Death Row News 2

Tarlton Law Library has updated recently updated its listing of new capital litigation related law review articles. Of special note are two recent articles in the Ohio State Journal of Criminal Law: Jeffrey Fagan’s Death and Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment, 4 Ohio State Journal of Criminal Law 255, and Eric Freedman’s Fewer Risks, More Benefits: What Governments Gain by Acknowledging the Right to Competent Counsel on State Post-Conviction Review in Capital Cases, 4 Ohio State Journal of Criminal Law 183. Fagan’s piece is a tour de force on executions and murder rates. Freedman’s work is readily accessible and provides a solid look at the right to counsel in postconviction proceedings.

Looking ahead to the next edition are two notable cases. In James Melton v. Ayers a federal district court in California grants relief on whether Melton was competent at trial.  In Robinson, et. al v. Beck, et. al a state trial court judge held lethal injection is a state regulation subject to the normal course of administrative law and that certain modifications to the regulations did not follow the normal course with the result that all executions are now on hold in North Carolina.

As always, thank you for reading. -
Stays of Serious Execution Dates


January
24 Larry Swearingen Texas)
25 Ronald Chambers (Texas)
26 Marcus Robinson (North Carolina)

February
2James Thomas  (North Carolina)
9 James Campbell  (North Carolina)

Pending Executions
January
30 Christopher Swift (Texas-volunteer)
February
7   James Jackson (Texas)
22 Edward Harbison (Tennessee)
22 Newton Anderson (Texas)
27 Donald Miller (Texas)

March
6 Robert Perez (Texas)
7 Joseph Nichols (Texas)
20 Kenneth Biros (Ohio)
28 Vincent Gutierrez  (Texas)
29 Roy Pippin (Texas)

More Execution information

Supreme Court
Cunningham v. California, No. 05-6551 (1/22/2007) Under the Sixth Amendment, save waiver by the Defendant, juries, not judges, determine facts.  California's sentencing scheme, no matter how the state courts dress it up, requires judicial fact finding under its determinative sentencing scheme.

In Favor of Life or Liberty

Advance Sheet for Week of January 15, 2007 Norman Timberlake v. State, 2007 Ind. LEXIS 50 (Ind. 1/17/2007)  Stay granted in light of Panetti v. Quarterman on the standard of competency to be executed.

Advance Sheet for Week of January 22, 2007James Melton v. Ayers, Case 2:89-cv-04182-RMT (C.D.CA 1/23/2007) The "Court finds that as a result of [ ] improper medical treatment with excessive doses of psychotropic drugs for significant periods of time during his trial . . . Melton lacked a rational understanding of the proceedings against him and was deprived of the ability to participate in his defense in a rational manner."
Robinson, et. al v. Beck, et. al, 07 CVS 001109 (N.C. Super. Wake 1/25/2007) The deletion of physician involvement in the execution process has not been properly reviewed under state administrative law and therefore pending executions must be stayed under such review is undertaken.

Favoring Death
Week of January 15, 2007
Stephen Moody v. Quarterman, 2007 U.S. App. LEXIS 975 (5th Cir 1/17/2007) The district court's grant of relief on Batson ground relief reversed as it failed to give proper deference to the state court's fact finding.

Van v. Jones, 04-2277 (6th Cir 1/16/2007) Van asks whether a consolidation hearing is a critical stage of the prosecution that triggers a defendant’s right to a lawyer. The petitioner, a Cambodian with limited English skills, was the ringleader of a vicious assault. Van was not represented by counsel at the hearing in which the trial court consolidated Van’s trial with that of three other defendants. The majority concludes that Van was not prejudiced by this decision, so there is no Sixth Amendment issue. Judge Moore dissents, arguing that a consolidation hearing is always a critical stage. Because she would hold that defendants should always have attorneys at consolidation hearings, she concludes that the question of prejudice is irrelevant. (via Rob Loblaw)

Michael Benge v. Johnson, 2007 U.S. App. LEXIS 856 (6th Cir. 1/16/2007) Benge asks whether an attorney in a capital case was constitutionally ineffective for failing to object to flawed jury instructions. As in Van, the majority concludes that the defendant was not prejudiced. Judge Martin dissents, using the case as another opportunity to criticize the death penalty as arbitrary. Here, the only aggravating factor in the underlying murder was that Benge stole the victim’s ATM card while killing her. (via Rob Loblaw)

Glen Rogers v. State,  2007 Fla. LEXIS 13 (FL 1/18/2007) Relief denied most notably on: "(1) the introduction of evidence of a prior misdemeanor assault; (2) the trial court’s failure to grant a mistrial after improperly allowing the introduction of the prior misdemeanor assault in front of the jury; (3) the prosecutor making the “Desert Storm” comment during closing argument of the penalty phase; and (4) appellate counsel’s ineffectiveness in failing to research caselaw and argue on direct appeal that the jury should have been instructed on the statutory mitigator of being under the influence of extreme mental or emotional disturbance based upon all the evidence in the record."

State v. Darrell Draughn,  2007 La. LEXIS 10 (LA 1/17/2007) Relief denied on direct appeal on 27 different issues including sufficiency; race-based strikes by the state and admission in the penalty  phase of an unrelated murder and another assault for which Draughn had been charged, but not convicted.

Advance Sheet for Week of January 22, 2007
Christopher Emmett v. Kelly, 2007 U.S. App. LEXIS 1405 (4th Cir 1/23/2007) (dissent)  Relief denied on two claims of ineffective assistance of counsel at sentencing: "(1) failure to adequately investigate Emmett’s family and social background; and (2) failure to request the assistance of a toxicologist or substance abuse expert to present evidence about Emmett’s intoxication at the time of the crime." HAT has more analysis.

Derrick Sonnier v. Quarterman, 2007 U.S. App. LEXIS 1336 (5th Cir 1/22/2007) Relief denied "Having received no COA from the district court, Sonnier asked the Fifth Circuit for a COA on three issues: (1) ineffective assistance of counsel for (a) failing to investigate mitigating evidence and (b) failing to present mitigating evidence; (2) constitutional entitlement to instruction that life sentence meant no possibility of parole for 35 years; and (3) the Texas death penalty statute, as amended in September 1991, is unconstitutional." HAT has more analysis.
Von Taylor v. State, 2007 Utah 12 (Utah 1/26/2007) "Taylor argues that he is entitled to post-conviction relief primarily because he received ineffective assistance of counsel from both his trial and appellate counsel. Specifically, he argues that appellate counsel was ineffective for failing to (1) challenge Taylor's guilty plea; (2) conduct a mitigation investigation or challenge trial counsel's failure to investigate and present mitigation evidence; (3) challenge the jury instructions; (4) challenge the voir dire procedure; (5) challenge trial counsel's behavior during jury selection; (6) challenge the trial court's failure to order competency hearings; (7) challenge the admission of hearsay evidence at sentencing; (8) raise a claim of prosecutorial misconduct; and (9) raise various constitutional challenges to his death sentence. We address each of Taylor's claims in turn and ultimately affirm the district court's order of summary judgment." Note that HAT has more analysis, including that the opinion contains some good language on ineffective assistance of counsel.

Noncap
Cristobal Benitez v. Garcia, 2007 U.S. App. LEXIS 1338 (9th Cir 1/22/2007) International agreements relating to the rendition of Benitez to the United States means that Benitez could not be sentenced to more than the agreed upon maximum term.

Selected Excerpts from, & Commentary on, this Edition's Cases

Cunningham v. California, No. 05-6551 (1/22/2007) Under the Sixth Amendment, save waiver by the Defendant, juries, not judges, determine facts.  California's sentencing scheme, no matter how the state courts dress it up, requires judicial fact finding under its determinative sentencing scheme.  Among the better reviews of Cunningham comes from Austin, Texas lawyer Jamie Spencer & from Ben Barlyn at Corrections Sentencing.
In a long-awaited decision handed down today, the United States Supreme Court, in Cunningham v. California, concluded that California 's determinate sentencing law (DSL) violates the Constitution's Sixth Amendment right to a jury trial under the principles established in Apprendi v. New Jersey and subsequently refined in Blakely v. Washington and United States v. Booker.

At issue in Cunningham is a sentencing scheme that authorizes three terms of imprisonment — a lower, middle, and upper term sentence. Much the same as the original sentencing provisions in New Jersey's Code of Criminal Justice, the DSL directs the sentencing judge to begin with the middle term, and to move from that term only when the court finds and places on the record facts — whether related to the offense or offender — that sustain statutory and non-statutory mitigating and aggravating factors. A judge may impose an upper term sentence only when he or she finds an aggravating factor. In addition, these findings must, under the DSL, be established by a preponderance of the evidence.

Writing for the majority, Justice Ginsburg concluded that "the middle term prescribed in California 's statutes, not the upper term, is the relevant statutory maximum. Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi's bright-line rule . . . ."

Regarding the appropriate remedy, Justice Ginsburg stated that the ball lies in California 's court. She further observed that while some states have responded to Apprendi by requiring the jury, rather than a judge, to find certain facts relevant to sentencing, "others have chosen to permit judges genuinely 'exercise broad discretion . . . within a statutory range which 'everyone agrees' encounters no Sixth Amendment shoal."
Norman Timberlake v. State, 2007 Ind. LEXIS 50 (Ind. 1/17/2007)  Stay granted in light of Panetti v. Quarterman on the standard of competency to be executed.  From HAT: On January 17, 2007, the Indiana Supreme Court issued an order staying the execution of Norman Timberlake, who was scheduled to be executed on January 19th. Timberlake v. State, ___ N.E.2d ___, 2007 WL 102583 (Ind. Jan. 17, 2007). That same court, on December 15, 2006, had denied his request to file a successive petition for post-conviction relief. In that petition, Timberlake sought to raise a claim that it would violate his state and federal constitutional rights to execute him “because he is severely mentally ill, insane and incompetent to be executed.” An independent psychiatrist had evaluated Timberlake at the request of the court. The expert found that Timberlake suffers from “an active and severe form of a serious mental disease” and that Timerlake believed that he was being “tortured by a computer-driven machine at the behest of prison officials.” However, the expert also found that Timberlake understood he was to be executed and why. The majority of the court therefore found that Timberlake failed to meet the Ford v. Wainwright 477 U.S. 399 (1986) standard for incompetency to be executed.

In granting a stay of execution, the court observed that the United States Supreme Court has never squarely adopted the incompetency test the court applied to Timberlake’s claim, which was taken from Justice Powell’s concurring opinion in Ford. Further, the recent cert grant in Panetti v. Dretke, indicates the Supreme Court “may soon revisit and address the application of the Eighth Amendment to claims that mental illness bars execution.” After comparing Timberlake’s situation with Panetti’s, who believes that he is being “persecuted for his religious activities and beliefs,” the Indiana Supreme Court found sufficient similarities in the cases to justify staying the execution.