The StandDown Texas Project

Guilty by a 10-2 Vote: Efficient or Unconstitutional?

That's the title of Adam Liptak's latest Sidebar column in today's New York Times.  LINK  Here's an extended excerpt:

“Twelve Angry Men” might have been a much shorter movie had it been set in Oregon. Instead of letting Juror No. 8, the lone holdout played by Henry Fonda, methodically convince his fellow jurors that there was good reason to doubt the defendant’s guilt, an Oregon jury might have just voted and been done with it.

That’s because Oregon is one of only two states that does not require juries to reach unanimous verdicts in criminal cases. Like Louisiana, it allows convictions by a vote of 10 to 2.

In a pair of decisions in 1972, the Supreme Court said that was all right, that the Constitution does not require states to insist on unanimity.

But the decisions, one each from Oregon and Louisiana, were badly fractured and internally inconsistent. They concededly ignored the historical record and made assumptions about jury behavior that have been called into question by more recent research.

Scott D. Bowen, an Oregon man sentenced to 17 years in prison for sex offenses, is now asking the Supreme Court to have another look at the issue. The case against Mr. Bowen was based on statements from his 15-year-old daughter, who had run away from home. Mr. Bowen said his daughter had made up the accusations to gain her independence.

Prosecutors were able to convince only 10 jurors of Mr. Bowen’s guilt. In Oregon, that was enough.

Mr. Bowen may find allies in two of the current court’s more conservative members, Justices Antonin Scalia and Clarence Thomas, who have often joined with more liberal justices to enforce the original meaning of constitutional provisions protecting the rights of criminal defendants.

The men who drafted the Sixth Amendment understood criminal convictions to require, as William Blackstone put it in 1769, “the unanimous suffrage of 12” of the defendant’s “equals and neighbors.” The Supreme Court has invoked that language in recent decisions concerning the importance of the jury’s role in determining facts supporting convictions.

In its brief urging the Supreme Court not to hear Mr. Bowen’s case, Oregon acknowledged that “the common law at the time of the founding required a jury verdict to be unanimous.”

“But it does not follow from that historical fact that a unanimous jury became a constitutional guarantee,” Oregon’s brief said. “Wiser or not, unanimous juries are not a Sixth Amendment mandate.”

And:

Oregon does require a unanimous vote in first-degree murder cases, and Louisiana requires it in capital cases.

A unanimity rule would seem to reinforce the requirement that prosecutors prove their cases beyond a reasonable doubt. Two jurors out of 12, if you do the math, represent about 17 percent of the panel. That’s a fair amount of doubt.

Mr. Marquis, the Oregon prosecutor, said the state’s rule helped to weed out “rogue jurors.”

But Shari Seidman Diamond, an authority on jury behavior at the Northwestern University law school, said those concerns were overblown. It is hard for a single person to hold out, Professor Diamond said, but very important that jurors deliberate until unanimity is reached.

“The argument that people who are in the minority are somehow deviant, not worth respecting or making crazy arguments,” she said, “just doesn’t hold up.”

A supporting brief filed by Professor Diamond and 16 other scholars said “there was little systematic evidence one way or the other” about jury behavior when the Supreme Court last addressed the question. “Empirical studies conducted since 1972,” the brief went on, “show that jury deliberations are in fact less vigorous when unanimity is not required.”

Justice Potter Stewart, dissenting in the 1972 decision from Louisiana, identified a further problem with nonunanimous juries. The jurors in the majority, he said, “can simply ignore the views of their fellow panel members of a different race or class.”

Indeed, that may have been part of the reason for the practice in the first place.

“Recent historical scholarship indicates,” Charles J. Ogletree, a law professor at Harvard, wrote in a supporting brief in Mr. Bowen’s case, “that one of the original purposes of the nonunanimous jury was to functionally silence the views of racial and ethnic minorities and women.”

Related posts are in the jury category index.

Colb on Melendez-Diaz

At FindLaw.com, regular columnist Sherry Colb writes, "The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms."  Here's the beginning of a must-read for those who want to dig deep into the ruling.

Last week, the U.S. Supreme Court handed down its decision in Melendez-Diaz v. Massachusetts. The Court held that the prosecution may not introduce into evidence a sworn certificate showing the results of forensic analysis (specifically, the fact that a seized substance was cocaine) without triggering the defendant's Sixth Amendment right to confront the witnesses against him. This holding means that if the analyst who certified forensic test results will not appear at trial, then the trial court must exclude the certificate.

Though Justice Scalia's majority opinion expressed great confidence in this result, the dissenting opinion (which reflected the views of four Justices) was equally disdainful of it. The combination of the two exposes a startling lack of consensus among the Justices about the constitutional status of hearsay, a basic feature of interpreting a core protection in the Bill of Rights.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right [among other things] [t]o be confronted with the witnesses against him." Two questions arise from this text: What is involved in being confronted? And, who counts as a "witness against" the defendant? The second question is the one that most occupied the majority's attention in the Court's recent decision.

No one seems to dispute that the category of witnesses that trigger confrontation rights includes, at the very least, the people who testify for the prosecution at a defendant's criminal trial. And for such witnesses, confrontation means availability for cross-examination. Thus, the defendant has a right to cross-examine every prosecution witness who appears at trial. If a witness dies of natural causes after testifying against the defendant, but before being subject to cross-examination, then the judge must (at a minimum) instruct the jury to disregard that witness's testimony. And if the testimony is necessary to prove guilt beyond a reasonable doubt, then the case must be dismissed.

But does anything or anyone else (aside from witnesses who testify for the prosecution at a criminal trial) count as "witnesses against" the defendant for Confrontation Clause purposes? One controversial possibility is that when the prosecution offers hearsay against the defendant, the speakers of such hearsay are always and necessarily "witnesses against" the defendant and must therefore also be subject to cross-examination by the defense, just as they would be if they had appeared as live witnesses.

Earlier coverage of the ruling is here; more at the Scotus Wiki Melendez-Diaz page.

Cultural Background Gains Traction as a Legal Defense

That's the title of an article in today's Wall Street Journal written by Amir Efrati.  LINK

The old saw among law enforcement is that ignorance of the law is no defense.

But some think it should be, at least in some circumstances, particularly when immigrants act in ways that seem ordinary in their homeland but are illegal in the U.S. Defense attorneys and even some judges are increasingly pushing the idea that immigrants at times should be able to defend themselves by arguing that their cultural background influenced them.

"Taking a person's cultural background into consideration is no different from judges taking into consideration a defendant's gender, age and mental state," says Alison Dundes Renteln, a political science professor at the University of Southern California.

Critics of the defense say the law should be applied equally to all U.S. citizens and that juries shouldn't be asked to assess immigrants' guilt based on the defendants' own standards. It is wrong for prosecutors "to treat one class of people differently from another class of people just because of their national origin," says Cristina Johnson, deputy district attorney in Monterey County, Calif.

And:

But advocates say they aren't arguing that immigrants who break the law should get a free pass. Rather, they say evidence that defendants acted in accordance with their cultural norms should be included at trial or potentially serve as a mitigating factor during sentencing. Under the right circumstances, they say, some defendants should qualify for plea bargains, or probation rather than prison.

"Cultural issues are arising more frequently in the courts, and judges and lawyers need to be sensitized to recognize them," says Delissa A. Ridgway, a federal judge on the U.S. Court of International Trade who became interested in the topic while training judges and lawyers in other parts of world. She now organizes seminars on the cultural defense.

And:

Culture-based legal defenses aren't new. As a country founded by immigrants, the U.S. has long wrestled with the issues of law versus custom. But such defenses began attracting interest amid the influx of non-European immigrants in recent decades, particularly with a few high-profile cases in the 1980s.

In one, a Japanese woman living in California who discovered her husband had an extramarital affair tried to kill herself and the couple's two children as a way to save face. The children died, but she survived. Based in part on evidence that her acts were part of a traditional Japanese practice now illegal in that country, prosecutors allowed her to plead guilty to manslaughter rather than face murder charges.

State and federal appellate courts have provided little guidance on how lower courts should treat such defenses, and many trial judges continue to be skeptical. As a result, such defenses often don't work. Even the most culturally aware judge is unlikely to be sympathetic to a child beater, regardless of the attitudes about corporal punishment in other countries. Defense attorneys would prefer to try other avenues, such as challenging the legality of the arrest or the evidence.

New Lab Report Case Granted - UPDATED

That's the title of Lyle Denniston's SCOTUS Blog post, concerning today's cert grant in Briscoe, et al., v.
Virginia, 07-11191.

The Supreme Court, in the final round of orders for the Term, agreed on Monday to review a sequel to its decision last week limiting the use of crime lab reports as evidence in criminal trials. The new case (Briscoe, et al., v. Virginia, 07-11191) involves the constitutionality of a procedure used in Virginia that requires an accused to assert a demand to question the technician who prepared the lab report. The state Supreme Court ruled that, if an accused does not follow the demand procedure, he surrenders his right to confront and cross-examine the report's author. 

UPDATED - Denniston's post has been updated and retitled, "Analysis: Is Melindez-Diaz already endangered?" 

"Forensic ruling adds burden for prosecutors," is the title of Tony Mauro's report on the Melindez-Diaz ruling in today's National Law Journal.

Both sides agree: The U.S. Supreme Court's June 25 ruling requiring that forensic evidence be presented at criminal trials by a witness who can be cross-examined will impose new burdens on prosecutors.

But initial reaction to the 5-4 decision in Melendez-Diaz v. Massachusetts was split over how big that burden will be — or whether it's a cost that just has to be borne to meet the requirements of the Sixth Amendment's confrontation clause. The Court said that written lab reports or affidavits alone won't suffice.

"I don't think there's any doubt it is going to be burdensome," said Sidley Austin partner Jeffrey Green, who wrote a brief in the case for the National Association of Criminal Defense Lawyers. "But so is a jury trial. All constitutional rights are burdensome to a degree, but it's difficult to imagine anything more critical to the outcome of a trial than examining whether a substance really is what it is."

Massachusetts Attorney General Martha Coakley, who argued and lost the case before the high court, said that "the majority failed to appreciate that its ruling today will significantly burden our ability to prosecute countless drug cases in the commonwealth's courts." Prosecutors say laboratory personnel will be diverted to waiting for court appearances instead of processing drug and DNA evidence.

And:

Justice Antonin Scalia wrote the opinion, which flows from his 2004 landmark decision in Crawford v. Washington that breathed new life into the confrontation clause. That part of the Sixth Amendment gives a person accused of crimes the right "to be confronted with the witnesses against him." Luis Melendez-Diaz invoked Crawford to challenge his conviction on drug trafficking charges, which was based in part on a certificate presented at trial — but not by a witness — stating that the substance obtained from his car was cocaine. State courts upheld the conviction.

In the Melendez-Diaz opinion, Scalia said the confrontation clause allows no way of presenting such evidence other than by a witness who can be cross-examined. "The Confrontation Clause," wrote Scalia, "is binding, and we may not disregard it at our convenience." Scalia also displayed a measure of skepticism about forensic evidence in a passage likely to be quoted often by defendants on appeal. "Forensic evidence is not uniquely immune from the risk of manipulation," Scalia wrote, in explaining why it should be subjected to scrutiny at trial.

More at the Melendez-Diaz Scotus Wiki page; earlier coverage at StandDown, here.

Yogurt Shop Murder Defendants Released

It has been a spectacularly tangled case since December 1991 when four girls were killed in a North Austin yogurt shop.  Problems with the investigation were apparent from the beginning.  Four men were identified as suspects and pursued, but it has always been an open question as to whether those convicted were actually guilty.  Yesterday, the case took another dramatic turn.

"Suspects in yogurt shop killings released," is Steven Kreytak's report in today's Austin American-Statesman

More than nine years after telling police they participated in the grisly slayings of four teenage girls at a North Austin yogurt shop in 1991 — confessions their lawyers say were coerced under psychological pressure — Robert Springsteen and Michael Scott were released from jail on bond Wednesday.

State District Judge Mike Lynch ordered the men to be released on their own recognizance after prosecutors said they were not prepared to go to trial as scheduled July 6 given questions raised by recently discovered DNA evidence. Each man remains charged with four counts of capital murder.

Scott, 35, and Springsteen, 34, were each previously convicted of capital murder, but those convictions were tossed on appeal. The men have been locked up since 1999, with Springsteen spending four years on death row. Scott had been sentenced to life in prison.

Just before 3 p.m. Wednesday, Scott walked arm-in-arm with his wife from the Travis County Jail, smiling briefly when a handful of supporters cheered. He said nothing to a throng of assembled media.

Behind him was Springsteen, who gazed wide-eyed at the crowd and up into the live oak trees outside the jail.

And:

Prosecutors said they want to conduct more DNA testing to determine whose male DNA was found in a vaginal swab taken from 13-year-old victim Amy Ayers. DNA from the same male was later found in another victim.

Defense lawyers say the male DNA could have been found in a third victim, but the profile is incomplete, and that another unknown male DNA profile was found on a wrist ligature used to bind a fourth victim.

Tests show conclusively that none of the DNA belongs to Scott, Springsteen or two previous co-defendants, lawyers have said.

Defense lawyers say the new DNA evidence exonerates Scott and Springsteen.

Jordan Smith writes, "Yogurt Shop Murder Defendants Set Free," for the Austin Chronicle.

Lynch's decision to free the two men dealt a devastating blow to the prosecution, raising questions about the D.A.'s ability to withstand mounting evidence supporting the defense. Scott was scheduled for retrial starting July 6, a date set months ago, but on June 24 the Travis County District Attorney's Office announced in court that it was not ready to prosecute. At issue is the discovery last year of unknown male DNA found on a vaginal swab taken from the youngest victim, 13-year-old Amy Ayers. The D.A.'s Office has been searching for a match to the DNA but after testing more than 100 people – including crime scene and lab personnel, police, firefighters, and friends and acquaintances of the defendants – has not been able to identify the donor. Attorneys for Scott and Spring­steen say the discovery of the unknown male DNA exonerates their clients, but D.A. Rosemary Lehmberg says that isn't so. "It just does not exonerate anybody," she said during a Wednesday press conference following the judge's decision.

Still, it doesn't appear that Lynch is willing to let the prosecution off the hook indefinitely. The case will be back in court Aug. 12, when prosecutors will be asked to update their progress and discuss when they'll be ready to try Scott. Lynch said he expected the state to come prepared with a "more definite game plan," or the court will produce its own.

The latest chapter of the seemingly endless courtroom saga began in March 2008, when new DNA testing by Fairfax Lab (Virginia), working for the state, revealed an unknown male DNA profile inside the body of Ayers, who was murdered with three other young women in a North Austin yogurt shop in 1991. The DNA profile from Ayers' body does not match Springsteen or co-defendant Scott or two other men – Maurice Pierce, who prosecutors had dubbed the "mastermind" behind the grisly murders before dismissing all charges against him in 2003, and Forrest Welborn, who prosecutors had charged acted as a lookout but against whom two grand juries failed to return an indictment.

That revelation sparked yet another round of DNA testing, undertaken by the defense. In court last week, Joe James Sawyer, one of Springsteen's attorneys, said those additional tests, completed by experts with the company Orchid Cellmark, revealed what could be yet another unknown male DNA profile – on vaginal swabs taken from Sarah Harbison, 15, and on a ligature removed from Eliza Thomas, 17. Importantly, testing has also revealed that a swab taken from the fourth victim, Sarah's older sister, Jenn­ifer Harbison, 17, matches the unknown DNA found inside Ayers.

The startling results, Sawyer said at last week's hearing, not only exclude Springsteen – to a "scientific certainty" – from having left any iota of DNA at the scene but also exonerates him from having participated in the grisly quadruple murder.

"2 suspects freed in Texas yogurt shop murder case," is the AP report by Jim Vertuno, via the Fort Worth Star-Telegram.

Police chased thousands of leads and received several false confessions. Springsteen, Scott and two other men were arrested in 1999. Charges against the two other men were eventually dropped, and they are not implicated by the new DNA test.

And:

Scott and Springsteen initially confessed, and each man implicated the other. But both quickly recanted and said their statements were made under police pressure.

The convictions were overturned because in each case, the defense had been unable to cross-examine the co-defendant about his purported confession.

Springsteen was 17 when the girls were killed; the U.S. Supreme Court later banned execution of defendants who were juveniles at the time of the crime. The new DNA tests were conducted in 2008 using technology not available during the defendants’ first trials.

Travis County District Attorney Rosemary Lehmberg said investigators have conducted at least 100 new DNA tests and need more time to keep testing. She suggested that a previously unknown fifth suspect participated in the crime.

A key element of Springsteen’s confession was admitting sexually assaulting Ayers. Now prosecutors face a DNA sample that doesn’t match his confession.

The Austin Chronicle has an extensive archive of its earlier coverage.  Earlier StandDown coverage is here.  I'll have commentary on the case later today.

Jury Sends Former Officer Back to Death Row

That's the headline from the Houston Chronicle report on the Houston trial of Robert Fratta.  It was written by Brian Rogers.  LINK

A taut and emotional roller coaster ride ended Saturday when 12 jurors decided to send Robert Fratta back to death row.

The former Missouri City public safety officer was convicted May 15 for the second time of hiring two men to shoot his wife, Farah, in 1994. His original conviction had been overturned.

And:

Fratta’s original 1996 conviction was overturned when an appeals court ruled that the confessions of his co-conspirators, Howard Guidry and Joseph Prystash, should not have been admitted into evidence because Fratta’s lawyers could not cross-examine them. The two remain on death row.

Fratta's Lawyer May Face Inquiry

That's the title of an article in today's Houston Chronicle, written by Brian Rogers..  LINK

A half-nude photograph e-mailed to convicted killer Robert Fratta through his attorney’s office sent the death penalty phase of the murder-for-hire trial through a tour of the inmate’s personal phone calls Wednesday and could prompt an investigation of his lawyer.

Acting on a recorded phone call from Fratta to a woman with a Florida phone number, prosecutors last week confiscated from the former Missouri City public safety officer’s cell phone a photograph of the woman exposing her breast.

State District Judge Belinda Hill ruled that prosecutors could argue Fratta violated jail rules with the explicit picture but that his attorney, Vivian King, was not responsible for the delivery of several photos.

King said the photos, including one with the woman in a bathtub, were e-mailed to her office during the trial. She said she’s received dozens of e-mails and letters, some with photos or other attachments, from supporters of Fratta, who twice has been convicted of hiring two men to shoot his wife, Farah, in 1994.

King said she asked Fratta to look through the documents to see if they were helpful but did not know he kept the photo or several others the woman sent. King also said she did not believe the picture was contraband.

“I don’t think it is inappropriate,” she said. “And I don’t think he’s done anything wrong.”

And:

Fratta’s 1996 conviction was overturned by an appeals court ruling that the confessions of his co-conspirators, Howard Guidry and Joseph Prystash, shouldn’t have been admitted into evidence because Fratta’s lawyers could not cross-examine them. The two remain on death row.

Judge Selected for Keller Trial

"GOP judge from San Antonio to run Keller trial," is Chuck Lindell's report for the Austin American-Statesman Austin Legal blog.  A similar edit is in today's print edition.

A Republican district court judge from San Antonio will preside over the trial of Sharon Keller, the presiding judge of the Court of Criminal Appeals who stands accused of violating her duty in a 2007 death penalty case.

The Texas Supreme Court today named Bexar County District Court Judge David Berchelmann Jr. as special master for Keller’s trial, to being Aug. 17 in Austin.

Berchelmann was the first Republican to serve on the Court of Criminal Appeals, the state’s highest criminal court, when he was appointed by Gov. Bill Clements in 1989. At the time, he was a seven-year district court judge, and he returned to the Bexar County district court bench three years later.

“He is highly regarded by both the bench and the bar in Bexar County,” said Wallace Jefferson, chief justice of the Supreme Court.

“The court believes him to be fair and impartial, and he has a rather unique judicial pedigree. He was a member of the Court of Criminal Appeals back in the 1980s, and now he sits on a civil bench. So it’s not a case in which his decisions would routinely go to the Court of Criminal Appeals.”

Jefferson said he consulted with Berchelmann before the court’s decision.

“This is a high-profile case, and we wanted to make sure that for any judge appointed that there was nothing that would preclude them from taking the case on,” Jefferson said.

Diane Jennings writes, "Judge Berchelmann named to preside over Keller case," for the Dallas Morning News Crime blog.

Judge David Berchelmann of the 37th judicial district in San Antonio has been named special master to preside over the hearing of Sharon Keller, presiding judge of the Texas Court of Criminal Appeals. Keller has been charged with publicly discredting the judiciary by the State Commission on Judicial Conduct becuase of the way she handled a last minute death penalty appeal. The hearing is set for August in Austin.

Berchelmann, 61, is a Republican who narrowly won re-election to the bench in 2008. He has served on several different courts in the past couple of decades, including a brief stint on the Texas Court of Criminal Appeals.

The trial is scheduled to begin August 17 in Austin.  Earlier coverage begins with this post.

Constitutional Rights Always Matter

That's the title of Linda Campbell's latest column in the Fort Worth Star-Telegram.  LINK 

Despite his given name, Khristian Oliver was not heartened to learn that jurors in Nacogdoches consulted their Bibles in the room where they decided to sentence him to death.

Several of them read Numbers 35:16-19, which says, "And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death."

It might be easy to say that Oliver deserved Death Row for shooting Joe Collins in the course of a 1998 home robbery then smashing his head with a rifle butt while he lay in his front yard.

Trouble is, what the Scripture-reading jurors did by bringing their Bibles into the deliberations violated the Constitution.

It’s not that the courts and the law don’t respect religion. Passing judgment as a community representative naturally involves both intellectual assessment and moral evaluation. Jurors aren’t expected to check their conscience at the door.

But juries are supposed to base their verdict solely on the evidence presented in court and the law as provided by the judge, without outside influence. That’s part of the Sixth Amendment’s "impartial jury" guarantee.

Jurors are told their obligation going in, and they take an oath to faithfully follow their instructions as part of their conscientious service.

In fact, the 5th U.S. Circuit Court of Appeals found that the jurors who sentenced Oliver had "crossed an important line" by referring to Bible passages that weren’t part of the law and evidence in the case.

"Most circuits have ruled that when a Bible itself enters the jury room, the jury has been exposed to an external influence," Judge Edward Prado wrote in an August ruling. "Here, we face facts that are even more egregious than in those previous cases."

The Bible, he wrote, "may have influenced the jurors" in a way that would "ensure a sentence of death instead of conducting a thorough inquiry into these factual areas."

It’s mystifying then that the appellate court upheld Oliver’s sentence, citing the trial judge’s conclusion that "a conscientious, dedicated and carrying[sic] jury" had reached its verdict "uninfluenced by any outside influence of any kind."

How could that be, when they were reading their Bibles in the jury room? How could the appeals court say they shouldn’t have been, but never mind, harmless error?

Oliver’s lawyers have asked the Supreme Court to set the lower courts right on Bibles in the jury room. And it’s time the justices did.

And:

At my church on Palm Sunday, we prayed that those empowered to impose the death penalty respect life, justice and human rights. Not all Bible-loving religions support capital punishment, you see.

Georgia Legislation

"Life-without-parole bill imperiled by addition," is Bill Rankin and Aaron Gould Sheinin's report in today's Atlanta Journal-Constitution.

A move to allow a death sentence without a unanimous jury sidetracked legislation Tuesday that was the state district attorneys’ top priority this session.

The House was scheduled to vote for final passage of Senate Bill 13, which would allow DAs to seek a sentence of life without parole without having to seek the death penalty to get it.

But House Rules Committee Chairman Earl Ehrhart (R-Powder Springs) pulled the bill off the House floor just before the vote so it could be amended with nonunanimous jury legislation.

The amendment would allow a judge to impose a capital sentence if a jury deadlocked during the sentencing phase, with at least a 9-3 vote in favor of death.

Even though many DAs support the nonunanimous jury bill, they have said they do not want it amended to —- and thus imperil passage of —- their top priority, the life-without-parole bill.

SB 13, which already passed the Senate by a 54-0 vote, has widespread support because it would spare DAs from mounting costly capital prosecutions when the sentence they really want is life without parole.

Once a DA files a notice to seek death in a murder case, the sentencing options are life with parole, life without parole or death.

Sen. Preston Smith (R-Rome), SB 13’s lead sponsor, expressed disappointment Tuesday after learning of the maneuver by House Republicans. If the nonunanimous jury amendment is put on his bill, Smith said, it would kill both measures. He said he supports the death penalty but has yet to see a nonunanimous jury proposal that will withstand a constitutional challenge.

An earlier version of the report was filed by Rankin, "Life-without-parole bill pulled from House vote."

Outside the House chamber, Ehrhart said S.B. 13 needed a “technical correction.”

Sen. Preston Smith (R-Rome), the bill’s lead sponsor, said he was told that House leaders pulled the bill to try and amend it to allow death sentences when jurors vote 9 to 3 in favor of death but are unable to reach a verdict.

That is the same split in which jurors deadlocked in the death-penalty trial against courthouse killer Brian Nichols, who was subsequently sentenced to life without parole.

“It sounds like both bills are dead,” Smith said. “I’m very disappointed.”

Smith said he believes in the death penalty but said he has yet to see a non-unanimous jury proposal that will withstand a constitutional challenge.

If S.B. 13 fails, it would be the third year in a row it has happened. Last year, House leaders refused to allow Smith’s bill pass without a non-unanimous jury bill.

Douglas County District Attorney David McDade expressed surprise by the turn of events. He declined comment.

Sara Totonchi, public policy director for the Southern Center for Human Rights in Atlanta, said House leaders are trying to push through controversial legislation at the expense of the life-without-parole bill, which has the support of both prosecutors and defense attorneys.

“This bill lowers the standards for the imposition of the death penalty at a time when the nation is moving to enact more safeguards to make sure we don’t convict or execute the wrong person,” she said.

Georgia Public Broadcasting aired, "House Considers Changing Unanimous-Jury Requirement for Death Sentences," earlier today.  It's by Carl Zornes.

A bill that would allow prosecutors more options in imposing life-without-parole sentences is in jeopardy because some want to make amendments.

The state House was set to take up a Senate bil that would allow prosecutors to seek life without parole sentences. Currenlty that is only possible if they first ask for the death penalty. But the bill was sent back to committee before reaching the floor.

Motivated by the Brian Nichols case, leading House Republicans want to add an amendment to do away with Georgia's unanimous-jury verdict-requirement in death penalty cases.

The proposed changes have bill sponsor Senator Preston Smith irate. He says the measure was supposed to be a victims' rights bill and House members are quickly turning it into something new.

Earlier coverage of the Georgia legislation is here.

As Jurors Turn to Web, Mistrials Are Popping Up

That's the title of an article in today's New York Times by John Schwartz.  LINK  Here's an extended excerpt:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. The juror had even told his readers that a “big announcement” was coming on Monday. But the judge decided to let the deliberations continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.

“That’s the beauty of the adversary system,” said Professor Wellborn, co-author of a handbook on evidence law. “You lose all that when the jurors go out on their own.”

There appears to be no official tally of cases disrupted by Internet research, but with the increasing adoption of Web technology in cellphones, the numbers are sure to grow. Some courts are beginning to restrict the use of cellphones by jurors within the courthouse, even confiscating them during the day, but a majority do not, Mr. Keene said. And computer use at home, of course, is not restricted unless a jury is sequestered.

In the Florida case that resulted in a mistrial, Mr. Raben spent nearly eight weeks fighting charges that his client had illegally sold prescription drugs through Internet pharmacies. The arguments were completed and the jury was deliberating when one juror contacted the judge to say another had admitted to her that he had done outside research on the case over the Internet.

The judge questioned the juror about his research, which included evidence that the judge had specifically excluded. Mr. Raben recalls thinking that if the juror had not broadly communicated his information with the rest of the jury, the trial could continue and the eight weeks would not be wasted. “We can just kick this juror off and go,” he said.

But then the judge found that eight other jurors had done the same thing — conducting Google searches on the lawyers and the defendant, looking up news articles about the case, checking definitions on Wikipedia and searching for evidence that had been specifically excluded by the judge. One juror, asked by the judge about the research, said, “Well, I was curious,” according to Mr. Raben.

“It was a heartbreak,” Mr. Raben added.

Information flowing out of the jury box can be nearly as much trouble as the information flowing in; jurors accustomed to posting regular updates on their day-to-day experiences and thoughts can find themselves on a collision course with the law.

Police Perjury

"Legal System Struggles With How to React When Police Officers Lie," is the Wall Street Journal report by Amir Efrati.  It appeared in the Thursday Journal.

It's one of the most common accusations by defendants and defense attorneys -- that police officers don't tell the truth on the witness stand.

Of course, defendants themselves can be the ones lying, but the problem of police perjury -- and what can be done about it -- is being debated anew. Fueling the discussion are recent court cases in New York City and Boston that indicated officers may have lied and a U.S. Supreme Court ruling this month that could have broader implications for cases in which improperly obtained evidence is in dispute.

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases.

And:

Though few officers will confess to lying -- after all, it's a crime -- work by researchers and a 1990s commission appointed to examine police corruption shows there's a tacit agreement among many officers that lying about how evidence is seized keeps criminals off the street.

To stem the problem, some criminal-justice researchers and academic experts have called for doing polygraphs on officers who take the stand or requiring officers to tape their searches.

A Supreme Court ruling this month, however, suggests that a simpler, though controversial, solution may be to weaken a longstanding part of U.S. law, known as the exclusionary rule. The 5-4 ruling in Herring v. U.S. that evidence obtained from certain unlawful arrests may nevertheless be used against a criminal defendant could indicate the U.S. is inching closer to a system in which officers might not be tempted to lie to prevent evidence from being thrown out.

Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.

"It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That's because the exclusionary rule "sets up a great incentive for...police to lie."

In the Interest of Jurors?

That's the title of an article from the Sunday Corpus Christi Caller-Times concerning supporters of Hannah Overton.  It's written by Denise Malan.  LINK

Pastor Rod Carver of Calvary Chapel of the Coastlands became acquainted with the legal system as a spectator during the capital murder trial of his parishioner Hannah Overton.

He got an inside view as a juror in a local drug case.

"It helped me understand what prosecutors and what the defense do to juries," Carver said. "If you have one juror who knows what proper evidence is and what their rights are and responsibilities are, one juror can rescue a jury from their mistakes."

Carver led Calvary Chapel in defending Overton, who was convicted during a dramatic trial in September 2007 of killing her 4-year-old foster son, Andrew Burd. The congregation raised money for her defense and appeal, which is pending before the 13th Court of Appeals. The church also started the freehannah.com Web site and has drawn regional and national media attention to the case.

The Free Hannah movement gained support from other local churches and pastors, who with Carver last year formed a nonprofit, In the Interest of Justice, with the goal of educating the public about the judicial system, biblical ethics, local elections and the rights and responsibilities of jurors.

No matter what happens in Overton's appeal, In the Interest of Justice is a lasting effect of her case, one which organizers say would make the legal system -- the same system they feel failed Overton -- more equitable.

"In order to reform the system, it's got to be through the education of jurors," Carver said.

Nueces County District Attorney Carlos Valdez said he worries that the training could taint local jury pools.

"If they do start doing (the training), of course we're going to have to ask panels during voir dire if they've been through this," Valdez said. "It's not just a concern for prosecutors. It depends on who is doing the training -- and training should be in quotes -- whether the training is really informational or whether it's an attempt at brainwashing."

Valdez said prosecutors could use peremptory challenges, which mean they don't need a reason to reject a potential juror, or likely could challenge them on the grounds they already have formed an opinion or have a built-in bias.

Carver and others involved with Free Hannah were particularly critical of the way Nueces County prosecutors handled the case. A major point of contention is whether the jury understood the jury charge in convicting Overton of capital murder.

And:

Cynthia Orr, one of Overton's appellate attorneys, has been advising In the Interest of Justice and using her national contacts to help the organization. Based in San Antonio, Orr is active in the National Association of Criminal Defense Lawyers and Texas Criminal Defense Lawyers Association and sits on the American Bar Association's Criminal Justice Council.

Orr said she hasn't attended any of the forums but agrees that jurors often don't understand a judge's rulings on motions, or the language used in courtrooms.

"Communicating with jurors, sometimes lawyers also need to be educated about how lay people understand what they're saying," Orr said. "Law school kind of ruins the way we communicate."

She also believes that many people try to shirk jury duty, and those who show up for court aren't always the most plugged-in to communities.

"I don't know what people take away from these forums ... but it's going to be better than the dark they're currently operating in," Orr said.

Douglas Laycock, a professor in the University of Texas School of Law who specializes in religious liberty and constitutional law, also agreed many jurors are uneducated.

"The legal system and the trial process are probably very mysterious to most juries," Laycock said. "The lawyers and judges don't do a good job of explaining it to them. I think there may also be a tendency to believe prosecutors and police officers. They're supposed to be the good guys, whether or not that's justified."

Though Laycock has not seen an In the Interest of Justice seminar, he said he wouldn't be surprised if local prosecutors try to exclude anyone from a jury who has had the training. He also questioned the group's plans to teach biblical roots of the Constitution and justice system.

"The judicial system is founded partly on the Constitution and partly on common law, and the biblical roots are extremely extenuated," Laycock said. "These people can't possibly know what they are."

Court Interpreters in Short Supply in Multilingual Texas

That's the title of Dianne Solis' report for the Sunday Dallas Morning News.  LINK

The Honduran woman had been beaten repeatedly. And when it was time to face her former boyfriend who she said had tormented her, she wanted the jury in the Dallas courtroom to understand key details. Her voice shook. She spoke only Spanish.

The young woman used an interpreter, Lyda Baro. In English, Baro said, "And from a beating, he gave me a miscarriage."

The accused was found guilty of a criminal misdemeanor offense.

Court interpreters like Baro give voice to women challenging domestic violence, to children who've been abused, to witnesses of murders, and to many other parts of often-complex legal processes. And they have never been in more demand – a reflection of the demographic sweep of immigration in North Texas and across the country.

"We live in a state with a death penalty," Baro said as she sat outside a courtroom. "So this is crucial stuff."

It is also the exacting stuff of stories that will affirm or contradict guilt or innocence or witness credibility. And yet a victim with a limited vocabulary can't be helped by an interpreter with a college degree, a poetic flair and a gift for narrative arc.

Interpreters must remain neutral and not add or subtract from what's said, according to administrative rules of the state licensing agency.

There are false cognates, and there are true cognates. (Crimen isn't an exact translation of crime, for example.) There are literal meanings versus idiomatic expressions of a certain region. ("Keep your nose clean" isn't so easy to translate.)

Linguistic nimbleness is only half the skill needed, experts say. Interpreters must also know a good deal about the law and have excellent memories.

So the licensing process is tough.

There are only 32 licensed interpreters in Dallas County, and about 500 in the state. About 40 percent of Dallas County, or 830,000 people, and about a third of the Texas population, or 7.2 million, speaks a language other than English in the home, according to the U.S. Census Bureau.

Spanish dominates among the foreign languages, followed by Vietnamese, Chinese and Korean.

Dallas Conviction Overturned Due to Jury Exclusion

The Dallas County District Attorney Office's long-ago practice of excluding minorities from juries is the cause of a new conviction reversal by the U.S. Fifth Circuit Court of Appeals.  The court's opinion in Reed v. Quarterman is here, in Adobe .pdf format.

"Conviction tossed in '78 flight attendant murder," is the report in today's Dallas Morning News by Steve McGonigle, Diane Jennings, and Jennifer Emily.

A ruling of racist jury selection tactics by Dallas County prosecutors moved a white inmate a giant step closer to a new trial after almost 30 years on Texas death row.

A three-judge federal appeals court panel in New Orleans on Monday reversed Jonathan Bruce Reed's capital murder conviction because prosecutors excluded blacks from the jury that found him guilty of murdering Braniff Airlines flight attendant Wanda Jean Wadle in 1978.

The court ruled that jury selection in Reed's trial mirrored Dallas prosecutors' approach in the 1986 trial of Thomas Miller-El, a black man whose murder conviction and death sentence were overturned by the U.S. Supreme Court in 2005.

In both trials, the appeals court judges found unanimously, prosecutors used peremptory – or no-cause – challenges to remove prospective black jurors, though they'd expressed similar opinions as whites who were accepted.

State courts and a lower federal court rejected Reed's bias charge.

"Although we do not relish adding another chapter to this unfortunate story more than 30 years after the crime took place, we conclude the Constitution affords Reed a right to relief," said the opinion written by Circuit Judge Edward Prado.

Prosecutors have 14 days to ask the judges to reconsider their decision or appeal to the full New Orleans-based 5th U.S. Circuit Court of Appeals. The decision ordered prosecutors to release Reed unless he gets a new trial within 120 days.

A spokesman for the Texas attorney general's office, which has been in charge of fighting Reed's federal appeal, said Tuesday that no decision has been made on further action.

Christi Dean, the Dallas County prosecutor now assigned to the Reed case, said it is likely that the attorney general's office will not appeal. If so, the district attorney's office would decide whether to retry the case or attempt to strike a plea bargain, Dean said.

"In all likelihood, it's coming back," she said. "Miller-El was pretty on point, and it was a Supreme Court decision."

Today's Austin American-Statesman carries Michael Graczyk's AP report, "Inmate could be freed after 30 years on Texas death row."

The 5th Circuit, in a ruling posted late Monday, said Reed's case mirrored the capital murder case of Thomas Miller-El, on death row for nearly 20 years until the Supreme Court overturned his verdict because of racial discrimination during jury selection at his Dallas County trial. Miller-El last year took a life prison sentence as part of a plea deal.

The Supreme Court cited a manual, written by a Dallas prosecutor in 1969 and used for years, that advised Dallas prosecutors on excluding minorities from juries. Documents in Miller-El's case described how the memo advises prosecutors to avoid selecting minorities because "they almost always empathize with the accused."

More on the Thomas Miller-El's case is at:

• The Legacy of Henry Wade
• More on Miller-El
• Miller-El Case Ends With Plea Agreement

More on Miller-El v. Dretke and Miller-El v. Cockrell, the case's two trips to the Supreme Court, is from Oyez.

Reflection in New Hampshire

"Death penalty debate: complex and infinite," reflects on the recent death sentence, handed down in New Hampshire; the first in the state in 49 years.  It was collected by Michael McCord.

When a New Hampshire jury handed down the state's first death sentence in a half-century last month, the decision not only ensured years of court appeals, but another phase in the never-ending and complex moral and legal debate over society's harshest punishment.

Michael Addison, 28, was convicted and sentenced to death by lethal injection for shooting and killing Manchester police officer Michael Briggs in October 2006. New Hampshire's last execution was in 1939, and the state last imposed the death penalty in 1959, but the sentence of the two murderers was commuted to life in prison in 1972, when the U. S. Supreme Court declared the death penalty unconstitutional.

Since the death penalty was reinstated in 1976, more than 1,100 inmates have been executed and 30 states have death penalty statutes. But the questions raised in court cases throughout the 20th century about the constitutionality and justice of the death penalty have been matched by experts and citizens who passionately debate its morality and ultimate value.

Seacoast Sunday asked four local religious leaders to share their thoughts about the death penalty.

Earlier coverage of the death sentence is here.

Colb Commentary on Defendant Testimony

Cornell Law prof Sherry Colb's latest FindLaw commentary is, "The Costs of Testifying in One’s Own Defense: An Empirical Study Highlights the Problem, But What To Do About It?"  Here's the beginning:

This year in the Cornell Law Review, Professors Theodore Eisenberg and Valerie Hans will be publishing an illuminating and important article (available in draft form here) demonstrating the impact of introducing prior convictions against a criminal defendant. Their findings show, among other things, that when revealed to a jury, a defendant's record of prior convictions can, in marginal cases, significantly increase the odds of a guilty verdict.

This finding will confirm the suspicions of many defense attorneys and evidence scholars, but the next question is what the proper reaction ought to be. This column explores some possibilities, including the radical option of disqualifying all criminal defendants from taking the stand.

In the Federal Rules of Evidence, as well as virtually every state's evidence law, there is a more-or-less general prohibition against the introduction of evidence to support a "propensity" inference. Such evidence offers a picture of a person's alleged character trait, presented in support of the proposition that the person is likely to have behaved in a manner consistent with that character trait on a particular occasion.

And:

One conclusion we could draw from this is that defendants are already so low in credibility (because of their powerful interest in the outcome of the case) that a bad "character for truth-telling" seems not to register with juries. Given their low credibility, it may well be that defendants derive little actual benefit from testifying to their innocence, at least in a world in which jurors are not wondering why a non-testifying defendant who could take the stand has chosen not to do so.

I must admit that I am uncomfortable with the prospect of silencing criminal defendants who wish to testify (or, alternatively, of allowing them to offer only sub-testimonial unsworn statements that differ substantially from the form of testimony by other witnesses). It is also true that defendants with no criminal record may have little to gain from disqualification, and may therefore be sacrificing their interests in order to protect those of defendants with a prior record – a sacrifice that seems inimical to the individual-rights orientation of criminal trials.

Nonetheless, it may be time to consider something drastic like disqualification. We know that the current approach to defendant testimony is deeply flawed – defendants with prior records testify and risk substantially increasing their odds of conviction, or refrain from testifying and risk alienating the jury, which is left to wonder why anyone falsely accused would voluntarily remain silent. If it turns out – as it appears – that defendants' testifying does little to help them, then it may be in their best interests to be compelled to remain silent at their own trials.

A Snapshot of Indigent Defense in Georgia

"Death case defendant sues for lack of lawyers," is Bill Rankin's report from the January 1 issue of the Atlanta Journal-Constitution.

A murder defendant who says it is “unconscionable” for him to have been denied legal representation for eight months is suing the head of the state’s public defender system.

“This is surely an unprecedented deprivation of counsel in modern times,” said the lawsuit, filed Wednesday for Jamie Ryan Weis by four prominent Atlanta lawyers.

Prosecutors are seeking the death penalty against Weis for the Feb. 2, 2006, killing of Catherine King in her Pike County home.

Since April, Weis has been sitting in jail awaiting trial without lawyers to represent him. The lawsuit was filed after trial judge Johnnie Caldwell scheduled a Jan. 5 hearing on the case.

“It’s frustrating,” Pike County District Attorney Scott Ballard said. “Everybody wants the defendant to be well represented. We’ll be ready to prosecute just as soon as they’re ready.”

The suit was filed in Fulton County Superior Court against Mack Crawford, director of the Georgia Public Defender Standards Council, and Gerry Word, acting head of the capital defender’s office.

Both Crawford and Word said they had yet to see the complaint and declined comment Wednesday afternoon.

Weis’ case has highlighted the budgetary problems plaguing the state’s public defender system.

Weis’ two appointed lawyers, Bob Citronberg and Tom West, were removed from the case in November 2007 when the cash-strapped defender system did not have the money to pay them.

Two local public defenders were ordered to take over the case.

But the two defenders objected, saying they already had crushing caseloads and had neither the time nor the resources to defend a capital case.

At a court hearing in April, an agreement was reached to return Citronberg and West to the case, provided that Crawford sign a contract allowing them to be paid. But that has yet to occur.

"Long Held in Capital Case, Man Sues to Get a Lawyer," is the New York Times report by Robbie Brown.  It appeared in the January 2 issue.

“There’s nothing more fundamental and more important to somebody facing the death penalty than adequate counsel,” said one of the lawyers, Stephen B. Bright, director of the Southern Center for Human Rights. “The idea that somebody would go even one week without a lawyer is unthinkable.”

And:

James E. Coleman Jr., an expert in criminal law at Duke Law School, who is not involved in the suit, said the absence of a defense lawyer for any period of time created an unfair advantage for prosecutors. Defense investigations should begin immediately after a suspect’s arrest, Professor Coleman said, so witnesses’ memories do not fade and evidence does not disappear.

“I’ve never seen anything like this before,” he said. “I think the state has violated this man’s constitutional rights and undermined his chances of receiving a fair trial.”

Robert Blecker, a professor at New York Law School who supports the death penalty, said the lawsuit raised worrisome questions about the fairness of Mr. Weis’s trial.

“When it comes to the death penalty, money should never be the issue,” Professor Blecker said. “In this story, money seems to have become the issue, and that’s what’s so troubling.”

Georgia’s public defender system has long struggled for financing from the state legislature, especially in recent years with more than $2 million spent in the highly publicized case of Brian G. Nichols, who was sentenced last month to life in prison for killing four people in his escape from an Atlanta courthouse in 2005.

"State takes defense funds for poor," is the title of an OpEd that appeared in the December 16 issue of the Journal-Constitution.  It's by a Georgia public defender, Robert Rutledge.

Now that there is some closure to the Brian Nichols case, it’s time to examine what has been happening to the Georgia Public Defender Standards Council over the past few years.

The legislators who have been attacking the council, which funds indigent defense in this state, are not trying to develop an efficient public defender system. They have been capitalizing on the Nichols controversy to snatch money from the council’s designated sources, which have nothing to do with taxes.

The standards council is funded by a $50 application fee per client, increased fines for those convicted of crime and court costs paid by civil litigants. Compare, however, the intake from the council’s sources with the amount of funds given to it for indigent defense. In 2006-07, for instance, the state collected about $43 million from the council’s designated sources. The Legislature then gave the council approximately $33 million and kept the rest.

Where is the rest of the money going? The legislature has not offered to fully fund the council with all the money from its designated sources in return for efficiency and transparency. And it has not dismantled or modified the designated sources in order to save lawyers and their clients the court costs, fines and fees that are supposed to be funding the council.

Simply put, the General Assembly is taking the council’s money and spending it elsewhere under the thin guise of improving the system through discipline, while at the same time crippling any of the council’s efforts to make any truly necessary improvements.

The Difficulty of Texas Death Penalty Appeals

"Convicts' appeals bring out small points of case in search of big reward," is Colin Guy's report in the December 23 issue of the Beaumont Enterprise.  It examines issues for post-conviction review in several southeast Texas capital murder cases.

Could the favorable testimony of an accused killer's mother have spared him a death sentence if the trial had started before her death?

This is the type of question appellate judges must weigh when considering the fate of six men sentenced by Southeast Texas juries to die.

The most recent case considered was the capital murder conviction of David Lee Jackson, a federal inmate sentenced to death for the 1999 murder of another inmate. Jackson's appeal was denied by the U.S. Fifth Circuit Court of Appeals and his attorney, Doug Barlow, now is in the process of seeking a U.S. Supreme Court ruling.

And:

Barlow, a Beaumont attorney who has worked several death penalty cases, said it has become increasingly difficult to get a death sentence overturned.

"It's definitely difficult to preserve error and have a court address it and grant relief," he said.

Barlow said his last successful commutation of a death penalty was in the case of Kenisha Berry, a Beaumont woman convicted of murdering her infant son. An appellate court found in that case that Berry's history did not demonstrate she was sufficiently dangerous to society to warrant the death penalty; her sentence was reduced to life.

Rivera v. Illinois

Cornell Law prof Sherry Colb's latest FindLaw commentary is, "The U.S. Supreme Grants Review in Rivera v. Illinois: Reconciling Peremptory Challenges, Racial Discrimination and Harmless Error."  The ScotusWiki page for Rivera v. Illinois is here.  The introduction is here:

In October, the U.S. Supreme Court granted review in Rivera v. Illinois, to address the following question: If a trial judge erroneously denies a criminal defendant a peremptory challenge, believing that the Fourteenth Amendment's Equal Protection Clause requires that denial, must the defendant's resulting conviction be automatically reversed or, alternatively, is this mistake subject to "harmless error" analysis? (Peremptory challenges allow parties to strike prospective jurors prior to trial without giving any reason for doing so.)

The case is set for oral argument on February 23, 2009. Rivera provides a welcome opportunity to consider the strange mixture of jurors' rights against discrimination, criminal defendants' role in molding the composition of their juries, and the counterfactual assessment of a trial known as "harmless error" analysis – which asks what might have happened in a different world where the error at issue had never occurred. In this column, I will take the opportunity to explain the ingredients of this mixture and make some observations about its likely impact on constitutional criminal procedure.

In the Aftermath of the New Hampshire Death Sentence

Both the Concord Monitor and Manchester Union Leader examine the impact of the state's first death sentence in 49 years and the case's future.

"NH death sentences seen as remaining rare," is Shawne Wickham's report in the Sunday Union Leader.

Former homicide prosecutors say last week's jury decision to sentence Michael Addison to death does not make it more likely the ultimate penalty will be imposed here in future cases.

That's in part because New Hampshire's death penalty law is narrowly drawn, they say, applicable only to certain crimes, including murdering a police officer, murder-for-hire and killing someone while committing a rape or kidnapping.

"We don't have that many total murders annually, and out of the total number of murders, it's a very small percentage that would qualify under the state statutes," said Michael Ramsdell, who was a homicide prosecutor for the Attorney General's office from 1987 to 1998.

"I'm unaware that the AG's office has refrained from bringing a capital murder charge when they thought they had the evidence to support it," he said.

John Kacavas worked in the attorney general's office from 1993 to 1999, the last two of those years as chief of the homicide unit. "And my philosophy was, unless I was going to prove this case beyond a reasonable doubt, it doesn't go capital."

Kacavas said last week's decision in the Addison case does bear "massive economic implications" for the state, which will have to construct a death chamber if Addison's appeals are unsuccessful. But he said he does not believe it makes it easier for future juries to apply the death penalty.

The Union Leader also has, "Death sentence only the beginning," by Kathryn Marchocki.

A jury's decision last week to execute convicted murderer Michael K. Addison set in motion a host of unresolved life-and-death issues, including the first review of the state's death-penalty law.

The verdict requires an automatic review of the conviction and sentence by the state Supreme Court. That process also will trigger the first test of whether the state's capital murder statute, which went into effect Jan. 1, 1991, is constitutional.

The death-penalty sentence also is notable not only because such sentences are so rare in New Hampshire, but because new death sentences have steadily declined nationally over the last decade, according to the Death Penalty Information Center in Washington, D.C.

The last time a New Hampshire jury sentenced someone to death was in 1959. The last person to be executed by the state was Alton shopkeeper Howard Long, who was hanged in 1939 for the murder and sexual assault of a 10-year-old boy.

"Appeals likely for 15 years," by Margot Sanger-Katz is from the Sunday Concord Monitor.

The Addison case represents unexplored territory.

"There is as much substantive rust on the pipes as possible," said Frank Zimring, a University of California-Berkeley law professor and author of The Contradictions of American Capital Punishment. Zimring said that the case will present many new issues for the New Hampshire Supreme Court, will be pursued by lawyers without experience in death penalty litigation and will take place in a region that has demonstrated ambivalence about capital punishment.

"My impression is that this case could well spend the next 15 or 20 years in the court system," said Stephen Bright, senior counsel at the Southern Center for Human Rights and a lecturer on death penalty law at Yale Law School. "It could very well be reversed."

Since the U.S. Supreme Court allowed states to reintroduce the death penalty in 1976, only four executions have taken place in the Northeast and only one has occurred in New England. In 2005, Connecticut executed Michael Ross, an admitted serial killer who had raped and murdered eight women and ultimately gave up on his appeals after 18 years on death row. New Hampshire and Connecticut are the only New England states with the death penalty on the books.

"There are an awful lot of layers, and all of this is going to be brand new to New Hampshire, and all of it is going to be in an environment that is enormously ambivalent about capital punishment," Zimring said.

In 2007, inmates who were executed had spent an average of 12½ years on death row since their convictions. But that number includes a wide regional variation. California had 655 prisoners on death row last year and executed none. Texas had 372 and executed 26. Pennsylvania had 221 and executed none.

"Some states that return a lot of death sentences, like California, but almost never execute anyone, and then there are some states that return a fair amount of death sentences and execute almost everyone," said Carol Steiker, a law professor at Harvard who studies the death penalty.

Steiker and her brother Jordan, a law professor at the University of Texas, did a study in 2006 comparing capital cases in California, one of the slowest states in executing prisoners after sentencing, and Texas, one of the fastest. She said they found the states had completely different legal cultures. In California, the lawyers representing death row inmates were more experienced, their legal pleadings were longer, and courts were more likely to hold live hearings instead of paper reviews.

What the legal process will be in New Hampshire is still unknown, she said. New Hampshire could adopt a more streamlined system as Texas has, but she said it was more likely New Hampshire would choose a slower, more careful review. Addison's will be the test case.

"Unlike any average death sentence in a state that returns a lot of them, many people will be watching this particular case because it's the first one in a really long time," Steiker said. "So that's a reason to think that this one will be treated carefully."

Sanger-Katz also reported, "A death penalty case's future."

In the two years preceding Michael Addison's capital murder trial, Addison's lawyers filed dozens of motions challenging the validity of New Hampshire's death penalty law and decisions made by the trial judge. Now that Addison has been sentenced to death by a Hillsborough County jury, those issues are likely to re-emerge as part of a lengthy appeal.

Addison, 28, was convicted of fatally shooting Manchester police Officer Michael Briggs after the two had met in a chance encounter in a city alley two years ago. In selecting a death sentence as his punishment Thursday, jurors made Addison the first New Hampshire man to face execution in nearly a half-century.

New Hampshire law requires that the state Supreme Court automatically review the sentencing decision to ensure that it was not arbitrary and that it is not disproportionate to sentences handed down in similar cases.

But Addison's lawyers have expressed their intention to appeal the case on many more issues.

"We strongly believe in the validity of the objections we made before the trial," Richard Guerriero told reporters Thursday after the sentence was handed down. "We intend to pursue those objections in an appeal."

Earlier coverage of the New Hampshire case is here.

Victim Videos

"'Victim videos' grow — but still controversial, is Vesna Jaksic's article in today's National Law Journal.

Although prosecutors applaud the increasing use of courtroom videos and multimedia presentations as a means to humanize victims and demonstrate the impact of the crimes they are prosecuting, defense lawyers are worried about the prejudicial effect of playing on jurors' emotions.

Called "victim impact evidence," these presentations are typically produced by the victim's family and shown in the sentencing phase of a capital trial.

The videos — some of which are as long as 20 minutes and feature a mix of soft music, photography and narration — recently caused a debate among the U.S. Supreme Court justices, who disagreed about whether they should revisit the issue of their admissibility.

Because the U.S. Supreme Court ultimately declined to hear the attempt to block the videos' use, observers expect prosecutors in more states to start using the tool more often.

In one case, Kelly v. California, No. S049973 (Calif.), jurors were shown a 20-minute video featuring a montage of still photographs and video of the life of Sara Weir, a 19-year-old who was raped and killed in 1993. Weir's mother narrated the video, which took viewers from the girl's infancy to her death and featured moments such as her daughter's dressing up for Halloween in a homemade costume, getting ready for her first horse show and attending her high school prom.

And:

The California Supreme Court upheld the use of the video during sentencing of the defendant, Douglas Kelly, who received the death penalty.

The same court also upheld the use of a 14-minute video montage in the penalty phase of Samuel Zamudio, who was convicted in 1997 for robbing and killing a couple and also was sentenced to death. The video contained 118 photographs of the couple, Elmer and Gladys Benson, including images of their graves.

In November, the U.S. Supreme Court refused to hear the two cases, which challenged the use of the videos, but not without disagreement. Kelly v. California, No. 07-11073; Zamudio v. California, No. 07-11425. Justice John Paul Stevens said the videos had no direct relation to the crime.

In his dissent, Justice Stephen G. Breyer acknowledged that the videos' emotional and artistic qualities could create a legal problem, and he wanted the court to hear the cases.

"I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area," Breyer wrote. "But examples can help elucidate constitutional guidelines."

Earlier coverage is here.

News Coverage of the New Hampshire Death Sentence

"Killer receives death sentence," is the Boston Globe report.

A New Hampshire jury handed down the state's first death sentence in 49 years, finding yesterday that a former Boston gang member with a history of violence should be executed for fatally shooting a police officer two years ago.

The verdict means that Michael Addison, 28, who was convicted of killing Manchester Police Officer Michael Briggs, could be the first person executed in New Hampshire since 1939. Two men were sentenced to death in the state in 1959, but their lives were spared when the US Supreme Court struck down state death penalty laws in 1972.

"In New Hampshire, a Rare Death Sentence," if from the New York Times Lede Blog.

No one has been executed in New Hampshire since 1939, when Howard Long was hanged for molesting and fatally beating a 10-year-old boy. And the state’s last death sentence, in 1959, was overturned by the United States Supreme Court in 1972 for procedural reasons.

In fact, New Hampshire and Connecticut are the only two New England states that have the death penalty, and Connecticut has executed only one person since 1976.

“It is rarer in the whole Northeast than in the rest of the country,” said Richard C. Dieter, executive director of the Death Penalty Information Center (http://www.deathpenaltyinfo.org/). “Only four people were executed in the Northeast since 1977, ”including three people in Pennsylvania and one in Connecticut.

“All of those four were people who waived their appeals and could have at least sustained themselves longer,” Mr. Dieter added.

By contrast, he said there were more than 900 executions in the South in the same period. Texas leads the nation in 2008 with 18 executions, and Virginia is second with 4.

Albert E. Scherr, a professor at Franklin Pierce Law Center in Concord, N.H., offered an explanation for the regional disparity.

“As compared to southern states, it’s a somewhat more narrow statute in New Hampshire,” Professor Scherr said, explaining that there are only six categories of capital murder in the state — including murder-for-hire, murdering a police officer and murder in the course of kidnapping or sexual assault.

“It’s the combination of a small murder rate and the nature of eligible crimes” that have contributed to the low execution rate, he said.

"Jury: Death for Addison," in the Manchester Union Leader.  The Union Leader also has a chart, "A list of executions in New Hampshire history."

Since 1739, 24 people have been executed in New Hampshire, all by hanging.

"In an instant, policy debate becomes real," in the Nashua Telegraph.  One note: Renny Cushing is with Murder Victims Families for Human Rights.

Death penalty opponents and supporters predicted an emotional and competitive fight before the House of Representatives next year over whether to repeal capital punishment, which not been carried out in New Hampshire for 69 years.

Two years ago, a move to repeal the law failed in the House by only 12 votes.

The Legislature did decide to strike it off the books in 1999 but then-Gov. Jeanne Shaheen, elected in November to the U.S. Senate, vetoed the measure.

Gov. John Lynch's own, renewed vow to veto would appear to politically doom repeal of this law.

Veteran observers agree a two-thirds majority needed to override that decision is unlikely to be found starting in the House with Republicans having picked up 17 seats in last month's elections.

This could be why there is indecision among death penalty opponents as to whether creating a commission that examines the costs of capital punishment versus life without the possibility of parole is a fruitful course while Addison's appeals are ongoing.

"I think this ruling by the jury makes it more relevant that we take a long-term look that a commission would as to whether it is good idea to have a death penalty law on the books," said Rep. Jim Splaine, D-Portsmouth, a longtime, legislative leader in the anti-capital punishment movement.

"I think it's a good thing to do now."

The commission's charge would include the cost to build and staff a death row and death chamber New Hampshire hasn't had in more than 30 years and to review studies that show it's cheaper to keep someone in prison for life than to carry out a death sentence.

Rep. Rene Cushing, D-Hampton, sees every reason to pursue repeal and believes that effort could gain momentum.

Cushing heads a Cambridge, Mass.-based center for the surviving families of homicide victims.

An off-duty police officer killed Cushing's father 20 years ago.

"Lynch would veto attempts to repeal death penalty," from AP via SeaCoastOnline.

Gov. John Lynch said Thursday he will veto any attempt to repeal or scale back New Hampshire's capital murder statute — potentially setting up a showdown with a Legislature that voted to repeal the law eight years ago.

"I think a just verdict has been rendered," Lynch said after a jury issued a death sentence to Michael Addison for murdering Manchester police Officer Michael Briggs two years ago.

Lynch said murdering a police officer "really strikes at the heart and fabric of our society" and the death penalty is appropriate "for such a heinous crime."

Death penalty foes have not decided whether to proceed with legislation to repeal or limit the death penalty law next year, said state Reps. Renny Cushing and Jim Splaine, both longtime opponents.

"I think some of us have been waiting to see the outcome of this trial," said Cushing, D-Hampton.

Cushing understands the emotional case for the death penalty. His father was shotgunned to death in the doorway of his Hampton home in 1988 by a neighbor who also was a town police officer. But rather than fight for capital punishment, Cushing stresses the need for mercy.

"Ultimately, I think the world has come to recognize the death penalty is a human rights violation," he said. "As a society, we're not better off when we have public employees conducting ritual killings of people."

Cushing is the founder of Murder Victims' Families for Human Rights, which represents victims across the country who oppose capital punishment. Cushing and Splaine said opponents will decide in the next couple of weeks whether to proceed with a bill. Splaine, Cushing and Rep. Steven Lindsey, D-Keene, have initiated repeal bills, but don't have to decide whether to go forward until next month. Cushing said opponents will get together soon to decide what to do.

Earlier coverage of the case is here.

Reflections on the Nichols Case

The Fulton County Daily Report's Greg Land has put together an excellent article examining wide ranging viewpoints of Georgia's criminal justice system in the aftermath of the Brian Nichols trial and verdict.  It's titled, "Moving on: Long ordeal of Nichols trial leaves legacy of shattered lives, proposed changes in death penalty-jury laws and weakened public defender system."

Here's the introduction:

Since March 11, 2005, the murderous rampage that started at the Fulton County Courthouse has reverberated across Georgia, where every lawyer and judge knows about “The Nichols Trial.”

What Brian G. Nichols left in his wake—the slayings of Fulton County Superior Court Judge Rowland W. Barnes, court reporter Julie Ann Brandau, Deputy Sgt. Hoyt Teasley and U.S. customs agent David Wilhelm, and the scarred visage of Deputy Cynthia Hall, beaten so savagely that she is blind in one eye and has permanent brain damage—will haunt their friends and loved ones for the rest of their lives.

But the ramifications of Nichols' lengthy, costly trial—which ended with a hung jury that forced a judge to levy four life sentences plus 485 years in prison and drew cries of outrage from prosecutors and some of the victims' family members—will take a long time to sort out.

A push in the Legislature to change the system that spared Nichols' life began this week, with the introduction of a House bill that would allow the trial judge to decide between execution and life without parole when juries deadlock 10-2 or 11-1 in favor of death.

 The trial has had a devastating impact on the Georgia Public Defender Standards Council, the statewide agency tasked with providing indigent defense. The council was hobbled shortly after it began operating in January 2005 by demands to fund Nichols' defense.

Legislators frustrated by the case's delays and costs demonstrated bold new oversight of the judicial branch. They formed a committee to investigate how the case's first judge, DeKalb Superior Court Senior Judge Hilton M. Fuller Jr., was handling matters. Partly as a result of the Nichols trial, the state curtailed the long-established practice that allowed senior judges to accept assignments in often-lengthy capital trials.

Earlier this year, lawmakers passed, in direct response to the Nichols trial, limits to how judges and public defenders fund and staff cases involving indigent defendants. They also shifted some of the expense of high-cost capital prosecutions to the counties.

Clearly, the impact of the Nichols trial will be felt for years to come. We asked a cross section of the Georgia legal community to comment on the lessons of the process that ended earlier this month with Nichols' conviction and sentencing.

Some of the principals, notably the trial judge, Cobb Superior Court Judge James G. Bodiford and members of the defense team, declined to comment. Others, such as Fulton District Attorney Paul L. Howard Jr. and Claudia Barnes, the late Judge Barnes' widow, offered comments that ranged from legislative proposals to personal reflections. Their comments follow.

Earlier coverage of the case begins with this post.

First New Hampshire Death Sentence in 49 Years

AP reports, "Man gets first NH death sentence in 49 years."

A jury on Thursday issued New Hampshire's first death sentence in nearly a half-century to a man who fatally shot a Manchester police officer two years ago.

Jurors unanimously agreed that Michael Addison, 28, deserved to die by injection for purposely shooting Officer Michael Briggs to avoid being arrested.

The last time a New Hampshire court imposed a death sentence was in 1959, but the two condemned men were spared by a 1972 U.S. Supreme Court ruling. New Hampshire last executed someone in 1939, has no one on death row and has no death chamber.

The judge must impose the sentence and cannot change it.

Addison's lawyers argued that his abusive childhood and possible brain damage from his mother's heavy drinking while she was pregnant warranted a sentence of life in prison without parole.

And:

The state Supreme Court will automatically review the conviction and sentence. If the court upholds both, an appeal by the defense is virtually certain, likely raising constitutional claims rejected by the judge. Among them is that Addison couldn't get a fair trial in Manchester, and that requiring judges to impose a death sentence decided by a jury is unconstitutional.

Legal experts note that New Hampshire's death penalty law, unlike laws in states such as Texas, has not been tested extensively in court.

Earlier coverage is here.

CCA Overturns Fort Worth Death Sentence and Conviction

"Appeals court grants new trial in '85 Lake Worth bombing murders," is Alex Branch's article in today's Fort Worth Star-Telegram.

The Texas Court of Criminal Appeals on Wednesday granted Michael Roy Toney the right to a new trial, agreeing that Tarrant County prosecutors improperly withheld evidence during his capital murder trial in the 1985 bombing deaths of three people.

Toney will likely be transferred from Death Row to Tarrant County, where he will await a decision from prosecutors on whether to retry the 23-year-old case.

Toney’s attorneys say that he is not guilty and that no reliable evidence connects him to the bombing.

"We are very happy that relief was granted today," said Jared Tyler, an attorney with the Texas Innocence Network. "We believe it is a big step toward proving Michael’s innocence."

Chuck Mallin, chief of the appellate division of the district attorney’s office said prosecutors will meet with District Attorney Tim Curry and decide whether to retry the case "probably sometime in the near future."

"I am sure that it is our intention right now [to retry it], but we will discuss the decision," Mallin said.

The district attorney’s office acknowledged this year that at least 14 documents that could have been favorable to Toney’s defense were not given to his lawyers during his 1999 trial.

Prosecutors and Toney’s attorneys jointly requested a new trial.

The court ruling Wednesday affirmed an order signed in October by state District Judge Everett Young that Toney should receive a new trial. Young presided over Toney’s first trial.

The Houston Chronicle carries the AP report, "Texas death row inmate's conviction overturned."

The Texas Court of Criminal Appeals on Wednesday overturned a death row inmate's conviction in the 1985 bombing deaths of three family members on Thanksgiving.

The state's highest criminal court upheld a lower court's October ruling that the lead prosecutor withheld evidence during Michael Roy Toney's 1999 trial. The Tarrant County District Attorney's Office had not disputed that assertion.

Chuck Mallin, chief of the office's appellate division, said Wednesday that District Attorney Tim Curry will decide in a few days whether to try Toney again after prosecutors review the case evidence. But Mallin said they still believe Toney committed the crime.

He said Toney would return to jail in Fort Worth and that bond would be set but did not know the amount.

One of Toney's attorneys, Rebecca Bauer Kahan of San Francisco, said it was "a very exciting day."

"We believe justice prevailed today and will continue to prevail," she said Wednesday, adding that she does not believe he should be tried again. "I don't think any credible evidence remains against Mr. Toney."

The CCA file for the Toney case is here.  Earlier coverage of the Toney case is here.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland.  More information is here, via Oyez.

In Georgia, a Push to End Unanimity for Execution

That's the title of Robbie Brown's article in the New York Times regarding the fallout from the Nichols jury verdict.  LINK

Legislators have not decided who will introduce the proposal to end unanimity or how many jurors’ votes it will require for a death sentence, Mr. Ralston said. But if the proposal passes, Georgia will become the only state to allow non-unanimous juries to sentence defendants to death.

The federal government also requires a jury to be unanimous to impose death. (In Alabama, Delaware, Florida, Montana and Nebraska, judges can impose death sentences after a jury issues its recommendation.)

It is not clear, however, that a Georgia proposal can withstand a constitutional challenge. Carol Steiker, a death penalty expert at Harvard Law School, said it could violate the 14th Amendment guarantee of due process and the Eighth Amendment ban on cruel and unusual punishment. Although the Supreme Court allows non-unanimous juries in many cases, Ms. Steiker said, death sentences require the highest standards.

“As the Supreme Court tends to say, ‘Death is different,’ ” she said. “It’s different in severity and it’s different in finality. This case really illustrates one of the problems with states trying to maintain thoughtful and circumscribed death penalty rules. There’s incredible pressure on these legislatures to change the laws at critical moments after high-profile cases.”

Even critics of the death penalty worried about the message sent by Mr. Nichols’s sentence.

“This case shows how arbitrary and irrational the death penalty can be,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “People shake their heads when they hear that someone got the death penalty for robbing a 7-Eleven, and Brian Nichols got life in prison for his heinous crimes.”

And:

Mr. Dieter, of the Death Penalty Information Center, said the case’s outcome demonstrated the growing difficulty of achieving a death sentence, even in the South. Across the country, death sentences have declined steadily over the past decade, to 115 in 2007 from 306 in 1998.

This downward trend reflects the public’s distrust of the death penalty and the increased reliance on the life-without-parole sentencing option, said Stephen B. Bright, a lecturer at Yale Law School and director of the Southern Center for Human Rights, who opposes the death penalty.

“To get 12 people to decide to kill somebody is a difficult undertaking,” Mr. Bright said. “People are overwhelmingly in favor of the death penalty when the Gallup poll calls. But when you ask them in a courtroom to actually impose the death penalty, a lot of people feel very uncomfortable.”

Earlier coverage is here.

Death Row Inmate's Trial Representation at Issue

"Man convicted of killing his kids could get retrial," is the report in today's Dallas Morning News.  It's written by Jennifer Emily and Tiara Ellis.

A judge will consider today whether the defense attorney for a man sentenced to die for killing his children was qualified to represent him and whether she deliberately undermined his case.

Hector Medina fatally shot 3-year-old Javier Medina and 8-month-old Diana Medina at their Irving home after their mother left him in March 2007.

State District Judge Andy Chatham, who presided over Mr. Medina's trial, will listen to arguments today and recommend to the Texas Court of Criminal Appeals whether Mr. Medina should be granted a new trial.

Lead defense counsel Donna Winfield was not on a list of attorneys qualified to represent defendants facing a death sentence as required by law. Judge Chatham appointed her to the Medina case after he saw her name on a death penalty list, but that document was apparently several years old. The judge said he could not comment because the case is pending in his court.

Ms. Winfield said she has not been on the list of eligible attorneys for a few years because she removed herself when she became too busy to take on death cases. She acknowledged Tuesday that she was not on the list at the time of her appointment but maintains she was still eligible to defend Mr. Medina.

And:

But longtime defense attorney Doug Parks, who has worked numerous death penalty cases, said there is no question that lawyers appointed to death penalty cases must be on the list.

"We are having to educate those judges that the law is clear – appoint from the list," said Mr. Parks, a member of the four-person committee that places lawyers' names on the death penalty cases list.

Mr. Parks said a defense attorney appointed to a Hunt County case had to be removed because he was not on the list. Such an omission, he said, can be a valid cause for appeal.

There is no specific remedy in the law if an ineligible attorney represents a defendant facing the death penalty. On appeal, one option a defendant could use is "ineffective assistance of counsel."

Mr. Medina's appellate attorneys are already using that claim for another reason. They contend that Judge Chatham forced Ms. Winfield to provide ineffective counsel by ordering her to proceed with her case even though she told the judge that her expert witnesses were not available.

Ms. Winfield said that the judge allowed for trial delays when a juror broke her arm and that he allowed another juror to go out of town for the birth of his grandchild. Ms. Winfield said the postponements made it impossible for her expert witnesses to testify until January.

"Once the judge mandated that I proceed forward without putting on any evidence, then Hector was de facto without an attorney," Ms. Winfield said. "He was denied effective assistance of counsel."

In New Hampshire

"Jury mull death penalty in Addison case," is the AP report via the Boston Globe.

The jury has begun deciding whether Michael Addison should be sentenced to death or serve life in prison for the 2006 shooting of Officer Michael Briggs.

Jurors were handed the case at 2:45 p.m. on Monday after attorneys for both sides gave their closing arguments. They deliberated about 45 minutes before going home for the day Monday.

The state argued shooting a police officer is the ultimate crime, and therefore deserves the ultimate punishment.

The defense said Addison may have committed horrible crimes, but he is a human being who has a family who loves him. Sentencing Addison to death, the defense warned, is something the jurors must live with the rest of their lives.

In her closing statement, New Hampshire Attorney General Kelly Ayotte told the jury Briggs gave his life trying to protect the community. Killing a police officer, she said, "tears at the fabric of our society."

Death penalty prosecutions are extremely rare in New Hampshire.  This post notes an earlier case tried this year; this post examines both of the cases.

Future Dangerousness, Race, and Ethnicity

Texas is unique in its reliance on predictions of future behavior in determining death sentences.  To be sentenced to death in Texas, the jury must find that, "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

The state usually relies on expert witnesses who testify that the defendant will be a future danger.  Sometimes these expert witnesses are psychologist.  It should first be noted that the American Psychological Association rejects the notion, and has sanctioned members who have provided such testimony.

Taking the prediction to an even greater length, clinic psychologist Walter Quijano testified in a small number of Texas cases that since minorities comprise a disproportionately large percentage of the prison population that fact alone indicates they are likely to be dangerous.

The introduction of race and ethnicity into the mix was too much even for then-Texas Attorney General John Cornyn.  In 2000, amid protests from some district attorneys, Cornyn confessed error to the U.S. Supreme Court in one of those cases involving Texas death row inmate Victor Saldano.

Another of those Quijano testified against is returning to a state district court next year for a new punishment phase hearing.  "State AG to handle resentencing phase," is the AP headline via the Houston Chronicle.

The Texas Attorney General's Office will handle the penalty phase retrial of a man whose death sentence was overturned because an expert witness testified the defendant's ethnicity was one indicator that he was a future danger to society.

At the recommendation of the attorney general, the Ector County District Attorney's Office recused itself from the case of Michael Dean Gonzales, the Odessa American reported in a story for Tuesday editions.

District Attorney Bobby Bland had asked for the AG's advice because Ector County's first assistant district attorney was once married to the lead investigator in Gonzales' case. Bland said the request was prompted by a death penalty case under scrutiny in Collin County because the prosecutor and trial judge had an affair.

"The (attorney general) recommended that my office recuse itself from that case so there wouldn't be an affect on the case if it were to be appealed," Bland said.

Gonzales was convicted of the April 21, 1994, slaying of Manuel Aguirre, 73, and his wife Merced, 65, during a break-in at their Odessa home. The laborer and gang member was sentenced to death.

He is among a half-dozen Texas death row inmates to receive a new punishment trial because of testimony by Walter Quijano, former chief psychologist for the Texas Department of Criminal Justice. In those cases, Quijano cited race and ethnicity as among several reasons a defendant was a future danger to society. A jury must decide if a convicted murderer is a future threat to impose the death sentence.

In June 2000, the U.S. Supreme Court overturned a death sentence in another Texas case because Quijano made what the high court said was improper race-based testimony during the penalty phase of a trial.

More on the issue is in the post, Eric Nenno and Texas Clemency.  This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness."  It was published in 2004.

In the Aftermath of the Nichols Trial

Today's Atlanta Journal-Constitution carries the editorial, "State must reject urge to ease death penalty."  It's written by editorial board member Maureen Downey.Here's an extended excerpt of this must-read editorial:

Many people are frustrated and angry that a Fulton County jury failed to condemn courthouse shooter Brian Nichols to death. If any convicted killer deserves to die, they argue, it should be a vicious escapee who brutally executed a judge, a court stenographer, a deputy and a federal agent.

However, disappointment in the verdict doesn’t mean that justice wasn’t served or that Nichols has evaded punishment. He was sentenced to 485 years in prison, plus another four sentences of life without parole, and another seven life sentences with parole possible after 30 years.

In other words, Nichols will never again take a breath as a free man. When he leaves prison, it will be in a hearse.

Nor does the verdict suggest that the jury system is flawed. Nichols dodged death because three of 12 jurors refused to vote for the death penalty, causing an irate Fulton District Attorney Paul Howard to urge Georgia lawmakers to amend the law that now requires a unanimous decision to impose death.

“We’re not asking for favors —- we are just asking for a level playing field,” said Howard.

It’s hard to see the unevenness in the field. Howard and his office had nearly four years to prepare their case against Nichols.

The jury heard 144 witnesses and weighed more than 1,200 pieces of evidence. Between the costs of the defense, the prosecution and the criminal investigation, the final tab for the Nichols case may exceed $5 million.

That tab will only go higher if Nichols is tried again in federal court. Howard is looking into the possibility of a federal death penalty prosecution against Nichols for the murder of off-duty U.S. Customs agent David Wilhelm.

However, such prosecutions return even fewer death penalties than state courts; nationwide, 55 people are in prison under a federal death sentence, compared to 105 inmates on Georgia’s death row alone.

As an officer of the court, Howard should accept and respect the sentence handed down by a jury of citizens. There’s no indication that the three holdouts on the jury were bribed or otherwise influenced by outside forces to vote against the death penalty.

They merely did their duty as citizens, serving on a jury in an emotionally draining trial that lasted for 12 weeks, and reached a decision other than that sought by Howard.

During the selection process, all 12 jurors indicated that in theory they could vote to impose the death penalty. But making that statement in theory and actually voting to authorize another person’s death can be two very different things for some people. The fact that Howard and many others disagree with the final sentence does not mean the system is broken. Nor should it be used to overturn two centuries of capital punishment law in the state.

The newspaper invited District Attorney Paul Howard to respond.  He wrote the OpEd, "Refine criminal justice system."

Throughout the preparation for trial and the prosecution of the Brian Nichols case, there have been many misconceptions and outright falsehoods regarding the decision to go to trial, the decision to seek the death penalty and now next steps (if any). I have refrained from commenting publicly in order to allow the courts and not the media to decide the case. Now that the case is essentially over, I would like to address these issues.

Let me clearly state for the record that I unequivocally accept the decision of the jurors. No one anywhere has more respect for jurors and the sacrifice they make when called upon to administer justice than I. While I might not agree with the decision, I wholeheartedly accept it and would never move to invalidate their work and effort.

My acceptance of the verdict, however, does not preclude sharing my observations, my experiences and expertise as to how to improve the administration of justice when the death penalty is being considered.

We must refine our criminal justice system by adding a provision to the statute allowing for nonunanimous verdicts in appropriate circumstances and a provision regarding the failure of jurors to deliberate during the sentencing phase. Of the 36 states that allow for the use of the death penalty, five —- Alabama, Delaware, Florida, Montana and Nebraska —- do not require unanimous jury verdicts for death sentences.

It has been suggested by a number of jurors on the Nichols case that three jurors would not engage in any discussion during the sentencing phase and one went so far as to place earphones over her ears and take out a crossword puzzle to preclude further discussion. This action cannot possibly be considered full deliberation and judges should be privy to this information when it is occurring and have a remedy.

As for prosecutions in other jurisdictions, Nichols’ crime spree traversed many jurisdictions and each has the right to try him for the crimes he committed against that community. Prior to beginning this trial, I spoke by phone with Gwinnett DA Danny Porter and U.S. Attorney David Nahmias to discuss which jurisdiction should proceed first. We agreed that the Fulton case would move forward first. Porter has already indicted Brian Nichols for kidnapping and other crimes in that jurisdiction, and Nahmias is considering federal charges against Nichols for the shooting of David Wilhelm, a federal agent. While I do favor the additional prosecution, these decisions are not mine to make. I leave that to each jurisdiction and its community.

The AJ-C website also carries blogger Jay Bookman's post, "Brian Nichols and the death penalty."

Fulton County DA Paul Howard knew years ago that insisting on the death penalty in the Brian Nichols case would be risky given the historic reluctance of Fulton jurors to impose death. He chose to go ahead anyway, investing millions of taxpaying dollars in effort to put Nichols on Death Row.

Now that the gamble has failed, with three of 12 jurors refusing to vote for death, Howard is complaining that he didn’t get a fair trial. That’s baloney. As an officer of the court, Howard has a duty to accept and respect the jury’s verdict, even if he disagrees with it. He knew, or should have known, that the odds were against him to begin with.

The Nichols sentence is also inspiring some in the state Legislature to try to lower the death standard from a unanimous jury vote to a 10-2 vote. That’s a very bad idea. According to the Innocence Project, more than 200 people have been exonerated after their conviction by DNA evidence in the last 20 years; 17 of those freed had served time on Death Row.

How many more innocent people are still on Death Row today who, because of the nature of the case against them, can’t be freed by DNA? Statistically speaking, they are almost certain to exist. And it is just as certain that innocent people have been wrongly executed.

Nichols’ guilt was never in question. But lowering the threshhold to execution from unanimous vote to super-majority vote raises the odds that society will kill innocent people. Is the greater risk of taking innocent life justified by a greater chance that killers such as Nichols will die?

Earlier coverage begins here.

Dallas County DA Makes Clear He's Not 'Soft on Crime'

That's the title of James Ragland's latest column in the Saturday Dallas Morning News.  LINK

Craig Watkins remains deeply conflicted about the death penalty.

But as Dallas County's district attorney, he took an extraordinary step this week to make clear that he's not, as some of his critics have suggested, "soft on crime," a reputation no doubt enhanced by his devout push to overturn wrongful convictions.

Mr. Watkins took the gloves off Wednesday, personally presenting closing arguments in the death-penalty case of Robert Sparks, convicted of fatally stabbing his wife and two young stepsons before raping two adolescent stepdaughters.

"He's a poster child for the death penalty," Mr. Watkins pointed out.

Now, if you're a poster child in Texas, a state that's presided over 18 of the nation's 37 executions carried out this year, that's saying an awful lot, none of which is flattering.

"I felt a responsibility to the victims and to the people of Dallas County to let them know we are going to punish people who commit violent, heinous crimes and hold them accountable," Mr. Watkins told me after the jury sentenced Mr. Sparks to death. "We're here to seek justice."

It was a bold, yet necessary, message for Mr. Watkins, who's already declared he'll seek re-election in two years.

"I think people were hungry to see that, to see that side of me," he said.

Mr. Watkins came into office facing questions about his lack of prosecutorial experience and his warm-and-fuzzy campaign rhetoric about being "smart on crime."

"What I respected about him when he ran for public office is that he had a very clear sense of how he thought he should do the job," Dallas Police Chief David Kunkle said.

Some critics ridiculed Mr. Watkins' "smart on crime" slogan as "hug a thug," Chief Kunkle said, but the district attorney has worked diligently with police to get habitual or "impact" offenders off the streets, a move the chief said has helped reduce crime.

So far, the chief said, "I'm impressed."

Despite such accolades, Mr. Watkins is best known for setting free wrongfully convicted prisoners in a county that leads the nation in DNA exonerations.

An earlier unrelated post about the Sparks trial is here.

The Latest on the Nichols Trial

"Nichols case on edge," is Law.com's Fulton County Daily Report article.  It's written by Greg Land.

Jurors appeared to be split 9-3 over how to sentence Brian G. Nichols, when the Daily Report went to press late Thursday afternoon. Earlier the jury had convicted Nichols of murdering a judge, his court reporter, a sheriff's deputy and a federal agent.

Around 4:40 p.m., Judge James G. Bodiford decided to partially grant a request by jurors to hear a recording of Nichols speaking on a jailhouse telephone in which Nichols suggested he wished he had shot Fulton County District Attorney Paul L. Howard Jr. the day he escaped from custody and killed the other victims. Over the objection of Nichols' lawyer, Bodiford said he would allow the jury to hear the recording, including a portion that was not played during the trial.

The request came moments after Bodiford had told lawyers that he did not plan to stop the jury from deliberating despite their having told the judge earlier in the day that they were split.

A note from jurors that came earlier in the day said that they had agreed on the question of whether there was an aggravating circumstance—a requirement for imposing the death penaltys—but were “hung” as to the verdict on the sentence.

Jurors have been given three options: death, life without parole or life with the possibility of parole. In Georgia, a death sentence must be a unanimous jury decision. If the jurors unanimously find an aggravating circumstance but do not reach a unanimous verdict as to the sentence, it will be up to Bodiford to impose a sentence of either life in prison with the possibility of parole or life without parole, although he may issue a life without parole sentence only if at least seven jurors vote for death or life without parole.

Bodiford did not ask jurors whether the majority of them favored life or death.

"Nichols jury wants bombshell tape as it mulls his fate," is the Atlanta Journal-Constitution report this morning put together by a team of reporters.

Life or death for courthouse shooter Brian Nichols? A Fulton County jury may decide Friday.

The deadlocked 12-member panel may ask Superior Court Judge James Bodiford in writing if they can rehear a controversial tape recording of a telephone conversation in which Nichols tells his brother that he killed four people — and should have targeted prosecutors the day of his courthouse shooting spree.

Deliberations resumed at 8:40 a.m. this morning.

On Thursday, the jury deadlocked with a 9-3 vote and did not tell Bodiford whether the majority favored the death penalty or life in prison. If they were leaning toward death, the surprise request to hear Nichols’ threat to kill again could indicate the three holdouts were reconsidering their position.

Defense attorneys, who vehemently objected when the tape was first sprung on them without warning in November, have called the contents a “bombshell” that would certainly prejudice Nichols’ case. They failed earlier to keep the jury from hearing the angry conversation.

While the name of District Attorney Paul Howard is not said on the portion of the tape the jurors first heard, prosecutors have indicated in court that Nichols was targeting Howard and that the recording shows that Nichols is a continuing public danger.

Three of the 12 jurors — including the man later chosen as jury foreman — said before they were chosen for the panel that they had reluctance and misgivings about voting for a death penalty. They were seated, however, after they satisfied state law and said they would “consider” imposing death in the Nichols case. It is not known if any of those three are among the trio refusing Thursday to go along with the majority decision.

AP has, "Jurors Split on Sentencing in Courthouse Shooting Case."

Georgia law requires that a death sentence must be a unanimous jury decision. If at least seven of the 12 jurors vote for death or for life in prison without parole, the judge must impose a life sentence but can choose whether it is with or without possibility of parole. Nichols would likely spend the rest of his life behind bars regardless of the decision.

Earlier coverage is here.

In Oklahoma

"Oklahoma: Execution rate slows to lowest in a decade," is the AP report from Missouri's Joplin Globe.

The number of inmates put to death in Oklahoma in 2008 reached its lowest level in more than a decade, with just two convicted killers receiving a lethal injection at the Oklahoma State Penitentiary in McAlester.

That was the fewest number of executions in Oklahoma since 1997, when just one inmate was put to death.

But death penalty experts say the dip in executions in Oklahoma had little to do with a de facto moratorium on the death penalty issued earlier this year while the U.S. Supreme Court considered the constitutionality of lethal injection.

Rather, it’s more the cyclical nature of when death sentences are handed down and when inmates finally exhaust the lengthy appeals process in capital cases.

“We’d like to think the numbers are down, but it’s really hard to say,” said Jim Rowan, a veteran capital defense lawyer in Oklahoma City and the chairman of the Oklahoma Coalition to Abolish the Death Penalty. “The people they execute were convicted 10 or 15 years ago, so it’s really hard to measure trends.”

Other factors, like the option of life-without-parole sentences and a ban on executing offenders with mental retardation, also have likely contributed to fewer people being sent to death row.

Nationally, executions dropped to a 14-year low of 37 in 2008 and almost half of those were in the busiest death penalty state, Texas, according to the Death Penalty Information Center.

But data on first-degree murder convictions in Oklahoma that resulted in the death penalty shows an increase in 2008, with 11 killers sentenced to death across the state, according to the Oklahoma Indigent Defense System.

Although OIDS did not have death penalty sentencing figures from previous years, the Department of Corrections showed there were 13 convicted killers on death row who were sentenced from 2005 to 2007.

Jury Deliberation Begins in Nichols Case in Georgia

"Nichols' lawyers fight to the end," is the report in today's Fulton County Daily Report.  It's written by Greg Land and Andy Peters.

Judge James G. Bodiford on Monday afternoon rejected a request by Brian G. Nichols' defense lawyers to postpone until Tuesday their closing argument on their client's punishment for the Fulton County Courthouse murders.

With the jury outside of the courtroom, defense lawyer Henderson Hill argued that Senior Assistant District Attorney Clinton K. Rucker went too long in the state' s closing arguments, forcing Hill to start his closing argument after 3 p.m. Hill told Bodiford that the jury would be physically tired after sitting through weeks of trial and also emotionally spent after listening to the prosecution's graphic description of Nichols' killing of a judge and others.

“This jury is not in any condition to hear my argument,” Hill said. “It's unfair [for me to start now] because we know the jury is whipped.”

But Bodiford would not delay the trial any further, saying Hill himself was to blame for having to start his argument late in the afternoon.

And:

Hill began at 3:27 p.m. He commiserated with the jury for having to sit through more than 50 days of an excruciating murder trial. Hill then transitioned into a description of the night that Nichols held Ashley Smith hostage in her apartment, and during which Smith made a connection with the suspect by talking to him and providing him with food and water.

Before the judge called a break around 5 p.m., Hill argued, “If grace and mercy is given ... the community somehow comes out better than if we continue this cycle of violence."

It took almost three-and-a-half hours for Rucker to argue why Nichols should be put to death.

As he ended his presentation, Rucker offered the jurors a reprise of the sounds that opened the case: blasts of gunfire, screams and sobbing, picked up on the tape-recorder that was left running on March 11, 2005, when Nichols walked up behind Superior Court Judge Rowland W. Barnes, placed a pistol—which he had stolen from a female deputy—inches from the back of the judge's head and pulled the trigger. Seconds later, Nichols shifted position and killed court reporter Julie Ann Brandau, and made his way down a stairwell to the street, where he killed Deputy Sgt. Hoyt Teasley, who was pursuing him.

The Atlanta Journal-Constitution report, "Nichols' sentencing trial ends on somber note," is by Jeffry Scott and Steve Visser.

The trial, which has lasted 12 weeks, exhausted a jury that has listened to more than 140 witnesses and seen more than a thousand pieces of evidence —- in a case that has dragged on for more than 3 1/2 years, drained the city of money and patience, and tested its tolerance for justice at any cost —- reached its penultimate moment Monday.

The prosecution tried to slam the door shut on the death chamber, with Nichols in it. The defense tried to open the eyes of the jury to give mercy to a man who killed four people in a March 11, 2005, murder spree: Superior Court Judge Rowland Barnes; court reporter Julie Ann Brandau; sheriff’s Deputy Hoyt Teasley; and U.S. Customs agent David Wilhelm.

All that is left is the verdict on punishment. The jury begins deliberating that this morning. Jurors will take with them the defense’s closing argument for mercy, which lead defense attorney Henderson Hill argued late Monday afternoon.

The defense lawyer from Charlotte argued for jurors to examine Nichols’ entire life —- a childhood of sexual abuse and bullying, a propensity to stand up for the weak and for justice —- when making their decision.

“There is a consistent picture, and that picture is not the person who walked into the chambers of Judge Barnes,” Hill said. “He stands up for the weak.”

Hill leaned heavily on the testimony of Ashley Smith Robinson. Nichols kidnapped her and held her captive in her Duluth apartment after committing the killings, and she became the “unlikely angel” who won his confidence and affection and turned him in.

Hill played the 911 call that Robinson made immediately after she left Nichols in her apartment, when he let her leave to visit her daughter.

“He is very remorseful for what he did to those people,” Robinson told the operator. “He is watching the TV saying, ‘I can’t believe this is me, I can’t believe this is me.’ “

Robinson’s voice dropped and she sniffled. “I know something bad is going to happen to him, and that is unfortunate. He didn’t kill me.”

Rucker didn’t mention Robinson. Instead, he repeated, as he has the entire trial, a recitation about Nichols that felt Monday more like an incantation: “He is conniving. He is cold-blooded. He is vicious. He is remorseless. And he is extremely, extremely dangerous.”

The case has had a major impact on Georgia's indigent defense system and has been watched by criminal justice observers across the country.  Earlier coverage is here.

Harris Sends Nobody to Death Row

That's the title of Rick Casey's latest Houston Chronicle column.  LINK  Here's an extended excerpt:

First I learn that Houston's air is getting cleaner.

Now I learn that we haven't sentenced a single scumbag murderer to death this entire year.

This is not the city I signed up for.

In 1999, Houston displaced Los Angeles as the smoggiest city in the nation. This year we set a record low with only 16 days exceeding federal standards for ground-level ozone, smog's main ingredient.

In 2003, the year I moved here, Houston sent nine murderers to death row.

That was 35 percent of the state's death sentences that year, an amount that is more than twice our 16.5 percent share of the state's population.

In 2004, we did even better, accounting for fully half of the 20 Texans who landed on death row.

Back in the 1990s, a less populous Harris County was even more prolific in sending murderers to meet their Maker — or not.

For the five years beginning in 1993, Harris County condemned more than 15 annually, contributing 39 percent of the state's migration to death row.

But this year, which for capital crime trial purposes is basically over, we've contributed precisely zero percent to the state's nation-leading cadre of dead men walking.

I know what you're thinking: That's what happens when at the beginning of the year you banish the tough-on-crime likes of Chuck Rosenthal for minor indiscretions such as using his office computer for racist, romantic and obscene e-mails. (Separate e-mails, not racist, romantic and obscene all in one.)

And, oh yes, defying a federal judge's direct order by erasing a couple of thousand other e-mails that could have proved even more entertaining.

But acting District Attorney Ken Magidson declines to take either credit or blame for the county's paltry annual contribution to death row.

Magidson said he personally reviewed each capital crime to see if prosecutors could prove beyond a reasonable doubt that they met "the standards set by law" for the death penalty.

Only two death-penalty cases were presented to juries. In one of them, prosecutors agreed a plea bargain of 60 years during the trial. In the other one, the defendant was acquitted, more on which below.

Statistics from the past three years agree with Magidson's suggestion that he wasn't the difference. From 2005 through 2007, Harris County condemned just seven men, or 15 percent of the Texas total.

Prosecutors throughout the state appear to be seeking the death sentence less often. This year only 16 cases have come to trial (and one currently under way).

News Coverage of TCADP Report

Today's New York Times carries part of the AP filing in the National Briefing section, "Texas:Death Sentences Drop."

A group that opposes the death penalty said Texas juries this year sentenced the fewest number of inmates to death row since the United States Supreme Court allowed capital punishment to resume in 1976. Nine people were sentenced to die in 2008, according to an annual review of capital punishment cases by the group, the Texas Coalition to Abolish the Death Penalty. The report said six executions were stopped by last-minute reprieves and seven death-row inmates had their sentences commuted to life. Executions were down to 18 from 26 a year ago, and no executions were carried out until June while the Supreme Courtconsidered whether lethal injection methods were unconstitutionally cruel.

The complete AP dispatch is, "Texas sentenced 9 to die in '08, fewest in decades," written by Michael Graczyk, via Google News.

Texas juries this year sentenced the fewest number of inmates to death row since the U.S. Supreme Court allowed capital punishment to resume in 1976, according to a report Thursday from an anti-death penalty group.

Nine people convicted by the state's juries in 2008 were sentenced to die, according to an annual review of capital punishment cases by the Texas Coalition to Abolish the Death Penalty.

It also found that six executions this year were stopped by last-minute reprieves and seven Texas inmates were removed from death row with sentences commuted to life.

And:

Juries appeared to have tempered their condemnations. In Harris County, which is the state's top contributor to death row, no one was sentenced to death in 2008. It was a first in more than three decades.

"A lot of it can be attributed to life without parole and people who plead," Roe Wilson, a Harris County prosecutor who handles capital case appeals, said Thursday.

Harris County accounts for 118 of the state's 354 condemned inmates.

Kristin Houle, the Austin-based coalition's executive director, called 2008 a "roller coaster year for the death penalty in Texas."

Yesterday's post, with a link to the report, Texas Death Penalty Developments in 2008, is here.  The execution index category is here.

In Collin County

Collin County, the scene of what I dubbed the Plano HoodWink, is gearing up for a new capital trial in which race is a significant matter.  "Attorney fights to dismiss death penalty," is the Plano Star Courier report by Stephanie Flemmons.

An attorney filed a motion to dismiss the death penalty on the ground that its capital sentencing procedure is unconstitutional.

David K. Haynes, McKinney attorney representing Bruce Crawford, 18, in the capital murder trial of a local cab driver, filed the motion in October.

"When we are defending someone with a capital crime, we try to do everything we can to save their life," Haynes said. "We are attacking everything about the case, which includes the state's version of the facts and the evaluation if death is the appropriate penalty."

The request is based on the Capital Jury Project, where more than 1,200 jurors made life and death sentences in 354 capital trials.

CJP, funded by the National Science Foundation, spent more than 10 years analyzing how real juries go about making real capital sentencing decisions.

The study cites a 1987 Supreme Court case, McClesky v. Kemp, which found that race was a factor in three out of nine death penalty cases.

Robert Schuwerk, University of Houston Law professor and co-author of the "Handbook of Texas Lawyer and Judicial Ethics," said the study was categorized on nine levels. The three top-level cases are the most aggravated cases, followed by three middle levels and three lower levels.

Schuwerk said there was no significant difference on both the three highest- and lowest-level cases due to race.

"If you are on one of the three highest levels, it did not make a difference what the race was, the individual got the death penalty," Schuwerk said. "Race also did not matter in the three lower levels. The jury did not impose the death penalty in any of the lower cases."

Schuwerk said both the race of the victim and the race of the defendant played a major part in the middle category.

"This study showed this particular person [McClesky] was affected by racial bias," Schuwerk said. "But the Supreme Court did not believe it was sufficient claim to validate. The Supreme Court concluded race has to be a factor in each particular case."

Haynes said the prosecutors intended to seek the death penalty and have worked on investigating the case for many months.

"We did not seek out the responsibility of defending this man, but we are appointed," Haynes said. "Having been given the job, I may not know what the outcome will be, but I'm resolved, and if subjected to the death penalty it won't be because his lawyers dropped the ball."

The study suggests juries are misled when abdicating the responsibility of returning a death verdict.

More on McCleskey v. Kemp is from Oyez.

Melendez-Diaz v. Massachusetts, No. 07-591

Yesterday, the U.S. Supreme Court heard oral arguments in the above-styled case.  The transcript is here.

"Court Weighs How Juries Should Hear Lab Evidence," is Adam Liptak's report in today's New York Times.

The Supreme Court heard arguments on Monday in a case that could have broad implications for how prosecutors present evidence from crime laboratories at trial.

Many states allow reports from crime laboratories to be submitted to juries through written certifications rather than live testimony. That practice is convenient, but it may run afoul of the Sixth Amendment’s “confrontation clause,” which guarantees criminal defendants the right to confront the witnesses against them.

Several justices seemed to struggle to find the dividing line between the kinds of information that must be presented through live testimony and those that are routine, reliable or tangential enough to require only a written certification. The justices also indicated that they were aware of recent scandals at major crime laboratories involving the flawed analysis of blood, hair, ballistics and other evidence.

Justice Stephen G. Breyer cited a supporting brief filed by the National Innocence Network in the case, Melendez-Diaz v. Massachusetts, No. 07-591. The brief, Justice Breyer said, “is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong.”

“They lost the results,” Justice Breyer said of the laboratories. “They got it all wrong.”

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

Martha Coakley, the attorney general of Massachusetts, argued that requiring live testimony from laboratory analysts “would be an undue burden with very little benefit to the defendant.”

"Argument analysis: As Kennedy goes…," is Lyle Denniston's report at SCOTUS Blog.

Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts  (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch.  Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.

The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?

"Coakley: Forensics testimony a burden," is by Boston Globe correspondent Jenny Paul.

Massachusetts Attorney General Martha Coakley told the Supreme Court yesterday that requiring forensic scientists to testify at criminal trials where their reports are presented as evidence would place an undue burden on the state's already-backlogged drug testing system.

Misdemeanor drug prosecutions in Massachusetts "would grind to a halt," said Coakley, who was arguing before the Supreme Court for the first time.

The case centers on whether a defendant's Sixth Amendment right to confront witnesses against him applies to the admission of drug analysis certificates as evidence at criminal trials. If it does, the analysts who prepare the reports could be required to provide live testimony in court.

The case involves Luis Melendez-Diaz, who was convicted in 2004 of trafficking cocaine and sentenced to three years in prison. Boston police arrested Melendez-Diaz in 2001 and seized bags filled with powdery substances, later determined to be cocaine by chemists at the state Department of Public Health's drug analysis laboratory. The drug analysis certificates were presented as evidence at Melendez-Diaz's trial, but the analysts who prepared the reports did not testify. He is now appealing the verdict to the Supreme Court.

The justices acknowledged that their decision could have far-reaching effects on the backlog and workload at crime labs nationally.

"This is a very, very substantial burden" if the court rules that states must have analysts testify at trials, Justice Anthony Kennedy said.

"Court weighs nature of lab evidence," is Joan Biskupic's report in USA Today.

"Introducing forensic laboratory reports (without live witnesses) is the modern equivalent of trial by affidavit," said Stanford University law professor Jeffrey Fisher, representing Luis Melendez-Diaz, who was convicted of cocaine trafficking. Fisher challenged a Massachusetts policy, similar to others nationwide, that allows forensic analysts to submit certificates — here, a report on the authenticity and quantity of cocaine seized — without testifying.

Massachusetts Attorney General Martha Coakley countered that forcing lab workers to testify would be costly and time-consuming. "Misdemeanor drug prosecutions would essentially grind to a halt," she said.

The question is whether lab reports should be considered "testimonial," rather than objective public records. If they are testimonial, they would be subject to the Sixth Amendment right to confront witnesses.

In recent years, the court has more broadly interpreted the right to confront witnesses. Justice Antonin Scalia, who was among those sympathetic to Melendez-Diaz's claim, has taken the lead in making it harder for witnesses' statements to be introduced without testimony.

Thirty-five states are siding with Massachusetts. One of the groups backing Melendez-Diaz, the National Innocence Network, says forensic evidence is wrongly assumed to be infallible. The group asserts that in most of the exonerations it has obtained, forensic errors, such as blood type testing, played a key role in conviction.

Dallas County DA Expands Open File Policy

John Council reports, "New Open-File Policy Includes Appellate Info," in the October 6 Texas Lawyer.

When Craig Watkins took over as Dallas County district attorney in January 2007, one of the first big administrative changes he made was instituting an open-file policy that allows criminal-defense attorneys to see a prosecutor’s file before trial. Now he has taken that policy one step further and the implications could be huge, several appellate experts say.

As of Sept. 22, Watkins changed his open-file policy to include all post-conviction matters, meaning criminal-defense lawyers can now examine any of the thousands of case files the Dallas County District Attorney’s Office has handled in the past. Watkins says the office still has decades-old case files in storage.

“The idea is we have an open-file policy at trial, so why would we have anything to hide during the writ process?” Watkins says.

While some appellate lawyers say prosecutors have allowed them to see post-conviction files on a case-by-case basis, Watkins’ policy appears to be a first-of-its-kind in Texas.

The policy change is just another effort to ensure that the wrong people aren’t in prison, says Watkins, whose office has worked to free numerous inmates — most of whom were convicted of rape charges — on the basis of DNA evidence. He formed a Conviction Integrity Unit within his office that examines innocence claims filed by prisoners. And last month, Watkins announced that his office would begin re-viewing the Dallas convictions of death-row inmates for possible errors.

Watkins says his efforts to ensure that people aren’t wrongfully imprisoned are paying dividends in the courtroom. He says a good example is a case his prosecutors tried recently in which a jury found a man guilty of capital murder in 30 minutes — a conviction that re-sulted in an automatic life sentence.

“I talked to the jury afterward. And they said, ‘Because of what you’re doing, we’re more apt to believe you. If you’re using your resources to make sure an innocent man isn’t being prosecuted, we believe you,’ ” Watkins says. “If you’re a prosecutor, that’s what you want. You want credibility. We have a lot more convictions than exonerations. And it’s really making Dallas County safer.”

And:

The Denton County District Attorney’s Office instituted an open-file policy in 2007 for cases that are pending in trial court. But the office has not considered changing that policy to include post-conviction appeals, says First Assistant DA Jamie Beck. Denton prosecutors will exchange discovery with defense lawyers during appeals on a case-by-case basis, Beck says. But instituting a broader open-file policy to in-clude all appellate matters gives her pause.

In Georgia

"DeKalb, Fulton juries resist giving death penalty," is the report in Sunday's Atlanta Journal-Constitution, written by David Simpson and Steve Visser.

After the death penalty trial of Brian Nichols, Fulton County District Attorney Paul Howard plans to seek the ultimate punishment in eight more murder trials.

In adjacent DeKalb County, District Attorney Gwen Keyes Fleming’s office is scheduled to make its opening statement in a death penalty trial Monday. And she is seeking death sentences in two more pending cases.

Getting death sentences in those cases could represent the turning of a historical tide. Fulton County juries went eight years without approving a death sentence until this summer. In DeKalb County, the last death sentence was 19 years ago.

Both counties have large African-American populations, and numerous studies and opinion polls have found blacks more likely than whites to suspect bias in the criminal justice system and to oppose the death penalty.

But Howard and Keyes Fleming, both African-American prosecutors, argue that some cases are heinous enough to merit a death sentence.

Howard’s office won a death sentence this summer for a man who shot to death three people, including a child.

Keyes Fleming approved a death penalty prosecution against Clayton Ellington, who goes on trial Monday on charges he hammered to death his wife and twin 2-year-old sons.

DeKalb has two other death penalty cases pending: one involves another child killing, and the other the slaying of two police officers.

Keyes Fleming declined to be interviewed about jurors’ attitudes toward the death penalty, instead issuing a brief statement expressing her “faith in all our jurors.”

In Fulton County, Howard’s white predecessor, Lewis Slaton, complained that jurors were too reluctant to impose the sentence.

Howard, who was elected to replace Slaton in 1996, said the county’s jurors now are becoming “educated” on the appropriateness of the death penalty in heinous cases.

“For a long time in our county, we never had a death penalty case at all, and we are at an early point in our county of asking our citizens to do that,” Howard said.

In New Hampshire

"2 rare capital trials conducted in New Hampshire," is the AP report via Google News.

One capital murder trial is under way and another is about to start in New Hampshire, a state that last executed someone in 1939, has no one on death row and has no death chamber.

The first trial began Sept. 8 and involves John "Jay" Brooks, a millionaire businessman accused of orchestrating the 2005 kidnapping and murder of someone whom Brooks believed had stolen from him.

In the other case, jury selection was to begin Monday in the trial of Michael "Stix" Addison, who is charged with fatally shooting a Manchester police officer in 2006.

Death penalty opponents hope the simultaneous trials will focus attention on their cause, though they aren't planning another attempt to repeal the state's capital murder law when the Legislature convenes in January.

Both the House and Senate voted to repeal the death penalty in 2000, but then-Gov. Jeanne Shaheen vetoed the bill. Last year, under the threat of a veto from Gov. John Lynch, the bill failed by 12 votes in the House.

New Hampshire's narrow capital murder law applies to a half dozen crimes, including killing a police officer, murder for hire and killing during a kidnapping. Prisoners who kill another while serving a life sentence, murder during a rape, and certain drug crimes also qualify.

"It's extremely rare for New Hampshire to have a homicide that qualifies as a death penalty case," said Michael Ramsdell, a former head of the attorney general's homicide division.

No one has been executed in nearly 70 years, and the gallows at the state prison were dismantled long ago. The law now calls for lethal injection.

The most recent convictions came in 1959, when two men were sentenced to death for murdering a Rhode Island businessman, but their lives were spared by a 1972 U.S. Supreme Court ruling that held death penalty laws as then written unconstitutional.

Since then, prosecutors have brought capital murder charges in three cases. In one, the charge was reduced to first-degree murder before trial; in another, charges were reduced for two defendants and dismissed for a third due to lack of evidence.

In the most recent case, a defendant pleaded guilty to capital murder in a deal in which he avoided facing execution for fatally shooting an Epsom police officer in 1997.

The Nichols Trial

"Brian Nichols finally faces jury," is the Atlanta Journal-Constitution report.

Three years and six months after the Fulton County courthouse shootings, Superior Court Judge James Bodiford called the Brian Nichols murder case for trial at 9:01 a.m. Monday.

Nichols’ defense team promptly moved — again — to delay the trial.

When Bodiford asked if both sides were ready for trial, defense lawyer Josh Moore said: “The defense is not ready to proceed at this time. We move for a continuance.”

Moore acknowledged that he knew Bodiford, who promised to get the oft-delayed trial on track when he took trial judge in February, would not grant the request.

“It is no surprise to the lawyers and to any observers that I am denying the continuance,” Bodiford said. “There has got to be a deadline… and we have reached our deadline.”

Nichols’ trial is being held at Atlanta Municipal Court, a few blocks from the county courthouse where his escape and rampage happened in March 2005.

Every seat was taken in the small sixth-floor courtroom as the proceedings began. Nichols’ parents sat a few feet from their son, while across the aisle were several relatives of the four people killed during his escape and rampage. Some had hugged and shed quiet tears as they entered the courtroom.

Nichols, 36, is pleading not guilty by reason of insanity for the series of crimes referred to as “the courthouse shootings.”

Prosecutors are seeking the death penalty for the killing of Judge Rowland Barnes, court stenographer Julie Ann Brandau, Fulton deputy Hoyt Keith Teasley and agent David Wilhelm of the federal Drug Enforcement Administration, all of whom were shot during Nichols’ escape while on trial for rape.

Moore, in asking for a delay, said Nichols’ team had not reviewed hundreds of hours of tape recordings of Nichols’ phone conversations while in jail or interviewed “a significant number” of what he described as the state’s 600 witnesses.

Lead prosecution attorney Kellie Hill countered that the defense has a list of state witnesses and it is “significantly” less than the 600 Moore cited.

Many observers have watched the Nichols case because of its impact on Georgia's indigent defense system.  Earlier coverage is here.

In New Hampshire

"N.H. capital murder cases bring death penalty to forefront," is the title of an article in the North Andover (MA) Eagle-Tribune.

Death penalty opponents are pinning their hopes on a legislative study committee in 2009 to eventually abolish capital punishment.

The effort marks a shift by abolitionists who for years have pushed to repeal the death penalty outright, but have succeeded only once — eight years ago with a bill ultimately vetoed by then-Gov. Jeanne Shaheen.

"I'm not planning on seeing success at abolishing the death penalty this coming year," said Rep. Jim Splaine, D-Portsmouth, a primary sponsor of most bills to repeal the death penalty in recent years.

Lawmakers still expect to see a bill calling for an outright ban of executions. But Splaine believes a commission aimed at a comprehensive study of capital punishment may provide a better vehicle for convincing lawmakers to support a repeal.

Two capital murder trials have reignited efforts by the New Hampshire Coalition to Abolish the Death Penalty.

A new 15-member steering committee is pushing for the study commission in 2009, said Barbara Keshen, legal counsel for the New Hampshire Civil Liberties Union.

"The reason we think that's important is that New Hampshire has never really done that kind of hard work, to really appreciate the consequence to be active in death penalty (litigation)," she said. "No one has done the analysis on the emotional toll on victims, on families, on lawyers and the time consumption done by the courts."

Keshen said the group also is working on recruiting new members to broaden its base.

"We're hoping to develop our membership base throughout every county in the state," she said. "We want to host educational forums and get into the communities so they can learn what it means for the state of New Hampshire."

The trial of millionaire businessman John "Jay" Brooks, 56, formerly of Derry, is set to begin next week. A panel of 18 jurors will weigh whether Brooks is responsible for the 2005 murder-for-hire plot against his former mover, Jack Reid, 57, of Derry. A jury of 12 will ultimately be chosen to decide Brooks' guilt or innocence. If he's convicted of capital murder, that same jury will sit on a second trial to determine whether Brooks should be executed.

That case will be followed by the trial of Michael Addison, 27, of Dorchester, Mass., accused of the 2006 fatal shooting of Manchester police Officer Michael Briggs.

And:

Gov. John Lynch has said he would veto legislation to repeal the death penalty if it reaches his desk. Yet lawmakers have come close in recent years to passing a bill to repeal it.

Splaine's last bill to replace the death penalty with a sentence of life in prison was defeated in the House, 185-173. The House defeated a similar bill in 2006 by 63 votes.

Critics of the death penalty say the extra litigation and years of automatic appeals are far too costly for New Hampshire and mete out little more in the way of justice.

"The lesson that will come out of these two trials is that the death penalty is going to warrant further examination," said Renny Cushing, executive director for Murder Victims' Families for Human Rights.

Cushing, whose father was murdered by a Hampton police officer in 1988, said he may run for state representative in the fall, but not only to push for a bill to abolish capital punishment.

The High Cost of Justice

That's the title of an article in the Sunday Longview News-Journal.  It' subtitled, "Defense attorneys, jurors and more add up for area counties' court systems."  Here's an extended excerpt:

Criminal trials, especially those in capital murder cases, are costly affairs.

Gregg County District Attorney Carl Dorrough said capital murder trials are possibly the most expensive trials in the criminal justice system. The price tag comes from the length of the trial and other factors, such as expert witnesses, the amount of investigatory work and trial preparation.

Gregg County has not had a capital murder trial since 2003, according to county records.

However, Brett Michael Birdwell, 44, was indicted earlier this month on two charges of capital murder in the deaths of Bennie Neil Killingsworth and his wife, June Whatley Killingsworth. Dorrough has said Birdwell's trial likely will not begin until early next year. He also said the death penalty is still under consideration.

The late 2007 capital murder trial of Romeo Pinkerton for the deaths of five people in a Kilgore Kentucky Fried Chicken cost Rusk County several thousand dollars, although officials did not provide an exact amount.

The county had to pay about 400 potential jurors during the nearly two-month-long jury selection. For the first day of selection, each juror was given $6. In August, the six or seven jurors questioned daily during the selection process received $25 a day. In September, the jurors were paid $40 a day because of a state-mandated increase.

Rusk County also paid the eight men and seven women on the jury — and the three alternate jurors — $40 a day during the two weeks of trial. Other expenses included the travel and hotel expenses for five Rusk County courtroom staff who stayed for the jury selection and the trial.

Rusk County Auditor Ronald Moody said Rusk County spent about $285,000 on two capital murder trials in 2007. Although the county does not divide the costs by specific trials, Pinkerton's trial likely was a significant portion of that cost, said Rusk County District Judge J. Clay Gossett. Prosecutors were seeking the death penalty. After two weeks of the trial, Pinkerton pleaded guilty to five counts of murder. As part of the plea, he accepted a life sentence for each count.

StandDown's cost index is here.

Defense Cries Foul on Yogurt Shop DNA

That's the headline of Jordan Smith's latest report in the current Austin Chronicle.  LINK  Here's an extended excerpt:

In a new motion filed Tuesday, July 15, lawyers for the two defendants in the yogurt shop murder case say the Travis County District Attorney's Office violated a court order by dragging its feet on providing defense attorneys the results of additional DNA testing.

Earlier this year, unbeknownst to defense attorneys, prosecutors sought to have retested several pieces of evidence gathered from the notorious 1991 murders – including two vaginal swabs collected from the youngest of the four female victims, 13-year-old Amy Ayers (one taken at the crime scene, the other at the medical examiner's office). Each swab reflected a previously undetected male DNA profile that does not match any of the yogurt shop defendants. The revelation prompted Joe James Sawyer, attorney for defendant Robert Springsteen, to file a writ with the court arguing that the DNA evidence exonerated his client (see "Yogurt Shop Murder," April 18).

Prosecutors dismissed the notion that the newly revealed male DNA would actually exonerate Springsteen or his co-defendant Michael Scott, even though no physical evidence ties either man to the crime. Instead, prosecutors Efrain De La Fuente and Gail Van Winkle told the Chronicle that they suspect a match to the DNA profile would come from "someone known to Amy Ayers" – implying, contrary to all previously disclosed information, either that the young victim was sexually active at the time of her death or that the profile was somehow the product of collection contamination. In May, District Judge Mike Lynch ordered the state to provide the results of that testing to the defense as soon as it was obtained. During a June pretrial hearing, the state did not respond when asked directly by Lynch whether it had yet obtained any results, leaving the impression that no new information had been obtained, and Lynch did not follow up. Yet spokespersons for two national DNA laboratories contacted by the Chronicle – Dallas-based Orchid Cellmark and Salt Lake City-based Sorenson Forensics – say the standard backlog for private labs is no more than 60 days from receipt of DNA material through the conclusion of testing and the submission of a written report, and rush jobs can be completed within 15 days.

Earlier coverage of the long-running, controversial case is here.

Nichols Trial to Change Location

"As Jury Selection Resumes, Judge Wants Courthouse Shooting Case Moved," is the title of Greg Land's article in today's Fulton County Daily Report.

The challenge in finding an impartial jury to decide whether Brian G. Nichols should be held responsible for a 2005 shooting spree for which he stands accused of four murders was apparent on Thursday morning when Judge James G. Bodiford asked the first 16 prospective jurors whether any had formed or expressed an opinion as to Nichols' guilt: 10 hands shot up immediately.

So it went on Thursday, which ended with Bodiford addressing another challenge to the long-delayed case -- the defense's request not to have the trial at the Fulton County Courthouse, where three of the four killings took place.

Bodiford, a Cobb County Superior Court judge filling in for Fulton judges who have recused, ordered the trial moved from the Fulton County Courthouse within 10 days.

Although his order does not directly mandate that the new site be the sixth floor of the Atlanta Municipal Court building at Pryor and Garnett streets, he references the ongoing efforts of county and city officials to move the trial there.

"Fundamental fairness mandated under our constitutional due process provisions necessitates that the trial ... not occur in the Fulton County Courthouse complex," Bodiford wrote.

A lease allowing use of the city court in exchange for the forgiveness of $376,151 owed by Atlanta for the county's 2005 assumption of the city's traffic court caseload has already been approved by the city and county court administration and awaits Fulton County Commission approval at next week's meeting.

The trial location issue came up at the end of the first day in which some of the 900 potential jurors could be examined by prosecutors and defense lawyers.

Once 100 have been deemed acceptable following the current round of interviews, the rest will be excused, The 100 will then be called back, and the attorneys will winnow that figure down to 18, for a jury of 12 and six alternates.

Bodiford said it would be at least a month until that happened.

Earlier coverage of the case is here.

Melendez-Diaz v. Massachusetts

The National Law Journal has commentary by Matthew Kaiser, Washington, D.C. attorney, "Lab Technicians, Too."  It concerns the case of Melendez-Diaz v.Massachusetts, which will be herad in the Supreme Court's next term.  Here is an excerpt from the beginning:

The most important case for the future of our criminal justice system is going to be heard by the U.S. Supreme Court in its next term. In Melendez-Diaz v. Massachusetts, the court will decide whether a criminal defendant has the right to cross-examine a lab technician who tested evidence in a case. Though it isn't what the case is expressly about, Melendez-Diaz will determine how the courts handle DNA evidence; it is crucial to the future of criminal procedure. The court should reaffirm our collective commitment to a vigorous adversarial system, and hold that forensic evidence must be subjected to cross-examination.

The states and federal courts of appeal are split on whether a lab report can be presented to a jury in a criminal case without letting the defendant's lawyer question the person who actually did the testing. Analysts' reports are common for often uncontroversial parts of a case, such as whether the plant-like substance in the bag that the defendant was selling was really marijuana, or whether the blood-alcohol level of the driver who smelled like booze and repeatedly crossed the center line of the highway was above the legal limit. These reports are going to be a massive part of the landscape of criminal justice as DNA evidence becomes more frequently used in criminal prosecutions.

DNA is the future of our criminal justice system. The federal government, and many state governments, already collect DNA from anyone convicted of a felony. These DNA samples are increasingly used as an active part of the investigation of crimes. Already several states name DNA samples in charging documents to try to preserve the statute of limitations until the owner of the DNA can be located.

The ScotusWiki page for Melendez-Diaz v.Massachusetts is here.

Nichols Trial to Begin Tuesday in Georgia

Law.com's Fulton County Daily Report has, "Judge Rejects Final Bid to Delay Trial of Ga. Courthouse Shooter."

Attorneys for accused Fulton County Courthouse shooter Brian G. Nichols tried a couple of last-ditch efforts to put off his long-delayed trial on Tuesday, only to be assured that neither a new location for the trial nor their pending motion to have the Fulton County prosecutors booted from the case will postpone jury selection set to begin Thursday.

A politely adamant Cobb County Superior Court Judge James G. Bodiford also pledged to adhere to his planned six-day-a-week schedule for conducting the trial, offering in exchange the "carrot" of a less demanding trial calendar should the jury selection process move along rapidly.

Nichols' lead defense attorney, Henderson Hill, drew unintended laughs from others in the courtroom when he argued for a less demanding schedule by pointing out that most of the attorneys in the case were in their 40s or 50s.

Bodiford noted that, at 59, he was the oldest of the lot. "All I'm asking is that you work 9 1/2 hours a day, six days a week," said the judge, noting that he would be keeping the same hours.

Bodiford also elicited an agreement from both sides that they could proceed with filing and arguing motions as jury selection proceeded, setting a July 23 deadline for any new motions to be filed, with July 30 the final day for answering such motions.

Nichols' attorney Robert L. McGlasson II had asked the judge to delay the trial until he ruled on the defense's request that Fulton District Attorney Paul L. Howard Jr. and his office be removed from the case.

Earlier coverage is here.

Update on the Nichols Case in Georgia

There is a great deal of interest in the Brian Nichols case in Georgia because of its implications for indigent defense systems in other states.  Today's Fulton County Daily Report has, "Nichols' lawyers want DA's office out."

Eight days before the murder trial of accused Fulton County Courthouse shooter Brian G. Nichols is scheduled to resume, the defense team has told the trial judge that explosive allegations against the assistant district attorney who prosecuted Nichols for rape should disqualify the entire Fulton district attorney's office from prosecuting their client.

In a pre-trial hearing Wednesday, Nichols defense lawyer Henderson Hill asked Judge James G. Bodiford to postpone the trial so that the defense can investigate its own allegations of “criminal conduct” by former Fulton Assistant District Attorney Gayle Abramson Csehy. Jury selection is slated to begin July 10.

The defense motion, filed Friday, doesn't offer details of the alleged criminal conduct but notes that Howard has not responded to a February 2007 supplemental motion for exculpatory material that asked for, among other things, information about the “abuse of controlled substances or repeated sexual misconduct, involving any witnesses for the prosecution who are members of any professional association or licensing agency or entity (e.g., State Bar of Georgia; Peace Officers Standards and Training, etc.).”

Abramson Csehy issued a statement Friday denying any wrongdoing, and Fulton County District Attorney Paul L. Howard Jr., in papers filed Monday, called the allegations irrelevant to the Nichols case and a “thinly disguised smear campaign.”

Bodiford refused to postpone the trial, but he gave defense lawyers five days to provide him with a list of discovery they want from the DA's office. The state will then have five days to respond.

Bodiford warned that it was “highly unlikely” that he would allow members of the district attorney's staff to be deposed, but he did say that if the defense asks for an evidentiary hearing, “I'm likely to grant it.”

Earlier coverage is here.