The StandDown Texas Project

In Texas, the Death Penalty is Slowly Dying Out

That's the title of Matt Ford's post at the Atlantic.  It's subtitled, "The Lone Star State carried out its fewest executions since 1996 this year."  There is an infographic at the link.

On Tuesday night, the state of Texas executed Miguel Paredes by lethal injection for murdering a woman and her two children sixteen years ago. With no executions scheduled by the state department of criminal justice for November or December, Paredes' death marks the tenth and final execution for Texas this year—the fewest in almost two decades.

2014 wasn't anomalous either. Executions in Texas, the most prolific death-penalty state in the country, spiked after Congress restricted federal appeals in death-penalty cases with the Antiterrorism and Effective Death Penalty Act in 1996. Since then, however, the death penalty has been in overall decline both in Texas and nationwide. Thirty people have been executed so far this year in the entire United States, whereas Texas alone executed 40 people at its peak in 2000.

Earlier coverage of th execution of Miguel Paredes begins at the link.

Supreme Court to Hear California Case

"Supreme Court To Review California Death Penalty Case," is the Ap report, via CBS Sacramento.

The Supreme Court will consider reinstating the conviction and death sentence for a California man in a 29-year-old triple murder in San Diego.

The justices said Monday they will hear California’s appeal of a federal appeals court ruling that overturned the conviction and sentence for Hector Ayala.

The 9th U.S. Circuit Court of Appeals in San Francisco said Ayala was denied a fair trial because prosecutors excused all seven black and Hispanic jurors who might have served.

The SCOTUSblog case file for Chappell v. Ayala is at the link.

Courthouse News Service posts, "New Death-Penalty Case Picked Up by Supremes," by Barbara Leonard.

California persuaded the Supreme Court on Monday to decide whether it should retry a death-row prisoner who was convicted by a minority-free jury.

The 9th Circuit first awarded Hector Ayala such relief in 2012 and has amended that opinion to the same effect twice more in as many years.

Its latest version, published this past February, clocks in at 137 pages with the addition of a new dissent to the 9th Circuit's denial of a rehearing en banc.

Seven judges joined Judge Sandra Ikuta in saying that the 9th Circuit had done an end-run around Supreme Court precedent.

Related posts are in the Supreme Court category index.

National Law Journal Interview with Justice Ginsburg

"Justice Ginsburg Laments 'Real Racial Problem' in U.S.," is by Marcia Coyle of the National Law Journal.  Here's teh beginning and her comments on the death penalty.

The turmoil in Ferguson, Mo., and the controversial stop-and-frisk policy in New York City illustrate a “real racial problem” in America, one that recent U.S. Supreme Court decisions have done little to help, Justice Ruth Bader Ginsburg told The National Law Journal.

The high court was “once a leader in the world” in rooting out racial discrimination,” the justice said in a wide-ranging interview late Wednesday in her chambers. “What’s amazing is how things have changed.”

And:

NLJ: Towards the end of their tenure on the court, justices Harry Blackmun and John Paul Stevens, and even later than that, Justice Lewis Powell Jr., decided they could no longer support the constitutionality of the death penalty. As we see increased problems with lethal injection, what are your thoughts now about the penalty?

GINSBURG: I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. If I had been on the court for Furman [v. Georgia, 1972, invalidating the death penalty], I wouldn’t have given us the death penalty back four years later. Stevens and Powell were part of that. I think there wouldn’t have been a big fuss. There was a big fuss initially over the decision that stopped executions. If the court had stayed there, it would have been accepted. That was the golden opportunity. I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by dissenting in every case upholding the penalty]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those.

NLJ: After more than two decades on the court, what types of cases still vex or challenge you?

GINSBURG: Death penalty. For one thing, our jurisprudence is dense and then we have these contributions from Congress like AEDPA [Antiterrorism and Effective Death Penalty Act]. Because we had no death penalty in the District of Columbia, my first year here, I asked my clerks to write a memo so I could become familiar with where the court was on the death penalty. It was dense then and it has gotten only worse.

Related posts are in the Supreme Court category index.  More on Furman v. Georgia, at the link.

In the 9th Circuit

Courhouse News Service reports, "SCOTUS Gives 9th Circ. the Reversal It Wanted," by Barbara Leonard.  Here's the beginning:

After the 9th Circuit denied a convicted murderer habeas relief to comply with a Supreme Court reversal, the justices quietly reversed again Tuesday.

Tara Sheneva Williams evaded capture for years but was eventually convicted for murder related to her role as getaway driver in a deadly liquor store robbery.

A three-judge panel of 9th Circuit granted her habeas petition in 2011, finding that the trial judge had improperly replaced a juror that he thought was biased. They concluded that the judge's actions could have resulted from the juror's views on the merits of the case.

The U.S. Supreme Court reversed in February 2013, however, after finding that the panel failed to give proper deference to the state court under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, which "sharply limits the circumstances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was 'adjudicated on the merits in state court proceedings.'"

The Supreme Court opinion in Williams v. Johnson is available in Adobe .pdf format.  Related posts are in the Supreme Court category index.

Federal Judge Rules on 'Fast Track' Provision of AEDPA

"Death-penalty ruling goes against Justice Dept.," is by Bob Egelko of the San Francisco Chronicle.

In a nationwide ruling, a Bay Area federal judge has blocked the Justice Department from authorizing states to put their death penalty cases on a "fast track" once they reach federal court, with tight schedules for inmate appeals and judicial rulings.

A 2005 federal law, which has never taken effect, allowed the Justice Department to approve fast-track authority for any state that appointed competent, adequately paid lawyers to represent condemned prisoners. But Chief U.S. District Judge Claudia Wilken said Wednesday that the Obama administration's rules that were supposed to implement the law failed to require states to show the lawyers they provided were competent.

A 1996 law that established the fast-track process gave federal judges, rather than the Justice Department, the power to decide whether a state had a system of competent legal representation for death row inmates. Judges have turned down every state that has applied for fast-track authority, including California in 2000.

Wilken's injunction, in a suit by defense lawyers in California and Arizona, leave the 1996 law in effect.

And:

Prisoners whose convictions have been upheld in state court have the right to seek federal court review, which in capital cases can last anywhere from two years to a decade or more.

The fast-track process would give a condemned prisoner six months, instead of the current one-year deadline, to file a federal appeal after the final decision in a state court. A federal judge would then have 15 months to rule on the appeal, and a federal appeals court would have a four-month deadline after receiving all written arguments.

Earlier coverage of the fast track provision begins at the link.

Related posts are in the AEDPA and federal legislation category indexes.

Additional Coverage of 5th Circuit Ruling in Matamoros Case

The Houston Chronicle reports, "Death row inmate gets chance to prove retardation," by Mike Tolson.

A death row inmate whose lawyer and family claim has been demonstrably mentally retarded since his early teenage years will get a new chance to prove it in federal court, the 5th U.S. Circuit Court of Appeals ruled Tuesday.

A three-judge panel ruled there was enough evidence presented that lower courts may have relied on the testing and conclusions of a controversial Fort Worth psychologist to give John Matamoros of Houston a fresh start in a claim that, if successful, would spare him the death penalty.

In granting a "certificate of appealability," the judges said that Matamoros should have the same chance to prove retardation as other inmates who had been evaluated by George Denkowski, who testified frequently for Texas prosecutors after the U.S. Supreme Court outlawed capital punishment for the mentally retarded in 2002. Denkowski's unconventional methods drew the ire of defense attorneys who said he was a purveyor of junk science and brought a reprimand from the state licensing board.

As part of a settlement with the board, Denkowski stopped testifying in capital cases. As word spread of his questionable approach, the cases in which he was involved have received heightened appellate scrutiny.

"Meet Dr. Death: Texas Fights To Kill Man Locked In Death Row Due To Discredited Doctor’s Testimony," is Ian Millhiser's post at Think Progress.

Dr. George Denkowsi evaluated sixteen Texas death row inmates before he was formally reprimanded in 2011 and fined $5,500 due to complaints that he used scientifically invalid methods to evaluate these inmates. Yet, despite this doctor’s doubtful methods, Texas is still fighting to kill one of the men evaluated by Denkowski. Whether Texas will succeed in this effort will now be decided by one of the most conservative courts of appeals in the country, according to an order issued yesterday by that same court.

The Supreme Court held in Atkins v. Virginia that “death is not a suitable punishment for a mentally retarded criminal” (although several states have exploited loopholes in this decision to execute intellectually disabled inmates anyway). In the wake of this decision, Texas hired Denkowsi as its expert witness during a hearing to determine whether or not a death row inmate named John Matamoros was intellectually disabled and therefore constitutionally ineligible for the death penalty. Three other psychologists evaluated Matamoros and determined that he is intellectually disabled, while Denkowski claimed otherwise.

The 5th Circuit ruling in Matamoros v. Stephens is available in Adobe .pdf format.  

Earlier coverage of John Matamoros' case begins at the link.  Earlier coverage of disgraced psychiatrist George Denkowski is also available.  Related posts are in the mental retardation category index.

 As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Federal Review for Texas Death Penalty Case

The 5th Circuit ruling in Matamoros v. Stephens is available in Adobe .pdf format.

"Mexican Mafia gang member on death row for 1990 Houston slaying wins federal court review," is AP coverage, via the Republic.

A Harris County man on Texas death row for 20 years has won a federal court appeal that allows him to pursue claims he's mentally impaired and ineligible for the death penalty.

The 5th U.S. Circuit Court of Appeals ruled Tuesday in the case of 50-year-old John Reyes Matamoros.

And:

Matamoros' lawyers contended he deserved a court review because of trial testimony from a Fort Worth psychiatrist whose methodology and credibility have been questioned in other capital cases.

The testimony in question came from disgraced psychiatrist George Denkowski; earlier coverage begins at the link.  Related posts are in the mental retardation category index.

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Exceptions to Harsh Rules

That's the title of an editorial published by the New York Times regarding yesterday's Supreme Court rulings in criminal cases, Trevino and Perkins.

On Tuesday, the Supreme Court handed down two important criminal procedure decisions, both allowing defendants to seek habeas corpus review of their convictions in federal court. The 5-to-4 majority, with Justice Anthony Kennedy joining the court’s four moderate liberals, reached the right result in each case. But, in a larger sense, the two decisions show how much the scope of habeas review has been curtailed by the Supreme Court in the last three decades, so that it now must work around earlier precedents to avoid doing injustice.

In a case from Texas, Trevino v. Thaler, the court ruled that a death-row inmate in Texas can make the claim of ineffective counsel for the first time in a federal habeas petition because the rules of Texas procedure made it virtually impossible for him to raise that issue during an appeal in state court.

And:

The Michigan and Texas cases show how heavily engaged the court has gotten in the regulation of criminal justice. Even when the court does the right thing, as it did in these two cases, it often appears to be finding exceptions to harsh rules that it created or upheld in earlier cases. In the Texas case, the court further tinkered with “the machinery of death,” to use Justice Harry Blackmun’s phrase, rather than doing what it should have done by now: shut down the machinery by abolishing the death penalty.

"Divided Court, in 2 Rulings, Makes It Easier to Challenge Criminal Convictions," is the Times news coverage of the two cases, written by Adam Liptak.

In a pair of 5-to-4 decisions that divided along ideological lines, the Supreme Court on Tuesday made it easier for inmates to challenge their convictions.

In McQuiggin v. Perkins, No. 12-126, the majority said that a one-year filing deadline for prisoners seeking federal review of their state court convictions under a 1996 law may be relaxed if they present compelling evidence of their innocence. The new “miscarriage of justice exception” to the deadline, Justice Ruth Bader Ginsburg wrote for the majority, “applies to a severely confined category” — cases in which no reasonable juror aware of the new evidence would have voted to convict the defendant.

The decision did not seem likely to help the prisoner whose case was under review, but the exception it announced drew a barbed dissent from Justice Antonin Scalia, who called the majority opinion “a series of transparent non sequiturs” and “a flagrant breach of the separation of powers.”

And:

In dissent, Justice Scalia wrote that “there is not a whit of precedential support” for the idea that the Supreme Court was entitled to alter the deadline set out in the 1996 law. Chief Justice John G. Roberts Jr. and Justice Clarence Thomas joined all of the dissent, and Justice Samuel A. Alito Jr. joined most of it.

Justice Ginsburg dismissed the dissent as “bluster.”

In the second decision issued Tuesday, in Trevino v. Thaler, No. 11-10189, the same five-justice majority extended a ruling last year that had allowed prisoners to challenge their state convictions in federal courts based on the argument that their trial lawyers had been ineffective, even though the prisoners had not raised the issue in earlier proceedings.

In the decision last year, in Martinez v. Ryan, a seven-justice majority considered Arizona’s criminal justice system, which required claims of ineffective assistance of counsel to be raised in a separate state post-conviction challenge, in which there is no right to a lawyer, and not in the direct appeal from the conviction, in which there is. The Supreme Court ruled that federal courts may hear challenges to Arizona convictions based on claims of ineffective assistance at trial if the prisoner had no lawyer in the separate proceeding or if that lawyer was also ineffective.

“By deliberately choosing to move trial-ineffectiveness claims outside the direct-appeal process, where counsel is constitutionally guaranteed, the state significantly diminishes prisoners’ ability to file such claims,” Justice Kennedy wrote for the majority in the Martinez decision.

The new case considered Texas’ system, which appears to encourage but not require that such claims be raised in a separate proceeding. Justice Breyer, writing for the majority, said that difference did not matter. “What the Arizona law prohibited by explicit terms,” he wrote, “Texas precludes as a matter of course.”

"Supremes Agree Texas Inmate Should Have Appeal Heard," is the Ausin Chronicle report by Jordan Smith.

A 5-4 majority of the U.S. Supreme Court on Tuesday ruled that Texas death row inmate Carlos Trevino may raise for the first time in his federal appeal a claim that his trial lawyer was ineffective in not investigating and presenting mitigating evidence at trial that may have spared his life.

The Court of Criminal Appeals and the federal district and appeals courts previously ruled that Trevino forfeited that claim by not raising it in his state habeas appeal; Trevino argues that the appellate lawyer was also ineffective for not discovering and raising the issue that his trial attorney's performance was deficient.

The ruling, penned by Justice Stephen Breyer, makes applicable to Texas a 2012 ruling in an unrelated case from Arizona. In that case, the court concluded that an inmate could revive in federal court a state-court defaulted claim of ineffective assistance of counsel if there was no meaningful way to previously raise the issue.

In arguing before the Supremes in February, the state argued that the ruling in that Arizona case – Martinez v. Ryan – was not applicable to Texas because, unlike in Arizona, defendants have an opportunity to first raise ineffective assistance claims on their first, record-based direct appeal.

But because of deadlines and other constraints inherent in the Texas legal scheme, there really becomes no ability to meaningfully raise on direct appeal a claim of ineffective assistance at trial, the court ruled.

"U.S. Supreme Court Expands Post-Conviction Appeals," is by Joy Diaz for KUT-FM News.

Jim Marcus with UT Law School’s Capital Punishment Clinic, says today’s 5 to 4 decision means people will now be able to appeal their convictions on the basis of poor representation even in federal court. Marcus filed a “friend of the court brief” in the case of Treviño v. Thaler.

“This is a capital case, the Treviño case,” Marcus said, “but this decision applies to all prisoners, not just death sentence prisoners.”

Even with today’s Supreme Court decision, Marcus says it’s extremely difficult to prove poor representation. Although sleeping attorneys are not very common, he said poor representation by omission is widespread.

Slate posts, "An Innocent Extension," by Emily Bazelon, focused on the Perkins case.

In 1996, Congress cracked down on defendants who repeatedly try to go to court to overturn their convictions. The Antiterrorism and Effective Death Penalty Act (AEDPA), signed by President Bill Clinton, created a thicket of new requirements for people in prison who file last-ditch appeals—called habeas corpus petitions. The idea was that once you’ve lost your first and only direct appeal, you should only get a single try at habeas corpus (the “great writ,” dating from the 14^th century, that allows a prisoner to sue his warden for release). And you were supposed to get moving quickly: The law generally imposed a new deadline of one year from the date on which you lost your direct appeal.

Congress made an exception, however: If you say you have new evidence, then you have one year from the day you could have discovered it through “the exercise of due diligence.” But what if you miss the deadline without any good excuse—and yet the new evidence could show that you are innocent? On Tuesday, the Supreme Court widened what it called the “gateway” to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline. But it’s probably not wide enough for Floyd Perkins, the prisoner at the center of this case, to get his own habeas petition heard.

And:

For Scalia, the moral of the story is clear: Innocence doesn’t—and shouldn’t—always win. “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,” he wrote in 2009. Scalia lost that time, too. But in the end, the man he was writing about—Troy Davis—was executed for the murder of a Georgia police officer even though seven of the nine witnesses who testified against him at trial had recanted.

The Supreme Court ruling in Trevino v. Thaler is available in Adobe .pdf format; as is, McQuiggin v. Perkins.

Earlier coverage of Trevino and Perkins, at the links.

Also From the Supreme Court - An Important Innocence Case

The Supreme Court also ruled today in McQuiggin v. Perkins.  The opinon is available in Adobe .pdf format.

Also from SCOTUSblog:

Amy Howe:
Justice Ginsburg has second opinion, in McQuiggin v. Perkins. Sixth Circuit is vacated and remanded. The opinion is 5-4. So much for unanimity.
 
Actual innocence if proved serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of the AEDPA statute of limitations, as in this case.
   
Scalia dissents, joined by the Chief and Thomas and in part by Justice Alito.

Earlier coverage of Perkins begins at the link.

Arizona AG Seeks Expedited Review Under AEDPA

The Arizona Republic reports, "Horne may sue over habeas corpus," by Lindsey Collom.

Arizona Attorney General Tom Horne is threatening to sue the Obama administration over delays in habeas corpus proceedings that he says routinely and unnecessarily prolong the death penalty from being carried out in the state.

Horne contends that Arizona qualifies for expedited federal habeas corpus, a writ ordering a person in custody to be brought before a court, because its system for appointing defense counsel meets criteria set in federal law. But some legal experts say Horne’s timing is off and his argument ill-founded because the Department of Justice has yet to create a mechanism to determine a state’s eligibility.

In a letter issued Thursday, Horne gave U.S. Attorney General Eric Holder a 90-day deadline to respond to his request that Arizona be certified to take advantage of expedited federal review of capital cases as guaranteed in the Antiterrorism and Effective Death Penalty Act of 1996.

The act was designed in part to streamline federal appeals for convicted criminals sentenced to death. The expedited review is eligible to states that provide qualified, well-compensated attorneys to death-row inmates moving through the appeals process.

And:

Dale A. Baich, an assistant federal public defender who represents death-row prisoners in federal habeas corpus proceedings, said the cases deserve careful attention from the courts. “These cases are very complex and very serious, and the federal courts need to give each case the consideration that’s due,” Baich said.

"Horne plans to sue Federal Government if they don't expedite capital cases," is by Andrew Michalscheck of AZ Family.

Arizona Attorney General Tom Horne announced Thursday that he plans to sue the Federal Government if they don’t expedite their handling of capital cases.

Horne said he will file a lawsuit if the government doesn’t approve within 90 days Arizona’s application to qualify for expedited review of capital cases.

Horne notes that it’s important to not force the families of victims to suffer while they wait for justice to be done.

“The studies show that families suffer from something like Post Traumatic Stress Syndrome, and can heal faster if they see justice done within a reasonable period of time,” said Horne. “If they are victimized a second time by endless delays in the Federal Courts, that adds to their pain.”

Horne points out that in the last seven capital cases Federal Habeas Corpus has delayed justice being done by 10 to 13 years.

Horne's letter to U.S. Attorney General Eric Holder is available in Adobe .pdf format.

"Arizona AG Takes A Momentous Step Toward An Effective Death Penalty," is Kent Scheidegger's post at the Crime and Consequences blog.

In 2006, Congress amended the law.  It took the decision on qualification away from the courts subject to the time limits -- which have a conflict of interest -- and gave it to the Attorney General with de novo review by Court of Appeals for the D.C. Circuit, the one federal circuit that does not do state-prisoner habeas cases.  In addition, Congress expressly provided that the requirements in the statute are the only requirements for qualification.  Neither the AG nor the court can make up additional requirements.  Finally, in a seemingly innocuous provision, Congress directed the AG to "promulgate regulations to implement the certification procedure ...."  Congress did not authorize regulations to impose additional requirements for certification, obviously, having expressly forbidden any additions.

The Justice Department under President Bush, preoccupied with terrorism-related issues, put the regulations on the back burner, and did not promulgate them until that Administration was on its way out the door.  President Obama's Justice Department rescinded them and has dithered ever since.  The dithering is not over the rules of procedure the statute actually authorizes DoJ to make but rather over the rules of substance that Congress has forbidden DoJ to make.

Related posts are in the AEDPA index.

Stay Issued in Florida Case with No Federal Habeas Review

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

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

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

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

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

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

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

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

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

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

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

Pending Florida Execution in the Spotlight

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Florida Execution Looms in Case with No Federal Habeas Review

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

Supreme Court Criticizes Sixth Circuit in Parker v. Matthews

The Supreme Court ruling in Parker v. Matthews is available in Adobe .pdf format.

SCOTUSblog's "Tuesday Roundup," by Joshua Matz contains:

In a summary opinion in Parker v. Matthews, the Court held that the decision of Sixth Circuit, which set aside two twenty-nine-year-old murder convictions, is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”  The Associated Press, Sentencing Law and Policy Blog, and the ABA Journal have coverage of the opinion.  At Balkinization, Mark Tushnet criticizes the Court’s “analysis of the prosecutor’s rhetoric” as “overly simple,” while Jonathan Adler of the Volokh Conspiracy and Ed Whelan of National Review Online both note that the Court has reversed the Sixth Circuit in habeas cases several times in the past few years.

The ABA Journal report is, "Supreme Court Hits 6th Circuit for Overturning Double Murder Conviction on ‘Flimsiest of Rationales’," by Debra Cassens Weiss.

The U.S. Supreme Court is calling out the Cincinnati-based 6th U.S. Circuit Court of Appeals for overturning a 29-year-old double murder conviction based in part on a prosecutor’s closing argument.

The 6th Circuit offered “the flimsiest of rationales” for overturning the conviction of David Eugene Matthews, the U.S. Supreme Court said in a per curiam opinion (PDF). The appeals court’s decision “is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: ‘using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts,' ” the Supreme Court said.

Matthews had claimed he was suffering from an extreme emotional disturbance when he killed his estranged wife and mother-in-law at their home, requiring a reduction in the charge against him to manslaughter. The 6th Circuit ruled the burden of proof had wrongly been shifted to Matthews on the issue, and prosecutors had failed to prove Matthews did not have such a disturbance. But the jury instructions were adequate, the Supreme Court said, and there was ample evidence showing Matthews did not have such a disturbance. "It is abundantly clear that the Kentucky Supreme Court’s rejection of Matthews’ sufficiency claim is controlling," the Supreme Court said.

Related posts are in the AEDPA index.

Also From Philadelphia - A Supreme Court Ruling

Barbara Leonard posts, "Man on Death Row Loses Chance for Clean Slate," at Courthouse News Service.  The case is Wetzel v. Lambert; the opinion is available in Adobe .pdf format.

The Supreme Court on Tuesday dashed an order to free or retry a death-row inmate convicted of double homicide more than 30 years ago.

"Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prose­cution," the six-page decision states (emphasis in original). "That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996].

James Lambert had nearly won his freedom last year based on evidence that may have exonerated him at trial.

In 1984, Lambert was sentenced to death for murdering two people while robbing a Philadelphia business called Prince's Lounge.

Admitted accomplice Bernard Jackson testified against Lambert and also identified Bruce Reese as a participant to the crime. But Lambert recently discovered a 1982 document in which Jackson identifies a third man named Lawrence Woodlock as a co-defendant, presumably to the robbery he committed with Lambert and Reese.

Lambert said prosecutors never disclosed the "police activity sheet" that contained this information in violation of Supreme Court precedent in Brady v. Maryland, which held that it is a violation of due process for prosecutors to suppress evidence that favor the defendant.

And:

In a three-page dissent, Justice Stephen Breyer rejected the idea that the police notation was ambiguous.

"The nota­tion clearly refers to this case, not to some other case," according to the dissent, which Justices Ruth Bader Ginsburg and Elena Kagan joined. "It sets forth the file number of this investigation, the inves­tigators of this crime, the victims of this murder, and the potential witnesses of these events. It does not refer specifically to any other robbery. The notation says that "[a] [p]hoto display was shown to ... [witnesses in this case],' and it specifies that the '[p]hoto display contained a Lawrence Woodlock.' In this context, the words must refer to a display that included persons potentially involved in this robbery. That being so, the most natural reading of the statement, 'Mr. Woodlock is named as co-defendant by Bernard Jackson,' is that it too refers to this murder and not to some other crime."

Breyer also disagreed that the federal appeals court "overlooked" the ambiguity issue, noting that the state courts never made any such determinations.

"If the trial court expressed any view about ambiguity, it thought that the police notation was not ambiguous," he added.

While the Supreme Court majority pointed out that the state high court used the word "speculative," Breyer said the context shows "that the court used that word to refer to Lambert's claim that the notation showed that he was innocent."

The ABA Criminal Justice Section posted this summary:

Summary: The Court of Appeals for the Third Circuit had granted Lambert, who was convicted of capital murder in 1984, habeas relief; the court held that the failure to disclose a police activity sheet violated Lambert’s rights under Brady v. Maryland.  In a per curiam opinion, the Court vacated the judgment of the Third Circuit and remanded the case for further proceedings on the grounds that the Third Circuit had failed to address the state court’s determination that the notations on the activity sheet were “not exculpatory or impeaching” but instead “entirely ambiguous.” Justice Breyer filed a dissenting opinion, which was joined by Justice Ginsberg and Justice Kagan.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; moreon that ruling via Oyez.

Andrew Cohen on An Ohio Arson Case

Andrew Cohen posts, "Is Ohio Keeping Another Innocent Man on Death Row?" at the Atlantic.  It's an indepth examination of an arson case with a list of problems.  Here's the beginning of this must-read:

Last year, the execution of Troy Davis captured most of the attention, and generated most of the debate, on the topic of capital punishment in America. Davis was put to death by lethal injection in Georgia three quarters of the way through a year that saw  a general decline in support for (and implementation of) the death penalty. This year, just a few weeks in, there's an early candidate for such a spotlight: a death row inmate in Ohio whose case raises many of the same questions about fair trials and justice that surrounded the Davis case.

In fact, you could argue that the capital murder case against Tyrone Noling is even weaker than the one against Troy Davis. And you could argue that the capital punishment regime in Ohio is just as arbitrary and capricious as it is most anywhere else. In 1996, Noling was convicted of murdering Cora and Bearnhardt Hartig, an elderly couple, at their home in 1990. At first, though, there was no physical evidence linking Noling to the crime. Not a gun. Not any blood. Not any money or loot. And at first, there were no witnesses against him, either.

Frustrated prosecutors then gave the case to an investigator named Ron Craig and everything changed. Noling was indicted in 1992, but prosecutors soon had to drop the charges against him after he passed a polygraph case -- and after his co-defendant at the time changed his mind and refused to incriminate him. Just so we are straight, in 1992, there was no physical evidence linking Noling to the crime, he had passed a lie detector test, and witnesses were already turning on the investigator.

But a few years later -- under threat from Craig, they now say -- a few folks stepped forward to testify against Noling. They placed him at the crime scene and they testified that he had confessed to killing the Hartigs. Noling's jury deliberated for about day before returning guilty verdicts. Noling was quickly sentenced to death. The state's website duly notes that Noling arrived at its death row on February 21, 1996. He has maintained his innocence ever since.

There are several legitimate reasons why Noling deserves a new trial, especially in a state with a long history of wrongful capital convictions. There are a lot of flawed capital convictions all over the country -- pick a state, any state, where the death penalty is still a priority for prosecutors and you'll find such a case. But a closer look at this case reveals virtually all of the system's main flaws at one time and in one place. The only thing missing from the story is racial bias, which likely would have only made things worse. (As of September 30, 2011, there were 148 inmates on Ohio's death row, 65 of them white males like Noling.)

And:

Congress harshly tipped the balance against defendants like Noling when it passed the Anti-Terrorism and Effective Death Penalty Act in 1996. "Effective," it turns out, meant rejecting meaningful appeals like Noling's on procedural grounds. For example, without the AEDPA and the way it has been interpreted by the Supreme Court, the 6th Circuit last June might have given Noling the new trial he's been asking for. So is the Clinton-era AEDPA constitutional when applied in cases like this? How can that be? 

Ohio, Texas, Louisiana, it doesn't matter: when it comes to states defending soiled capital convictions, the arguments are always the same. Serious prosecutorial errors are excused. Hypothetical jurors, the ones from whom material exculpatory evidence was hidden at trial, are assumed to vote guilty. Witnesses who recant are said to be lying now, not at trial. The impact of poor defense work is minimized. Ohio thinks it is defending the honor of the 1996 conviction. Instead, it's defending what's been revealed to be a sham. Why? And at what cost?

Thomson Reuters notes the Cohen post in, "An Ohio prisoner could rally death penalty opponents,"  by Carlyn Kolker.

This year's cause célèbre, says The Atlantic's Andrew Cohen, should be Tyrone Noling, an Ohio man who was convicted of murder and who is one of 148 inmantes on death row in that state. "A closer look at this case reveals virtually all of the [criminal justice] system's main flaws at one time and in one place," writes Cohen. Noling's attorneys last week petitioned the U.S. Supreme Court to hear their case challenging his sentence. Here are some of the flaws that Cohen says exist in Ohio's capital case against Noling:

-All of the major witnesses who testified in Noling's case have since recanted, says Cohen.

-Prosecutors, 13 years after Noling's original trial, handed over exculpatory evidence.

-There is a lack of DNA evidence linking Noling to the crime.

-The state of Ohio will not agree to a new trial, despite Nolting's claims that he has discovered new evidence.

Cohen sums up the case this way: "Ohio things it is defending the honor of the 1996 conviction. Instead, it's defending what's been revealed to be a sham. Why? And at what cost?"

Another Ohio capital arson case had a February 22nd execution date.  It has been cancelled due to problems with Ohio's lethal injection protocol; earlier coverage of the two stories at the links.

You can also find more on the site from Andrew Cohen.

Gonzalez v. Thaler

Yesterday, the Supreme Court heard oral arguments in the above-styled Texas non-death penalty case, involving the time limits to file an appeal under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  The SCOTUSblog case file in Gonzalez v. Thaler contains all briefing in the case.

The transcript of oral arguments is available in Adobe .pdf format.

SCOTUSblog has the only coverage of oral arguments that I've seen, "Gonzalez v. Thaler: Justices focus on COA issue," by Giovanna Shay.  Here's the beginning of this detailed account:

At oral argument in the Texas state prisoner’s federal habeas case Gonzalez v. Thaler Wednesday morning, the Justices focused primarily on whether all three requirements for a certificate of appealability (COA) under 28 U.S.C. § 2253(c) are jurisdictional.  The issue that initially brought this case to the Court – what event triggers the one-year clock for a state prisoner to file a federal habeas petition under 28 U.S.C. § 2244(d)(1) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) – received relatively less air time.  A majority of the Court seemed at least somewhat sympathetic to the notion that a technical defect in a COA should not produce a jurisdictional bar to a habeas appeal.  However, even some Justices who are typically protective of habeas rights appeared unconvinced by petitioner Gonzalez’s interpretation of the AEDPA triggering provision.  In rebuttal, Gonzalez’s counsel spoke directly to Justice Kagan, arguing that the state’s interpretation of the AEDPA triggering provision would disadvantage the ninety-nine percent of Texas criminal defendants who do not file petitions for discretionary review in the Texas Court of Criminal Appeals.

National Law Journal Commentary on Habeas

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

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

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

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

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

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

And:

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

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

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

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

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

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

And:

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

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

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

An Update on the Troy Davis Case

"High court rejects appeal from Troy Davis," is the AP report via the Atlanta Journal-Constitution.

The Supreme Court has rejected an appeal from Georgia death row inmate Troy Davis, clearing the way for the state to resume planning for Davis' execution.

The justices on Monday refused to order the federal appeals court in Atlanta to examine Davis' case and they declined to do so themselves. In 2009, the high court ordered a federal judge to examine evidence Davis said would show he was innocent of the 1989 killing for which he has been sentenced to death.

But the judge decided last year that Davis had failed to clear his name.

At the moment, executions are on hold in Georgia after federal agents seized the state's supply of a key lethal injection drug.

The Supreme Court Order List is available in Adobe .pdf format.

Amnesty International USA has issued a statement, "Amnesty International Deeply Disappointed by Supreme Court’s Decision Rejecting Troy Davis Appeal."

Laura Moye, Amnesty International USA (AIUSA) death penalty abolition campaign director, issued the following statement in response to the U.S. Supreme Court’s decision today to reject Troy Davis’ appeal of the federal district court’s ruling that Davis did not prove his innocence:

“Amnesty International is extremely disappointed that the Supreme Court rejected Troy Davis’ appeal. It appears that the justice system is comfortable allowing someone to be executed when there are lingering doubts about guilt in the case. No objective person could confidently determine that Davis is guilty beyond a reasonable doubt from the evidence available now in his case. That leaves an ominous cloud hanging over an irreversible sentence such as the death penalty.

“Because there was no physical evidence linking Davis to the murder, nor was there physical evidence exonerating him, the case rested on a group of witnesses whose credibility was readily accepted for conviction, but so easily rejected in the appeals process.

“The Georgia Board of Pardons and Paroles, as the final fail-safe, has the opportunity to commute his sentence to life and prevent the possibility of executing an innocent person.”

Earlier coverage of the Troy Davis case begins at the link.

More on the Bruce Webster Case

Scott Goldstein reports, "High court denies appeal of mentally retarded man who helped rape, kill Arlington teen," for today's Dallas Morning News.

To execute Bruce Carneil Webster for the 1994 kidnapping, rape and murder of an Arlington teen would be to violate the Supreme Court's ruling that capital punishment of the mentally retarded should be barred, he contends.

But on Monday, the same court that banned such executions in 2002 turned away Webster's appeal. The Supreme Court gave no reason for its rejection of the case despite new evidence that indicates three federal doctors thought Webster may be mentally retarded when he applied for disability benefits in 1993, a year before 16-year-old Lisa Rene was killed.

A federal appeals court judge previously acknowledged that the new evidence appears to show Webster is mentally retarded. The judge and his two colleagues on the 5th U.S. Circuit Court of Appeals said, however, that Webster's execution could not be halted because he exhausted his appeals to the point that new evidence cannot be considered unless it is likely to prove his innocence.

And:

Such technicalities often come into play in cases like this, said Steve Hall of the StandDown Texas Project, which advocates a moratorium on the death penalty.

"Unfortunately, the situation when many death penalty cases and issues go to the Supreme Court is it's not a simple question that's being asked," Hall said. "It is often a highly technical, very convoluted question of procedure in law ... so the fact that you've got a situation that appears to be straightforward with a straightforward answer isn't always the case."

To Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., the Webster case could be a missed opportunity for the Supreme Court.

"I think the feeling has grown that the Supreme Court in 2002 decided this mental retardation issue but then has abandoned it, has left it to the states and even the federal government to put up barriers or to make it difficult to prove by setting case standards or burdens," Dieter said. "The Supreme Court hasn't revisited it to sharpen this ruling to make sure it works the way it's intended."

Earlier coverage begins with this post from yesterday.

The Case of Bruce Webster

The Dallas Morning News has posted, "High court denies appeal of mentally retarded man who helped rape, kill Arlington teen."

The U.S. Supreme Court has turned away the appeal of an Arkansas man who helped kidnap, rape and bury an Arlington teen alive in 1993, although a federal judge said evidence shows that he is mentally retarded.

The high court banned the death penalty for the mentally retarded eight years ago. In their ruling today, the justices offered no comment in rejecting the appeal of Bruce Carneil Webster.

Webster, 37, was sentenced to death more than 14 years ago and has since tried to persuade federal judges that he is mentally retarded.

A panel of the 5th U.S. Circuit Court of Appeals said in an April ruling that Webster had exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent. And because everyone agrees he's guilty, he still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," 5th Circuit Judge Jacques Wiener Jr. wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Steven Wells, Webster’s attorney, said he was disappointed that the Supreme Court opted not to hear the case. But he said that doesn't mean the fight is over.

“The government in their briefs suggested that there were some alternative avenues for relief and I expect that we’ll be pursuing one or more of those,” Wells said.

Among the possibilites, he said, is an appeal through the federal courts in Indiana, where Webster is currently being held.

“It is not over and we will not give up until … we’re allowed to have a court review of this new evidence of mental retardation on its merits, which no court has done yet,” Wells said.

Evidence recently provided by the Social Security Administration shows three federal doctors determined Webster was mentally retarded when he applied for disability benefits in 1993, a year before 16-year-old Lisa Rene was kidnapped and killed.

One potential avenue to correct the sentence would be clemency. This is a federal death penalty case, so any request for clemency -- a commutation of the death sentence to a life sentence -- would be directed to the President of the United States.

Clemency has been utilized in two Texas capital cases in which there was a determination that the individual had mental retardation.  In March 2004, Governor Rick Perry commuted the death sentence of Robert Smith.  Experts had determined that Smith had mental retardation and was thus barred from execution under the U.S. Supreme Court's 2002 ruling in Atkins v. Virginia.  A court could have set aside Smith's death sentence, but the Harris County District Attorney's office asked that Smith's sentence be commuted.  In 2007, the same circumstances led Governor Perry to commute the death sentence of Doil Edward Lane, after it was determined that Lane had mental retardation.

Earlier coverage of the Bruce Webster case begins at the link.  Related posts are in the mental retardation index.

Pinholster - Additional Coverage

Yesterday's Los Angeles Times carried the news article, "U.S. Supreme Court hears California death penalty appeal," by David G. Savage.

The Supreme Court last week heard an appeal from a San Fernando Valley murderer that helps explain why death penalty cases in California are so prolonged.

But if state prosecutors have their way, many of them could be shortened in the future.

It is the latest chapter in a long-running dispute between state and federal judges over the death penalty. And the case of Scott Pinholster raises a potentially crucial issue with national impact: Can new evidence be used in federal court to upset an old and long-settled state court conviction?

"It would be a dramatic change in the law" if the high court adopts California's no-new-evidence rule, said Sean Kennedy, a federal public defender in Los Angeles who represented Pinholster. He said it would be unfair and illogical to bar federal judges from ever considering powerful evidence that was overlooked or ignored in the state courts.

But prosecutors said they should not be forced to relitigate old cases for decades. The Republican Congress in 1996 passed a law intended to stop federal judges from second-guessing state convictions. It is time for the high court to "limit the number of bites of apple the defendant gets," said Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento.

In 1984, a jury in Van Nuys convicted a smirking and boastful Pinholster of stabbing two men to death in a burglary gone awry in Tarzana. After hearing about his many violent outbursts, the jury sentenced him to death.

State courts rejected his appeals. New lawyers sought a hearing to argue that jurors should have been told of Pinholster's "profound mental illness," but the state high court denied this request in a one-line order sent by postcard.

His appeal then went to a federal judge, and a strikingly different picture emerged. At age 2, Pinholster was playing in the driveway when his mother backed the car into him. He lost part of an ear and spent weeks in the hospital for his head injury. Two years later, she was in another auto accident in which her son, unbuckled in the front seat, hurtled into the windshield.

And:

After hearing the new medical evidence, U.S. District Judge Gary Taylor granted a writ of habeas corpus and overturned Pinholster's death sentence. Even so, the convict would remain in prison for life.

Prosecutors appealed, but in December, the U.S. 9th Circuit Court of Appeals upheld Taylor's ruling in an 8-3 decision. "We are fully persuaded" that one or more jurors would have voted to spare Pinholster had they heard more about his brain injuries, the appeals court said.

California state attorneys appealed to the U.S. Supreme Court, which heard the case Tuesday. They urged the justices to bar the use of "new facts" in a federal hearing.

Earlier coverage is in the post, "Cullen v. Pinholster Argued at Supreme Court."  The SCOTUS blog case file for Cullen v. Pinholster contains all briefing in the case.

Cullen v. Pinholster Argued at Supreme Court

Courthouse News Service has the only coverage I've found of this case from the Ninth Circuit.  Avery Fellow writes, "Justices Review Role of Evidence in Habeas Cases."

The Supreme Court on Tuesday considered whether a federal court can overturn a state criminal conviction when the prisoner failed to bring all the evidence before the state court.

Scott Lynn Pinholster received a death sentence for murder, and California state courts denied post-conviction relief without an evidentiary hearing.

A federal judge ordered an evidentiary hearing and granted habeas relief, finding that Pinholster's trial attorneys failed to present evidence of Pinholster's epilepsy, severe mental illness and brain damage.

The 9th Circuit reversed, finding that Pinholster would have received the same sentence despite the evidence his attorneys could have presented in state court, but did not. However, a full 9th Circuit panel reheard the case and granted the habeas petition, concluding that Pinholster's counsel had performed inadequately.

The Supreme Court justices tried to determine whether the 9th Circuit had decided the case on the basis of the facts from the state court hearing alone, and not the additional evidence Pinholster brought at the district court hearing.

"[Y]ou have to live with what they wrote," Justice Antonin Scalia told Pinholster's attorney, Sean Kennedy, a California federal public defender. "And the basis of their decision included additional facts."

Justice Anthony Kennedy said the 9th Circuit found the additional facts compelling, but said that even without them, the facts raised in state court about Pinholster's childhood supported granting habeas relief on the basis of ineffective assistance of counsel.

The SCOTUS blog case file for Cullen v. Pinholster contains all briefing in the case, plus additional information

An Update on Troy Davis

"Judge says Troy Davis should appeal directly to U.S. Supreme Court," is the breaking report from the Savannah  Morning News.  It's by Jan Skutch.

Attorneys for Troy Anthony Davis must appeal a denial of a new trial to the U.S. Supreme Court – not the 11th U.S. Circuit Court of Appeals - in the 1989 slaying of off-duty Savannah police officer Mark Allen MacPhail, a federal judge has ruled.

“Any review of this court’s decision should be by the Supreme Court itself, not an intermediate appellate court,’’ U.S. District Judge William T. Moore Jr. ruled.

Moore ruled in a 172-page order in August that Davis failed to prove his innocence in the MacPhail slaying and will not get a new trial.

He sent his ruling directly to the Supreme Court.

The federal court heard evidence and argument after the Supreme Court returned the case last year with instructions that a judge hear testimony to determine whether evidence not available at Davis’ 1991 trial would “clearly’’ establish his innocence.

After two days of hearings in June, Moore ruled Davis’ new evidence “casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.’’

Davis’ lawyers then sought a certificate to appeal to the 11 U.S. Circuit Court of Appeals in Atlanta, rather than directly to the Supreme Court.

Moore ruled that since the Supreme Court exercised its “original jurisdiction’’ in transferring the case to his court, it removed the appellate court from the equation.

He said it would be “incredibly anachronistic’’ for a court of appeals to have jurisdiction over cases under the Supreme Court’s jurisdiction.

Earlier coverage of the case begins here.

Judge Denies Troy Davis Appeal - UPDATED

That's the title of the AP breaking news report, via the Atlanta Journal-Constitution.  LINK

A federal judge Tuesday denied Georgia death row inmate Troy Davis' innocence claim after a rare hearing.

The ruling against Davis sets the stage for Georgia officials to move forward with executing him for the 1989 shooting death of Mark MacPhail, an off-duty Savannah police officer.

In June, U.S. District Court Judge William T. Moore Jr. heard two days of testimony from witnesses seeking to cast doubt on Davis' conviction. The Supreme Court ordered the hearing for Davis a year ago.

Davis has been spared from execution three times as his attorneys pushed their argument that new evidence showed police ignored MacPhail's real killer as they rushed to pin the shooting on Davis.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony.

Earlier coverage begins with this post.  I'll be adding additional coverage as it becomes available.

UPDATE:  Judge Moore's ruling is in Adobe .pdf format in two parts, as Part 1 and Part 2

More on the Case of Bruce Webster

Today's Dallas Morning News carries the editorial, "Mental retardation and the death penalty."

Bruce Carneil Webster is a brutal thug, one of three whose pursuit of two men who had stiffed them on a drug deal ended with the kidnapping, rape and hellish murder of a 16-year-old honor student.

Shed no tears for Webster: He beat the Arlington girl with a shovel, dragged her into a grave in Arkansas, stripped her, doused her with gasoline and burned her alive.

He should never see the outside of a prison.

Nonetheless, new evidence about his mental capacity, uncovered 13 years after his conviction, raises serious questions about whether Webster, who indisputably committed the crime, can be legally put to death.

The U.S. Supreme Court should review Webster's case, and the Texas Legislature should adopt clearer procedures to determine the mental capacity of defendants accused of capital crimes. To do otherwise would be a serious breach of justice.

And:

This newspaper would like to see the state Legislature pass measures that would allow a judge or separate jury to hear evidence to determine whether a defendant is mentally retarded. And the Supreme Court would be wise to intervene to make sure a man is not executed despite evidence showing mental retardation. Even in the most reprehensible and revolting crimes, the Constitution still applies.

Earlier coverage is here.

Related posts are in the mental retardation index.  Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

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

The Case Of Bruce Webster

"Mental retardation evidence may not save Arlington teenager's killer from death chamber," is the title of Jason Trahan's report for the Dallas Morning News.  It appeared in the Sunday edition.

Bruce Carneil Webster helped kidnap, rape, torture and bury alive Arlington teen Lisa Rene.

A judge on the 5th U.S. Circuit Court of Appeals agrees that new evidence, including psychological examinations, appears to show that Webster is mentally retarded.

But although the U.S. Supreme Court banned the death penalty for the mentally retarded eight years ago, 5th Circuit Judge Jacques Wiener Jr. and his two colleagues agree that they can't stop Webster's execution. The panel says he exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent.

And since everyone agrees he's guilty, Webster still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," Wiener wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Experts say the case is headed for a constitutional showdown.

"It's an outrageous situation," said David Bruck, a death penalty expert at Washington and Lee University law school in Virginia. "Sometimes the law just doesn't fit the facts. This is one of those times."

Steven Wells, Webster's attorney, said he plans to ask the Supreme Court to untangle the mess.

"If we're allowed to bring this new evidence before a fair and impartial judge, they will find that Bruce Webster is mentally retarded," Wells said.

And:

Evidence claiming Webster is mentally retarded was a major part of his 1996 criminal trial, and has been a part of his appeals.

At his trial, jurors heard defense experts and Webster's family say he is mentally retarded. Prosecutors acknowledged his low IQ, but argued that he was able to adapt to his lack of intellect and knew right from wrong. A fellow inmate testified he saw Webster appear to be reading law books and making notes from them while in prison.

After the jury found him guilty, jurors were asked whether they thought Webster was or could be mentally retarded. Four of the 12 answered "yes."

U.S. District Judge Terry Means ruled then that Webster was not mentally retarded and sentenced him to death. His attorneys appealed.

In 2002, the Supreme Court clarified laws on mental retardation and execution in Atkins vs. Virginia, ruling that executing the mentally retarded constitutes cruel and unusual punishment. Webster's attorneys cited that decision in their appeal, but the 5th Circuit soon upheld Webster's death sentence, relying on the same arguments and evidence used at trial.

In February 2009, Webster's attorneys received records from when Webster applied for Social Security benefits to treat a sinus condition and headaches.

Those records, from a year before the killing, show that three doctors who examined him had found him to be mentally retarded.

And:

The "Kafkaesque" situation, as Wiener describes it, arises out of changes made to federal criminal law in 1996. After the Oklahoma City bombing and the first World Trade Center attack, Congress put strict limits on the number of times federal inmates can challenge their sentences.

To file more than one appeal, an inmate has to have new information "sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the [defendant] guilty of the offense," the law states.

In the 5th Circuit's ruling, Wiener wrote: "If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded."

The 5th Circuit ruling is here.

Related posts are in the mental retardation index.  Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

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

Troy Davis Case Full of Murky Legal Questions

That's the title of an AP report by Russ Bynum, via the Savannah Morning News.  LINK  For those following the Davis case, it's a must-read.

Thanks to an order from the U.S. Supreme Court, a Georgia death row inmate was granted a hearing to prove his innocence to a federal judge — a chance afforded no American facing execution in nearly half a century.

Now that the court hearing is over, what happens next isn't so clear. The case of condemned inmate Troy Anthony Davis is so unusual, legal experts can't even agree on what the judge can do.

Davis' fate rests with a U.S. District Court judge who heard testimony in June from witnesses who say they lied at Davis' trial. Others say they heard another man confess to the 1989 slaying of Savannah police officer Mark MacPhail.

Judge William T. Moore Jr. won't rule until after he reviews legal briefs from both sides due Wednesday.

Some experts say the judge could order a new trial. Others say the judge could make a recommendation to the Supreme Court that Davis be freed from prison. There's also a possibility the judge could find Davis innocent, yet rule he's powerless to spare Davis' life.

"There is some ambiguity," said John H. Blume, a Cornell Law School professor who specializes in death penalty appeals. "Whenever you've got something this new, that hasn't happened all these years, you're really making your best guess."

In death penalty cases, federal courts normally consider only violations of due process and constitutional rights. When a divided Supreme Court granted Davis a hearing to prove his innocence last August, dissenting Justice Antonin Scalia called it "an extraordinary step — one not taken in nearly 50 years."

The Supreme Court set the burden on Davis to "clearly establish" his innocence with evidence that wasn't available at his 1991 trial, when Davis was convicted of shooting MacPhail as the off-duty officer rushed to help a homeless man being attacked.

If the judge rules against Davis and the Supreme Court upholds his decision, it's likely the end of his case — though Davis could make another appeal for clemency to the Georgia Board of Pardons and Paroles.

If Davis succeeds in proving his innocence, things get murkier.

And:

Complicating things further, the legal issues before the judge don't stop with Davis' innocence or guilt.

The judge has asked lawyers to weigh in by Wednesday on two broader issues that could restrict his authority.

The judge's first question: Is he prohibited from helping Davis, even if he's innocent, by a 1996 law passed by Congress after the Oklahoma City bombing that limits death penalty appeals?

Scalia argued in his dissent that the Anti-Terrorism and Effective Death Penalty Act means federal courts are powerless to overrule Georgia courts that already rejected Davis' innocence claim.

The other legal question before the judge sounds like a no-brainer, but it's a constitutional issue the Supreme Court hasn't settled.

Appeals courts found that Davis received a fair trial. If he later proves he's innocent, would it be cruel and unusual punishment to execute him? Or would putting him to death still be constitutional because Davis received a fair trial?

"It's the kind of claim you almost have to be a lawyer to make it sound even plausible," said Robert Schapiro, a professor of constitutional law at Emory Law School. "But the Supreme Court has never held that it violates the Eighth Amendment to execute someone who is actually innocent."

Earlier coverage of the case begins with this post.

Magwood v. Patterson

The Supreme Court issued its ruling in Magwood v. Patterson this morning.  The opinion is in Adobe .pdf format.  The ScotusWiki file is here.

SCOTUS Blog reports, "Court rules in favor of capital defendant in Magwood v. Patterson."  It's written by Kevin Russell.

Federal habeas law generally allows prisoners to bring a single habeas petition; “second and successive” petitions are highly disfavored and must meet very strict criteria.  This morning, the Court held in Magwood v. Patterson (No. 09-158), that when a criminal defendant succeeds in having his original sentence overturned, a later habeas petition challenging his new sentence should be treated as a first petition (not as a “second or successive” petition), even if it raises grounds that could have (but were not) made against the original sentence.  Writing for himself and Justices Stevens, Scalia, Breyer, and Sotomayor, Justice Thomas explained that under the text of the federal habeas statute, when a prisoner is resentenced and appeals the new sentence, he is challenging a different judgment than was challenged in his prior habeas petition. 

"Court ordered to reconsider Alabama death row appeal," is the AP dispatch via the Montgomery Advertiser.

The U.S. Supreme Court has ordered a lower court to reconsider arguments in the appeal of Alabama death row inmate Robert Bryant Melson, convicted of killing three employees at a Popeye's restaurant in Gadsden during a 1994 robbery.

Assistant Alabama Attorney General Clay Crenshaw said Wednesday the Supreme Court decision will likely further delay the execution of Melson. He had been scheduled to die this month by lethal injection at Holman Prison in Atmore.

Crenshaw said the Supreme Court's action could delay Melson's execution by as much as a year. Officials with the Federal Defenders' Office in Montgomery, which represents Melson, did not immediately return a call seeking comment.

The Alabama Supreme Court voted 4-3 earlier this year to delay Melson's execution while the U.S. Supreme Court hears arguments in the case of a Florida death row inmate who raised an issue similar to Melson's.

The issue was whether appellate courts could consider arguments in a death row inmate's appeal even though the prisoner missed his deadlines for filing the appeal.

In the Florida case, the U.S. Supreme Court said a federal appeals court could consider parts of the inmate's appeal even though he missed filing deadlines.

In Melson's case, the high court asked the 11th U.S. Circuit Court of Appeals in Atlanta to hold further hearings on Melson's appeal. Crenshaw said the court could consider Melson's appeal itself or return the case to a lower court.

Mary Orndorff posts, "Alabama death sentence reversed by U.S. Supreme Court," for the Birmingham News.

An Alabama death row inmate will get another chance to challenge his sentence after a decision Thursday by the U.S. Supreme Court.

Billy Joe Magwood, twice sentenced to death for the 1979 murder of the Coffee County sheriff, will be allowed to appeal again because a majority of the justices decided the appeal of his second sentence was not a "second or successive" attempt, but instead a brand new sentence that could be challenged anew.

"Because Magwood's habeas application challenges a new judgment for the first time, it is not 'second or successive,'" according to the opinion.

Earlier coverage of the case is here.

News Coverage of the Troy Davis Hearing - Day 1

Today's New York Times carries a brief item, "Georgia: Witnesses in Murder Case Recant," by Shaila Dewan.

In an unusual hearing ordered by the Supreme Court that began in Savannah on Wednesday, several witnesses said they had concocted testimony that Troy Anthony Davis killed a police officer, Mark MacPhail, in 1989. Last August, the Supreme Court ordered a federal district court to determine if new evidence “clearly establishes” Mr. Davis’s innocence, its first order in an “actual innocence” petition from a state prisoner in nearly 50 years, according to Justice Antonin Scalia, who dissented.

The latest AP filing is, "Ga. death row inmate in rare innocence hearing," by Russ Bynum.

In U.S. District Court on Wednesday, Davis' lawyers rested their case after calling nine witnesses to support that claim. The hearing will continue Thursday with prosecutors presenting rebuttal evidence.

Judge William T. Moore said he's highly skeptical of testimony that another man has admitted to shooting MacPhail, because Davis' attorneys did not subpoena the man they say is the real killer.

"This hearsay testimony is looked at with suspicion and great caution," said Moore, who told attorneys he may give the claims "no credence whatsoever when I make my ruling in this case."

Davis, 41, won a rare chance to argue he was wrongly convicted of killing MacPhail, an off-duty police officer who was shot as he rushed to help a homeless man being attacked near a downtown bus station.

Davis sat in the courtroom Wednesday wearing his white prison uniform and chains on his ankles, while dozens of his supporters from groups including Amnesty International and the NAACP rallied outside the courthouse.

Federal death penalty appeals usually look only at questions of due process and constitutional rights. But the nation's high court last summer took the unusual step of granting Davis a chance to prove his innocence.

Legal experts say the Supreme Court set a tough standard for Davis. The court's August decision said his attorneys must "clearly establish" Davis' innocence.

"Witnesses back off testimony against Troy Davis," is the title of Bill Rankin's Atlanta Journal-Constitution report.

One witness after another raised their right hands Wednesday and swore to tell the truth, just like they did 19 years ago when their testimony helped put Troy Anthony Davis on death row.

This time, however, four key prosecution witnesses gave markedly different statements, either saying they never saw Davis kill a Savannah policeman or never heard him confess to the crime.

Also Wednesday, a 36-year-old prison inmate offered surprise testimony, saying in court for the first time that he witnessed another man shooting and killing Officer Mark Allen MacPhail as he rushed to help a homeless man being pistol-whipped in a Burger King parking lot late one summer night in 1989.

The extraordinary hearing, ordered by the U.S. Supreme Court last August, continues Thursday as lawyers for the state Attorney General's Office wrap up their side of the case.

Rankin also wrote the sidebar, "Then and now: Witnesses change their stories," for the Journal-Constitution.

The Savannah Morning News has, "Troy Davis hearing could end today," written by Jan Skutch and Pamela E. Walck.

A man attorneys for Troy Anthony Davis contend killed a Savannah police officer bragged he was the one who committed the crime for which Davis was convicted, a Chatham County jail inmate testified Wednesday.

Sylvester "Redd" Coles told him, "Troy took the fall," for the slaying he committed, Anthony Hargrove testified.

Hargrove, who somewhat gleefully admitted he has "been in the system 20 years plus change," said he did not reveal the admission because he had legal problems in Florida, calling it "self-preservation."

Davis, 41, is in federal court here in Savannah on what his defense team contends is new evidence that may have resulted in his acquittal in the Aug. 19, 1989, slaying of Mark Anthony MacPhail.

Davis' team rested their main case about 4 p.m. Wednesday, "a lot earlier" than their witness list indicated, U.S. District Judge William T. Moore Jr. said before recessing court about 5:30 p.m.

Moore is under a mandate from the U.S. Supreme Court to hear evidence he finds "clearly establishes (Davis') innocence."

He halted the hearing after Senior Assistant Attorney General Beth Attaway Burton ran out of witnesses for the day.

The hearing resumes at 9:30 a.m. today with the state attorney general's lawyers expected to call their final eight witnesses.

The Morning News website also has, "Latest updates from the second day of the Troy Davis hearing."

Lucile Malandain posts, "Rare US hearing could give death row inmate a second chance," for AFP.

The witnesses, some of whom were illiterate, in prison, or in their teens when they originally testified, provided the key evidence that convicted Davis, an African-American, of murdering Mark McPhail, a white police officer.

Davis, now 41, has always proclaimed his innocence, and one-by-one Wednesday, witnesses admitted they had lied to help convict him.

"When the police arrived, I told them I could barely recognize the shooter," said Atwan Williams. "I was scared, nervous, I was just trying to take off."

Asked if he had read back the deposition he gave to police, Williams replied: "No sir, I can't read."

Kevin McQueen told the court he had been given a lighter sentence in return for claiming Davis had confessed to him. "I was mad at him," he said.

Several witnesses said Wednesday that they had lied because they were intimidated by the police.

Earlier coverage begins here.  Amnesty International USA has more information at Justice for Troy.

Troy Davis Hearing Begins in Savannah

"Court to hear Troy Davis' innocence claims in cop's 1989 killing," is the title of the report by Bill Rankin in today's Atlanta Journal-Constitution.

Troy Anthony Davis returns today to Savannah, where he was convicted and sentenced to death almost two decades ago for killing an off-duty police officer during a late-night melee.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony. Today in U.S. District Court in Savannah he will get that chance, thanks to an extraordinary ruling last year by the nation's highest court.

Before today's hearing, spectators and members of the news media hoping to get a seat began forming a line outside the federal courthouse before 6 a.m. Davis arrived shortly before 7 a.m., accompanied by an armed escort of Chatham County police officers.

Vigils and rallies were held Tuesday night in Savannah and Atlanta on behalf of Davis and slain Savannah Police Officer Mark Allen MacPhail.

Davis' innocence claims have attracted international attention, including former President Jimmy Carter and Pope Benedict XVI urging that he be spared from execution. In recent years, Davis' scheduled execution has been halted three times -- on one occasion just two hours before he was to be put to death by lethal injection.

Last August, for the first time in nearly half a century, the U.S. Supreme Court took a case filed directly to its docket, instead of hearing an appeal of a lower-court ruling. It accepted Davis' last-ditch innocence claim after Davis had exhausted all his appeals.

The high court ordered a federal judge to convene a hearing to determine whether Davis' new claims "clearly establish" his innocence.

"Certainly, Mr. Davis and his attorneys have a very difficult burden ahead of them," said Howard Bashman, a Philadelphia attorney who operates a Web site devoted entirely to appellate litigation. "They have to show far more than there are serious doubts over the validity of the conviction. They have to show that the new evidence clearly establishes Mr. Davis' innocence."

Still to be decided is what standard U.S. District Judge William T. Moore Jr., who will preside over the hearing, will use to evaluate Davis' new innocence claims.

Must Davis prove by clear and convincing evidence that he is innocent so the judge is convinced he did not commit the crime, asked Georgia State University law professor Anne Emanuel. Or does Davis have to show that no reasonable person, after looking at the newly discovered evidence, could find him guilty beyond a reasonable doubt?

"The case does present, in very stark terms, the tension between justice and finality," Emanuel said.

Until the U.S. Supreme Court stepped in, Davis' attempts to get his new evidence presented in court had been repeatedly stymied by the federal Antiterrorism and Effective Death Penalty Act, legislation enacted in 1996 to streamline appeals of capital sentences.

But Davis' case may now force the U.S. Supreme Court to decide whether the Eighth Amendment's ban against cruel and unusual punishment also bars the execution of an inmate who has been convicted and later proved he is innocent, a claim the high court has never recognized.

And:

Davis' lawyers have identified 14 witnesses they plan to call. The state has said it will call 17 witnesses, many of them officers who investigated the case and members of the prosecution team.

The Savannah Morning News has, "Troy Davis heads back to court in Savannah," by Jan Skutch.

Troy Anthony Davis today returns to a Savannah courtroom to try to disprove his 1991 murder conviction.

U.S. District Judge William T. Moore Jr. will take testimony - without opening statements - to determine whether Davis' defense team can "clearly establish" his innocence in the Aug. 19, 1989, slaying of off-duty Savannah police officer Mark Allen MacPhail.

Attorneys for Davis, 41, contend the state and federal appellate reviews have focused on "technicalities" while depriving him of a hearing on evidence not available at the first trial that would have led to a different verdict.

Attorneys with the state attorney general's office contend the evidence simply rehashes that already dismissed by earlier court reviews.

Moore, under a U.S. Supreme Court mandate that he hear evidence, has given clear notice he intends to get right to the evidence beginning at 10 a.m.

He will deal with legal arguments from both sides later.

The Morning News has a link to its complete coverage of the Troy Davis case.

Earlier coverage begins with this post.

A Long-Running Louisiana Case

James Ridgeway and Jean Casella write, "What's Next for Albert Woodfox of the Angola 3?" for Mother Jones.

Albert Woodfox has spent nearly all of the last 38 years in solitary confinement at the Louisiana State Penitientiary at Angola. His case has brought protests from Amnesty International and Human Rights Watch, who argue that Woodfox’s decades in lockdown constitute torture, and from a growing band of supporters, who believe that he was denied a fair trial. For more than ten years, he has been fighting for his release in the courts. But yesterday, a ruling by a federal appeals court ensured that for the forseeable future, Albert Woodfox will remain right where he has been for the last three decades: in a 6 x 9 cell in the heart of America’s largest and most notorious prison.

It’s been nearly two years since a federal district court judge in Baton Rouge overturned Woodfox’s conviction for the 1972 murder of a guard at Louisiana’s Angola prison. Judge James Brady’s 2008 ruling, which ordered the state to retry Woodfox or release him, brought new hope to the 63-year-old Woodfox, who has been in Angola–originally for armed robbery–since he was 24. A member of the group known as the Angola 3, Woodfox has always contended that he was effectively framed for the guard’s murder–and then thrown into permament lockdown–because of his involvement with the Black Panther Party, which was organizing against conditions in what was then known as the "bloodiest prison in the South."

Without drawing any conclusions about Woodfox’s guilt or innocence, Judge Brady of the Federal District Court, Middle District of Louisiana, concluded that Woodfox had not received due process at his 1998 trial (which was intself a replacement for a faulty 1973 trial).

And:

In addition, the decision in Woodfox’s case shows the crippling effects on prisoners’ rights of the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was passed under Bill Clinton in the wake of the Oklahoma City bombings. That legislation has become the bane of anti-death penalty lawyers and activists, and of thousands of other prisoners seeking to challenge their convictions–a pursuit which AEDPA now renders nearly impossible.

As the Fifth Circuit noted in its ruling, "The AEDPA requires that federal courts "defer to a state court’s adjudication of a claim" unless the state court decision ran "contrary to…clearly established Federal law, as determined by the Supreme Court," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." And as the judges pointed out, "An unreasonable application of federal law is different from an incorrect or erroneous application of the law."

In other words, the state courts could be wrong, they just couldn't be so far out as to be undeniably "unreasonable." And in the end, the Fifth Circuit judges agreed with the State’s argument that "the district court failed to apply the AEDPA's heightened deferential standard of review to Woodfox's ineffective assistance claims." For Woodfox, this means that his time in prison stretches before him with no foreseeable end in sight. His lawyers have promised to return to his case with new evidence, but that could take years, and the outcome might still be the same. In the meantime, Woodfox and fellow Angola 3 members Herman Wallace and Robert King have mounted a constitutional challenge to their solitary confinement, which may come to trial before the end of this year. That case, too, will eventually go before the Fifth Circuit–and even a win would mean only a release from permanent lockdown, not from Angola.

Ridgeway is the prop of the excellent Solitary Watch website, and he's posted an update focused on the federal Anti-Terrorism and Effective Death Penalty Act.

News Coverage of Holland v. Florida

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage begins with this post.

Holland v. Florida

AP reports, "Court: Death row case goes back to lower court."

The Supreme Court said Monday lower courts should look again at an appeal from a death row inmate in Florida whose lawyer missed the deadline for asking federal courts to stop his execution.

The high court overturned an appeals court decision saying Albert Holland had missed his chance to get a federal review of his death sentence because his lawyer did not file his paperwork on time.

The 11th U.S. Circuit Court of Appeals in Atlanta said the only way the deadline could be extended is if a defendant can prove that his lawyer showed "bad faith, dishonesty, divided loyalty, mental impairment, or so forth" instead of just being "grossly negligent."

"In our view, this standard is too rigid," said Justice Stephen Breyer, writing the 7-2 judgment for the court.

The court sent the case back to the appeal court.

Justices Antonin Scalia and Clarence Thomas dissented.

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

Tony Mauro writes, "Another Bilski-Free Day at the Supreme Court," for the BLT.

In Holland v. Florida, the Court ruled 7-2 that the one-year statute of limitation for habeas filings under the Antiterrorism and Effective Death Penalty Act of 1996 can be tolled -- delayed or paused -- under certain circumstances, including egregious attorney misconduct.

The Court also agreed to review Collin v. Pinholster in it's next term, which will begin in October.  This is a California death penalty case from the Ninth Circuit.

Earlier coverage of Holland v. Florida begins here.

Oral Argument in Magwood v. Patterson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage begins here.