mistakes or omissions made a difference in the trial’s outcome – in legal parlance, “a reasonable probability of a different outcome.”

A typical winning claim looks like this. Counsel failed to present readily available evidence of the prisoner’s innocence.  And, had that innocence evidence been shown at trial, it likely would have made a difference in the jury’s decision.

The task in this hearing for Manuel’s counsel, a dedicated team of lawyers from the firms Carrington Coleman and Rothgerber, Johnson, and Lyons, has been to demonstrate counsel’s failures to show that the child victim had been injured long before Manuel had access to him.  Much of the hearing evidence is medical evidence of the child’s injuries that counsel failed to explore in the 2008 trial, which led to Manuel’s capital murder conviction and death sentence.

"Day 2 of Velez Hearing: State’s Witness Dismantles State’s Timeline Theory."

We’re in day 2 of the Manuel Velez innocence hearing in Brownsville, Texas.  As we’ve previously explained, this case posed a dilemma because two adults were in a Brownsville home on Halloween 2005 when 11-month- old Angel Moreno was taken to the hospital unable to breathe. Both adults, Manuel Velez and Acela Moreno, the boy’s mother, pointed the finger at one another as the perpetrator.  But no witness, physical, forensic, or other evidence suggests Manuel ever hurt this or any other child.

Nevertheless, to prove Manuel was the perpetrator – and convince a jury to sentence him to death – the state claimed that Manuel must have killed the child because the child only began showing evidence of injuries and abuse during the two weeks in which he (and his mother) lived with Manuel. Those two weeks ran up to the day the child was hospitalized.

Earlier coverage of Manuel Velez' case begins at the link.

Ohio Governor Commutes Death Sentence of Ronald Post

"Kasich Commutes the Sentence of Ronald Post," is the news release from the office of Governor John Kasich.

Today Gov. John R. Kasich issued the following statement upon commuting the sentence of Ronald Post to life in prison without the possibility of parole:

"Regardless of the heinous nature of their crime, a criminal defendant is entitled to an effective defense, especially in a death penalty case. The Parole Board’s conclusion is that Ronald Post did not come close to receiving such a defense. After my own careful review, I agree. Therefore I am ordering that he spend the rest of his life in prison with no possibility of ever getting out. This decision should not be viewed by anyone as diminishing this awful crime or the pain it has caused.”

The warrant of commutation is available in Adobe .pdf format.

U.S. News & World Report posts the AP report, "Ohio governor spares condemned obese killer," written by Andrew Welsh-Huggins.

The governor on Monday sidestepped a decision about whether a condemned inmate was too fat to be humanely executed by sparing the prisoner on the grounds that he had poor legal representation.

Gov. John Kasich's decision to grant clemency to Ronald Post mirrored the recommendation of mercy by the state parole board, which said it didn't doubt Post's guilt but said there were too many problems with how he was represented 30 years ago.

Post, who weighs 450 pounds, never raised the issue of his size with the board. And Kaisch, who commuted Post's sentence to life with no chance of parole, didn't mention Post's obesity claim in his statement.

The governor said all criminal defendants, regardless of the heinousness of the crimes, deserve an adequate defense

And:

In its Friday decision, the parole board rejected arguments made by Post's attorneys that he deserves mercy because of lingering doubts about his "legal and moral guilt" in a woman's death, but it said it couldn't ignore perceived missteps by his lawyers.

Post was scheduled to die Jan. 16 for killing Elyria motel clerk Helen Vantz in a 1983 robbery.

Earlier coverage of Ronald Post's case begins at the link. 

Related posts are in the clemency index.

Tennessee Case Ends in Life Plea

"Memphis man agrees to life in prison after death sentence overturned," is the Memphis Commercial Appeal report written by Lawrence Buser.

A Memphis man convicted in the 2002 shooting death of an Iraqi man in North Memphis agreed Monday to a sentence of life in prison without parole after his death penalty was reversed by a judge last year.

Devin Earl Banks, 29, had been on death row since his conviction seven years ago in the execution-style murder of acquaintance Kadhem Al-Maily, 39, and the critical wounding of Hussain Altilebawi, then 36.

His convictions were upheld, but last year Special Judge Walter Kurtz ruled that Banks' defense team was ineffective in the sentencing phase when the Criminal Court jury gave Banks the death penalty instead of life in prison.

Supreme Court to Hear Texas Case

The Texas Tribune posts, "Supreme Court To Hear Texas Death Row Inmate's Case," by Maurice Chammah.

The U.S. Supreme Court agreed on Monday to hear the case of Texas death row inmate Carlos Trevino in a case that could determine whether a defendant in Texas has a right to “competent” attorney during habeas appeals — a challenge to a criminal conviction that considers whether the defendant's constitutional rights were violated during his trial.

In March, the nation’s highest court decided in Martinez v. Ryan that the failure of state habeas lawyers to argue that their client's trial counsel was ineffective should not keep the defendant from being able to make that argument later in the appeals process.

The question in the Trevino case is whether the court's decision in Martinez applies in Texas, said Trevino’s lawyer, Warren Alan Wolf. The U.S. 5^th Circuit Court of Appeals decided in November 2011 that since the laws governing habeas appeals in Texas are different from those in Arizona, the Martinez decision does not apply.

Lyle Denniston posts, "Court grants four cases, seeks government views," at SCOTUSblog.

Among the cases that the Court did grant, the case of Trevino v. Thaler (11-10189) is of major importance for criminal law.  The petition, by lawyers for a Texas death-row inmate, Carlos Trevino, argued that lower federal courts have denied prisoners like him the opportunity to test their convictions and death sentences in federal court on the theory that their defense lawyers were deficient during state court proceedings.  In the Supreme Court’s decision last March in Martinez v. Ryan, the Court made a significant exception to the long-standing rule that a state prisoner cannot pursue a challenge in federal habeas court if the inmate failed to bring up the challenge first in state court.

In the Martinez case, the Court said that inadequate performance by a defense lawyer in state court can be used as an excuse for failing to have raised that issue in state court, at least in situations when a state did not allow such a claim until after a conviction had become final and the inmate pursued post-conviction remedies in state court.  When state laws bar such a claim until the post-conviction stage, the Court ruled, the procedural bar to raising that issue in federal habeas is set aside and a habeas judge can consider the ineffectiveness claim.

Lower federal courts ruled, however, that Texas courts sometimes allow a state inmate to bring up an ineffective lawyer claim prior to a post-conviction stage, so the Martinez decision does not apply in Texas, including death-penalty cases there.

"Justices to See If Late Habeas Claim Is Justified," is Barbara Leonard's report for Courthouse News Service.

A death row inmate will get a new shot at habeas relief after the Supreme Court agreed Monday to take up his case in light of precedent that infuriated Justice Antonin Scalia earlier this year.

Carlos Trevino was convicted in 1997 of murdering 15-year-old Linda Salinas.

And:

After the trial court sentenced Trevino to death, the inmate unsuccessfully applied for habeas relief at the state level, then filed a petition in federal court, but stayed that proceeding to exhaust another option in state court. When that maneuver failed, Trevino stayed his federal habeas proceeding a second time to exhaust another claim in state court.

Since Texas failed for over two years to appoint Trevino a lawyer in connection to the new claim, the federal court lifted the stay and resumed proceedings.

A federal judge denied Trevino's eight claims for federal habeas corpus relief, but it granted the inmate a certificate of appealability (COA) on three of the issues.

Trevino had argued that the court should stay further proceedings until the Supreme Court resolved a pending question about whether ineffective assistance of state habeas counsel in failing to raise a meritorious claim of ineffective assistance of trial counsel established cause for a default in state habeas proceedings.

The 5th Circuit refused to stay Mr. Trevino's appeal for this purpose and would not grant COAs on the five claims that the lower court rejected in November 2011.

Four months later, the Supreme Court decided in Martinez v. Ryan that ineffective assistance of state habeas counsel, mirroring that which Trevino has described, could establish cause for the default of a claim of ineffective assistance of trial counsel.

Earlier coverage of the Martinez v. Ryan ruling begins at the link.  Related posts are in the Supreme Court index. 

Texas Execution Scheduled for Wednesday

Texas is scheduled to carry out its 11th execution of 2012, tonight in Huntsville.  It would be the 488th post-Furman Texas execution since 1982.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Execution Wednesday for 1991 Dallas-area slaying," is the AP report on the scheduled execution of Bobby Hines, via KTRK-TV.

The Texas Court of Criminal Appeals last week rejected an appeal from Hines, whose lawyer argued Hines' trial attorneys "failed to adequately investigate, develop and present to the jurors the full extent of the abuse, neglect and violence that Bobby was subjected to at a very young age, and which continued throughout his youth."

Attorney Lydia Brandt also contended lawyers early in the appeals process likewise failed to investigate the claims. She unsuccessfully tried to negotiate the execution date so it fell after a U.S. Supreme Court conference next week when justices are expected to discuss whether to review another Texas death penalty case with similar issues.

Lisa Smith, a Dallas County assistant prosecutor, argued Hines' trial lawyers had presented "a detailed and credible picture of a child who suffered and faced significant struggles."

Earlier coverage of Bobby Hines' case begins at the link.

To date, there have been 32 executions in American death penalty states this year; a total of 1,309 post-Furman executions since 1977.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CST), Thursday.

According to TDCJ, seven additional executions have been scheduled by Texas district courts, including two set for 2013.  The next scheduled Texas execution in October 31.

Supreme Court Stays Anthony Haynes Execution

The Supreme Court order in Haynes v. Thaler is available in Adobe .pdf format.

"Houston cop killer Haynes granted stay of execution," is Allan Turner's report for the Houston Chronicle.

The high court agreed to consider a review of his case about 3:30 p.m. about 2 ½ hours before Haynes was to be put to death.

Earlier, the Texas Board of Pardons and Paroles and a federal court had rejected the killer's appeals, which essentially said Haynes' previous lawyers had provided inadequate representation.

In his petitions, Haynes' current lawyer Richard Ellis said the earlier attorneys failed to thoroughly research the case, and had handled the punishment phase of the trial as an "afterthought." Friends and relatives who would have testified to Haynes' good character were not allowed to tell their stories to jurors, Ellis said.

Should the high court review Haynes' case, it will also consider whether claims such as his can be considered in federal courts when they have not been heard in state courts. Haynes' claims of insufficient counsel were not heard in state courts because they were not presented in a timely manner mandated by Texas law.

High court justices later this month will consider reviewing a case where the arguments mirror Haynes'. The court in August stayed the execution of Amarillo triple-killer John Balentine.

"Supreme Court stops execution of Houston cop killer," is the AP report, via the Longview News-Journal.

Haynes’ trial lawyers showed “virtual abdication of their duty” by failing to more fully investigate and present evidence of Haynes’ good character to jurors who were deciding his punishment, his appeals attorney, A. Richard Ellis, told the high court in his appeal.

"Supreme Court halts Texas execution of police killer," by Corrie MacLaggan for Reuters.  It's via the Chicago Tribune.

Earlier coverage of Anthony Haynes' case begins at the link.

Texas Execution Scheduled Tuesday

Texas is scheduled to carry out its ninth execution of 2012, tonight in Huntsville.  It would be the state's 486th post-Furman execution since 1982.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Texas Death Row Inmate Seeks Fourth Stay of Execution," is Brandi Grissom's Texas Tribune post.

Death row inmate Cleve Foster, a former military recruiter, is hoping the courts will for the fourth time in a year stay his execution, which is scheduled for Tuesday evening.

After the U.S. 5th Circuit Court of Appeals denied his appeal, Foster’s lawyer, Maurie Levin, filed an appeal with the U.S. Supreme Court. She said on Monday that the justices had called for the record in the case, a step they don’t always take.

“They’re taking it seriously,” said Levin, who is also an adjunct professor and co-director of the Capital Punishment Clinic at the University of Texas at Austin.

"Texas inmate narrowly avoided execution 3 times, tries for fourth," is the Los Angeles Times report by Molly Hennessy-Fiske.

A Texas inmate whose appeals have three times spared him the death penalty is again scheduled for execution Tuesday.

Cleve Foster, 48, was sentenced to die for his part in the abduction and killing of a 30-year-old Sudanese woman near Fort Worth in 2002.

And:

Foster still had appeals pending Monday, alleging he had poor legal representation at his 2004 trial and early in the appeals process.

Michael Graczyk files, "Death row inmate to relive execution day for third time," for AP.  It's via the Dallas Morning News.

Appeals again were pending in the courts, focusing on what his lawyers argued was poor legal help both at his 2004 trial in Fort Worth and by attorneys early in the appeals process. Similar appeals resulted in the three previous reprieves the courts subsequently have lifted, but his lawyers argue his case should get another look because the legal landscape has changed in death penalty cases.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CST), Thursday.

To date, there have been 29 executions in American death penalty states this year; a total of 1,306 post-Furman executions since 1977.

According to TDCJ, seven additional executions have been scheduled by Texas district court.  Two executions have already been set for 2013.

Earlier coverage of Cleve Foster's case begins at the link.

Ineffective Counsel in Georgia

That's the title of an editorial published in today's New York Times.

Robert Wayne Holsey, on death row in Georgia for killing a police officer, is seeking a new sentencing hearing because he received ineffective counsel. He should get one. His own lawyer told a Georgia trial court reviewing the case that he “probably shouldn’t have been allowed to represent anybody” while he was ostensibly providing a defense.

The lawyer said that he drank a quart of vodka every night during the trial and that he was also preparing to defend himself against possible disbarment for stealing client funds. Not surprisingly, the trial court ordered a new sentencing hearing, saying that “no one can seriously believe that the petitioner received the constitutional guarantees of the Sixth Amendment right to effective assistance of counsel.”

Astonishingly, two other courts have since disagreed in rulings that seem equally contemptuous of defendants’ rights to effective counsel. The State Supreme Court said that Mr. Holsey failed to show that the trial would have come out differently if his lawyer had done his job properly. A three-judge panel of the United States Court of Appeals for the 11th Circuit ruled 2 to 1 that Mr. Holsey failed to prove the State Supreme Court’s decision was “unreasonable.”

The dissent from that decision explains why both rulings are wrong. At Mr. Holsey’s trial, the defense made only cursory mention of the beatings he suffered as a child and the fact that he had been judged mentally retarded — mitigating circumstances that could have changed the outcome. Georgia requires a unanimous vote to impose the death penalty; given the evidence, one or more jurors might have voted otherwise.

The 11th Circuit opinion and dissent in Holsey v. Warden is available in Adobe .pdf format.

"Court upholds cop killer’s death sentence," is Bill Rankin's Atlanta Journal-Constitution report.  It appeared in Saturday's paper.

The federal appeals court has upheld a death sentence against man who killed a sheriff’s deputy, even though the condemned inmate’s lead lawyer drank a quart of vodka every day during trial.

The 11th U.S. Circuit Court of Appeals in Atlanta, in a 2-1 decision issued Thursday, said that even though Robert Wayne Holsey’s trial lawyers did not do a competent job, their deficient performance did not prejudice the outcome of the trial. Holsey sits on Georgia’s death row for fatally shooting Baldwin County Deputy Will Robinson after an armed robbery of a convenience store in December 1995.

Holsey’s appellate lawyers noted that his lead trial lawyer, Andrew Prince, drank a quart of vodka every night of Holsey’s trial because he was about to be sued and prosecuted for stealing client funds. During Holsey’s appeal, Prince testified that he “probably shouldn’t have been allowed to represent anybody” because of his condition.

In its ruling, the 11th Circuit said the key question was not whether Holsey’s lawyers were ineffective. It was whether their deficient performance prejudiced the outcome to the point there was a reasonable probability Holsey would not have been sentenced to death.

Judge Ed Carnes, writing the majority opinion, said the abundant aggravating factors — such as the fact Holsey killed a deputy to avoid arrest and had a prior armed robbery conviction — outweighed any additional mitigation evidence Holsey’s lawyers could have presented to the jury had they been doing their job.

Judge J.L. Edmondson concurred with the decision, but he indicated it was a close call as to whether the poor performance of Holsey’s lawyers prejudiced the outcome of the trial.

In dissent, Judge Rosemary Barkett said the jury never learned that Holsey was subjected to abuse so severe, frequent and notorious that his neighbors called his childhood home “the torture chamber.” Holsey’s mother beat him with an extension cord, shoes and a broom and would hold his head under the bathtub faucet, Barkett wrote, also citing testimony that the house was infested with roaches and reeked of urine and rotting food.

Had the jury heard more about Holsey’s “horrific child abuse,” Barkett wrote, there is a substantial probability he would not have been sentenced to death.

The Macon Telegraph reports, "Execution possible in 2013 for man convicted of slaying Baldwin deputy."  It's by Amy Leigh Womack.

A man sentenced to death for the 1995 shooting death of a Baldwin County sheriff’s deputy could be put to death as early as summer 2013, said Fred Bright, district attorney for the Ocmulgee Judicial Circuit.

A panel of three judges from the U.S. 11th Circuit Court of Appeals have denied relief for Robert Wayne Holsey, the man convicted in the slaying of deputy Will Robinson, Bright said.

Holsey’s lawyers had argued he received ineffective assistance from his trial attorneys during the sentencing phase of his trial, according to the ruling issued Sept. 13.

Holsey has until Oct. 4 to file a petition requesting that the full court hear his case. If he’s denied or if the court rules against him, he has 90 days to file a request that the U.S. Supreme Court hear his case, Bright said.

If he’s denied by the country’s highest court, his last chance for relief is to be granted clemency by the State Board of Pardons and Paroles, he said.

Related posts are in the ineffective assistance of counsel category index.

Proportionality review under Georgia state law has been an issue in past death penalty cases

Lawyers in Iowa Death Penalty Case Seek Data on Jurors

That's the title of an AP report  by Ryan J. Foley, via the Cedar Rapids Gazette.  It's subtitled, "Angela Johnson convicted in 1993 execution-style slayings."

Lawyers for an Iowa woman facing a second death penalty trial for her role in the execution-style killings of five people in 1993 are planning to challenge the process used to select juries, saying it may discriminate against women and minorities.

Attorneys for Angela Johnson filed a motion Friday asking for years of data and other documents so they can analyze the racial and gender makeup of grand juries and trial juries in the federal district that covers the northern half of Iowa. They say they intend to challenge the constitutionality of the system, arguing minorities may be underrepresented by the way federal officials create the pool of potential jurors and women could be discriminated against in the selection of forepersons.

“The importance of a representative grand and trial jury to the fair administration of justice cannot be overstated, particularly in a capital case,” they wrote.

Johnson is set to go on trial next year to determine whether she will be sent back to federal death row, where she was the first woman in decades after her original conviction in 2005 on four counts of capital murder. U.S. District Judge Mark Bennett overturned her death sentence last year, ruling that her lawyers failed to present evidence about her mental state that could have convinced jurors to spare her life. Bennett ordered a new trial to determine her sentence, not her guilt or innocence.

And:

Judge Bennett gave federal prosecutors the option to convert Johnson’s sentence to life in prison in his March ruling, but they declined and sought another death penalty trial. Johnson was only one of two women on federal death row when she was removed earlier this year after Bennett found “shockingly numerous and disturbing constitutional deficiencies in the performance of Johnson’s alarmingly dysfunctional trial team.”

Defense attorney Marcia Morrissey of Santa Monica, Calif., said the data being sought will help determine whether disparities exist in the number of blacks, Latinos, Asians and other ethnic minorities who serve on juries compared to their population in northern Iowa. She said the district’s system of using voter registration and motor vehicle ownership data tends to discriminate against those groups, who are more mobile than whites, particularly since the lists are only required to be updated every four years.

Defense lawyers also want records that would show how often women are selected to serve as forepersons and documents related to persons who were disqualified or excused from jury service in the last 18 months.

Assistant U.S. Attorney C.J. Williams said he was in the process of reviewing the request, and would file a response.

Related posts are in the federal death penalty index.

We Cannot Be Sloppy With Death Sentences

That's the title of Leslie Linthicum's Upfront column in today's Albuquerque Journal.

Any mention of death row inmates going to court on appeal – for example, my column a few weeks ago about the argument that in a state that now outlaws the death penalty it constitutes cruel and unusual punishment – is bound to stir up a predictable response: Cry me a river, you bleeding hearts. Let ‘em hang.

The appeals process after a death sentence is lengthy and automatic, and for good reason. At the end of it, we should be sure the guy getting the lethal injection in the name of all of us committed the crime and that the death sentence was the result of a fair trial.

But it ties up lawyers and courts for years, often decades, and involves technical details and arcane arguments. And that leads to another predictable response: These guys will argue any technicality to save their skin.

But consider for a minute Timothy Allen, who is in his 17th year on New Mexico’s figurative “death row.”

He has been in appeal for a very long time, and these are some of the arguments – far from technicalities -he is claiming:

Before Allen was convicted of murder and sent to death row, his lawyers had no idea their client had been diagnosed with schizophrenia and treated for it, or that he had reported hearing voices in his head for years telling him to rape a girl, or that he told people he killed because voices in his head commanded him to.

His three-lawyer defense team was disorganized and inexperienced – and that’s by their own admission. His current legal team is arguing that the mistakes of his lawyers shouldn’t cost Allen his life.

And:

All those issues are part of Allen’s habeas corpus case in District Court in San Juan County. Prosecutors in an initial response to the claims rebutted the core of the argument – that Allen’s legal team deprived him of a fair trial. That process will continue, with lawyers on either side arguing the evidence for and against the claims and a judge will ultimately decide whether Allen was deprived of his constitutional right to a fair trial.

That will all take more lawyers, more appeals further up the court chain and more time. If you believe in the Constitution and want to make sure we get it right before we take a life, it’s time well spent.

Earlier coverage from New Mexico begins with Linthicum's death penalty column published earlier this month.  Thanks to Jim Ellis for circulating.

Supreme Court Stays John Balentine Execution

The Supreme Court order in Balentine v. Thaler is available in Adobe .pdf format, as is the earlier ruling and dissent from the Fifth Circuit Court of Appeals.

"Texas inmate set to die gets last-hour reprieve," is Michael Graczyk's AP report via the Houston Chronicle.

The U.S. Supreme Court again halted the scheduled execution of a Texas inmate convicted of a triple murder less than an hour before he could have been taken to the death chamber Wednesday.

Justices decided to stop the punishment of John Balentine, condemned for fatally shooting three teenage housemates in Amarillo in 1998.

Balentine also came within an hour of receiving the lethal injection a year ago and the high court took the same action on an appeal that ultimately was rejected. In 2009, he won a reprieve a day before his death date.

The high court said in a one-paragraph ruling Wednesday that it was giving the reprieve so it could consider Balentine's petition for a review. Attorneys said the appeal would be discussed by the court at a conference late next month.

And:

Balentine's lawyer, Lydia Brandt, argues his legal help was deficient at his 1999 trial and in his early appeals. Lawyers failed to uncover evidence of Balentine's abusive and poor childhood that could have persuaded jurors to sentence him to life in prison, instead of death, Brandt contends.

Brandt says Balentine's lawyers, in his early appeals, didn't question those aspects of his trial defense and that the opportunity to do so has expired under court rules. She contends that a recent court ruling in an Arizona death penalty case should open the door for justices to stop Balentine's execution and allow for a review of his case.

The recent Supreme Court ruling referenced in the article is Martinez v. Ryan; more via Oyez.

Earlier coverage of John Balentine's case begins at the link.

An Update on the Rodney Reed Case

"Judge Recommends Rejecting Rodney Reed Appeal," is the title of Jordan Smith's report in the Austin Chronicle.  Here's the opening:

In an 82-page report to District Judge Lee Yeakel, federal Magistrate Judge Andrew Austin on June 15 recommended that the federal appeal of Rodney Reed be denied. Reed was convicted and sentenced to die in 1998 for the 1996 murder of Stacey Stites, after DNA found on vaginal swabs taken from Stites were an affirmative match for Reed. "If Reed has no innocent explanation for the sperm found in ... Stites' vagina being his, then the DNA match is significant – indeed ... perhaps conclusive – evidence of his guilt," Austin wrote. Whether Yeakel will agree with that conclusion remains to be seen.

The state contends that Reed, while on foot, overcame 19-year-old Giddings resident Stites as she drove to Bastrop for an early morning shift at H-E-B, and that the semen found in Stites is the "Cinderella's slipper" proving its case. Reed's supporters contend that a far more likely suspect is Jimmy Fennell, a former Giddings and Georgetown cop to whom Stites was engaged at the time of her murder. Fennell is currently serving a 10-year sentence for kidnapping and sexual assaulting a woman while on duty and responding to a call for service as a Georgetown cop. Reed's case has been wending its way through state and federal courts on appeal since 1999, and, in the intervening years, a mass of evidence has come to light that paints Fennell as a man with a troubling history of violence toward women – a history that Reed's supporters say bolsters their contention that Fennell murdered Stites after discovering that she was having a sexual affair with Reed.

Moreover, Reed's supporters and his lead lawyer, Bryce Benjet, say that the reason the state's theory of the case convinced jurors of Reed's guilt is that questionable medical evidence, presented by the state to demonstrate that Stites had been raped just before her killing, was not scientifically sound and was never challenged by Reed's trial attorneys, an oversight that Reed has said made those attorneys ineffective. (In March, the U.S. Supreme Court ruled that a defendant should be allowed to argue ineffective assistance claims even if those issues were not raised at trial, so Benjet may next make that claim against former Reed appeal attorney Bill Barbisch for not arguing that Reed's trial attorneys were ineffective for failing to challenge the state's contention that Stites was raped.)

Smith also writes, "Rodney Reed: Another Innocent Man on Texas Death Row?" for the Nation.

At first glance, Texas’s capital case against Rodney Reed looks fairly persuasive.

Nineteen-year-old Stacey Stites was found dead in a wooded area just off a county road in Bastrop, Texas, in 1996. She was half-naked, with Reed’s DNA inside her. The DNA was the “Cinderella’s slipper,” special prosecutor Lisa Tanner told the jury at trial: it matched Reed’s; therefore, Reed was the murderer.

But what if it weren’t that simple?

It has been fourteen years since Reed was convicted and sentenced to die for Stites’s murder. Since then, evidence has accumulated that calls into question the state’s case against him—evidence that includes ineffective lawyering, possible prosecutorial misconduct, junk science and racial bias. Perhaps most damning, it also includes a failure by police to fully investigate a man with a troubling history of violence against women: Jimmy Fennell, Stites’s fiancé, a former police officer who is currently serving prison time for kidnapping and sexual assault.

Reed, who is black, has maintained his innocence and said that the DNA can be explained because he was having a sexual affair with Stites, who was white. In small-town Texas such an illicit, interracial relationship remains an explosive revelation—one that Reed’s supporters say infuriated Fennell, who is white, giving him a strong motive to harm his young bride-to-be.

Earlier coverage of Rodney Reed's case begins at the link.

The Exoneration of Billy Frederick Allen

"Texas Supreme Court defines 'actual innocence' more broadly," is the Fort Worth Star-Telegram editorial. 

After decades of legal motions challenging two murder convictions, it appears that Billy Frederick Allen will receive $2 million from the state of Texas for wrongfully imprisoning him for almost 26 years.

The Texas Supreme Court on Friday issued a significant interpretation of the Tim Cole Act that allows compensation even in cases where DNA evidence is not available to nullify a conviction.

In a unanimous opinion by Justice Dale Wainwright, the court said the definition of "actual innocence" in the law includes claims like Allen's in which the trial was constitutionally flawed enough to undermine confidence in the conviction.

And:

Allen kept challenging his conviction, and a trial judge repeatedly ruled that he should receive a new trial. After the law changed for raising claims of new evidence, the Court of Criminal Appeals in 2009 threw out Allen's conviction based on the ineffective assistance of his trial lawyer in not presenting evidence pointing to someone else as the killer. Prosecutors later dropped the charges.

When Allen filed a claim with the Texas comptroller's office for compensation that's available to exonerated inmates, he was denied.

The comptroller argued that the Court of Criminal Appeals' ruling didn't amount to the declaration of "actual innocence" required by the law.

But the Supreme Court said the Legislature had made clear its intent to cover cases like Allen's.

In a detailed examination, the court said "actual innocence" encompasses both claims such as exonerations based on new evidence from DNA testing and those in which "the constitutional error at trial probably resulted in the conviction of one who was actually innocent."

"The Legislature has drawn no distinctions between the two types of 'actual innocence' claims," Wainwright wrote.

The Texas Supreme Court Ruling in In RE: Billy Frederick Allen is available in Adobe .pdf format.  Here's additional news coverage of the ruling.

Jim Vertuno writes, "Texas high court orders state to pay ex-inmate $2M," for AP.

The Texas Supreme Court ordered the state Friday to pay about $2 million to an ex-inmate who spent 26 years in prison for murder before his conviction was overturned, a decision legal experts said could set a new standard for when ex-prisoners should be compensated.

Texas has paid nearly $50 million to former inmates who have been cleared. But state Comptroller Susan Combs had resisted paying Billy Frederick Allen, arguing that his conviction was overturned because he had ineffective lawyers, not because he had proven his innocence.

The state Supreme Court, in a unanimous opinion written by Justice Dale Wainwright, disagreed, saying the state's criminal courts had shown Allen had a legitimate innocence claim and he should be paid.

Jeff Blackburn, chief counsel of the Innocence Project of Texas, which works to free wrongfully convicted inmates, said Friday's ruling could open the door for more compensation claims from ex-prisoners.

"The floodgates are not opening, but what this will do is give a fair shake to people who are innocent," Blackburn said. "This is a major step forward in terms of opening up and broadening the law of exoneration in general."

Texas' compensation law is the most generous in the U.S., according to the national Innocence Project. Freed inmates who are declared innocent by a judge, prosecutors or a governor's pardon can collect $80,000 for every year of imprisonment, along with an annuity.

What makes Allen's case different is that he didn't have an innocence declaration. What he had instead was a Court of Criminal Appeals ruling that reversed his conviction based on ineffective counsel and supported a lower court's finding that the evidence against him was too weak for a reasonable jury to convict him.

In effect, the Court of Criminal Appeals, the state's highest court in criminal matters, supported Allen's claim of "actual innocence" and he should be paid, the state Supreme Court ruled.

"Court to Texas: Pay $2 million to man imprisoned for 26 years," is the Los Angeles Times report by Molly Hennessy-Fiske.

Billy Frederick Allen, now in his 60s, was convicted of two 1983 Dallas-area murders. Unlike other inmates freed after DNA evidence proved their innocence, Allen was freed in 2009 after a court found problems with witness testimony and his trial attorneys' representation. Allen sued the state for compensation for wrongful imprisonment.

Allen's attorney said the Supreme Court ruling may prove key to developing standards for when the state must compensate former prisoners.

"There are many cases where people are struggling and they don't have DNA, but they now have hope," Allen's attorney, Kris Moore of McKinney, Texas, told The Times. "The implications of this for the Texas justice system are probably larger than people realize."

He said the ruling may make it easier for inmates such as Richard Miles of Dallas -- who served 14 years for crimes he didn't commit, then spent two years awaiting a court ruling that finally came in February -- to be  compensated more quickly.

But he said it's not clear what bearing Allen's case may have on other ongoing high-profile exoneration battles. In one such case, Kerry Max Cook has written a book and attracted celebrity supporters in his fight to prove his innocence and receive compensation for serving 22 years on Texas' death row for an East Texas murder he says he never committed.

Courthouse News Service posts, "Texas Owes $2M to Man Exonerated of Murder."  It's by David Lee.

The comptroller said Allen was freed because of ineffective assistance of counsel, not actual innocence.

A unanimous panel of the state Supreme Court concluded otherwise Friday, saying the habeas relief amounted to actual innocence.

Substantive claims based on newly discovered evidence, such as DNA, are not the only permissible actual innocence claims under the act, according to the 19-page decision.

Procedural claims that are "intertwined" with constitutional errors are permissible as well

"He asserted a constitutional claim for ineffective assistance of counsel, which coupled with a proper defense of his case at trial would probably have concluded in a not guilty verdict," Justice Dale Wainwright wrote for the panel.

The court based its holding on Schlup v. Delo, a 1995 ruling in which the U.S. Supreme Court defined actual innocence as "not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty."

Under Schlup, the standard does not address the trial court's independent judgment as to whether reasonable doubt exists. Rather the standard requires the court to make a probabilistic determination about what reasonable, properly instructed jurors would do.

In 2001, for example, the Texas Legislature changed the term "not guilty" in the statute to "actual innocence." This gives credence to the idea that lawmakers wanted to include Schlup claims of actual innocence, the judges found.

More on Schlup, via Oyez.

Relates posts are in the wrongful incarceration index.

w.star-telegram.com/2012/05/20/3973424/texas-supreme-court-defines-actual.html#storylink=cpy

New Sentencing Ordered in Houston Case

The federal district court order in Jennings v. Thaler is available in Adobe .pdf format.

"Texas Cop Killer May Dodge Death Penalty," is Courthouse News Service coverage by Bonnie Barron.

A man on death row for killing a vice officer during the attempted robbery of an adult bookstore should be resentenced, a federal judge ruled.

Robert Mitchell Jennings killed Officer Elston Howard during a robbery at Empire Bookstore in July 1988. The Houston vice officer was in the process of arresting an Empire clerk for showing a sexually explicit movie without a permit when Jennings entered the store and pulled a gun.

And:

The January 2009 petition argues that Jennings suffered from an ineffective attorney who ignored evidence of his client's mental impairment and disadvantaged background.

Defense attorney Connie Williams opted not to have Jennings' mother Flora or his sister Carla testify at sentencing.

"The state obtained an affidavit from Williams in 2003 that he did not call Mrs. Jennings or Carla because he did not think that their testimony would be beneficial, as Mrs. Jennings was not sympathetic to petitioner and Carla was relatively young when petitioner left home," according to the petition.

Though U.S. District Judge Lynn Hughes said Jennings' attorneys may have had a legitimate basis to not call the mother, the sister's testimony could have helped.

"Counsel's explanation for not calling Jennings's sister makes no sense," Hughes wrote Monday. "Counsel stated that Jennings's sister was too young to remember pertinent events. The record shows that she was about 10 years old when Jennings first entered the juvenile justice system. That is certainly old enough to remember conditions at home at the time."

"Moreover, while counsel's explanations for not calling Jennings or his mother might make sense in isolation, the decision to call none of these three potential witnesses, and therefore present no evidence of the emotional and economic deprivations of Jennings's background, was not sound trial strategy," Hughes added (emphasis in original).

Jennings also claimed that the court should have heard about his mental condition, as evidenced by a 1978 court-ordered psychological evaluation. When Jennings was charged with two aggravated robberies and the burglary of a habitation, Dr. J. M. Bloom examined whether the suspect was competent to stand trial.

"Based on the evidence available to counsel at the time of trial, reasonable investigation, i.e., reading the clerk's files from Jennings's prior convictions, would have revealed that Jennings was diagnosed with a low IQ and organic brain damage, and would have led to further investigation and a request for expert assistance," Hughes noted.

Related posts are in the ineffective assistance of counsel category index.

Death Row Inmate’s Best Lawyer Was Himself

That's the title of Adam Liptak's Sidebar column for the Tuesday edition of the New York Times.  It's deals with the Florida case of Albert Holland Jr.

Albert Holland Jr., a death row inmate in Florida, has no legal training and seems to be suffering from a mental illness — “perhaps a disorder involving paranoia or delusional thoughts,” a federal judge wrote recently.

But he turns out to be a pretty good lawyer. Two years ago, in allowing Mr. Holland a fresh chance to make his case after his court-appointed lawyer blew a crucial deadline, the Supreme Court praised Mr. Holland’s legal acumen. Indeed, Justice Stephen G. Breyer wrote, Mr. Holland had had a better understanding of the complicated time limits for challenging death sentences in federal court than his lawyer had.

Mr. Holland made good use of the opportunity the Supreme Court gave him. A couple of weeks ago, he won a decision granting him a new trial. In the process, he opened a window on the astoundingly spotty quality of court-appointed counsel in capital cases.

The lawyer whose work the justices had considered was the least of it; he had merely been unresponsive and incompetent. Mr. Holland’s earlier lawyers had failed him in much more colorful ways.

And:

These days, Mr. Holland is represented by Todd G. Scher, a Miami Beach lawyer who won in the Supreme Court and persuaded Judge Seitz to order a new trial. A spokesman for the Florida attorney general’s office said prosecutors would ask Judge Seitz to reconsider her ruling.

Mr. Scher said he did not know who would represent Mr. Holland at a retrial. For now, he said, what was clear was that a federal judge had found “a blatant Sixth Amendment violation.”

“It shows that he was right,” Mr. Scher said of his client. “He had concerns about his prior series of lawyer, and his concerns turned out to be valid.”

Related posts are in the indigent defense and ineffective assistance of counsel indexes.

Federal Death Sentence of Female Overturned

AP reports, "Judge removes 1 of 2 women on federal death row."  It's written by Ryan J. Foley, via the St. Louis Post-Dispatch.

A judge removed one of the two women on federal death row Friday, saying lawyers for the Iowa woman convicted in the 1993 execution-style murders of five people failed to present evidence about her troubled mental state that could have spared her from capital punishment.

In a 448-page ruling, U.S. District Judge Mark Bennett threw out Angela Johnson's death sentence, saying her defense lawyers were "alarmingly dysfunctional" during the 2005 trial that made her the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the punishment in 1976.

Attorney General Eric Holder and aides must determine within 60 days whether to appeal or continue seeking the death penalty for the 48-year-old mother of two, said assistant U.S. Attorney C.J. Williams, who prosecuted the case. If they do not appeal, there will be a trial to determine whether Johnson will be sentenced to death. In that trial, her lawyers would be allowed to present evidence about her mental health that was omitted in 2005. If they decline to seek the death penalty, Bennett could sentence Johnson to life in prison without parole.

Bennett's ruling doesn't throw out her convictions _ he said evidence of her guilt was overwhelming.

"Judge: Iowan may not belong on death row," is by Jeff Eckhoff for the Des Moines Register.

Government lawyers could appeal Bennett’s ruling, make a second push for the death penalty or drop the effort to execute Johnson and leave her with a life sentence in prison.

Iowa does not have the death penalty. However, Johnson and Honken were tried in a federal court, and the U.S. allows the death penalty in certain types of cases.

Johnson, who now resides in a Texas prison hospital, was the first woman sentenced to death after the federal government began seeking capital punishment in 1988. Until Thursday, she had been waiting with Skidmore, Mo., resident Lisa Montgomery to see who would become the first woman put to death by the U.S. government since 1953.

A January report by retired Ohio Northern University law professor Victor Streib shows a total of 58 women were on death row across the country at the end of 2011, 18 of them in California, which hasn’t executed a woman since 1962.

"Judge throws out death sentence," by Nick Hytre in the Quad City Times.

Assistant U.S. Attorney C.J. Williams, who prosecuted both Johnson and Honken, said Friday the decision on how to proceed in the case will be made by Department of Justice officials in Washington, D.C.

Honken, 44, of Britt was convicted in a separate trial and also sentenced to death and is incarcerated in Terre Haute, Ind.

Johnson had filed 64 claims for postconviction relief of her death sentence. Evidence on the motion was heard in four phases of hearings in 2011 that included 19 days of testimony from 58 witnesses and thousands of pages of legal briefs.

Bennett found four instances in which decisions made by Johnson’s defense team were prejudicial, involving errors regarding psychological evidence of Johnson’s mental health.

Related posts are in the federal death penalty and female indexes.  Law Professor Victor Streib's latest edition of Death Penalty for Female Offenders is available at the link in Adobe .pdf format.  It was updated earlier this year.

Supreme Court Expands Protections in Plea Bargains

The Supreme Court issued two opinions yesterday that expanded constitutional protections of effective representation to defendants in criminal plea bargains.  The rulings in Missouri v. Frye and Lafler v. Cooper are available in Adobe .pdf format.

Here are case summaries prepared by Bertha Astorga for the ABA Criminal Justice Section:

Missouri v. Frye (5-4, Opinion by Justice Kennedy, on March 21, 2012)
Summary: In an opinion by Justice Kennedy, the Court vacated the decision of the Missouri Court of Appeals (Western District) and remanded the case for further proceedings consistent with its opinion.  The Court held that the Sixth Amendment right to effective assistance of counsel extends to consideration of plea offers that lapse or are rejected and that right applies to “all ‘critical’ stages of criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by Chief Justice Roberts, Justice Thomas and Justice Alito.

And:

Lafler v. Cooper (5-4, Opinion by Justice Kennedy, on March 21, 2012)
Summary: In an opinion by Justice Kennedy, the Court vacated the decision of the U.S. Court of Appeals for the Sixth Circuit and remanded the case for further proceedings consistent with its opinion.  The Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.  Justice Scalia filed a dissenting opinion, which Justice Thomas joined, and which Chief Justice Roberts joined as to all but Part IV.  Justice Alito filed a separate dissenting opinion.

"Justices’ Ruling Expands Rights of Accused in Plea Bargains," is Adam Liptak's report for today's New York Times.

Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Justice Kennedy, who more often joins the court’s conservative wing in ideologically divided cases, was in this case in a coalition with the court’s four more liberal members. That alignment has sometimes arisen in recent years in cases that seemed to offend Justice Kennedy’s sense of fair play.

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Reuters posts, "Supreme Court extends effective lawyer right to plea deals," by James Vicini.

Splitting by a 5-4 vote, with moderate conservative Justice Anthony Kennedy joining the court's four liberals in two cases, the majority held that the right to effective counsel applied to informal plea bargain negotiations that take place between criminal defendants and prosecutors.

In the second ruling, the majority held a defendant must show "a reasonable probability" the plea offer would have been accepted by the judge when a lawyer's bad advice caused the defendant to reject the plea bargain and then stand trial.

The pair of rulings in cases from Missouri and Michigan could allow convicted criminals to seek to reopen their cases after they passed up favorable plea bargains because of ineffective assistance of their lawyers.

In both cases, the criminals said they had been denied their constitutional right to effective assistance of counsel because of mistakes by their attorneys during plea negotiations. The majority agreed.

The rulings could have broad impact as about 95 percent of all criminal cases nationwide are resolved through a plea agreement, not a trial.

Kennedy in one of the opinions said that a defense counsel as a general rule has a duty to communicate to the client formal prosecution offers of a plea deal on terms and conditions that may be favorable to the accused.

To show harm when a plea offer has lapsed or been rejected because of a lawyer's bad performance, Kennedy said defendants must show they probably would have accepted the more favorable plea offer if they had received effective legal advice and that the plea deal would have been accepted in court.

"Supreme Court expands plea bargain rights of criminal defendants," by Robert Barnes in the Washington Post.

“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain.

Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution.

“It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.”

Margaret Colgate Love, who helped write an American Bar Association brief that advocated for the court’s action, agreed about its impact.

“What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process,” she said.

The decisions prompted a scathing rebuttal from Justice Antonin Scalia, delivered from the bench to signal his displeasure.

Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.”

"Supreme Court expands defendant's rights in plea deals," is David G. Savage's Los Angeles Times report.

Until now, the vast majority of the high court's decisions on the constitutional rights of criminal defendants had involved trials. Since plea deals are part of the daily routine in courthouses across the nation, expanding the Constitution's reach into that arena could affect a large number of cases. But legal experts, like the justices themselves, differed on the precise impact.

"These are big and important decisions," said Orin Kerr, a criminal law expert at George Washington University. "Plea negotiations have been mostly unregulated, and as a result, they have been informal. That will have to change, at least at the margins."

Others said the justices did not want to second-guess routine plea deals, only those in which a lawyer's blunder or clearly bad advice had caused his client serious damage.

Stanford law professor Jeffrey Fisher said the high court's decision was significant because it put the "imprimatur of the Supreme Court" on the rule that defendants have a right to competent legal advice during negotiations over a plea deal. That position "is basically consistent with the predominant view in the lower courts over the past several years," he said, but had not previously been declared a nationwide rule by the highest court.

Since the 1980s, the court has said defendants have a right to "effective assistance of counsel," and this guidance is crucial to protecting the right to a fair trial.

On Wednesday, Kennedy joined with the court's four liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor — and made clear for the first time that a defendant's right to a competent lawyer extends to decisions to accept or reject a plea offer from prosecutors.

Both cases involved men who were sent to prison for lengthy terms — one for assault and the other for drunk driving — who could have had much lighter sentences but for their lawyers' mistakes.

"Dissenting in Two Decisions, Scalia Hits New ‘Constitutional Right to Effective Plea Bargainers’," at the ABA Journal, written by Debra Cassens Weiss.

Defendants who reject or pass up plea bargains because their lawyers provided ineffective assistance of counsel may have their subsequent, harsher sentences overturned, the U.S. Supreme Court has ruled in two cases.

Justice Anthony M. Kennedy wrote both opinions for a five-justice majority. One case involved a lawyer who never communicated a plea offer to his client, and the other involved a lawyer who advised the client to reject a favorable plea based on an incorrect interpretation of the law.

Justice Antonin Scalia read aloud from his dissents, in which he criticized the new “constitutional right to effective plea-bargainers” and the majority’s “quite absurd” remedies. The court “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’) without even specifying the remedies the boutique offers,” he complained.

In previous opinions, the court had ruled that the right to effective counsel applies to the acceptance of plea offers and guilty pleas. The two cases decided by the Supreme Court on Wednesday involved defendants who didn't take plea deals.

"Supreme Court: Plea Bargain Advice That Is Absurdly Bad Violates The Constitution," by Mike Sacks at Huffington Post.

In Missouri v. Frye, the justices held that the constitutional guarantee of a fair trial extends to pre-trial activities such as plea bargains. "This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."

In Lafler v. Cooper, in which there was actually a trial, the same justices explained that defendants are entitled to a remedy when they can show that there is a reasonable probability they would have accepted the plea bargain had they not received bad advice from their lawyer and that the trial court would have accepted the guilty plea. In such cases, the trial court would then have the discretion to replace the stiffer sentence with the plea agreement, to throw out part of the conviction and re-sentence accordingly, or leave the original sentence in place.

Jordan Smith posts, "Supremes Rule for Defendants," at the Austin Chronicle.

Related posts are in the ineffective assistance of counsel index.

Supreme Court Rules on Ineffective Assistance Case

Tuesday's Supreme Court ruling in Martinez v. Ryan is available in Adobe .pdf format.  The ABA Criminal Justice Section provides this summary of the ruling:

In an opinion by Justice Kennedy, the Court reversed the decision of the Court of Appeals for the Ninth Circuit and remanded the case for further proceedings consistent with its opinion.  The Court held that where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.  Justice Scalia filed a dissenting opinion, which was joined by Justice Thomas.

"Court Ruling Could Affect Texas Death Row Cases," is Brandi Grissom's Texas Tribune report on the case and its implications.

Death row inmate Jesse Joe Hernandez, set to be executed next week for the 2001 death of a 10-month-old boy in Dallas, is hoping that a ruling Tuesday from the U.S. Supreme Court could give him another chance to prove that the tragedy was not entirely his fault. 

The nation’s highest court ruled that the failure of initial state habeas lawyers to argue that their client’s trial counsel was ineffective should not prevent the defendant from making that argument later on. Lawyers across the country, including those for at least two Texas death row inmates, were eagerly awaiting the court’s ruling in the Martinez v. Ryan case out of Arizona, which could expand appeals access for inmates.

“A procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective,” the court majority held.

Habeas lawyers investigate issues that could or should have been raised during a defendant’s original trial.

Brad Levenson, director of the Texas Office of Capital Writs, filed a petition with the Texas Court of Criminal Appeals on Tuesday afternoon on behalf of Hernandez, arguing that his March 28 execution should be stayed, in part, because of the court’s ruling.

And:

Levenson said that even though Tuesday’s Supreme Court ruling applies to claims made in federal court — not state writs like the one he filed — the same principle ought to apply.

“We’re saying the state courts should also take a look at these claims for the same reason the Supreme Court would take a look at them,” he said.

The ruling could also be a boon for death row inmate Rob Will, who was convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will says that the man he was with that night was the real shooter and that he is innocent.

In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a new trial but wrote that he lamented doing so because of “disturbing uncertainties” raised about his guilt.

"Supreme Court Rules for Inmate With Double Claims of Ineffective Assistance; Scalia Detects a ‘Sham’," is Debra Cassens Weiss's ABA Journal report.

A prisoner who claimed he received ineffective assistance at trial and once again at his first opportunity to raise the claim on review got some help from the U.S. Supreme Court today.

The court, in an opinion (PDF) by Justice Anthony M. Kennedy, refused to address whether convicted sex offender Luis Mariano Martinez had a constitutional right to effective assistance of counsel in the state collateral appeal. But the court held in a 7-2 opinion that ineffective assistance by the appellate lawyer could excuse Martinez’s failure to raise the ineffective assistance claim, allowing a federal court to consider the issue.

And:

“When an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner’s claim,” Kennedy said. “And if counsel’s errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims. The same is not true when counsel errs in other kinds of postconviction proceedings.”

Also:

In a statement released Tuesday, ABA President Wm. T. (Bill) Robinson III applauded the decision. “This significant ruling will help ensure fairness and justice for many criminal defendants throughout the country, including those on death row,” he said. “Many defendants who received ineffective representation or no representation at all during their post-conviction proceedings have been unable to present claims concerning violations of their constitutional rights at trial in federal court. The court’s decision today recognizes the injustice of that circumstance.”

Courthouse News Service posts, "Ineffective Counsel Case Gets High Court Reboot," by Barbara Leonard.

The majority opinion gives an Arizona inmate clearance to belatedly challenge his defense attorneys as he appeals his conviction for sexual conduct with a child.

Luis Mariano Martinez is serving two consecutive terms of 35 to life in Arizona for two counts of sexual conduct with a person under the age of 15. Martinez's 11-year-old stepdaughter claimed she was abused, but later recanted. The state also admitted the girl's nightgown into evidence, pointing out that it had traces of Martinez's DNA.

Arizona appointed a new attorney to represent Martinez in his direct appeal, but the lawyer never claimed that Martinez's trial counsel was ineffective. In Arizona, inmates must bring such claims separately at state collateral proceedings. Martinez said the court-appointed appellate counsel failed to consult with him or inform him about what he needed to do to raise claims he believed his counsel had overlooked.

Armed with yet another attorney for his second notice of postconviction relief in the Arizona trial court, Martinez claimed that his trial lawyer had been ineffective for not challenging the prosecution's evidence.

The state rejected this petition, however, noting that Arizona law bars relief on a claim that could have been raised in a previous collateral proceeding.

Related posts are in the ineffective assistance of counsel index

The Rob Will Case

Brandi Grissom writes, "Appeal of Death Row Case Is More Than a Matter of Guilt or Innocence," for the Texas edition of the New York Times.  It's also posted at the Texas Tribune.  Here's the beginning:

No one saw Rob Will shoot and kill Harris County Deputy Sheriff Barrett Hill in the still-black morning hours in a Houston bayou on Dec. 4, 2000. No physical evidence linked him to the murder.

Mr. Will, now on death row, said that he is innocent, but that he has been represented by ineffective lawyers. He has a new lawyer who faces the daunting challenge of representing Mr. Will at this late stage in his appeals.

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, Judge Keith Ellison of United States District Court lamented that even though he was concerned Mr. Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Mr. Will’s best chance for a new trial may lie with an Arizona case that the United States Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

Mr. Will said that Michael Rosario, the man he was with the morning of the slaying, shot Deputy Hill. Since Mr. Will was sentenced to death in 2002, four witnesses have testified that Mr. Rosario — a Houston police officer’s son with a long felony history — confessed. The state has argued that the witness statements are not credible.

And:

Mr. Will’s best hope may be an the Arizona case, Martinez v. Ryan. The Sixth Amendment guarantees a right to adequate trial lawyers, but the issue in Martinez v. Ryan is what happens when a defendant’s trial lawyer is ineffective and then a state appellate lawyer fails to make an argument on the defendant’s behalf that the ineffective representation at trial led to the conviction.

If the high court rules a constitutional right to effective appellate counsel exists, then Mr. Will could attempt to argue that his rights were violated when Mr. Ribnik filed boilerplate documents and failed to raise other claims, said Lee Kovarsky, an assistant professor of law at the University of Maryland Francis King Carey School of Law.

Even if the court rules in the Arizona defendant’s favor, though, the bar for Mr. Will’s argument is high, Mr. Kovarsky said. He would have to prove that both his appellate lawyers and his trial lawyers were ineffective. And Judge Ellison has ruled that Mr. Will’s trial lawyers performed adequately.

More on Martinez v. Ryan is from SCOTUSblog.  The Arizona case was argued before the Supreme Court on October 4.

Raymond Bonner in the New York Times

The Sunday New York Times carries Raymond Bonner's OpEd, "When Innocence Isn’t Enough."  Here's the beginning of this must-read:

EDWARD LEE ELMORE turned 53 in January. For more than half his life, the soft-spoken African-American who doesn’t understand the concept of north, south, east and west, or of summer, fall, winter and spring, was in a South Carolina prison, most of it on death row.

On Friday, Mr. Elmore walked out of the courthouse in Greenwood, S.C., a free man, as part of an agreement with the state whereby he denied any involvement in the crime but pleaded guilty in exchange for his freedom. This was his 11,000th day in jail.

Mr. Elmore was convicted in 1982 for the sexual assault and murder of an elderly white widow in Greenwood. His trial lasted only eight days, including two spent picking the jury. The state concealed evidence that strongly pointed to Mr. Elmore’s innocence and introduced damning evidence that appears to have been planted by the police. For three decades lawyers for Mr. Elmore, who were convinced of his innocence, sought to get him a fair trial.

Headlines and news stories about men being released from death row based on DNA testing suggest that this happens often. But it doesn’t. Once a person has been convicted, even on unimaginably shaky grounds, an almost inexorable process — one that can end in execution — is set in motion. On appeal, gone is the presumption of innocence; the presumption is that the defendant had a fair trial. Not even overwhelming evidence that the defendant is innocent is necessarily enough to get a new trial. “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White wrote for the majority in a 1977 case, Patterson v. New York.

In other words, innocence is not enough.

Coverage of Bonner's latest book, Anatomy of Injustice: A Murder Case Gone Wrong, begins in this earlier post.  Bonner's next author event is in Austin, on Wednesday, March 7 at Book People.  More book events are noted at Bonner's website.

More Reviews of Raymond Bonner's Book; Upcoming Author Events

Raymond Bonner's Anatomy of Injustice: A Murder Case Gone Wrong, is getting national attention in book reviews, and his author events continue with stops in Washington, DC and Austin.

Tomorrow, Bonner will appear at Washington, DC's celebrated Politics & Prose, where many Book TV author events are taped for later airing.  On March 7, Bonner is at Austin's Book People.  Both bookstores are happy to send signed books to those who cannot make it to the store.  Bonner also has a list of additional author events at his website.

On to the reviews.  Jonathan Yardley posts a Washington Post book review.

Bonner, who reported on the Elmore case while working as a staff reporter for the New York Times, is a lawyer as well as a journalist and brings professional expertise to the book. He also brings passionate feelings about the proper roles of prosectors and defense attorneys. He came to admire a New Yorker named J. Christopher Jensen, a corporate lawyer “who felt a need to do something more meaningful than help rich people get richer” and helped defend many accused persons in South Carolina. “Jensen never asked himself whether Elmore was guilty or innocent,” Bonner writes. “It was not a question he had to address. For Jensen, like many criminal defense lawyers, in defending a criminal suspect he is defending the integrity of the judicial system and the Constitution, as well as the individual. By demanding that a guilty person have a fair trial, defense lawyers are ensuring that an innocent person will as well.”

As for prosecutors, “a bedrock principle of the American judicial system” is “the duty of the prosecution . . . not to obtain a conviction but to do justice.” Later Bonner writes: “If there is a flaw in the adversarial system of justice that has developed in America, it is that the adversarial nature of it outweighs justice. Prosecutors want to win in trial court. Appellate lawyers want to win on appeal. Justice often gets lost.” From the first prosecutor who went after Elmore to the last, every single one violated that basic rule. The next time you read about justice in America, think twice.

A Boston Globe book review is by Ethan Gilsdorf.

For those seeking more ammunition for their battery of anti-death-penalty arguments, look no further. “Anatomy of Injustice: A Murder Case Gone Wrong’’ is Raymond Bonner’s accomplished and meticulously researched investigation into a murder case that, as the clumsy title suggests, was egregiously bungled.

In 1982, in Greenwood, S.C., Edward Lee Elmore, 23, is accused of killing an elderly widow.

Elmore had occasionally done odd jobs for the victim. When her body is found in her closet, stabbed dozens of times and possibly raped, Elmore is fingered as the prime suspect, despite a notable lack of physical evidence linking him to the crime.

Wilbert Rideau writes the review, "Presumed guilty," for the Financial Times.

America claims to have the best criminal justice system in the world, but in Anatomy of Injustice: A Murder Case Gone Wrong, Raymond Bonner reveals how flawed it is for the indigent defendant, especially if he is from a minority or is mentally retarded.

Edward Lee Elmore is both – an African American with an IQ of 61 who was 14 when he dropped out of school in the fifth grade, still reading at second-grade level. Unable to do simple mathematics or tell the time, he earned his living working as a handyman in the affluent white neighbourhoods of Greenwood, South Carolina.

Rideau is the author of the acclaimed memoir, In the Place of Justice: A Story of Punishment and Deliverance, published in 2010 and noted here.

"On death row, by mistake (or worse)," is the Richmond Times-Dispatch review witten by Doug Childers.

"In many ways, Elmore's is a garden-variety death penalty case: a young black male of limited intelligence convicted of murdering a white person after a trial in which his lawyers' performance was so poor that it could barely be called a defense," writes Bonner, a former investigative reporter and foreign correspondent for The New York Times and a staff writer at The New Yorker.

But it's also exceptional, he adds, because it "raises nearly all the issues that mark the debate about capital punishment: race, mental retardation, bad trial lawyers, prosecutorial misconduct, 'snitch' testimony, DNA testing, a claim of innocence."

As Bonner demonstrates, many of those issues would not have come to light if it hadn't been for the work of a lawyer named Diana Holt, who learned about Elmore's case while she was a law student working for the South Carolina Death Penalty Resource Center.

Holt researched and advocated for Elmore's cause for more than 16 years. The fact that Elmore eventually had his death sentence vacated is, in part, a testament to her doggedness.

Earlier coverage of Bonner's latest book begins at the link.

The Stephen Barbee Case in Tarrant County

The post-convictin hearing was ordered by the Court of Criminal Appeals.  Here are links to several articles on the hearing, which is continuing today.

"Consultant says convicted killer's attorneys pressured him to plead guilty," is by Deanna Boyd for the Fort Worth Star-Telegram.

A mitigation specialist hired by defense attorneys in Stephen Barbee's 2006 capital murder trial testified Wednesday that the attorneys frequently pressured Barbee to plead guilty and didn't explore or present some evidence that she believes could have helped the Death Row inmate.

Amanda Maxwell testified that Barbee's trial attorneys, Bill Ray and Tim Moore, failed to delve more into what she said were mitigating circumstances in the case, including several head injuries Barbee had suffered throughout his life and his abuse of hydrocodone for one of those head injuries.

In February 2006, Barbee was convicted of capital murder and sentenced to lethal injection for the smothering deaths of Lisa Underwood, 34, who was seven months pregnant, and her 7-year-old son, Jayden.

Prosecutors said Barbee killed Underwood because he believed that she was pregnant with his child (DNA tests later proved he was not the father) and wanted to keep their relationship from his wife.

Maxwell was the first to testify in a hearing before state District Judge Louis Sturns over allegations by Barbee's appellate attorneys that important information was withheld from Barbee's capital murder trial due to a "secret deal" between then-state District Judge Bob Gill and Ray, Barbee's lead attorney.

Barbee's appellate attorney, A. Richard Ellis of California, has said federal court testimony by Ray in connection with an unrelated case -- made public in 2010 in an article by The Associated Press -- revealed that Gill had negotiated plea deals in probation revocation cases, many of which he had appointed Ray to handle, to move cases more quickly though his docket.

Ellis says that because of that conflict of interest with the judge, Ray failed to provide effective counsel and deprived Barbee of a fair trial.

"Defense attorney answers allegation in death case," is the latest AP filing on the hearing.  It's via KTRK-TV.

The lawyer court-appointed to lead Stephen Barbee's defense at his double-murder trial six years ago is to testify to allegations that he and the trial judge had a "secret deal" to move cases quickly through the judge's court.

Former State District Judge Bob Gill testified in state court that he believed the attorneys who represented Stephen Barbee, sentenced to die foJudge Bob Gillr killing his pregnant girlfriend and her 7-year-old son, were effective despite having "a difficult case to try."

Barbee is seeking a new trial, claiming he received ineffective counsel because his lead attorney, William H. "Bill" Ray, had a "secret deal" with Gill, who retired from the bench in 2007, to make cases move quickly in the judge's court.

Wednesday was the first day of a two-day hearing in front of Judge Louis Sturns, who succeeded Gill on the bench. Sturns will recommend to the Texas Court of Criminal Appeals whether a new trial is warranted.

Gill, now an assistant district attorney in Tarrant County, acknowledged he had an "arrangement" with Ray to let the attorney handle most of the probation revocation cases involving indigent defendants in the judge's court. But he described it as a matter of picking the most available attorney.

"Mr. Ray came around the courthouse and made himself available for court on Fridays, which is when I handled most of my probation revocation hearings," Gill testified.

An earlier AP posts, "Witness: Lawyers wanted guilty plea in death case," is also via KTRK-TV.

"Double-murder case returns to Fort Worth," by Dianna Hunt is an earlier Star-Telegram report.

State District Judge Louis Sturns will decide whether Death Row inmate Stephen Barbee should get a new trial in the killing of his ex-girlfriend and her 7-year-old son based on his appellate attorney's argument that the trial judge and Barbee's trial attorney had a "secret deal."

Sturns has set a hearing to begin Wednesday to consider evidence that Barbee's lead trial attorney, Bill Ray of Fort Worth, had an ongoing agreement with former state District Judge Bob Gill that caused important information to be withheld from Barbee's capital murder trial.

In court filings, Barbee contends that he was denied due process and a fair trial because his attorneys "had a conflict of interest that precluded them from effectively representing Barbee at trial."

Barbee's appellate attorney, A. Richard Ellis of California, said Monday that important evidence was not presented at the trial, which lasted less than three days.

"Circumstantially there was a very strong suggestion of conflict of interest," Ellis said.

Ray emphatically denied the contention.

And:

The Texas Court of Criminal Appeals -- the state's highest court in criminal matters -- ordered the trial court to consider Barbee's appeal, and Sturns set the special hearing to hear evidence.

The allegation of a secret deal stems from an unrelated case in which Ray represented a woman facing revocation of her probation. During an appeal in federal court, Ray testified that Gill had a policy of personally handling plea bargaining with defendants facing probation revocation, and that the sentence was higher if the defendant rejected the plea offer, according to court documents.

It also notes:

In an article about Gill's handling of probation cases, Associated Press writer Danny Robbins reported in 2010 that Tarrant County records indicated that Ray had received more than $700,000 from 2001 to 2007 from appointments in Gill's court. That was 43 percent of his total earnings from court appointments, Robbins reported.

Ray and Gill have been subpoenaed to testify in the Barbee hearing, which is expected to continue for two days in Sturns' 213th state District Court.

The Los Angeles Times posted a preview of the hearing, "Texas death row inmate claims lawyer had 'secret deal' with judge," written by Molly Hennessy-Fiske, reporting from Houston.

A Texas death row inmate convicted of murdering his pregnant ex-girlfriend and her 7-year-old son in 2005 is seeking a new trial, alleging that his attorney had a "secret deal" with the judge to quickly dispose of his case.

Attorneys for Stephen Barbee, 44, plan to argue in a Fort Worth state court this week that his defense in the double murder case was tainted.

The proceeding, scheduled to begin Wednesday, was ordered by the Texas Court of Criminal Appeals after a 2010 Associated Press story showed that presiding Judge Robert Gill had negotiated plea deals in certain cases, many of which were handled by Barbee's court-appointed attorney, William H. "Bill" Ray.

Ray gave details about the plea deals, which expedited Gill's docket, during testimony in a 2009 federal court case that a judge subsequently sealed. The issue was kept quiet until the AP story ran.

The 2011 Court of Criminal Appeals order in Ex Parte Barbee is at the link.  Judge Sturns was recently appointed to hear the Court of Inquiry in the Morton exoneration.

CCA Overturns Murder Conviction - Journalists Faulted Forensics

A Texas case examined in a Pro Publica/PBS Frontline report on autopsies and forensics has been overturned by the Texas Court of Criminal Appeals.  The Court's ruling in Ex Parte Lopez is available in Adobe .pdf format.

Pro Publica reports, "Texas Court Voids Conviction in Child Death Case."  It's by by A.C. Thompson.

The Texas Court of Criminal Appeals today set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence.

"Judge Tosses Conviction Of Texas Man Accused Of Sexually Assaulting Infant," is the NPR report by Joseph Shapiro.

The NPR, Frontline and ProPublica investigation found nearly two dozen cases in the United States and Canada where people were convicted of killing children, but were later cleared when it turned out the accusations were based on flawed or biased work by forensic pathologists and other medical professionals.

Lopez's current lawyers argue that his case should get counted as one of those false convictions. They say Isis Vas died, not because she was beaten and sexually assaulted, but because of an undetected blood disorder that can create bruises and bleeding that mimic child abuse. But no witnesses were called to make that case at the original trial.

On Wednesday, the Texas Court of Criminal Appeals, the state's highest court for criminal cases, ruled that Lopez had received "deficient representation" and that had such witnesses testified on behalf of Lopez, there was a "reasonable probability the jury would not have convicted him."

And:

There is an added risk for Lopez in a new trial. Originally, Lopez was indicted on child sexual assault and murder charges. Prosecutors chose to go to trial on the sexual assault case first, and got a conviction. Jurors only learned that the child had died when it was time for them to determine Lopez's prison sentence. A new trial could also include the murder charge, and prosecutors could seek the death penalty.

Lopez's attorneys are ready to present medical experts who say there was evidence that Isis Vas suffered from a series of problems that suggested she had a rare blood disorder. They will argue that this is consistent with what Lopez told paramedics, doctors and the hospital: That the baby had been sick, lethargic and eaten little from the time her mother brought her to the Lopez house three days earlier.

The Amarillo Globe-News reports, "Sims: Will retry sex assault case."  It's by Bobby Cervantes.

Potter County’s chief prosecutor said Thursday he will retry an Amarillo man whose sexual assault conviction was overturned Wednesday.

47th District Attorney Randall Sims said Ernie Lopez, 41, will be brought back to Potter County within the month to face the 2001 indictment for aggravated sexual assault of a child.

“He’s coming back on the exact charge,” he said. “The case is at the same place any case would be right after it’s been indicted by the grand jury.”

And:

A grand jury in 2001 also indicted Lopez on a capital murder charge, which prosecutors decided to drop in lieu of the sexual assault charge.

Sims did not comment on whether he would pursue additional charges in the case.

“Other than that, I can’t tell you what’s going to transpire when he comes back,” he said

The Pro Publica series on questionalbe forensics is, "Post Mortem: Death Investigation in America."  The PBS Frontline report is also available.  Additional coverage of the series is available.  Related posts are in the forensics index.

Alabama Roundup

Today's Birmingham News carries the editorial, "U.S. Supreme Court sends much-needed message to Alabama about how it treates poor defendants charged with capital crimes."

The U.S. Supreme Court sent the state of Alabama at least two messages last week when justices ruled against the state in the case of Death Row inmate Cory Maples, who missed a deadline to appeal after his lawyers dropped his case without telling him.

First, the high court made clear the state and courts were wrong in denying Maples his day in court. Maples missed a 42-day window to file an appeal after a state court judge ruled against his claims of ineffectiveness of counsel and other problems at trial. But the missed filing was through no fault of his own. Two pro bono lawyers had abandoned Maples' case without notifying him or the state. Copies of the trial court's order sent to them at their old law firm were returned unopened to the court clerk, who did nothing.

"Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se," the court said in its 7-2 ruling. "In these circumstances, no just system would lay the default at Maples' death-cell door."

But Alabama's system did blame Maples. Which brings us to the court's second, and more important message: Our state's system of capital punishment is not a just system.

Justice Ruth Bader Ginsburg, who delivered the opinion, made that clear in her criticism of how the state provides -- and in some cases doesn't provide -- lawyers for poor defendants charged with capital crimes.

Among the problems she cited: Alabama requires that a lawyer appointed to defend a death-penalty case only be a member of the state bar and have five years' experience practicing criminal law; no experience with capital cases is required; the state doesn't provide, or require, professional education or training in capital cases; appointed lawyers are underpaid; and Alabama is "nearly alone among the states" in not guaranteeing that poor Death Row inmates have legal representation in postconviction proceedings -- those state and federal appeals after the initial round of "direct" appeals.

The opinion in Maples v. Thomas is available in Adobe .pdf format.  Earlier coverage of the Supreme Court ruling in the Alabama case begins at the link.

"Dothan man to be sentenced for third time in slayings," is the title of a report in the Dothan Eagle written by Matt Elofson.

Lawyers expect to select a jury Monday for the third time to sentence a Dothan man for the slaying of three people.

Attorney David Hogg said his client, 40-year-old Jerry Jerome Smith, had his first two sentences reversed.

And:

The death sentence was reversed because of comments made by some of the relatives of victims in the murders during the jury selection of the trial.

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.

Additional Coverage of Maples v. Thomas - Updated

"Supreme Court grants death row inmate chance for new appeal," by David G. Savage in the Los Angeles Times.

The Supreme Court, citing a "perfect storm" of missing lawyers and unopened letters, gave an Alabama death row inmate a new chance to appeal his conviction in a case that sharply split the conservatives on the bench.

Corey Maples had been "abandoned" by his two New York lawyers who left their law firm without telling him and missed the deadline for filing his appeal. "In these circumstances, no just system would lay the default at Maples' death-cell door," Justice Ruth Bader Ginsburg wrote for a 7-2 majority.

It was the second time in two weeks the high court rebuked prosecutors and judges from the South in a case of justice gone wrong. In both cases, Chief JusticeJohn G. Roberts Jr.and JusticeSamuel A. Alito Jr.sided with the majority in ruling for the defendant.

And:

Virginia Sloan, president of the Constitution Project, a bipartisan legal reform group, praised the ruling for putting "justice over technicalities and fundamental fairness over procedural rules."

Death penalty foes have pointed to Alabama as having a "broken" system of capital punishment. Its trial lawyers are poorly paid and often are newcomers to capital cases. No state funding is provided for appeals. Most defendants must rely on out-of-state law firms that volunteer to represent them.

CNN posts, "Justices rule for death row inmate after legal mistakes," by Bill Mears.

This high court victory for Maples does not mean he will eventually receive the new trial he is seeking. Because so much of the facts and testimony of the various parties remains in question -- particularly the actions of the county clerk and the in-state attorney for Maples -- lower state and federal courts could be wrestling with this case for years.

I have to also point readers to Jeff Gamso's post, "Unfair & Unconscionable: The Capital Jurisprudence of Antonin Scalia," at his Gamso - For the Defense blog.

He'll get a chance because his lawyers abandoned him.  So said 7 of 9.  Ginsburg wrote the opinion.  Alito (no pushover he) joined but wrote also his own concurrence to point out that it was the lawyers who were at fault and not the deeply flawed Alabama system of providing (or not providing) capital representation. 

Scalia dissented.  Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers.  And sure it's all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn't actually say that.  What he said was this.

Gamso's blog is one of the left-column Essential Law Blogs.  Visit it for more of his takes on criminal justice.

Coverage of yesterday's Supreme Court ruling is at the link.  The opinion in Maples v. Thomas is available in Adobe .pdf format.

Supreme Court Rules in Favor of Alabama Death Row Inmate

The Supreme Court. ruling in Maples v. Thomas is available in Adobe .pdf format.

"New hearing for death row inmate in mail mix-up" by Mark Sherman for AP.

The Supreme Court on Wednesday ordered a new hearing for an Alabama death row inmate who missed a deadline to appeal when court notices to his lawyers at a big firm in New York were returned unopened.

The court voted 7-2 Wednesday to reverse a federal appeals court ruling that cut off appeals for Cory Maples.

Justice Ruth Bader Ginsburg said in her opinion for the court that Maples had been abandoned by his lawyers at the Sullivan and Cromwell firm when they left for new jobs and neglected to tell the local court or their client.

"Through no fault of his own, Maples, an inmate on death row, was left unrepresented at a critical time," Ginsburg said.

Justices Antonin Scalia and Clarence Thomas dissented. Scalia said the court should have stuck with its usual practice of holding defendants responsible for their lawyers' mistakes. "One suspects that today's decision is motivated in large part by an understandable sense of frustration" with Alabama's refusal to waive its deadlines in this case, Scalia said in an opinion joined by Thomas.

But Justice Samuel Alito, who often votes against criminal defendants, said in a separate opinion that Maples' circumstances were unique. "What occurred here was not a predictable consequence of the Alabama system, but a veritable perfect storm of misfortune," Alito said

And:

Wednesday's decision means a court will hear Maples' claims that his inexperienced, poorly paid trial lawyers did such a bad job on his behalf that their work violated the Constitution's guarantee of representation for criminal defendants.

"Alabama Inmate Must Be Given Second Chance After Mailroom Mix-Up, Justices Rule," is Adam Liptak's New York Times report.

“Maples was disarmed by extraordinary circumstances quite beyond his control,” Justice Ginsburg wrote.

In a concurrence, Justice Samuel A. Alito Jr. described what had happened to Mr. Maples as “a veritable perfect storm of misfortune,” starting with the oddity that much of it was attributable to lawyers from “one of the country’s most prestigious and expensive” law firms.

“I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if they were given the opportunity to be represented by attorneys from such a firm,” he added.

Yet two lawyers from Sullivan & Cromwell failed to inform Mr. Maples when they left the firm. Nor did they tell the court from which they were awaiting a ruling in his case. When two copies of that ruling were sent to the firm, it returned them unopened.

Justice Ginsburg’s opinion included a critique of Alabama’s capital justice system. At the time of Mr. Maples’s trial, court-appointed lawyers in capital cases were paid $40 an hour for time in court and $20 an hour otherwise, with a $1,000 cap on out-of-court work.

Mr. Maples was convicted of murdering two companions after a night of drinking. “His inexperienced and underfunded attorneys,” Justice Ginsburg wrote, “failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct and woefully underprepared for the penalty phase of his trial.”

At one point the lawyers apologized to the jury, saying that they “may appear to be stumbling around in the dark.” Even so, the jury’s vote recommending the death penalty was 10 to 2, the minimum required under Alabama law.

Justice Ginsburg was also critical of how Alabama handles challenges to convictions. Alabama is nearly alone among the states, she wrote, in that it “does not guarantee representation to indigent capital defendants in post-conviction proceedings.” Instead, the state relies on volunteer lawyers from public interest law firms and from the pro bono practices of major firms like Sullivan & Cromwell.

"U.S. Supreme Court Sides With Death-Row Inmate on Law Firm Mailroom Error," by Greg Stohr for Bloomberg News.

The U.S. Supreme Court revived an appeal from an Alabama death-row inmate who missed a legal filing deadline because of a mailroom error at the law firm that was representing him.

The justices, voting 7-2 today to reverse a lower court, said Cory R. Maples was entitled to another chance to challenge his death sentence for killing two friends in 1995.

“Maples was disarmed by extraordinary circumstances quite beyond his control,” Justice Ruth Bader Ginsburg wrote for the majority.

The ruling is a victory for criminal defendants at a court that in other cases has been reluctant to excuse missed deadlines. In 2007, the justices threw out an appeal by a convicted murderer who missed a filing deadline because of a judge’s error.

Maples had been represented without charge by two lawyers at New York’s Sullivan & Cromwell LLP in his 2001 bid to overturn his conviction. By the time an Alabama judge ruled against Maples in 2003, both lawyers had left the firm.

When the clerk’s office for the Alabama court mailed the judge’s order to the two lawyers, both envelopes were returned. One was stamped, “Returned to Sender -- Attempted, Unknown,” and the other had a similar stamp along with “Return to Sender -- Left Firm” written by hand.

The clerk’s office didn’t take any additional steps to contact the lawyers, and Maples himself didn’t learn about the order until a month after the appeal deadline had passed.

“Had counsel of record or the state’s attorney informed Maples of his plight before the time to appeal ran out, he could have filed a notice of appeal himself or enlisted the aid of new volunteer attorneys,” Ginsburg wrote.

"U.S. Supreme Court rules in favor of Alabama Death Row inmate Cory Maples," is by Mary Orndorff at the Birmingham News.

The case is now sent back for further proceedings. Maples wants a federal court to consider whether errors during his 1995 trial and sentencing might have kept the jury from voting 10-2 for the death penalty. Maples was convicted in the 1995 shooting deaths of two acquaintances as they sat in a car in his driveway late at night after he had been drinking.

Earlier coverage of Maples v. Thomas begins at the link.

More From Pennsylvania

Today's Philadelphia Inquirer carries the editorial, "Income shouldn't decide the quality of justice."

What defendant on trial for his life would willingly turn to a divorce lawyer with no experience in death-penalty cases?

Or to an attorney who had prepped for all of 15 minutes?

Or a Bible-quoting counsel who rattled off the one verse that, whoops, convinced jurors to hand down a death sentence?

As it turns out, dozens of people on trial for murder in Pennsylvania have had to rely on such ill-prepared, inept, and incompetent court-appointed counsel provided when defendants couldn't afford an attorney.

These are attorneys who - mostly because they're paid a pittance to prepare a complex death-penalty defense - prove to be well short of the task. The problem has been long-known, but it's finally gotten the full attention of the state's highest court.

In September, the Pennsylvania Supreme Court named a veteran Philadelphia judge, Benjamin Lerner, to investigate the compelling accusation of a Philadelphia-based death-penalty defense group that the courts are scrimping on justice by shortchanging the poor in capital cases.

That's a welcome and overdue step by the Supreme Court - a point driven home even more by an Inquirer review of death-penalty cases published Sunday.

In nearly one out of every three capital convictions stretching back over three decades, the courts have reversed or sent cases back for new hearings due to inadequate representation.

With so many botched legal defenses, no Pennsylvanian can be assured that the state's system of capital punishment is being administered fairly.

The Inquirer's news report on problems with Pennsylvania Capital Cases is noted at the link.

Today's Harrisburg News Patriot also features a lengthy news article, "How much is Pennsylvania's death penalty costing taxpayers?"  It's written by Sara Ganim.

Since it was reinstated in 1978, only three people on death row in Pennsylvania have actually died by lethal injection, and those three defendants basically signed their own death warrants by waiving their rights to appeal.
    
A much higher number, about 140 people, have been released from death row following successful appeals.
    
Some were found to be innocent. Most simply had their sentences commuted to life in prison. But in the meantime, taxpayers were footing the bill for their lengthy appeals, and by lengthy, we’re talking decades.
    
State Sen. Stewart Greenleaf, a former prosecutor from Montgomery County and the chairman of the state Senate Judiciary Committee, has commissioned a bipartisan task force to take a look at what this bottleneck has cost taxpayers over the last 40 years. Right now, there are no estimates.
    
The task force will also explore whether the death penalty is worth keeping. Gov. Tom Corbett’s office has no position on the Greenleaf’s resolution.

And:

But if anyone has come close to compiling numbers that give a big-picture perspective, it’s Robert Dunham.
    
He’s a Harrisburg-based assistant federal defender, who began researching the results of cases by hand when he was director of the Death Penalty Resource Center in the 1990s.
    
People on both sides of this issue agree that he has the most accurate statistics on Pennsylvania death penalty cases.
    
His recordings show that 237 people have had their death penalty sentence overturned since 1978, but because he didn’t start researching them until the 1990s and the state keeps no records of these cases, he said it’s unclear what happened to about 75 of those defendants. He does know that about 15 defendants were sent back death row and are still there.
    
About 123 were resentenced to spend life in prison.
    
At least 12 people resentenced to less than life.
    
There were six complete exonerations — Nicholas Yarris and Harold Wilson, Jay Smith, William Nieves, Neil Ferber and Thomas Kimbell.
    
Another, Fred Thomas, got a new trial and died waiting for it.
    
Those results make Dunham believe that often the simple answer to Pennsylvania’s problem is that there is too little funding for poor defendants.
    
In many other states, when an inmate on death row exhausts appeals and the governor signs the death warrant, he or she is executed.
    
In Pennsylvania, the end of that same road is a new sentencing — sometimes an entirely new trial — and Dunham said many times it’s because it’s very common for public defenders on death penalty cases to be so underfunded that their defense is inadequate by the standards of the law.
    
Instead of paying for a better defense up front, Pennsylvanians are paying the price of years of appeals, hearings and re-investigations that often don’t even lead to death by lethal injection, Dunham said.
    
Former state Attorney General Ernie Preate said he witnessed that when he was a prosecutor.

Related posts are in the indigent defense index.

In the States - Pennsylvania

The Philadelphia Inquirer posts an extensive report, "In life and death cases, costly mistakes."  It's written by Nancy Phillips.  Here's the beginning:

Willie Cooper, convicted of strangling his brother's girlfriend to death in a Germantown apartment, was awaiting a jury's decision on whether he should be sentenced to death, when his lawyer rose to speak on his behalf.

Citing the biblical passage "an eye for an eye," the lawyer told jurors that the ancient edict called for the death penalty only in the killing of a pregnant woman.

Cooper had killed a pregnant woman.

Inexplicably, his lawyer had forgotten that.

The jury voted to impose the death penalty.

Cooper's case is among more than 125 capital murder trials in Pennsylvania - 69 in Philadelphia alone - that state and federal appeals courts have reversed or sent back for new hearings because mistakes by defense lawyers deprived the accused of a fair trial.

That amounts to nearly one-third of the 391 capital convictions in Pennsylvania since the modern death penalty took effect in 1978.

An Inquirer review of death-penalty appeals spanning three decades found that defense lawyers in these high-stakes cases failed their clients in ways large and small.

Lawyers fighting for defendants' very lives often spend little time preparing their cases and put on only the barest defense. They neglect basic steps, such as interviewing defendants, seeking out witnesses, and investigating a defendant's background.

The problem is particularly acute in Philadelphia, where legal experts say the lawyers who handle such cases - typically at taxpayers' expense because defendants are indigent - are often overworked and underpaid.

Court-appointed lawyers get $2,000 for trial preparation and $400 a day in court to handle cases that a veteran defense attorney said required a minimum outlay of $35,000 to $40,000.

"The number of reversals on these cases is staggering," said Ronald L. Greenblatt, chairman of the Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers. "The attorneys who are doing this work, because of the low pay, are not doing it the right way. We really need it to stop."

The price of replaying such proceedings is costly. Death-penalty appeals consume hundreds of hours of work by dozens of lawyers, judges, police officers, and witnesses, and, even by modest estimates, cost taxpayers hundreds of thousands of dollars.

Earlier coverage of death penalty issues in Pennsylvania begins at the link.

Sixth Circuit Strickland Reversal of Ohio Death Sentence

The 6th Circut ruling in Foust v. Houk is available in Adobe .pdf format.

"Appeals court throws out Ohio man's death sentence," is the title of Lisa Cornwell's AP post, via WFMJ-TV.

A federal appeals court has thrown out the 2002 death sentence of an Ohio man, saying trial judges should have heard mitigating evidence about his abusive and chaotic childhood.

Three 6th U.S. Circuit Court of Appeals judges ruled 2-1 Thursday that the state must hold a sentencing hearing within six months for 34-year-old Kelly Foust, convicted of killing a Cleveland man with a hammer in 2001.

The appeals panel says Foust didn't receive effective representation because his defense could have offered evidence that might have swayed at least 1 of 3 judges against the death penalty.

The Cuyahoga County prosecutor's office plans to work with the state to appeal the ruling.

Related posts are in the ineffective assistance of counsel index.  More on the 1984 Supreme Court case, Strickland v. Washington, which set forth the standard for a showing of ineffective assistance of counsel in a death penatly case.

The revised edition of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases provides an outline for minimally sufficient  The ABA Guidelines also form the basis for the State Bar of Texas' Guidelines and Standard for Texas Capital Counsel, adopted in 2006.

More Coverage of Cleve Foster

Today's New York Times' carries, "Texas Inmate’s Stay of Execution Is Lifted."  It's written by Timothy Williams.

The United States Supreme Court on Tuesday lifted its stay of execution for a former Army recruiter on death row in Texas who has twice this year come within hours of receiving a lethal injection.

The inmate, Cleve Foster, 47, was sentenced to death after his conviction for the murder of Nyanuer Pal, whom he met in a Texas bar in 2002. The court’s ruling frees the state to set another execution date.

The Supreme Court had been examining whether Mr. Foster received adequate counsel during his 2004 trial and subsequent appeal. Mr. Foster’s current lawyers have also challenged the legality of his execution based on the use of pentobarbital, one of the drugs that is to make up the lethal injection.

Maurie Levin, one of the lawyers, said Tuesday that Mr. Foster’s legal team would continue to try to prevent the execution.

“I believe his conviction and his death sentence were a travesty and unjust, based on absurdly thin evidence,” she said. “We will find a way to litigate that.”

Mr. Foster, a Persian Gulf war veteran, and his roommate, Sheldon Ward, were convicted of murdering Ms. Pal, 28, whose nude body was found in a creek bed in a wooded area. She had been shot once in the head.

Both men received death sentences. Last year, Mr. Ward, then 30, died of a brain tumor in prison.

In January, the Supreme Court stayed Mr. Foster’s execution to hear an appeal regarding whether his previous legal team had adequately contested evidence presented against him at trial. When Mr. Foster received that reprieve, he had already eaten his last meal.

"Ex-Army recruiter from DFW facing 3rd execution date," is the Fort Worth Star-Telegram report by Melody McDonald.

On Jan. 11, Foster had already eaten his last meal and told his family goodbye when the Supreme Court gave him a last-minute stay. His attorneys had argued that his trial lawyers failed to arrange for a blood-spatter expert to dispute prosecutors' theory that both men acted together and that Ward could not have killed Pal and moved her body alone. They argued that Foster's post-conviction attorney should have raised that error in his appeal.

The high court later denied that claim, and a new execution date was set for April 5.

On that date, Foster's attorneys asked the high court to reconsider its earlier decision in light of an Alabama case that raised similar issues about post-conviction attorneys. Specifically, the attorneys argued that Foster's post-conviction attorney ignored his "requests, directions and pleas" and "was not acting as Mr. Foster's agent."

The court agreed to temporarily stop the execution to give the state attorney general's office 30 days to file a response to Foster's request for a rehearing.

State attorneys, in turn, argued that Foster's case differs both procedurally and factually from the Alabama case; that a blood-spatter expert would not have changed the outcome of Foster's case; and that he suffered no harm from his attorneys' performance.

Furthermore, they have pointed out that inmates have no constitutional right to effective assistance from post-conviction counsel.

Earlier coverage of Foster's case begins at the link.

Supreme Court Lifts Cleve Foster Stay

"High court lifts hold on Texan's execution," is the title of the AP report, via Forbes.

The Supreme Court has lifted its hold on the execution of a Texas man convicted in the shooting death of a woman in 2002.

The court's order Tuesday frees the state to set a new execution date for Cleve Foster, who was hours away from receiving a lethal injection in April when the high court stepped in.

Foster's appeal raised claims of innocence and poor legal help during his trial and early stages of his appeals.

The Supreme Court ist of orders, issued this morning, is available in Adobe .pdf format.

Earlier coverage of Cleve Foster's case begins at the link.

Office of Capital Writs Involved in Kerr Litigation

Brandi Grissom posted, "Execution Challenge Is First for Texas Appeals Office," at the Texas Tribune.

UPDATE: Convicted murderer Cary Kerr tonight became the first Texas inmate to be executed with the state's new three-drug lethal injection cocktail, including pentobarbital.The U.S. Supreme Court today denied Kerr's request for a stay.

The Tribune's original story about Kerr's case is below.

Less than a month before his scheduled execution, Cary Kerr had no attorney. And the ones he had had up to that point, he argues, didn’t do him much good. Now, he’s asking the U.S. Supreme Court to stop his execution — scheduled for tonight — and allow him another opportunity to argue for his life.

“This was a life history that wasn’t told,” says Brad Levenson, Kerr’s new attorney. “No one has done this investigation.”

Levenson is director of the state’s new Office of Capital Writs. Created by lawmakers in 2009 to provide better representation for people on death row who can't afford to pay their own lawyers to challenge their sentences, the office opened in September 2010. Kerr’s case is the first the office has taken with an impending execution date. And prophetically, the appellate lawyer whose previous work Kerr lambasts is the same one who helped spur lawmakers to create the office of writs in the first place.

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Kerr was sentenced to death in 2003 for the rape and murder of Pamela Horton. He’s not arguing that he didn’t strangle the woman and leave her badly beaten corpse in the middle of the street in a Fort Worth suburb. Rather, Kerr says, his attorneys never gave the jury a chance to hear about his abusive upbringing and mental problems, a background he believes could have persuaded jurors or appellate courts to issue a sentence other than death.

Lawyers for Texas Attorney General Greg Abbott argue, however, that Kerr’s original trial lawyer did present jurors with mitigating evidence. And, they say, the courts have not recognized that death row inmates have a constitutional right to effective appellate attorneys.

And:

After he was sentenced, Richard Alley was appointed as Kerr’s state habeas corpus attorney. The main goal of habeas proceedings is to uncover new evidence that either proves the inmate’s innocence or shows a constitutional violation during trial proceedings. Alley, though, didn’t do any investigating, Kerr contends. He never even retrieved Kerr’s case file. When he drafted the habeas pleading, he copied and pasted from older filings in Kerr’s case and others he had handled. Kerr’s first name was misspelled on the cover page. One section of the pleading compared Horton’s murder to “any other shooting death.” Horton was strangled. The pleading said Kerr’s youth should be a mitigating factor, but Kerr was 39 at the time of his trial. The petition was quickly denied.

Levenson argues that Alley should never have been appointed to handle Kerr’s case because the State Bar of Texas had twice disciplined him for unethical behavior, including using false evidence and making false statements. In 2006 — shortly after an investigative report from the Austin American-Statesman about the shoddy work of Alley and other death row lawyers — he was removed from the Texas Court of Criminal Appeals list of capital appointments because of his work on Kerr’s case and others. And reports about Alley’s work and the troubled capital appellate system were a major factor that led lawmakers to establish the office of writs in 2009.

Levenson found out about Kerr from other lawyers who told him the death row inmate didn’t have an attorney even though he was about to be executed. Despite having little time for investigation and a small staff, Levenson says, on April 6, he took on Kerr’s case and delved into his past. “What normally takes a year and a half, we did in two and a half weeks,” he says. They interviewed family members, including Kerr’s sister and stepsister and his biological mother, and talked to Kerr’s friends and neighbors. They reviewed school and jail records.

The story they found, Levenson says, was disturbing. Kerr was born to alcoholic parents. His mother left when he was young, and he was raised mostly by his sister, who was only a couple of years his senior. His youth was riddled with poverty, and the children often went hungry. Kerr’s father and grandfather introduced him to alcohol when he was about 10. He was sexually assaulted twice, once at age 5 and again at 12. His stepmother openly disdained him and routinely slapped him in the face in public. By the time Kerr was a teenager, his father and stepmother repeatedly kicked him out of the house; at one point he lived in an old car under a neighbor’s carport.

“This is a pretty sad and traumatic childhood, and I think a jury should hear all the evidence before they make a decision,” Levenson says. “We found this in two-and-a-half weeks. What could competent habeas counsel have found if they had worked for much longer?”

The primary question in the Kerr case, however, is whether he even had a right to effective habeas counsel. So far, the courts have ruled the U.S. Constitution makes no such guarantee. Recent action by the U.S. Supreme Court have fueled hopes among defense lawyers that the nation’s top court might be ready to take up that issue. Last month, the court stayed the execution of Texas death row inmate Cleve Foster, who has made similar ineffective counsel claims. The court also stayed the execution of Daniel Cook in Arizona, another case that raises questions about ineffective counsel. “For years, people have wanted that question answered,” Levenson says.

Related posts are in the ineffective assistance of counsel index.  More on the 2006 Statesman series and related editorials, at the links.

Ineffective Assistance of Counsel

Michael Kiefer writes, "High court to address issue of lawyering," for the Arizona Republic.

Daniel Cook was scheduled to die by lethal execution last Tuesday morning in Florence for murdering two men in 1987. Cleve Foster was scheduled for execution that same evening in Huntsville, Texas, for a 2004 murder. But in the eleventh hour, the U.S. Supreme Court stayed the executions of both men.

The issue: how to address claims that their convictions and death sentences arose out of bad lawyering.

Cook represented himself at trial and failed to bring up serious issues from his childhood that might have influenced his sentence. Foster's attorney at trial failed to engage an expert who might have tipped a jury toward acquittal. Then, the lawyers who handled their appeals failed to present those claims adequately.

Last Monday, the U.S. Supreme Court issued an opinion in the case of a California man whose appellate attorneys tried to introduce new evidence into federal court. The high court batted him down, ruling that evidentiary matters must be restricted to state courts where guilt and innocence are decided.

And three weeks ago, the high court accepted yet another related case in which an Alabama court denied appeals to a death-row inmate who missed a procedural deadline because notice was sent to the wrong address.

The Supreme Court takes only cases it feels will answer legal questions that face the nation as a whole. Its decisions then set legal precedent. As for Cook and Foster, the Supreme Court stayed their executions until it decides whether it will consider hearing those cases. Or they could be resolved by a decision in the Alabama case. After a death sentence is imposed, it goes automatically to a state Supreme Court for review, and if it is affirmed there, it goes directly to the U.S. Supreme Court in what is called a direct appeal. All other appeals are voluntary.

The next stop is back to the trial court for "post-conviction relief." In Arizona and 22 other states, this is the first point at which questions can be raised about whether the lawyer did everything he or she could have done to represent the client in trial.

There is a dearth of lawyers to represent defendants in the initial post-conviction procedures.

"Isn't a defendant entitled to a competent lawyer?" asked Michael Meehan, a Tucson lawyer representing Cook.

Perhaps not: The Sixth Amendment guarantees the right to competent counsel in trials, but there is no right to an attorney while seeking post-conviction relief.

The flurry of cases before the Supreme Court may answer Meehan's question.

Related posts are in the ineffective assistance of counsel index.

A Horror at Every Turn

That's the title of an editorial in today's New York Times.

Cleve Foster, a former Army recruiter convicted of murder, was scheduled to be executed earlier this week in Huntsville, Tex., when the Supreme Court rightly granted a stay pending a review of his case.

There are so many reasons why the death penalty should be repealed everywhere. It is barbaric, and a terrifyingly high number of innocent defendants have been placed on death row or executed. Mr. Foster’s petition makes a strong case that, but for his ineffective state-appointed trial lawyer, he would not have been sentenced to death and that the evidence against him leaves conspicuous room for doubt about his guilt. It also makes a strong case that, but for the weakness of a second state-appointed lawyer who filed a writ of habeas corpus, he would have been granted a new trial.

The Supreme Court must decide whether Texas violated Mr. Foster’s rights by providing an ineffective habeas lawyer. The answer must be, “Of course.” Otherwise, the state will be allowed to pretend to satisfy his right to be heard while callously denying it. “This is my Life,” Mr. Foster wrote the lawyer when he fired him. “I feel you treated me Like a Dog.”

The means for Mr. Foster’s planned execution are also tainted. Last month, the Texas Department of Criminal Justice said it would use pentobarbital as the sedative in place of sodium thiopental in the state’s three-drug lethal injection protocol. (Spookily, in apparent violation of federal law, it was sent using a federal license number registered to the Huntsville Unit Hospital, which was shut down in 1983 because of its abysmal treatment of prisoners.)

And:

The suffering of any inmate during execution is inexcusable. The execution of an innocent person is an even greater horror. The Supreme Court should give Mr. Foster the chance to prove his innocence.

Earlier coverage of Cleve Foster's case begins at the link.

More on the Supreme Court Stays

"Texas, Arizona executions stayed by high court," is the title of Bill Mears' CNN post.

The Supreme Court for the second time this week has stopped a pending execution, giving lawyers for the condemned inmates more time to file their appeals.

The justices Tuesday morning issued an order granting a stay of execution for Cleve Foster, about eight hours before his scheduled lethal injection. The Gulf War veteran was convicted along with another man of the 2002 murder of Nyanuer "Mary" Pal, a Sudanese immigrant he met at a Fort Worth bar.

The court said it needed more time to rule on the inmate's claims of prior ineffective assistance of counsel, and related claims of innocence of the murder. The state has now been given 30 days to respond to Foster's request for a rehearing of his appeals. The high court will then revisit the petition, and could then decide the execution can go forward. The court's brief order noted Justice Antonin Scalia would have denied the stay of execution.

This is the second time Foster, 47, has been granted a reprieve. His scheduled execution was stopped in January after he had already been given his last meal.

Martha Neil posts, "For 2nd Time in a Week, Supremes Stay Execution; Inmate Claims Innocence, Argues Lethal Drug Choice," at ABA Journal.

For the second time in a week, the U.S. Supreme Court has stayed an imminent execution to give the defendant's counsel more time to pursue an appeal.

Today it was Cleve Foster who won a reprieve approximately eight hours before he was to be given a lethal injection in Texas, CNN reports. Foster, 47, also came close to death in January, when he was given his last meal before his scheduled execution was halted.

Earlier this week, the court stayed the execution of Daniel Wayne Cook the night before he was to be put to death in Arizona.

Both men claim ineffective assistance of counsel prevented them from arguing their innocence. They also contend that a planned new execution drug, pentobarbital, is neither appropriate nor the subject of adequate protocols. Although used to euthanize animals, it reportedly has not been routinely used in human anesthesia for decades.

Earlier coverge from Arizona and Texas, at the links.

Arizona Scheduled Execution Also Stayed by Supreme Court

The stay in the Arizona case was issued late yesterday.  As in the Foster case, the stay is unrelated to lethal injection challenges.  The Supreme Court order is available in Adobe .pdf format.

"High court grants execution stay for Ariz. inmate," is the AP report filed by Amanda Lee Myers.  It's via CBS News.

A man set to be the last person put to death in Arizona using a controversial three-drug lethal injection method has won a reprieve while the U.S. Supreme Court considers an unrelated issue in his case.

The high court on Monday granted a stay of execution for Daniel Wayne Cook, 49, less than 24 hours before he was scheduled to die for killing a man and a teenage boy in 1987 after torturing and raping them for hours.

The execution is now on hold until the Supreme Court makes a decision on an argument by Cook's lawyers that he received ineffective counsel during his post-conviction proceedings.

Cook's attorneys also are fighting the use of the knockout drug sodium thiopental. Similar arguments, however, failed to stop or delay the execution of another Arizona death-row inmate, Eric John King, last week.

The high court's ruling prompted the Arizona Department of Corrections to cancel Cook's execution, which was set for 10 a.m. Tuesday, exactly one week after King lay strapped down in the same room, minutes from taking his last breath.

Cook's death warrant expires Wednesday morning. If the Supreme Court doesn't rule in time, a new warrant must be issued, and that could take weeks.

"We're very happy," defense attorney Robin Konrad told The Associated Press as she drove to a state prison in Florence to deliver the news to Cook. "We hope the U.S. Supreme Court considers this issue seriously."

Ultimately, Konrad is seeking a new sentencing for Cook in hopes that he will get life in prison instead of the death penalty.

Konrad said Cook's attorneys were ineffective during his post-conviction proceedings because they did not present to Judge Steven Conn evidence that Cook endured extreme physical and sexual abuse throughout his childhood.

Reuters Legal reports, "Supreme Court temporarily blocks Arizona execution," written by Tim Gaynor.

The U.S. Supreme Court granted a stay of execution late Monday afternoon for a convicted killer in Arizona who was due to die by lethal injection on Tuesday, but the inmate could still be executed this week if the court rejects a petition from his lawyers.

Daniel Wayne Cook, 49, was convicted in 1988 of first degree murder for the killings of Carlos Froyan Cruz-Ramos and Kevin Swaney, together with an accomplice, John Matzke.

He was due to be executed by lethal injection at the state prison in Florence, southeast of Phoenix, at 10 a.m. Tuesday, but the execution was canceled after the Supreme Court granted a stay on Monday, the Arizona Department of Corrections said in a statement.

The application for the stay was presented to Justice Anthony Kennedy who granted it pending the court's decision to hear an appeal. If no appeal is granted, the stay will terminate automatically.

The stay came in response to a petition arguing Cook did not have effective legal representation during his trial or appeals process. His lawyer argued that the courts had not heard that Cook suffered a lifetime of physical and sexual abuse, a fact alleged to be relevant to the proceedings.

Earlier coverage from Arizona begins at the link.