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September 16, 2008

Death Penalty CLE Opportunities

From Capital Defense Weekly:

Life Over Death
By:Florida Public Defender Association
Sep 10 - Sep 13, 2008
Naples, FL

Making the Case for Life XI
By:National Association of Criminal Defense Lawyers
Sep 25 - Sep 27, 2008
Biloxi, MS

Annual Capital Seminar
By:Oregon Criminal Defense Lawyers Association
Oct 17 - Oct 18, 2008
Welches, OR

Federal Death Penalty Strategy Session
October 31-November 1, 2008
Phoenix, Arizona

Capital Representation Seminar
By:Utah Association of Criminal Defense Lawyers
Nov 01, 2008
Salt Lake City, UT

Annual Death Penalty Seminar
By:Ohio Association of Criminal Defense Lawyers
Nov 19 - Nov 21, 2008
Worthington, OH

July 23, 2008

Death Penalty CLE

Capital Defense Weekly lists CLE opportunities for capital defense counsel:

Bryan R. Schechmeister Death Penalty College
August 2-7, 2008
Santa Clara University
Santa Clara, CA

Thirteenth Annual National Federal Habeas Corpus Seminar
August 21-24, 2008
St. Louis, MO

Expert Witnesses in Capital Cases
By:Texas Criminal Defense Lawyers Project
Aug 22, 2008
Plano , TX

Life Over Death
By:Florida Public Defender Association
Sep 10 - Sep 13, 2008
Naples, FL

Making the Case for Life XI
By:National Association of Criminal Defense Lawyers
Sep 25 - Sep 27, 2008
Biloxi, MS

Annual Capital Seminar
By:Oregon Criminal Defense Lawyers Association
Oct 17 - Oct 18, 2008
Welches, OR

Capital Defense Mental Health Training
By: The National Consortium for Capital Defense Training
Oct 17- Oct 18, 2008
New Orleans, LA

Federal Death Penalty Strategy Session
October 31-November 1, 2008
Phoenix, Arizona

Capital Representation Seminar
By:Utah Association of Criminal Defense Lawyers
Nov 01, 2008
Salt Lake City, UT

Annual Death Penalty Seminar
By:Ohio Association of Criminal Defense Lawyers
Nov 19 - Nov 21, 2008
Worthington, OH

Death Penalty 2008
by: Maricopa County Public Defender
Dec. 04 - Dec. 05, 2008
Maricopa, AZ

July 14, 2008

Death Row USA Winter 2008 released

The NAACP Legal Defense and Educational Fund has released its quarterly report, Death Row USA for Winter 2008. The report includes a list of significant criminal and habeas cases decided in the October 2007 term, or on the docket for the October 2008 term, in the United States Supreme Court.

The report states that Nevada has 77 prisoners on death row, 28 (36%) are black, 40 (52%) are white and 8 (10%) are Latino. (Page 34 of the report). Details on specific Nevada cases are at page 53 of the report.

July 11, 2008

Death row inmate found dead in cell

The Associated Press reports that death row inmate Daniel Jones, 47, was found dead in his cell at Ely State Prison. The cause of death is not yet known.

July 08, 2008

Must read materials for capital defense counsel

Via Capital Defense Weekly, Hofstra Law Review has just released an edition devoted to the topic of mitigation in capital cases. The edition includes the American Bar Associations' Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases.

July 01, 2008

California conducts extensive study on costs of death penalty

The California Commission on the Fair Administration of Justice has conducted an extensive review of California's death penalty system. The report is available here. Among other findings, the Commission concludes that eliminating the death penalty and substituting terms of life without the possibility of parole would save California approximately $120,000,000 per year. The cost of implementing new procedures designed to decrease time from judgment to execution from 25 years to 12 years would be an additional $95,000,000 per year.

June 17, 2008

Death Penalty Update

Via Capital Defense Weekly, on June 13th the 9th Circuit granted penalty phase relief in a habeas corpus proceeding to Fernando Belmontes:

"We affirm the district court’s ruling that Belmontes received deficient representation at the penalty phase of his trial, but set aside its ruling that he suffered no prejudice as a result. We hold that counsel's failure to introduce adequate lay witness testimony regarding Belmontes's childhood experiences and his failure to explain to the jury the consequences of the minimal mitigating evidence he did introduce was prejudicial, especially in light of the scant aggravating evidence and the uncertainty the jury indicated about the sentence it should impose. We also hold that counsel's failure to introduce expert witnesses to testify to the relationship of the type of childhood traumas suffered by Belmontes to future criminal conduct, and thus to offer important mitigating expert testimony was prejudicial and thus provides a separate and independent basis for reversal, again especially in light of the circumstances referred to above. Accordingly, we remand to the district court with instructions to grant the petition for writ of habeas corpus and to return the case to the San Joaquin County Superior Court to reduce Belmontes's sentence to life without parole, unless the State pursues a new sentencing proceeding within a reasonable amount of time, as determined by the district court."

Headlines from the Death Penalty Information Center:
New Voices: Another Texas Death Penalty Official Has Second Thoughts
Costs for New California Death Row Soar to $400 Million
FBI Report: Murder rate falls 2.7% nationally, but rises in the south
The Story of a Death Row Inmate Who Wanted to Die
VA Governor Commutes Death Sentence of Mentally Ill Man
Mexico Asks World Court to Stay U.S. Executions of Foreign Nationals
Criminal Justice Integrity Unit Created by Texas High Court to Address Growing Concerns
New Resources: Study on Quality of Defense Representation in Tennessee Death Penalty Cases
Severely Mentally Ill Death Row Inmate Resentenced to Life 27 Years After Crime
Oklahoma Man to be Executed Based on Jailhouse Snith; Rebuttal Evidence Excluded by Judge

From Sentencing Law and Policy: Capital case lawyer pay called low. Baltimore Sun 6/17/08

May 21, 2008

Death Penalty Update

Headlines from the Death Penalty Information Center:

New Voices: Former New Jersey Supreme Court Justices Discuss the Failure of the Death Penalty Law

Execution Stay Continued in Delaware

Mississippi Preparing To Execute Man Despite Strong Evidence of Mental Retardation

Maryland Creates Commission to Study Death Penalty

Books: The Death Penalty: A Worldwide Perspective

New Voices: American Bar Association President Calls for Death Penalty Moratorium

US Supreme Court Agrees to Hear Virginia Case on Quality of Representation

New Voices: "How New Jersey Abolished The Death Penalty"

April 04, 2008

New Mexico court strikes death penalty - no $

Death Penalty Information Center reports the following:


"In a potentially far reaching ruling, a trial judge in New Mexico has barred the state from seeking the death penalty because the legislature has failed to provide adequate funding for defense representation. The state's Attorney General, Gary King, agreed that the capital prosecution cannot go forward. After finding that funding for the defense was insufficient and raised constitutional problems, King wrote, 'The state now confesses the motion to dismiss filed herein and cannot in good faith under these circumstances oppose the dismissal of the death penalty in these cases.' State District Judge Neil Candelaria took the death penalty off the table for Reis Lopez and Robert Young, two inmates accused of killing a prison guard, because no money was appropriated for death penalty indigent defense during New Mexico's 2008 Legislative Session, despite a unanimous warning from the state Supreme Court. The legislative session ended in February."

March 31, 2008

Death Penalty Update

Headlines from the Death Penalty Information Center:
Studies: "Prosecutorial Discretion and Capital Punishment in Missouri
Maryland approves death penalty study commission
Georgia rejects non-unanimous jury verdicts proposal
U.S. Supreme Court exempts Texas courts from World Court ruling
After two Supreme Court reversals, Texas man sentenced to life

Posts from Capital Defense Weekly:
Two notable state supreme court opinions on the right to privacy
VHAC update
Presumed guilty
Scott Panetti on remand
The Eleventh Circuit paints a dim picture of life in the lower federal courts
The hidden costs of the death penalty: California
Abu Jamal v. Horn
Exceptional (noncapital) federal lawyering
A death sentence reversed in Oklahoma
Legislative update

Reports by the ACLU on California's death row:
The hidden death tax: the secret costs of seeking execution in California
Death by Georgraphy


March 21, 2008

Death Penalty updates

Headlines from the Death Penalty Information Center:
New Poll Finds Increase in Opposition to Death Penalty
Events: The Legislative Abolition of the Death Penalty in New Jersey
Supreme Court Strikes Down Conviction of Death Row Inmate Because of Bias in Jury Selection
New Voices: US Attorney General Opposes Death Sentences in Military Commission Trials
Georgia Supreme Court Denies New Trial to Death Row Inmate with Innocence Claim
New Resources: Native Americans and the Death Penalty
Study Reveals Maryland Pays $37 Million Per Execution

Posts from Capital Defense Weekly:
An oldie but goodie on eyewitness testimony (video)
Lingering doubt
One last look at Snyder
Race still matters in jury selection
Death penalty study bill looks to pass in Maryland
Losses in the heart of old Dixie
New scholarship on charging decisions
A key rehearing
Poll numbers

February 11, 2008

Not guilty verdict in capital case

Congratulations to Bret Whipple and Kristina Wildeveld on a verdict of not guilty on the charge of first degree murder for their client Kenneth Counts. Counts was facing the death penalty on this charge. The trial ended on Friday, February 8. For some reason, the local media missed this one.

February 03, 2008

Death Penalty Update

From Sentencing Law and Policy:
Could Nebraska become the next state to repeal its death penalty? 2/3/08
Scotus grants last-minute execution stay in Alabama 1/3/108

Headlines from Capital Defense Weekly:
Proportionality review: Florida Supreme Court strikes down death sentence
Physicians and executions
Japan: attempting to liquidate its death row?
stay in 'bama
Caseloads: SC Supremes issue a warning
In other news
Asking for abuse
Another man cleared by DNA in Dallas

January 08, 2008

In the news

Mack claims judge (Weller) sought money in plea deal. RGJ 1/8/08

Mack: "psychologically raped" by lawyers. RGJ 1/7/08


9 incumbent Washoe County judges file for re-election
. RGJ 1/8/08

Clark County Judges: 54 file for judicial positions
. LVRJ 1/8/08

New US Attorney for Nevada sworn in. Nevada Appeal 1/8/08

Nevada high court justice seeks re-election. Nevada Appeal 1/8/08

Gibbons seeks re-election to Supreme Court
. LVRJ 1/8/08

ACLU follows up on report on inmate care at Nevada prison.
Nevada Appeal 1/8/08

Nevada judicial panel files complaint against judge. Nevada Appeal 1/7/08

Judicial Discipline Commission: Judge faces misconduct charge. LVRJ 1/8/08

Editorial: death penalty procrastination. LVRJ 1/8/08

Editorial: Public Defenders. LVRJ 1/8/08

Justices chilly to bid to alter lethal injections. NYTimes 1/8/08

Justices seem unswayed by lethal injection foes. NYTimes 1/8/08

Scotusblog also provides analysis of the lethal injection oral arguments and provides links to the transcripts.

FBI data shows drop in crime. NYTimes 1/8/08

If your hard-drive could testify. Adam Liptak NYTimes 1/8/08

December 20, 2007

DoJ files brief on confrontation right at sentencing

Via Scotusblog, the Justice Department filed a brief in Fields v. United States this week in which it argues that the Supreme Court should not accept certiorari on the issue of whether the Confrontation Clause applies at a capital sentencing hearing. Fields filed a reply brief today in which his counsel argues that this issue is ripe for a determination by the Supreme Court based upon the conflict in lower court decisions.

This case may have a significant impact on Nevada based upon last years 4-3 decisions holding that the Confrontation Clause does not apply to capital sentencing trials. The certiorari petitions of Donte Johnson and Marlo Thomas remain pending before the Supreme Court and are presumably being held for consideration along with Fields.

DPIC issues year end report

The Death Penalty Information Center has issued its Year End Report for 2007.

December 19, 2007

DOJ releases annual report on capital punishment

Via Sentencing Law & Policy, the Department of Justice has released its annual report on the death penalty: Capital Punishment, 2006 - Statistical Tables.

The report reveals that at the end of 2005, Nevada had 83 death row inmates, 50 of whom were white and 32 of whom were black. One person was removed from death row, one person was executed and one person was added to the rolls under a new sentence of death, resulting in a total of 82 death row inmates at the end of 2006.

Nationally, there were 3,228 inmates on death row: 115 were added during the year and 132 were removed. Racial composition was 56% white, 42% black. 11% were of Hispanic origin.

Nationally, 11% of death row inmates were 19 or younger at the time of arrest, 28% were between 20 and 24 years old, 23% were between 29 and 29 years old, 17% were between 30 and 34 years old.

Since 1977, 1,057 have been executed: 379 in Texas, 98 in Virginia (the second highest state), and 12 in Nevada.

Since 1977, there have been 7,433 people on death row in the nation: 1,057 (14.2%) have been executed while 3,148 (42.4%) have received other dispositions -- including relief on appeal, commutations or death by means other than execution.

The average time from sentence of death to execution is 145 months.

In 2006, there were 53 executions: the lowest number since 1996.

In 2006, 115 new people received sentences of death. This is by far the lowest number in the decade for which the statistic is available. There were 326 new death row inmates in 1995 and 138 new death row inmates in 2005.

The Department of Justice reports that in 2007 there were 42 executions, 26 of which were in Texas.

December 12, 2007

Death penalty update

Headlines from the Death Penalty Information Center:
Kentucky Govenor Commutes Death Sentence Before Leaving Office
New Jersey Senate Approves Abolition Bill 21-16
Editorials: The Myth of Deterrence
Innocence: Another Inmate is Exonerated, After 16 Years on Death Row
Resources: Leading Criminologist Recommends Halt to Executions as Public Policy Priority
Innocence: Study Looks at Life After Exoneration for Those Freed Through DNA
US Supreme Court Addresses Discriminatory Jury Selection in Death Penalty Case

Headlines from Capital Defense Weekly:
Commutation in Kentucky
I hate writing the term "another sort of homecoming"
NJ Senate votes to abolish. Key NJ Assembly Comm. refers bill for house vote
e-mail edition available
A curious challenge to the federal death penalty
Feds drop death penalty in all remaining Aryan Brotherhood prosecutions
attempted drive by sliming
Year end report: Texas
Fascinating Idaho developments


December 06, 2007

Recent developments w/ death penalty & US Supreme Court

Scotusblog reports that both the Petitioner and Respondent in Arave v. Hoffman are seeking dismissal of the cert. proceeding which is currently pending before the Court. Certiorari was granted last month on the issue of whether trial counsel was ineffective based upon his advice to the defendant/Petitioner not to take a plea offer and if so, whether the appropriate remedy was to compel reinstatement of the plea offer. The defendant/Petitioner indicated his desire to stop proceedings which concerned the guilt phase of his case. New sentencing proceedings remain pending in the Idaho court.

In other capital news, the Court delayed the execution of an Alabama defendant who was scheduled to be executed tonight at 6 pm.

November 16, 2007

Louisiana defends death penalty for child rape

Scotus blog provides analysis of the arguments in Kennedy v. Louisiana, which presents the issue of whether a state may impose the death penalty for persons convicted of child rape. Louisiana recently filed its Brief in Opposition. Scotusblog provides links to the brief, as well as links to the Opening Brief and Amicus Briefs.

November 14, 2007

Docs filed in Nevada lethal injection challenge

On October 29, 2007, the Nevada Supreme Court entered an order re: specific issues to be addressed by the parties in ACLU of Nevada v. Skolnik. The order is now available online. The Court ordered the parties to address whether there is third-party standing to challenge an execution under the facts and circumstances presented here, which include the fact that the defendant has knowingly, voluntarily and intelligently waived any challenge to his execution. The Court also directed briefing on chemical masking as a violation of the First Amendment and on the issue of whether lethal injection violates the Eighth Amendment.

The Petitioners' Opening Brief was filed on November 5th and is now available online.

November 13, 2007

Amicus briefs filed on lethal injection case

Via Sentencing Law and Policy and LethalInjection.org: Amicus briefs have been filed in the Supreme Court's case in Baze v. Rees by the following organizations:

Brief for The Fordham University School of Law, Lewis Stein Center for Law and Ethics

Brief of The American Civil Liberties Union and the Rutherford Institute

Brief of Critical Care Providers and Clinical Ethicists

Brief of the American Association of Jewish Lawyers and Jurists

Brief of Human Rights Watch

Also, a brief for Amici Curiae Michael Morales, Michael Taylor, Vernon Evans, Jr. and John Gary Hardwick was filed by the University of California Berkeley School of Law Death Penalty Clinic.


An amicus brief was also filed by Drs. Kevin Concannon, Dennis Geiser, Carolyn Kerr, Glenn Pettifer and Sheila Robertson

An amicus brief filed in support of neither party was filed by Anesthesia Awareness Campaign, Inc. and another was filed by the American Society of Anesthesiologists.

In the news

It's a light day for Nevada legal news, so check out the following:

Die Hardest: Why the states are standing by their outdated, messy lethal-injection protocols. Dahlia Lithwick, Slate 11/12/07

Justice Dept. Chief Faces a Test in Minnesota. NYTimes 11/10/07

Supreme Court May Take Gun Case
. NYTimes 11/13/07

White House Ordered to Preserve E-mails. NYTimes 11/13/07

White House Ordered to Keep E-Mails. Washington Post 11/13/07

Lawyer's Long Fight for Democracy Puts Him in Familiar Place: Jail
. NYTimes 11/13/07

Guantanamo defense lawyers see stacked deck. LATimes 11/13/07

Panel May Cut Sentences For Crack: Thousands Could Be Released Early. Washington Post 11/13/07

November 08, 2007

Nevada Supreme Court hears oral argument in Flanagan case

On Tuesday, the Nevada Supreme Court heard oral argument in the capital habeas case of Flanagan v. State. Audio of the oral argument is available here.

Robert Newell from Portland appeared on behalf of Flanagan. He argued that he was entitled to an evidentiary hearing based upon claims raised in the petition and argued that trial counsel's repesentation of Flanagan was ineffective. Issues included the fact that Judge Mosley ordered that defense counsel place their objections during trial on the record to the court reporter during breaks and that the objections not be made in the presence of the court or jurors. Other issues concern failure to disclose exculpatory evidence, failure to investigate, and jury instruction issues. This case also presents a McConnell issue because the State relied upon a felony murder theory of liability and also obtained two felony murder aggravating circumstances. The Court did not ask any questions during the first argument.

Steve Owens appeared on behalf of the State of Nevada. He contended that the petition was procedurally barred because the guilt phase of the trial was affirmed over 20 years ago, even though the case was remanded for two penalty hearings after the guilt phase was affirmed. The State argues that post-conviction proceedings should be bifurcated for guilt phase and penalty phase proceedings. [btw - I have briefed this issue on behalf of Flanagan's co-defendant and the State is wrong, wrong, wrong on this issue as there is not now nor has there ever been any Nevada authority supporting such a scheme and the federal authorities also do not support this assertion]. The State agreed that the burglary and robbery aggravators should be stricken under McConnell, but argues that death is still appropriate as there are two other aggravators. As he did in Hernandez, Mr. Owens argued that the felony murder aggravators did not matter because the same evidence would have been presented and that the "label" assigned to the aggravator did not matter. He fails to address the fact that the "label" is critical to the weighing equation under Nevada's death penalty scheme. Mr. Owens also expressed his dissatisfaction with the Court's decision in Sharma concerning aiding and abetting liability. In response to a supplemental brief addressing the 9th Circuit's decision in Polk, the State asks the Court to overrule Byford and find that the elements of premeditated, willful and deliberate are a single element of first degree murder rather than three distinct elements. He claimed that the State faces the possibility of a new trial in every murder case that went to trial prior to 2000 based upon the Polk decision. He also attempted to distinguish Polk on various grounds. The audio was a little quiet, but I believe it was Justice Cherry who asked two questions of Mr. Owens concerning the procedural default issue and a question concerning the claim of actual innocence. No other questions were asked.

November 07, 2007

Nevada Supreme Court hears argument in Hernandez appeal

The Nevada Supreme Court heard oral argument yesterday in the appeal from an order denying a post-conviction petition for a writ of habeas corpus. The audio file is available here. Issues presented by Anthony Sgro, Hernandez's counsel, included whether the district court's canvass of the defendant was sufficient insofar as he agreed to his attorney's admission of certain facts. He next argued that the aggravating circumstance of burglary was invalid under the Court's decision in McConnell because felony murder was argued as a theory of liability on the first degree murder charge. He also argued that McConnell should be extended to cover cases where murder by torture was a theory of liability for first degree murder and the torture aggravating circumstance was found based upon the same facts. Questions were presented by Justices Hardesty, Cherry, and Chief Justice Maupin.

Steve Owens of the Clark County DA's office represented the State.

Opening Brief filed in US Supreme Court lethal injection case

Via Capital Defense Weekly, the Opening Brief in the Baze v. Rees case before the US Supreme Court has been filed. This is an excellent resource for those presenting lethal injection issues.

November 06, 2007

In the news

Local drug court program helps many avoid prison time. Lahontan Valley News 11/6/07

Plants allegedly attacks inmate while awaiting her sentencing. Lahontan Valley News 11/6/07

Ruling in Gammick lawsuit to take weeks. RGJ 11/6/07

Gammick says pleas 'a good resolution.'
RGJ 11/6/07

Coroner's inquest is up for debate.
LVSun 11/5/07

Murder trial: pawnshop owner takes deal.
LVRJ 11/6/07

With brothel plans delayed, Madame does laundry. NYTimes 11/6/07

"Bad' legal advice and the death penalty. NYTimes 11/6/07

Is bad counsel something to die for
. LA TImes 11/6/07


Nevada: Guilty plea in wife's slaying.
NYTimes 11/6/07

House Democrats Press Bush on Subpoenas. Huffington Post 11/5/07

November 04, 2007

Death Penalty Update

Headlines from Death Penalty Information Center:

Texas Prosecutors Ask for Delay in Executions Until Supreme Court Issues Lethal Injection Ruling

Closing of the Capital Defender Office Will Save the State Millions as New York's Death Penalty Ends

New Mexico Supreme Court Stops Death Penalty Trial Over Funding Issue

PUBLIC OPINION: Poll Reveals Marylanders Prefer Life Without Parole Over Death Penalty

Attorneys' Organization Files Judicial Conduct Complaint Against Texas Appeals Judge

NEW RESOURCES: ABA's Human Rights Journal Highlights Death Penalty Issues

CAUSES OF VIOLENCE: Experts Indicate Crime Can Rise When Funds are Diverted From Police to War and Terrorism

Experts Explain Why the Death Penalty Does Not Deter Murder

New York High Court Overturns Last Death Sentence Because Statute is Unconstitutional

NEW VOICES: Former Tennessee Attorney General and Federal Judge Cite Crisis in State's Death Penalty

Capital Defense Weekly reports on the following:

they seem to be getting desperate

New York Times runs pieces on Sunday

new scholarship

Adieu to a bunch of great lawyers

Moratorium: Texas

Florida weighs in on LI (lethal injection)

Dow on the last lethal injection execution

LI Update

NY Times examines expense of death penalty

In Capital Cases Stalling as Costs Grow Daunting, the New York Times reports on the costs of the Nichols case in Georgia and problems in other jurisdictions in finding qualified counsel who are willing to take capital cases for the relatively low pay offered in those states.

October 30, 2007

US Supreme Court grants stay in death penalty case

With 15 minutes to spare, the United States Supreme Court issued a stay, in a 7-2 decision, of a Mississippi execution that was to take place at 6 pm Tuesday night. Many believe that this signifies that a moratorium is essentially in place until the Court determines the constitutionality of lethal injection.

New Mexico court examines cost of counsel in death penalty cases

Via Capital Defense Weekly:

The New Mexico Supreme Court's recent opinion in State v. Robert Young, NO. 29,467 (N.M. 10/25/2007), provides an extensive examination of the cost of defense counsel in capital cases.

The issue presented is whether indigent defendants accused of capital crimes are unconstitutionally deprived of effective assistance of counsel when their counsel are inadequately compensated. The New Mexico court finds that under the facts of the case, counsel for the defendants are inadequately compensated, and as such defendants are deprived of the effective assistance of counsel. The Defendants asked the Court to consider three different remedies: (1) allow their attorneys to withdraw; (2) order the State to compensate counsel at a reasonable hourly rate; or (3) dismiss the death penalty.

According to the AP, Reis Lopez and Robert Young were charged with killing Ralph Garcia, who was a guard at a privately operated prison in Santa Rosa. Prosecutors brought charges against 15 inmates but sought the death penalty against three.

The attorney general's office and the state Public Defender Department had argued that enough money had been allocated for an adequate defense of the inmates. Fees for the defense lawyers were revised several times, according to the court, and contract amendments were offered that provided for a total of $46,500 for each main attorney through trial and $23,000 for each second-chair attorney. The defense lawyers did not sign the contract amendments, however. In 2005, the Legislature provided an additional $100,000 for each of the three death penalty defense teams. An extra $200,000 per defense team had been requested from the Legislature, but lawmakers trimmed the amount. About $870,000 also had been provided by lawmakers but defense lawyers say that should go only to pay for expert witnesses.

In addressing the merits the Court in the case.

As a general rule, the gravity of the death penalty and its requisite heightened scrutiny require a significantly greater degree of skill and experience on the part of defense counsel than is required in a noncapital case. See ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 1.1, History of Guideline (rev. ed. 2003), in 31 Hofstra L. Rev. 913, 921 (2004) [hereinafter ABA Guidelines]. Capital defense teams must spend more time preparing for and trying a capital case than for non-capital cases. See State Bar of N.M., Task Force to Study the Administration of the Death Penalty in New Mexico, Final Report 6 (2003) [hereinafter New Mexico Task Force Final Report] (discussing a study of capital defense in federal courts and noting the "unique strains" placed on capital defense counsel, such as spending more time with a capital client, "unique and intensive training," and lengthy, complex jury selection). Therefore, it is indisputable that the prosecution and defense of capital murder cases are substantially more expensive than in non-capital cases.

Yet the financial burden on attorneys who contract to defend capital cases is not measured simply by the amount of time devoted to defending such cases. "[T]he demands of handling a death penalty case frequently preclude acceptance of other employment while the case is being litigated." See id. Unlike the public defenders employed by the PD, capital defense attorneys must pay overhead. Finally, because representation in capital cases requires specialized skills, intensive training relating to substantive areas of mitigation, forensic science, and practical instruction in advocacy skills is required.

Because of the extraordinary demands on capital defense attorneys, ABA Guidelines, Guideline 8.1 Commentary, in 31 Hofstra L. Rev. at 979, the American Bar Association has condemned flat fees, caps on compensation, and lump-sum contracts in death penalty cases. Id., Guideline 9.1(B)(1), in 31 Hofstra L. Rev. at 981. Rather than a flat fee or a capped rate, the ABA Guidelines stress that "[c]ounsel in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation." Id., Guideline 9.1(B), in 31 Hofstra L. Rev. at 981.

The Court's conclusion:

Defense counsels' compensation is inadequate under the facts of this case, violating defendants' Sixth Amendment right to effective assistance of counsel. Prosecution of the death penalty is stayed unless the State makes adequate funds available for the defense. We have set the hourly rate and maximum compensation based on the unique circumstances of this case. In doing so, we make no determination that similar fees or rates are constitutionally required in other cases.

October 25, 2007

ABA publishes entire volume on the death penalty

Articles in the ABA Spring 2007 volume include the following:
Monitoring Death Sentencing Decisions
Mental Disability and Capital Punishment
ABA State Death Penalty Assessments
Raising the Bar in Capital Cases
The Global Debate on the Death Penalty
Staying Executions
Human Rights Hero: Anthony G. Amsterdam

October 20, 2007

Supreme Court releases report of murder and voluntary manslaughter for 2005 & 2006

The Administrative Office of the Courts has released its Report of Murder and Voluntary Manslaughter for Calendar Years 2005 and 2006. The 44 page report, for which 16 of 17 counties reported, provides statistics concerning murder and many manslaughter cases. Among the findings:

In 2005, 10 of 16 counties did not have any murder or voluntary manslaughter cases.
In 2006, 8 of 16 counties did not have any murder of voluntary manslaughter cases.

In 2005, there were 98 cases statewide.
In 2006, there were 122 cases statewide.

In 2005, Clark County had 87% of the murder and voluntary manslaughter cases. Washoe County had 5%.
In 2006, Clark County had 85% of the murder and voluntary manslaughter cases. Washoe County had 8%.

In 2005, the average age of defendants was 28 years, with a median age of 24 years.
In 2006, the average age of defendants was 30 years, with a median age of 27 years.

In both 2005 and 2006, 85% of the defendants were males.

In 2005, 29% of the defendants were black, 32% were white, and 30% were Latino.
In 2006, 33% of the defendants were black, 34% were white, and 21% were Latino.

In 2005 and 2006, 70% of victims were males.

In 2005 and 2006, the average of victims was 32 years and the median age was 30 years.

In 2005, 24% of the victims were black, 36% were white, and 33% were Latino.
In 2006, 18% of the victims were black, 31% were white and 27% were Latino.

In 2005, the average time lapsed between the date of homicde & the date of filing the indictment was 221 days. The range was 1 day to 8,160 days (more than 22 years).

In 2006, the average time lapsed between the date of homicide & the date of the filing of the indictment was 270 days. The range was 1 day to 11,645 days (more than 31 years).

In 2005, the death penalty was sought in 16 of 113 cases, which is 14%.
In 2006, the death penalty was sought in 17 of 141 cases, which is 12%.

In 2005, 22 (19%) of the cases were tried before a jury, 46 (41%) were disposed of by dismissal, plea or other disposition. The remaining cases did not have a disposition.
In 2006, 8 (6%) of the cases were tried before a jury, 36 (25%) were disposed of by dismissal, plea or other disposition. The remaining cases did not have a disposition.

The report includes other statistics for 2005 and 2006 and also includes updated information for 2003 and 2004.


October 17, 2007

In the news

Nine potential jurors advance past initial round. LVRJ 10/17/07

Drive-by shooting: man gets 40 years for role in slaying. LVRJ 10/17/07

30 month sentence: Kenny reports to prison.
LVRJ 10/17/07

County seeks way to keep courts afloat. LVRJ 10/17/07

House OKs Free Flow of Information Act, 398-21. LVRJ 10/17/07

Tasers drop the perp., get the facts. LVSun 10/17/07

Q&A: Nancy Hart. LVSun 10/17/07

Editorial: Reviewing lethal injection. LVSun 10/17/07

October 16, 2007

More on Nevada's stay of executions

The Nevada Supreme Court has posted additional materials concerning the ACLU of Nevada's request to stay all executions:

Response to Petition, filed by the AG's office on behalf of Howard Skolnik, Director of the Nevada Separtment of Corrections, filed 10/15/07

Order Denying Motion for Leave to Appear as Amicus or Intervene, filed on 10/16/07

Oral Argument Audio File - October 2007 (scroll to the bottom of the list)

For those interested in reading more on lethal injection:
Lethal Injection Web-Based Clearinghouse - UoC, Berkeley School of Law - Boalt Hall

Baze v. Rees analysis on ScotusWiki, including links to briefs.

Lethal injection readings. Sentencing Law and Policy

Lethal Injection Blog.

In the news

A Reprieve in Nevada Adds to Lethal-Injection Drama. Washington Post 10/16/07

State's high court stays execution of Castillo. LVRJ 10/16/07

Execution called off. Nevada Appeal 10/16/07

Inmate 'disappointed' execution called off. RGJ 10/16/07

Jury selection slow going in relocated Mack trial. LVRJ 10/16/07

Mack jury selection moves slowly. RGJ 10/16/07

Simpson players appear in court. LVRJ 10/16/07

2 co-defendants agree to testify against O.J. Simpson. Nevada Appeal 10/15/07

October 15, 2007

Nevada Supreme Court stays execution

The Nevada Supreme has stayed all executions, including the execution of William Castillo and has ordered briefing and additional argument on the issues presented concerning lethal injection protocols. The order is unanimous. The Reno Gazette Journal provides additional details.

Last minute efforts to stop tonight's execution

The ACLU of Nevada, Mario De La Rosa, and Ahora Newspaper have filed an Emergency Petition for a Writ of Mandamus, or in the alternative a Writ of Prohibition, Enjoining All Executions, including the Execution Scheduled for 8:30 p.m. Today, Oct. 15, 2007. The petitioners' summarize their petition: "The impetus for this action is the Supreme Court of the United State's grant of certiorari in Baze v. Rees, No. 07-5439, to decide whether a lethal injection protocol used by the State of Kentucky, which utilizes the very same three druges used in Nevada, would violate the cruel and unusual punishment clause of the Eighth Amendment, and whether Nevada's mandatory administration of pancuronium bromide, a muscle relexant, in a dosage the Director now plans to double, creates a chemical veil that violates the First Amendment right of the press to accurately report on the effects of lethal injection."

The appendix is available here.

Pedro Rodriguez, who is a capital defendant, and the Nevada Coalition Against The Death Penalty have asked for leave to appear as Amicus Curae or Intervenor and have asked for an Emergency Motion for Stay of Execution of Death Sentences.

The Nevada Supreme Court has scheduled at emergency hearing on the petition for today at 4:00 p.m. It will be video-conferenced to the Supreme Court Courtroom on the 17th Floor of the Regional Justice Center in Las Vegas.

October 11, 2007

Medellin argument summaries

The US Supreme Court heard oral argument in Medellin v. Texas yesterday. The Court took the very rare action of allowing the one-hour argument to run on for an additional 20 minutes. A transcript of the argument is available here. Scotusblog provides its analysis of the argument in Analysis: How to say no to the President? A brief excerpt:

"With cross-currents of constitutional and international law flowing freely, what appeared to be a majority of the Justices looked askance at a Presidential memo in February 2005, directing nine U.S. states to give 51 Mexican nationals convicted of crimes in those states a new chance to test their rights under an international treaty, the Vienna Convention on Consular Relations. What was troubling those Justices the most, it seemed, was that the President had sought to make binding a ruling by the World Court that would otherwise not have controlling effect on states' ciminal procedures. That was worrisome for two reasons: it might intrude on the Court’s role to say what the legal meaning and effect of treaties is, and it might empower the World Court, in effect, to dictate the substance of American law."

How Appealing provides links to newspaper articles about the case, including Linda Greenhouse's article in the New York Times, Case of Texas Murder Engrosses Supreme Court.

Dahlia Lithwick provides her analysis of the argument in Texas Holds Him: Leave it to Texas to put a stop to executive overreaching. Slate 10/10/07 My favorite lines: "But really, the best part of Medellin is that if you are a casual spectator attempting to pick out the "good guys," here's your choice: the state of Texas and its relentless quest to execute its people without regard to moral, international, or legal norms, versus the Bush administration and its claim to broad new executive authority to boss around state judges. It's like having to choose between being clawed to ribbons by a grizzly bear or gnawed to death by a killer whale."

October 10, 2007

In the news

Man faces execution by injection on Monday. LVRJ 10/11/07

Judge recuses himself from former Clark County lawmaker's case. Nevada Appeal 10/10/07

Judge faces the music in Boggs' felony case. LVRJ 10/11/07

New hearing slated for Ybarra. Ely Times 10/10/07

AG's office won't seek death penalty for ESP inmate. Ely Times 10/10/07

Gonzales hires a top gun. MSNBC 10/10/07

The United States Attorneys Scandal Comes to Mississippi. NYTimes 10/11/07

Judge is under fire after execution. San Antonio Express News 10/11/07 (via How Appealing)

Worth reading

The American Bar Association has released its Pennsylvania Death Penalty Assessment Report. Capital Defense Weekly provides a summary and links to articles about the report.

Wrongly imprisoned man freed in Texas. Houston Chronicle 10/9/07 (via Talk Left)

Supreme Court refuses to hear torture appeal. NYTimes 10/10/07

October 09, 2007

Cert. petitions in Johnson and Thomas survive another week

Certiorari petitions filed with the United States Supreme Court by Donte Johnson and Marlo Thomas remain pending before the Court. The petitions were first distributed for conference on September 24, 2007. Another conference was held last week. Both cases present the issue of whether the Nevada Supreme Court was wrong in its 4-3 decision finding that the Confrontation Clause does not apply to capital penalty hearings. The cases also present an issue concerning whether a justice may hear and rule on a case if she is negotiating for employment with the prosecuting attorney's office that is counsel on the case. Several other cases from federal and state courts also present the first issue to the Court. It is believed that the second issue is unique.

This week's order list is available here, with thanks to Scotusblog. There were no grants of certiorari this week.

October 04, 2007

Also worth reading

Secret U.S. endorsement of severe interrogations. NYTimes 10/4/07

ACLU goes to Supreme Court over wiretaps. NYTimes 10/4/07

Democrats won't block hearing for Gonzales successor. NYTimes 10/4/07

More on JEC hearing on mass incarceration. Sentencing Law and Policy 10/4/07 (with links to materials concerning Congress's Joint Economic Committee's hearings on prison populations and the crisis created by over-impisonment)

Justice Scalia Joins 24. Slate (video) written by Dahlia Lithwick (highly recommend)

In the news

Chief federal judge blames threats against court on tax trials. Nevada Appeal 10/3/07

Marshals lag in security efforts, report says. LVRJ 10/4/07

Complaint against judge dismissed. LVRJ 10/4/07

Judge to rule Thurs on moving Mack trial from Reno. Nevada Appeal 10/3/07

Judge may move Mack trial elsewhere. RGJ 10/3/07

Murder and mutilation trial. Dozier gets death penalty in slaying. LVRJ 10/4/07

Sentencing for Davidson delayed. LVRJ 10/4/07

Drug thefts: arrest aborted in July. LVRJ 10/4/07

Boggs hires Simpson's lawyer. LVRJ 10/4/07

City offers moritorium on warrants. LVRJ 10/4/07

August arrest: Former commissioner's son indicted. LVRJ 10/4/07

Jail guard arrested on felony counts. LVRJ 10/4/07

September 27, 2007

In the news

Condemned man won't fight execution. LVRJ 9/27/07

After Jeffs verdict, victim's ex-spouse charged with rape.
LVRJ 9/27/07

Arizonans prepare for Jeffs. LVRJ 9/27/07

Judge refuses to dismiss medical fraud case. LVRJ 9/27/07

Career Clark County prosecutor making bid to put O.J. in prison. Nevada Appeal & AP 9/27/07

Man awarded $3.7 million in age lawsuit
. LVRJ 9/27/07

Update:
Money helped Spector more than celebrity. LATimes 9/27/07

Spector mistrial isn't end of case. LATimes 9/27/07

Judge Rules Provisions in Patriot Act to be Illegal. NYTimes 9/27/07

Prisons to Restore Purged Religious Books. NYTimes 9/27/07

College Dwellers Outnumber the Imprisoned. NYTImes 9/27/07

Editorial: Death Penalty Unfair, Must Be Abolished. Atlanta Journal Constitution 9/27/07

ACJ: Matter of Life or Death Series An in depth examination of Georgia's death penalty system and practices.

Looking in on: Carson City (re: new laws effective Oct. 1) LVSun 9/27/07

September 24, 2007

Death penalty update

Headlines from the Death Penalty Information Center:

Alabama District Attorneys Association Criticizes Attorney General for Politicizing Death Penalty Case

Resources: New Study Reveals Deficiencies in Eyewitness Identification Procedures; Legislative Review Set

Judge Declares Tennessee Lethal Injection Protocols Unconstitutional, Halts Executions

Background on Recent Commutation: "Grossly Inadequate" Representation in a System that "Broke Down"

Alabama Prosecutor Punished for Testifying That a Death Sentence Was Unfair

Expensive Death Penalty Prosecutions in Florida May Mean Others Don't Go To Trial

Editorials: "At Some Point, a Death Penalty Stops Making Sense"

Supreme Court Asked to REview Unusual Death Sentence"

History: The Death Penalty Through the Life of Anthony Amsterdam

Judge Blocks Texas from Destroying Evidence in Case of Possible Wrongful Execution
------
The American Bar Association Death Penalty Moratorium Implementation Project has issued a 500 page report concerning Ohio's death penalty. The Executive Summary is available here. (via Sentencing Law and Policy). More information is available at Ohio Death Penalty Information.
--------
The Atlantic Journal-Constitution is publishing a four-day series called "A Matter of Life or Death" concerning Georgia's death penalty. Day One is available here. Day Two is available here. (via How Appealing)

September 11, 2007

Incredible decision by 9th Circuit: Must Read Now

In Polk v. Sandovalthe Ninth Circuit Court of Appeals (Judges Fletcher, Clifton and Ikuta) finds that a defendant's federal constitutional right to due process was violated based upon the Kazalyn instruction on premeditation. I'm still reviewing the decision in depth, but here are some highlights:

Background: The defendant was charged with 1st degree murder. His trial took place prior to the Nevada Supreme Court's decision in Byford but his appeal was resolved after the Byford decision was issued. As in Byford and Garner, the Nevada Supreme Court found that Polk was not entitled to the the instructions defining premeditation and deliberation that were set forth in Byford:

"Appellant contends that the district court erred in giving an instruction this court approved in Kazalyn v. State regarding premeditation and deliberation because the instruction is clearly erroneous under this court's subsequent holding in Byford v. State. Appellant also argues that the district court erroneously rejected a proposed premeditation instruction which separately definited premeditation and deliberation. We recently clarified Byford, as follows: "Our opinion in Byford concludes that the Kazalyn instruction does not fully define 'willful, deliberate, and premeditated,' and it provides other instructions for future use -- but it does not hold that giving the Kazalyn instructed constituted error, not does it articulate any constitutional grounds for its decision." [citing Garner]. Further "use of the Kazalyn instruction in trials which predate Byford does not constitute plain or constitutional error. Nor do the new instructions required by Byford have any retroactive effect on convictions which are not yet final: the instructions are a new requirement with prospective force only." [citing Garner]. Because appellant's trial predated Byford, we conclude that the district court's use of the Kazalyn instruction, rather than appellant's proposed instruction, was not error."

The Ninth Circuit disagrees.

The Holding: "We hold that Polk's federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation. The error was not harmless. We reverse and remand to the district court to grant the writ unless the State elects to retry Polk within a reasonable time."

The Circuit found that the Nevada Supreme Court's decision on Polk's direct appeal was contrary to clearly established federal law. "It is clearly established federal law, as determined by the Supreme Court, that a defendant is deprived of due process if a jury instruction 'ha[s] the effective of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner's statement of mind.' Sandstrom v. Montana, 442 U.S. 510, 521 (1979); Francis v. Franklin, 471 U.S. 307, 326 (1985) . . . ."

It explained that under NRS 200.030(1)(a), first degree murder is a willful, deliberate and premeditated killing and that in Byford, the Nevada Supreme Court reaffirmed that all three elements must be proven beyond a reasonable doubt before an accused can be convicted of the offense. It is not sufficient for the killing simply to be premeditated and that deliberation remains a critical element. Polk's jury, however, was instructed in accordance with Kazalyn that it was to find "willful, deliberate, and premeditated murder" if it found premeditation. "This instruction is clearly defective because it relieved the state of the burden of proof on whether the killing was deliberate as well as premeditated." The Circuit then explained the flaw of the Nevada Supreme Court's analysis of the instruction in Byford and Garner and in Polk's direct appeal:

"Instead of acknowledging the violation of Polk's due process right, the Nevada Supreme Court concluded that giving the Kazalyn instruction in cases predating Byford did not constitute constitutional error. In doing so, the Nevada Supreme Court erred by conceiving of the Kazalyn instruction issue as purely a matter of state law. Rather, the question of whether there is a reasonable likelihood that the jury applied an instruction in an unconstitutional manner is a 'federal constitutional question.' See Francis, 471 U.S. at 316. The state court failed to analyze its own observations from Byford under the proper lens of Sandstrom, Franklin, and Winship, and thus ignore the law the Supreme Court clearly established in those decisions -- that an instruction omitting an element of the crime and relieving the state of its burden of proof violates the federal Constitution. See Evanchyk v. Stewart, 340 F.3d 933, 939-40 (9th Cir. 2003). Since the Nevada Supreme Court "fail[ed] to apply the correct controlling authority," its decision was contrary to clearly established federal law, as determined by the Supreme Court. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (citing Williams v. Taylor, 529 U.S. 362, 413-14 (2000)."

The Circuit then concluded that the error had a substantial and injurious effect or influence in determining the jury's verdict and granted habeas relief as a result.

This is certainly good news for defendants in murder cases who had decisions pending when Byford was issued (February 28, 2000). I think there's also an incredibly strong argument that this ruling applies to pre-Byford cases as well.

Big, huge congratulations to Lori Teicher of the Federal Public Defender's Office.

September 07, 2007

PBS airs "Death is Different"

PBS will air Death is Different:
"In an extraordinary four-year investigation, McClatchy Supreme Court beat-reporter Stephen Henderson finds that defense lawyers in four states are failing that test; as a result their clients - even those who have suffered lifetimes of abuse and/or have IQs suggesting mental retardation - are heading to death row. Henderson takes EXPOSÉ inside the world of death penalty defense armed only with a reporter's notebook and the pocket copy of the U.S. Constitution he carries everywhere he goes. Henderson doesn't only expose defense efforts gone wrong. He also introduces EXPOSÉ to a group of public defenders who go the extra mile, with striking results."

Set the tivo as it will air at 3 am Friday night/Saturday morning on Channel 10 in Las Vegas.

September 01, 2007

Death Penalty Updates

Headlines from the Death Penalty Information Center:
Canadian Man Who Once Faced Death Penalty Acquitted After 48 Years

Texas Governor Grants Rare Death Penalty Commutation

North Carolina Man Freed by DNA Evidence After Nearly Two Decades in Prison

New Resource: Vanderbilt Study Reveals Decline in Federal Reversals Since AEDPA

Florida Doctors Wear "Moon Suits" to Hide Participation in Lethal Injections

Books: New Book Examines the Case of Sacco and Vanzetti

Since 1996, Federal Courts Have Cut Back in Granting Any Relief to Those on Death Row

US Federal Court Overturns Scottish Citizen's Conviction and Death Sentence

Men Threatened With the Death Penalty May Have Confessed to a Crime They Didn't Commit

Resources: DePaul University College of Law Officers Death Penalty Resources

Also check out updates from Capital Defense Weekly

August 31, 2007

In the news

Uncle Sam now owns strip club. LVSun 8/30/07

Former judge accused of LV gambling debt.
LVRJ 8/31/07

Smith: Speculation abounds about parallels in book about sports betting
(with several posts about legal matters, including rumors that JP Doug Smith may run against District Court Judge Lee Gates) LVRJ 8/31/07

Banning beard and yarmulke brings lawsuit for Metro
. LVSun 8/30/07

Weddings crashed Strip resorts, suit says. LVSun 8/30/07 (included because these are the incredibly obnoxious people who have taken over the southeast corner of the courthouse)

Also worth reading:

Budget crunch hits U.S. Attorneys' Offices. WSJ 8/31/07

Justice Dept. Probing Whether Gonzales Lied. Washington Post 8/31/07

[Texas Governor] Perry spares inmate [Kenneth Foster] set to die today.
Houston Chronicle 8/30/07

Judge takes on death row gridlock. LATimes 8/31/07

August 23, 2007

In the news

Retrial spares killer from death penalty. LVRJ 8/23/07

Governor gets close view of Ely State Prison. Ely Times 8/22/07

August 22, 2007

Report issued re: AEDPA

Vanderbilt University Law School has issued a report: Final Technical Report: Habeas Litigation in U.S. District Courts. The full 127 page report can be found here. Nevada was one of the 13 districts selected for the study. Among other findings, the report notes the following:

In capital cases, for the 19 Nevada cases examined, an average of 3357 days (9.4 years) elapsed between the day of the state judgment to the day the filing of a federal petition for a writ of habeas corpus. Oklahoma petitions were filed 1386 days (3.9 years) after judgment while Alabama petitions were filed 4467 days (12.5 years) after judgment). Non-capital cases were processed much faster in Nevada, with 4.1 years between state judgment and the filing of the federal petition.

Other findings are set forth in the report. A summary is available.

Blogs discussing the report include the following:
Sentencing Law and Policy
Capital Defense Weekly

August 21, 2007

9th Circuit Judge publishes order re: time & death penalty cases

With interesting timing in light of recent opt-in discussions, 9th Circuit Judge Reinhardt issued the following order today in Phillips v. Ornoski:

"The California Attorney Generals request for a forty-five day extension of time to file his answering brief is hereby GRANTED.

This is the second time that this court has granted the California Attorney General an extension of time to file an answering brief in this capital habeas appeal. The first extension was for sixty days. The California Attorney General will now have a total of 195 days to complete his brief. Compare 28 U.S.C. 2266(c)(1)(A), giving the federal court of appeals 120 days to hear and decide capital habeas corpus appeals if the Attorney General of the state requests and receives certification under 28 U.S.C. 2265 that the state is in compliance with certain conditions.

The court is aware of the complexity involved in litigating a death penalty case, and it would appear that the current Attorney General of California is as well. The records are large, the issues are difficult, and the procedural posture is often complicated. It is understandable that attorneys working on both sides of death penalty cases often require a great deal of time to prepare adequately for these important and difficult appeals, and this court grants extensions with no reluctance. It is equally true that judges, no matter how diligent, frequently require a considerable amount of time to arrive at a final disposition of capital appeals.

In 1995, contrary to the normal rule in the federal courts, this court reversed the district court's dismissal of this petitioner's federal habeas petition and ordered the district court to hear the merits of his petition regarding his conviction, despite the fact that his direct appeal of his sentence had not yet been resolved by the California Supreme Court. We allowed the petitioner to proceed with his guilt phase constitutional claims because it had been fifteen years since his conviction and we anticipated further delay in the California court system before there was a final determination of his sentence. Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995). Our action did not constitute a criticism of the California courts, but rather a recognition that death penalty cases are complicated and difficult and that state courts, including California's, often require a great deal of time to resolve them
properly. Capital cases frequently are active in the state courts for many years before they reach the federal courts, where, contrary to public perception, they are ordinarily processed more quickly. It would be a serious mistake to try to rush cases that implicate such important moral, social, and constitutional issues in either the state or federal court and to resolve them finally with less than full care and attention.

The court assumes that the Attorney General of the State of California also understands the difficulty and complexity of death penalty cases. He no doubt recognizes that they may require much more judicial time than other cases, and that even the preparation of a single brief may take more time than the court itself would be afforded to consider and decide the entire appeal should he decide on behalf of the state to opt into the expedited procedure. Under the circumstances, we have no qualms about granting the California Attorney General an extraordinary amount of time to prepare his brief in this or any other capital case.

MOTION GRANTED

August 15, 2007

Death Penalty Update

Sentencing Law and Policy provides a summary of articles concerning proposed rules that enable the Attorney General to sign off on 'fast tracking' death penalty cases under AEDPA: Speeding up the fast track to more capital litigation.

Topics at Death Penalty Information Center include the following:

Legal Experts Fear New Federal Regulations Could Result In More arbitrariness and Wrongful Convictions.

Costs: Counties Use Illinois Capital Litigation Fund to Cover High Costs of the Death Penalty

Lethal Injection: Judge Rules that North Carolina Failed to Follow New Execution Plan

New Voices: Former Conservative Congressman Questions Fairness and Accuracy of the Death Penalty

New Resources: Study Finds Blacks Who Kill Whites More Likely to be Executed

Public opinion: Gallup Poll Finds Less Support Among Blacks and Whites

Fewer Death Sentences as Victims' Concerns are Considered

Georgia Supreme Court to Consider New Trial for Troy Davis

Topics at Capital Defense Weekly include the following:

The Texas 400th

opt-in update

Reuters factbox on executions

"The death of capital punishment" - Uzbekistan

making gay marriage a capital offense

around & around

Ronald Rompilla Pleads to Life

quick look at the week that was


August 06, 2007

Worth Reading

There's not much in the way of Nevada news on criminal law today, but other articles and posts worth reading include the following:

Disgrace at Guantanamo Bay or Have You Ever Done Thirty Days, 7th Circuit Reader, by Thomas P. Sullivan, Jenner & Black (via Appellate Law & Practice). I highly recommend this article.

Editorial, Selective Prosecution (concerning in part the firing of US Attorneys), NYTimes 8/6/07

Editorial, The Executioner's Hood. NY Times 8/6/07

The Georgia Supreme Court has a greed to hear a discretionary appeal in the Troy Davis case.

Collin cuts court costs, but at what price? Dallas Morning News 8/4/07 (via PD Stuff)

August 05, 2007

Nevada rankings on US Supreme Court of state death penalty cases

The United States Supreme Court has not granted certiorari and reviewed a Nevada death penalty case in over a decade. In fact, since Furman, the Court has reviewed a Nevada death penalty case only three times: Sumner v. Shuman (1987, holding that mandatory death sentences are invalid -- even for prison inmates serving a life sentence who are convicted of a murder in prison), Riggins v. Nevada (1992, forced administration of an antipsychotic drug during trial), and Godinez v. Moran (1993) (competency standard for waiver of counsel and to plead guilty).

If my research is correct (and it may be slightly off), the United States Supreme Court has granted review of 196 death penalty cases (not including summary grants, vacates and remands or orders on stays). My initial impression was that some states receive a disproportionate amount of review from the high court: Texas, Florida and Arizona immediately came to mind. I did some research -- which is still preliminary -- and found the following:
Texas has had 26 cases reviewed by the Court since 1972. Other states receiving signficiant review are: Florida (22), Georgia (2), California (16), Virginia (16) and Arizona (15). Nevada ranks 16th in number of death penalty cases reviewed by the Court.

I then though that perhaps the number of certiorari reviews might be directly related to the number of executions, as the Court would be more likely to take a case following federal habeas review in the Circuit -- which comes near the end of the process. I learned that in using this method, Tennessee inmates receive the most review per execution as there have been five certiorari grants and only 2 executions, or .4 executions per cert. grant. Other states receiving significant review per execution are: Idaho (.5), Pennsylvania (.6), California (.8), and Kentucky (1). Nevada ranked 15th, with 4 executions per Supreme Court case. The national average was 5.4 executions per case.

Another approach is to consider the number of people on death row, plus the number who have been executed, per case heard by the Court. This approach accounts more for certiorari grants based upon state court judgments and general population (though it does not include exonerations, natural deaths, homicides and suicides). Under this analysis, Maryland receives the greatest attention, with one out of every 4.3 inmates receiving review by the high court. Other states with a high level of review are: Washington (6.5), Georgia (7.3), Virginia (7.4), Illinois (7.7) and Kansas (9). The national average is one Supreme Court case per 22.5 inmates. Nevada ranks 21st, with 30.6 inmates per case. North Carolina inmates are off the chart in lack of review, with 114 death row inmates per Supreme Court case.

My report is available here. Again, this is preliminary and I'm sure that some of the data can use refinement.

August 01, 2007

In the news

High court rejects appeal in old Reno murder case (Petrocelli, capital case). Nevada Appeal 7/31/07

Judge Halverson Speaks Exclusively With The I-Team (w/ links to video interviews) - KLAStv 7/31/07

Opening arguments in trial of 1982 murder. Nevada Appeal 8/1/07

Documents alleged Gibbons behind FBI raid in eTreppid case. Nevada Appeal 8/1/07

Unsealed document says Gibbons urged FBI search. RGJ 8/1/07

For police, new anti-meth law nothing to sneeze at. LVRJ 8/1/07

Retrial under way for suspenct in slaying. LVRJ 8/1/07

And on a practical note: New rule affects packages heavier than 13 ounces. RGJ 8/1/07

July 31, 2007

Death penalty updates

Capital Defense Weekly provides posts on the following this week:

Adam Liptak has an article entitled "After Flawed Executions, States Resort to Secrecy."

Gallup reports national support for the death peanlty has dropped again. There is a stark difference between views of whites and blacks on the death penalty.

The Florida Times-Union reports on a budget crisis for attorneys in Georgia who represent poor people charged with crimes punishable by the death penalty: Death row defense continues for now.

The Eighth Circuit reversed five of ten convictions (and four of eight death sentences) for the first woman in the modern era to receive the death penalty in the federal system. CDW discussed the case in : An Eighth Circuit oddity: USA v. Angela Johnson.

Other recent developments are also noted and worth reviewing.

The Death Penalty Information Center presents the following posts this week:

New Voices: Federal Judge Calls the Death Penalty Arbitrary, Biased and Fundamentally Flawed

Government Ordered to Pay Former Death Row Inmate and Others $102 Million

New Series Highlights Problem of Lost and Destroyed Evidence, Wrongful Convictions

New Resources: Updated Historical Execution Database Provides Unique Look at History of the Death Penalty in the U.S.

New Resources: Destroyed DNA Evidence Blocks Possible Exonerations

Florida Judge Orders Halt to Executions Over Lethal Injection Problems

New Resources: New Study Examines Causes of Wrongful Convictions

Arizona's Death Penalty Five Years After Supreme Court's Ring Decision

Sentencing Law and Policy posts: "Debating the death penalty as bargaining chip."

July 23, 2007

Death Penalty Updates

Capital Defense Weekly includes posts on the following:

More on the latest Florida lethal injection litigation.
Unconfirmed: Lethal injection "stays" out of Florida
Lonnie Johnson: "Geography means everything"
Twelfth Annual National Federal Habeas Corpus Seminar
Lonnie Johnson updates
Latest lethal injection scrume: back to Florida
Quick wrap up (including a link to audio recordings of a botched execution in Georgia)

Death Penalty Information Center provides the following posts this week:
Arizona's Death Penalty Five Years After Supreme Court's Ring Decision
New Resource: "Uneven Justice: State Rates of Incarceration by Race and Ethnicity"
Arbitrariness: Woman Faces Federal Death Sentence While Triggerman Receives 17 Years
Questions of Innocence Remain as Georgia Board Considers Davis' Clemency Request
South Dakota's First Execution in 60 Years Involves Young "Volunteer"
Books: "Warrior Within" Details Life on Texas' Death Row
Report Fails to Erase Doubt that Texas Executed an Innocent Man

Via Sentencing Law and Policy, Moonda case reflects U.S. trend by rejecting death penalty. Pittsburgh Tribune-Reivew. 7/22/07

July 05, 2007

Cary Williams denied en banc review

The Associated Press reports that in a 4-2 ruling, the Nevada Supreme Court rejected Cary Williams' petition for rehearing en banc of a decision affirming his conviction and sentence of death. Justices Maupin and Cherry dissented after finding that the case should be remanded to district court for a full evidentiary hearing on Williams' brain damage. The article noted that in December the Court found that two of four aggravating circumstances had to be vacated [under McConnell v. State], but the 3-judge panel affirmed the death sentence after finding that the inclusion of the two invalid aggravating circumstances was harmless error.

July 03, 2007

Death Penalty Updates

Capital Defense Weekly notes that a quick execution date has been set for Troy Davis in Georgia, who is likely innocent; the mother of a condemned inmate whose execution took an hour longer than is typical, has filed a lawsuit against an Ohio Prison based upon the botched execution; and a judge found 8 anti-death penalty activists guilty for unfurling a STOP EXECUTIONS banner on the steps of the US Supreme Court. CDW also notes that in the last 7 years, 50 Pennsylvania inmates awaiting execution were spared by the courts and links to a story from the Philadelphia Inquirer about that issue. CDW also provides analysis of the Panetti decision.

Headlines from the Death Penalty Information Center include the following:

New Resource: Tennessee Study Reveals Need for Indigent Defense Reform

New Voices: Former Florida Prison Warden Calls for End to Death Penalty.

New Voices: Scientific American on the Death Penalty: "Bad Execution"

Supreme Court Blocks Execution of Mentally Ill Inmate

ACLU Releases Report on Racial Disparities in the Federal Death Penalty

Supreme Court Agrees to Hear Louisiana Case With All -White Jury and Reference to O.J. Simpson

June 26, 2007

Death penalty news and updates

The Nevada Supreme Court has ordered a new penalty hearing for Antoine Williams. According to the Las Vegas Vegas Review Journal, the Court found several aggravators to be invalid based upon its 2004 ruling in McConnell v. State.

Last week the Court affirmed the denial of a post-conviction petition filed by capital defendant Greg Bolin.

Yesterday, the US Supreme Court denied certiorari in Archanian v. Nevada.

The ACLU has issued a report, The Persistent Problem of Racial Disparities in the Federal Death Penalty.

The majority and dissenting opinions in Louisiana v. Snyder, which are the subject of yesterday's cert. grant by the US Supreme Court are available.

June 25, 2007

US Supreme Court decides 5 cases, grants cert. in 4

The United States Supreme Court issued five opinions this morning.

In Hein v. Freedom from Religion Foundation, the Court ruled that taxpayers lack standing to challenge an Executive Branch created program which provides that religious-based community grounds are eligible for federal financial support. The primary opinion was authored by Justice Alito and joined by Chief Justice Roberts and Justice Kennedy. A concurring opinion was authored by Justice Scalia and joined by Justice Thomas. Justice Souter authored a dissenting opinion which was joined by Justices Stevens, Ginsburg and Breyer.

In Wilkie v. Robbins, the Court held that a private landowner could not base a RICO lawsuit against federal personnel in their individual capacities for actions taken that were for the benefit of the federal government rather than private gain. Justice Souter issued the majority opinion, which was joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Alito and Chief Justice Roberts. Justice Thomas authored a concurring opinion which was joined by Justice Scalia. Justice Ginsburg issued an opinion concurring in part and dissenting in part, which was joined by Justice Stevens.

In Morse v. Frederick (the Bong Hits 4 Jesus case), the Court held that because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, school officials did not violate the First Amendment by confiscating a banner and suspending a student. Chief Justice Roberts authored the majority opinion, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Thomas authored a concurring opinion. Justice Alito authored a concurring opinion which was joined by Justice Kennedy. Justice Breyer authored an opinion concurring in the judgment in part and dissenting in part. Justice Stevens authored a dissenting opinion which was joined by Justices Souter and Ginsburg.

In National Association of Home Builders v. Defenders of Wildlife, the Court concluded that a federal agency that is required by law to take a specific action is not required to follow a conflicting mandate imposed by the Endangered Species Act. The majority opinion was authored by Justice Alito and joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas. Justice Stevens authored a dissenting opinion which was joined by Justices Souter, Ginsburg and Breyer. Justice Breyer also filed a separate dissenting opinion.

In FEC v. Wisconsin Right to Life, the Court issued a 93 page opinion concerning issue ads and the Bipartisan Campaign Reform Act of 2002. Chief Justice Roberts delivered the opinion of the Court with respects to Parts I and II, concluding that the Court had jurisdiction to decide these cases (a mootness argument was raised because they concerned the 2004 election). Chief Justice Roberts authored an opinion, which was joined by Justice Alito, in which he concluded that the BCRA is unconstitutional as applied to the ads at issue because they were not express advocacy for or against a specific candidate. Chief Justice Roberts and Justice Alito concluded that these cases did not present the occasion to revisit McConnell's holding that a corporation's express advocacy of a candidate or his opponent shortly before an election may be prohibited. Justice Scalia authored an opinion which was joined by Justices Kennedy and Thomas in which they concurred in the judgment but would also overrule portions on McConnell. Justice Souter filed a dissenting opinion which was joined by Justices Stevens, Ginsburg and Breyer.

The Court granted certiorari in four cases, which Scotusblog summarizes as follows:
"[T]he Supreme Court on Monday granted four cases for review next Term, including a significant test case on the use of references to the O.J. Simpson not-guilty verdict to help persuade an all-white jury to impose a death sentence on a black defendant. Other granted cases include a test of state power to regulate commercial shipments of tobacco and other products harmful to childrren and a case involving state's authority to allow damage claims against makers of medical devices approved by federal authorities. In the fourth granted case, the Court indicated it will sort out a conflict among lower courts on the deductibility of expenses for trusts and estates."

Scotusblog summarizes the capital case referencing OJ Simpson in this post.

The next and final opinion release day is Thursday, June 28.

June 23, 2007

Death Penalty Updates

Capital Defense Weekly notes that there were four executions last week - 2 in Texas, 1 in Indiana and 1 in South Carolina. Also noted is a post by Cassy Stubbs on Huffington Post: The Death Penalty Deterrence Myth: No Solid Evidence That Killing Stops the Killing. CDW also notes a big victory in Montana based upon the prosecution's late filing of its notice of intent to seek death and a case from South Carolina in which the Court held that the defendant had not made a knowing and intelligent waiver of his right to appellate review.

Headlines from the Death Penalty Information Center include the following:
Pew Poll Shows Modest Decline in Death Penalty Support
Strong Criticism of Tennessee's Death Penalty System from Federal Appellate Judge
Texas Scores Poorly in Mental Health Services While Executing Many with Mental Illness
Books: "The Big Eddy Club" Explores Race and the Death Penalty
Rwanda Votes to Abolish the Death Penalty
New Mexico Trial Judge Finds State Death Penalty Unconstitutional
Supreme Court Decisions Allows Broader Exclusion of Juors, But May Further Isolate the Death Penalty
Executions Declining in China
Texas Court Grants Stay on Basis of Possible Innocence

June 07, 2007

Death penalty updates

From the Associated Press:
4 Justices Often Side With the Condemned. 6/6/07

From the LA Times:
Death to child rapists? 6/5/07. the editorial is discussed at Sentencing Law and Policy.

Headlines from Death Penalty Information Center:
Jury Strikes and Racial Bias
New Voices: Florida League of Women Voters Calls for Halt to Executions
Lethal Injection Developments Spur Further Controversy in California and Missouri
Texas Medical Examiner No Longer Stands by Testimony that sent Woman to Death Row
New Voices: Former FBI Chief Expresses Concerns about Innocence and the Death Penalty
New Resources: Scientific American Examines "The Mysteries of Anesthesia"
Two New Federal Death Sentence in Non-Death Penalty State
Without Sufficient Funds, States Are Falling to Provide Adequate Representation
Florida Supreme Court Reduces Death Sentence Because of Mental Illness
Texas High Court Dismisses Woman's Death Sentence As Unsupported by the Evidence.

Capital Defense Weekly discusses yesterday's execution in Texas, challenges to lethal injection, cases of possible innocence, and a grant of habeas in New Jersey based upon juror misconduct issues.

May 29, 2007

Death penalty updates

From the Death Penalty Information Center:

Without Sufficient funds, States are Failing to Provide Adequate Representation.

Florida Supreme Court Reduces Death Sentence Because of Mental Illness.

Texas High Court Dismisses Woman's Death Sentence as Unsupported by the Evidence.

Arbitrariness: Numbers of Death Sentences Differ Dramatically Between Bordering Arizona Counties.

May 23, 2007

Death penalty updates

Yesterday Arizona executed its first person since November 2000. Robert Comer volunteered for the execution.

Also yesterday, the Louisiana Supreme Court upheld the death sentence of a man convicted of raping an 8-year-old girl. The defendant is the only inmate on death row in the United States for an offense other than murder. The United States Supreme Court has held that the death penalty may not be imposed for the rape of an adult woman, but the Court has not directly addressed a case involving a child victim.

May 22, 2007

In the news

Panel opens debate over sealing of records. LVRJ 5/22/07

Inmate early release bill becomes law. LVRJ 5/22/07

Smith: All these courthouse favors must stop . . . at least until I get mine. LVRJ 5/22/07

Peck: failure to fund defenders office like to spark lawsuits. LVRJ 5/22/07

Editorial: In search of . . . LVRJ 5/22/07

In hopes of securing new trial, lawyer for death row inmates grills former counsel. RGJ 5/22/07

Woman arrested on charges she used daughter for prostitution. RGJ 5/22/07

And from elsewhere:

Web Sites Listing Informants Concern Justice Dept. NYTimes 5/22/07

Convicted murderer is freed in wake of tainted evidence. NYTimes 5/22/07

Death Penalty News

Capital Defense Weekly gathers opinions by other writers about yesterday's decision in Roper v. Weaver and the Court's conclusion that virtually identically situated litigants should not be treated in a needlessly disparate manner.

Headlines from the Death Penalty Information Center:
New resources: "Towards the Abolition of the Death Pnealty in Africa."
New resources: Web site features "Innocent and Executed."
New resources: Amnest International Report: "Prisoner-Assisted Homicides" regarding volunteers.
California proposes new lethal injection procedures
New Jersey man who faced the death penalty freed through DNA
New voices: John Grisham on Capital Punishment
New books: "Dead Wrong: Violence, Vengeance, and the Victims of Capital Punishment"

May 18, 2007

Amnesty International issues report on death penalty volunteers

In Nevada, 12 executions have taken place since 1977. Eleven of those executions, or 92%, were death row inmates who prematurely terminated post-conviction proceedings. In other words, they volunteered to be executed or used the state as an instrument for their suicides. In contrast, Texas has had only 26 volunteers in 393 executions and California has had only 2 volunteers in 13 executions. Amnesty International has issued a report on this issue: United States of America: Prisoner-assisted homicide - more 'volunteer' executions loom.

May 16, 2007

Death penalty news

This week's headlines from the Death Penalty Information Center:
New Voices: John Grisham on Capital Punishment
New Books - "Ded Wrong: Violence, Vengeance, and the Victims of Capital Punishment"
Excerpts from Florida's New Execution Protocols
Breaking News: Oklahoma Man Freed Today from Death Row -- 124th Death Penalty Exoneration

There are also a lot of news articles regarding California's new lethal injection protocol:
California Addresses Death Penalty Concerns. NY Times 5/16/07
State offers new lethal injection protocol. LA Times 5/16/07
State to revise process for lethal injections. San Francisco 5/16/07
The Protocol Review is available here.
The revised protocol is available here. (Via CJLF)

May 14, 2007

US Supreme Court issues decision in death penalty case

The United States Supreme Court returned from its recess this morning. Other than a few summary grants and remands, did not grant certiorari in any cases. It issued one opinion, Schriro v. Landrigan, in which it reversed a decision of the 9th Circuit Court of Appeals. The case concerns a capital defendant's waiver of his right to present mitigating evidence at a sentencing hearing.

As always, thanks to Scotusblog for the information and link to the opinion.

Justice Thomas authored the majority opinion. He was joined by Justices Roberts, Scalia, Kennedy and Alito. Justice Stevens authored the dissenting opinion and was joined by Justices Souter, Ginsburg and Breyer. A discussion of the opinion is set forth below.

Continue reading "US Supreme Court issues decision in death penalty case" »

May 11, 2007

More death penalty news

A death row inmate in Florida has subpoenaed four reporters in hopes of having them testify about an execution that they witnessed. [Via How Appealing}

A New Jersey State Senate committee passed a bill, on an 8-2 vote, that would make New Jersey the first state to abolish the death penalty since Furman. [via How Appealing]

May 10, 2007

Busy week in death penalty news

The New Jersey Senate Judiciary Committee will hold hearings today on a bill that would replace the state's death penalty with a sentence of life without the possibility of parole. The bill is in response to a special study commission appointed by the New Jersey legislature which overwhelmingly recommended abolition of the death penalty based upon cost and lack of deterrence. [via DPIC].

On the other side of the country, a federal district court judge has halted a penalty phase of a federal capital case in Los Angeles and has told prosecutors that he believes they shoudl rethink the decision to seek the death penalty. [via DPIC]

In New York, a US attorney in Brooklyn is facing difficult questions in Senate confirmation proceedings based upon the frequency in which she has requested the death penalty. [via How Appealing]

And in Florida, executions are to resume based upon changes in execution protocols, even though the drugs used will remain the same. [via How Appealing]

May 09, 2007

Headlines from DPIC

The Death Penalty Information Center presents the following topics this week:

New voices: Federal judge advises Justice Department to rethink death case

Tennesee House Judiciary Committee unanimously approves study commission bill.

International: Number of executions worldwide declines ("Of all known executions that took place in 2006, 91% were carried out in six countries, China (1,010), Iran (177), Pakistan (82), Iraq (65), Sudan (65), and the United States (53)").

New resource: "The lethal injection quandry" by Deborah Denno

Tennessee issues new lethal injections protocols; court challenges and ABA objections continue

Supreme Court to review case in which Texas has defied President Bush's Order

After spending $700,000, California halts construction of new death chamber.

Tennessee executes first inmate w/ new lethal injection protocol

Philip Workman was executed in Tennessee early this morning. Like other states, Tennessee faced challenges to its protocols for lethal injections. New protocols were released in that state last week and a federal district court judge ordered a stay of the execution and set a date for a hearing on the protocols. The federal appellate court, however, reversed that order and the US Supreme Court denied a request for stay of execution in response to the the decision of the Court of Appeals.

April 30, 2007

Death Penalty update

Articles rom the Death Penalty Information Center:

ABA Study Calls on Tennessee to Textend Moratorium on Executions

200th Prisoner Cleared Through DNA Testing

US Supreme Court Reverses Three Texas Death Sentences

New Study Casts Doubt on Reliability of Leth Injection Drugs

US Supreme Court grants cert. in death penalty case

The United States Supreme Court granted certiorari this morning in Medellin v. Texas. Scotusblog provides a summary:

"The Justices granted review Monday in only one case -- the appeal by Mexican national Jose Ernesto Medellin, now on death row in Texas. His appeal raises a major question about presidential power to direct state courts to obey a World Court ruling on the rights of foreign nationals arrested and prosecuted in the U.S. Medellin's appeal on the question of presidential authority is supported by the Bush Administration."

April 27, 2007

Well said

Anne Reed summarizes her thoughts on the the dissenting opinion of Chief Justice Roberts in Abdul-Kabir v. Quarterman in Give Me Clarity or Give Me Death in her Deliberations blog.:

"The opinion that's being quoted everywhere, though, is Chief Justice Roberts's dissent. He argues that the law isn't clear, it's a mess -- in fact, a 'dog's breakfast':

'We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to "clearly established" federal law. If the law were indeed clearly established by our decisions "as of the time of the relevant state-court decision," Williams v. Taylor, 529 U. S. 362, 412 (2000), it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that "clearly established" law was. Ante, at 10-24. When the state courts considered these cases, our precedents did not provide them with "clearly established" law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path.'

Commentators are chiming in to vote on who's right: the law is clear here, a disaster there. Meanwhile, two things are resonating with me. First, it's a lot to ask twelve jurors to unanimously apply death penalty law when nine Supreme Court justices cannot. But we knew that.

More troubling is what the Chief Justice's dissent comes down to. The Court's jurisprudence is a mess, he tells us . . . and so the defendant should die. I'm not sure I'd give that analysis to my dog."

The remainder of the blog post is well worth reading. For that matter, the entire blog provides an interesting look at juries and jury trials.

April 26, 2007

Analysis of yesterday's death penalty decisions

Abdul-Kabir & Brewer & Texas exceptionalism. Capital Defense Weekly. 4/25/07

Today's Opinions in No. 05-11284, Abdul-Kabir v. Quarterman and No. 05-11287, Brewer v. Quarterman. Scotusblog 4/25/07

Scotus death penalty rulings. Sentencing law and policy. 4/25/07 (lots of comments)

Justices, 5 to 4, Overturn 3 Texas Death Sentences. NY Times 4/26/07

High court overturns 3 death sentences in Texas
. LA Times 4/26/07

US court tosses 3 Texas death sentences: Three Texas death sentences overturned over jury rules, putting 44 more in question. Austin American-Statesman 4/26/07

April 25, 2007

US Supreme Court rules in favor of death row inmates in 2 cases

Via Scotusblog:

"In one of two rulings Wednesday on death penalty procedures in Texas, the Supreme Court ruled that Texas' highest state court wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing. The 5-4 decision came in the case of Smith v. Texas, a case that had been before the Court once before. Justice Anthony M. Kennedy wrote for the majority.

The Court reversed the Texas Court of Criminal Appeals' ruling that reinstated the death sentence of a Dallas man, LaRoyce Smith; the state court had applied a new harmless error standard under state law. That was a misinterpretation of what federal law required, the Court concluded.

In the consolidated cases of Abdul-Kabir v. Quarterman and Brewer v. Quarterman, the Court in another 5-4 decision found that the Fifth Circuit Court wrongly applied prior rulings on instructions to assure that capital juries give full consideration to any factor that might suggest a death sentence should not be imposed."

Smith v. Texas is available here. Justice Kennedy delivered the majority opinion and was joined by Justices Stevens, Souter, Ginsburg and Breyer. Justice Souter also filed a concurring opinion. Justice Alito filed a dissenting opinion which was joined by Chief Justice Robers and Justices Scalia and Thomas. At surface, the case presents an issue which is fairly unique to Texas capital jurisprudence, but there is some application beyond the unique Texas situation. The opinion addresses procedural default, preservation of issues, and lower court interpretation of a Supreme Court decision upon remand.

Abdul-Kabir v. Quarterman is available here. Justice Stevens delivered the majority opinion and was joined by Justices Kennedy, Souter, Ginsburg and Breyer. Chief Justice Roberts filed a dissenting opinion which was joined by Justices Scalia, Thomas and Alito. Justice Scalia filed a dissenting opinion which was joined by Justice Thomas and Justice Alito in part.

April 24, 2007

Death penalty updates

From Death Penalty Information Center:
Arbitrariness: Study Finds 6th Circuit Political Appointments Result in Partisan Death Penalty Rulings
New Voices: Victims Organizations Issue Joint Statements for National Victims' Rights Week
Unanimous California Ruling Allows Broad Interpretation of Mental Retardation
Freed Death Row Inmates and Former Prosecutor Join Call for Halt to Pennsylvania Executions
Inadequate Capital Defense Underscored in Ohio Study


April 23, 2007

New study issued on lethal injection

A new study detailing issues with lethal injection has been published: Lethal Injection for Execution: Chemical Asphyxiation?

April 18, 2007

US Supreme Court hears argument on insanity and execution

Today at 10 a.m. pacific time, the United States Supreme Court will hear argument in Panetti v. Quarterman. The case presents an issue of whether Texas may execute a man who is aware that he will be killed but is delusional about the reasons for his execution. Scotus blog previews the case here.

April 16, 2007

Death Penalty Info. Center headlines

From the Death Penalty Information Center:

Supreme Court to Hear Arguments on Whether Texas Man Is Mentally Competent to be Executed

Virgina Man Pleads Guilty to Crime that Sent an Innocent Man to Death Row

Norther Carolina Death Penalty to remain In Limbo for Foreseeable Future

New Resources: "Trials Under the Military Commissions Act"

And from Capital Defense Weekly:

Shooting Dice: The Politics of Death in the Sixth Circuit

Roundup then holiday (including reference to Byford v. State).

California Supreme Court on Atkins v. Virginia

Texas kills

Indiana: a lethal injection showdown & a grant of relief

April 12, 2007

Oops - typed too soon: 1 more opinion

In Byford v. State the Nevada Supreme Court held that the State and district court acted improperly in ruling upon a post-conviction petition in a capital case, which had been remanded by the Nevada Supreme Court for reconsideration of certain claims and entry of an order with specific findings, by means of the State preparing an order and submitting it to the district court without notice to the defendant or his counsel. The Court held that the district court "must make a ruling and state its findings of fact and conclusions of law before the State can draft a proposed order for the district court's review."

The Court also found that "in defending the district court's order, the State repeatedly asserts that Byford's counsel made reasonable strategic choices. In many instances, this is a difficult assessment to make without the benefit of counsel's testimony at an evidentiary hearing."

The case is remanded for further proceedings.

Continue reading "Oops - typed too soon: 1 more opinion" »

April 09, 2007

Headlines at DPIC

The Death Penalty Information Center presents the following headlines this week:

Possibly Mentally Retarded Man to be Executed in Texas, Where Almost All 2007 Executions Have Occurred

Official Misconduct: Alabama Pathologist's Results Called Into Question

Multi-Media: "Justice Talking" on National Public Radio Addresses Death Penalty Issues

April 04, 2007

Headlines at DPIC

The Death Penalty Information Center presents the following articles this week:

Pennsylvania Commission to Study Wrongful Convictions
North Carolina May Have Misled Federal Judge About Execution Procedures
New Resources: Eyewitness identification and Interrogation
New Resource: "Sacco and Vanzetti" Film Examines Immigrants and the Death Penalty
New Voices: Law Enforcement Officers Says Death Penalty is Too Expensive and Does Not Deter Crime
Alabama Fails to Provide Indigent Defense Attorneys for Those Facing Execution

April 03, 2007

Valdez accepts agreement on sentence

James Valdez agreed to a sentence of life without the possibility of parole, while retaining his rights to appeal from the jury's finding of guilt, instead of facing the death penalty in a penalty hearing that was to begin yesterday.

The Las Vegas Review Journal notes interviews with jurors suggested that two jurors believed the state did not prove first degree murder, but agreed to return a verdict for that offense after obtaining a compromise, during the guilt/innocence phase deliberations, that Valdez would not get the death penalty.

April 01, 2007

Jury decides punishment during guilt phase

A jury convicted James Valdez of first degree murder and attempted murder on Friday. The penalty hearing in the death penalty case is scheduled to begin on Monday, April 2. The Las Vegas Review Journal reports, however, that "in an unusual twist, the jury foreman told [Judge] Bonaventure that the jury had already decided on a penalty." The incredibly premature decision was not disclosed in the newspaper and it appears that it was not disclosed to the parties or the court either.

I think "an unusual twist" is a major understatement. It will be interesting to see how this plays out on Monday.

March 27, 2007

Death Penalty Headlines

From Death Penalty Information Center:

Dismissed Federal Prosecutors Were Overridden on Death Penalty Recommendations
Chicago Tribune Changes Position and Calls for Abolition of Death Penalty
New Resource: Criminology Journal Examines Race and Policing
Costs: High Costs of Death Penalty Brings Georgia System to a Standstill
New Resource: "Death Row USA" Winter 2007 Report Now Available
Nebraska's Death Penalty Bill Falls One Vote Short
Victims and Law Nforcement Support Kentucky Death Penalty Review

March 23, 2007

NY Times: Brain Injury Said to Affect Moral Choices

The New York Times discusses a new study regarding the impact of damage to an area of the brain behind the forehead and the fact that it transforms the way people make moral judgments in life-or-death situations.

I think this is a must-read article for those handling death penalty cases.

News update

Nevada bill removes guns from those under restraining orders, Nevada Appeal & AP, 3/22/07

$1,000,000 bail for Vegas priest accused of attempted murder, Nevada Appeal & AP 3/22/07

Man (James Meegan) gets prison in death of daughter, LVRJ 3/23/07

Cold case: Man held in 1985 LV slaying, LVRJ 3/23/07

Cost of open parole hearings discussed, LVRJ 3/2307

Bill targets guns of those under court constraint, LVRJ 3/23/07

Galardi gets 15-month term in San Diego, LVRJ 3/23/07

A Habeas Corpus Appeal Veers to Capital Issues, NY Times, 3/21/07

March 22, 2007

For my law school students: execution manual

For students in my Death Penalty Seminar course, and anyone else with an interest, this is the link to the Nevada Department of Corrections Execution Manual.

News update

Killer gets death penalty (James Chappell), LVRJ 3/22/07

Highly contagious: Jail invaded by virus, LVRJ 3/22/07

Clark County judges costly, LVRJ 3/22/07

Judges take their shot, bump in paychecks hinges on some speedy finessing. LVSun 3/22/07

Top prosecutor trying mall case, LVRJ 3/22/07

Candidate qualifications: Sheriff credentials at issue, LVRJ 3/22/07

Bogden deputy at first refused to take over office, LVRJ 3/22/07

Jury convicts man of murder despite absence of body, RGJ 3/22/07

March 21, 2007

US Supreme Court hears argument in Roper v. Weaver

The United States Supreme Court heard argument this morning in Roper v. Weaver. The case prevents the issue of whether a state prisoner convicted of a capital offense is entitled to federal habeas relief based upon prosecutorial misconduct. Scotusblog provides a detailed discussion of the case. Transcripts of the argument should be available this afternoon.

March 16, 2007

Federal judge examines costs of death penalty and burden upon the system

Federal District Court judge Frederic Block authors an op-ed in the New York Times in which he examines the costs and burdens of the federal death penalty.

March 13, 2007

Podcasts of McCleskey Symposium available

Listen to Podcasts of McCleskey Symposium Keynote and Panel Presentations
Podcasts of keynote addresses and select panel presentations of the "Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp" symposium are now available on LDF's website at www.naacpldf.org. Sponsored by LDF and Columbia Law School, the Symposium was held at Columbia Law School on March 2 and 3, 2007, and attracted almost two hundred attorneys, legal scholars, social justice practitioners, community activists and students.

The following podcasts are now available:
Anthony Amsterdam (New York University Law Professor), The Harold Leventhal Memorial Lecture. In his lecture, Professor Amsterdam establishes the entrenched link between American racism and the death penalty, and lays out a comprehensive, forward-looking plan for attacking the continuing influence of race in capital punishment.

Bob Herbert (New York Times columnist), keynote address, in which he recounts stories of glaring injustice against African-American defendants.

Ted Shaw (NAACP Legal Defense Fund), keynote address, which provides the constitutional context for many of today's McCleskey-related legal challenges that continue to plague communities of color.

Bryan Stevenson (Equal Justice Initiative), on innovative approaches for attacking racial bias in the administration of justice.

Christina Swarns (NAACP Legal Defense Fund), on race and criminal justice reform in litigation and prosecution.

MORE PODCASTS
Additional podcasts will be posted this week of presentations by John Charles Boger of the University of North Carolina Law School, who argued McCleskey v. Kemp before the Supreme Court; Lawrence Marshall of Stanford Law School, who provides an insider's view of the challenges facing the Court at the time of the McCleskey decision; Dorothy Roberts of Northwestern University School of Law, who offers approaches for achieving a criminal justice system free of racial bias; and Rodney Ellis, Texas State Senator, who discusses the role of the legislature.

March 12, 2007

Headlines from DPIC

The Death Penalty Information Center features the following articles this week:

Costs: High Number of Capital Cases Will Cost Arizona County Millions of Dollars

Documentaries: "Race to Execution"

Books - Lethal Punishment: Lynchings and Legal Executions in the South

France Amends Constitution to Ban the Death Penalty

Books: "Last Words from Death Row" Examines Herrera Case

Maryland Poll Shows Board support for Life Without Parole

Montana Senate Votes to Abolish Death Penalty

Indiana ABA Assessment Team Calls for Halt to Executions, Issues Recommendations

March 05, 2007

Maricopa County crisis over death penalty cases

The New York Times reports on a crisis in Maricopa County, Arizona (Phoenix) caused by the prosecuting attorney's decision to seek the death penalty in 49% of its first-degree murder cases.

February 27, 2007

Death Penalty Information Center updates

Topics this week at the Death Penalty Information Center include the following:

Books: In the Shadow of Death: Restorative Justice and Death Row Families
New Resource: Religion and the Death Penalty Web Page
New Voices: Former State Prosecutor Questions Value of Capital Punishment
Vatican Says Death Penalty Is "Affront to Human Dignity"
Virginia Man Could Face Execution Despite Ineffectual Representation
Public Opinion: Poll Reveals Kansans Prefer Life Without Parole
New Resources: The Possible Innocence of Troy Davis

February 15, 2007

Court requires hearing for death row inmate

Death row inmate William Leonard, who was sentenced to death for the fatal stabbing on an inmate at the Nevada State Prison, is to receive a hearing on claims of ineffective assistance of counsel under an unpublished order of the Nevada Supreme Court that was issued on Wednesday.

February 08, 2007

Post-conviction death cases remanded

The Nevada Supreme Court issued an unpublished decision today in Byford v. State. The Court vacated the district court's Order and remanded for further proceedings.

A little bit of history is in order: Byford filed a post-conviction petition for a writ of habeas corpus in which he raised a number of claims. The district court summarily denied the petition, without a grant of discovery or an evidentiary hearing, and without entering specific findingings. Byford appealed. The Nevada Supreme Court promptly (within 1 month of the filing of the Reply Brief) affirmed the district court as to claims not concerning the effective assistance of counsel, and reversed the district court's orders as to the numerous claims of ineffective assistance of trial and appellate counsel. The Court concluded that the district court's order lacked specific findings of fact and conclusions of law to support its decision, and directed the court to reconsider the claims and, at a minimum, enter an order that set forth specific findings of fact and conclusions of law to support its decision.

Upon remand, the district court did not hold an evidentiary hearing and did not hear argument from counsel. Instead, the State prepared a new proposed order, which the district court signed without advising Byford or his counsel that a proposed order was before the court.

The Nevada Supreme Court found this improper and again remanded the case, for the reasons set forth below:

Continue reading "Post-conviction death cases remanded" »

February 05, 2007

DPIC Update

From the Death Penalty Information Center:

Another Prisoner Freed After DNA Evidence Leads to Exoneration
New Resources: "Living With the Death Penalty"
Tennessee Governor Orders 90-Day Halt to Executions
New Resource: "Chasing Justice" Chronicles Experiences of Former Death Row Inmate
New Voices: Federal Judge Says New York Case is "Absurd" Waste of Time and Money
Maryland Governor Supports Legislation to Repeal State's Death Penalty
New Resources: "No Defense: Shortcut to Death Row"

February 04, 2007

Cases In The News

Lobato Sentenced for Murder, Mutilation, LVRJ 2/3/07 (note the bad headline: she was convicted of manslaughter, not murder). The article also notes that prosecutors presented evidence of telephone calls from the jail -- this seems to be a common practice of the Clark County DA's Office in high profile and murder cases).

Jurors Decide on Death Sentence in Slaying of Woman, LVRJ 2/3/07

Assault Suspect: Fugitive LV Priest Caught, LVRJ 2/3/07

January 29, 2007

Updates from DPIC

The Death Penalty Information Center features the following articles this week:

New Resources: "State of the States" Report Features US Death Penalty Developments
North Carolina Panel Bars Doctors From Participating in Executions
Federal Death Penalty: Man Receives Life Sentence for Role in Illegal Immigrant Deaths
Texas Man Exonerated by DNA Evidence; Court and Prosecutor Apologize
The Mentally Ill, Behind Bars - an Op-ed by Bernard Harcourt

January 25, 2007

Walker penalty hearing begins today

A jury convicted James Ray Walker of first-degree murder. The capital penalty hearing will begin today before Judge Adair. His co-defendant, Myrdus Archie, was convicted of second-degree murder.

January 14, 2007

Order of Reversal in Sherman v. State

I'm still working on my scanning and posting PDF ability, so I've typed the text of the Nevada Supreme Court's unpublished Order of Reversal and Remand in the capital case of Sherman v. State, No. 47012. I'm thankful that it was short. The Order was issued on January 9, 2007. I cannot think of any published decisions that are directly on point with the subject of the decision, so I'm surprised that the Court did not publish the order.

Congrats to David Anthony of the Federal Public Defender's Office on the win.

The text of the order is set forth at the jump.

Continue reading "Order of Reversal in Sherman v. State" »

January 09, 2007

Nevada Supreme Court reverses ruling in Sherman death penalty case

A Reno television station reports that the Nevada Supreme Court has reversed a ruling by Judge Valerie Vega in the capital case of State v. Sherman. It appears that the order is not published and that it addresses a procedural issue.

Does anyone have a copy of the order? If so, will you please fax it to my office at 471-6540. Thanks.

December 28, 2006

Final published decisions for the year

The Nevada Supreme Court issued 14 published opinions today. Links to all of the decisions are provided on the Court's website.

In Santana v. State, the Court reversed a conviction based upon the district court's failure to correctly instruct the jury on the reasonable person standard for the offense of felony coercion. Justice Rose authored a concurring opinion in which he concluded that the defendant's 19 life sentences, 5 of which were without parole, were excessive. Justice Rose expressed his disagreement with the Court's general failure to review sentences for excessiveness.

Lioce v. Cohen is a civil case but it is well worth review for those raising issues of prosecutorial misconduct in closing argument.

In Thomas v. State, the Court affirms a sentence of death that was entered following a second penalty hearing. The Court held that Crawford v. Washington and the Confrontation Clause do not apply in capital penalty hearings. It emphasized that "other matter" evidence is not admissible for the eligibility determination and that if the State introduces evidence to counter mitigation evidence presented by the defendant that the evidence must be specific to the mitigation presented. The Court disapproved of a prosecutor's argument that mitigation factors must be a cause of the crime in order to be considered, but the Court found the argument to be harmless. It next found that the district court did not abuse its discretion in allowing 10 prison officials to testify for the State because each official testified about a different disciplinary problem. The Court found that a victim's father was not entitled to testify that the defendant was "the lowest form of social sewage," but the Court found the statement to be harmless because there was no indication that the State told the witness to give that testimony and because the witness was promptly admonished. The Court found that the district court did not err in refusing a proposed defense instruction on lack of premeditation as a mitigating circumstances. Although the Court found that lack of premeditation could be a mitigating circumstance, the proposed instruction was not properly framed. The Court next found that the district court did not abuse its discretion in excluding evidence concerning the State's failure to charge the defendant's wife with the offense as such evidence was not proper mitigation. The Court rejected Thomas' arguments concerning the constitutionality of Nevada's death penalty scheme and the unbridled discretion of the DA's office to seek the death penalty. Justices Rose authored a concurring opinion which was joined by Justices Maupin and Douglas. They disagreed with the majority's conclusion that the Confrontation Clause and Crawford do not apply during the penalty hearing of a capital case, but they found that the Confrontation Clause was satisfied here because the witness was unavailable and the defense had a prior opportunity to cross-examine the witness.

In Johnson v. State, the Nevada Supreme Court affirmed four sentences of death following a third penalty hearing. A four-justice majority concluded that Crawford and the Confrontation Clause do not apply in the penalty hearing of a capital case. The Court found that the district court did not abuse its discretion in admitting evidence of juvenile misconduct and offenses during the selection phase of the bifurcated hearing, and noted that because the hearing was bifurcated this evidence did not influence the jury during the eligibility phase. The Court next concluded that the district court did not abuse its discretion in permitting the State to ask "stake-out" position questions during jury selection. The Court did not quote the questions asked or otherwise articulate the meaning of "stake-out" so the meaning of this portion of the opinion is unclear. Next, the Court found prosecutorial misconduct but found the misconduct to be harmless. Specifically, the Court found improper a prosecutor's argument that mitigation evidence presented by the defendant was disrespectful to others who grew up in violent neighborhoods because they did not commit quadruple homicides. The Court found that this was an improper plea to consider community reaction to the verdict. The Court found that the prosecutor violated a district court order to prohibit references to the victims as "kids" and boys," but found that the defendant was not prejudiced by the misconduct. The Court also found that the prosecutor committed misconduct by arguing facts that were not supported by evidence, but again found the misconduct to be harmless. In response to the defendant's argument that the prosecutor committed misconduct in the selection phase by referencing prejudicial matters that were not ultimately supported by the evidence presented, the Court concluded that the prosecutor did not act in bad faith and that the statement was brief and not emphasized. Of note is the fact that the Court found each of the instances of prosecutorial misconduct to be properly preserved, despite the absence of objections at trial, because defense counsel filed a pretrial motion to prohibit prosecutorial misconduct and that motion was addressed before trial. Next, the Court found that the defendant was not prejudiced by the fact that a victim's brother passed out during closing arguments in response to a photo of the crime scene. Finally, the Court concluded that the death sentences were not excessive. Justice Rose authored a concurring opinion, which was joined by Justices Douglas and Maupin, in which they concluded that the Confrontation Clause and Crawford should apply to capital penalty hearings.

In Summers v. State, the Nevada Supreme Court, in a 4-3 decision authored by Justice Hardesty and joined by Justices Becker, Gibbons and Parraguirre, concluded that the Confrontation Clause and Crawford v. Washington do not apply to the penalty phase of a capital case. Justice Rose, in an opinion joined by Justices Douglas and Maupin, dissented on this issue and concluded that testimonial evidence introduced without the benefit of cross-examination should be excluded. The Court also concluded that the district court did not err in failing to dismiss a juror for cause, despite the absence of a motion by defense counsel, based upon the fact that her daughter once dated one of the prosecutors. The Court next concluded that the district court acted properly in controlling a witness during the defense examination, and again noted the absence of a defense objection at trial. The Court also affirmed the district court's denial of a motion for mistrial based upon an allegation of prosecutorial misconduct in the penalty phase and a motion tor mistrial in the guilt phase based upon a witness's unsolicited comment about threats to his life. The Court noted the district court's prompt admonition to the jury regarding the witness's statement. fyi - Summers received a sentence of life without the possibility of parole.

December 11, 2006

Ely DA intends to violate international law

The Ely Times reports that White Pine County District Attorney Richard Sears has announced that he will seek the death penalty against Isaac Asusta, despite an international agreement which enabled Asusta to be extradited to Nevada from Mexico. Under the agreement, an assurance was given that the DA's office would not seek the death penalty.

December 09, 2006

Nevada Supreme Court affirms death sentence and other convictions

The Associated Press reports that the Nevada Supreme Court affirmed the conviction and death sentence of Cary Williams, despite finding two of four aggravating circumstances to be invalid. The Court also affimred the convictions of Michael Anselmo and Robert Chappell.

December 07, 2006

US Supreme Court grants cert. on 2 criminal cases

The United States Supreme Court granted certiorari on five petitions. Two involve criminal law:

Roper v. Weaver presents the issue of whether a federal appeals court has authority to overturn a death sentence in a habeas case, based upon a finding that the prosecutor's closing argument in the penalty phase was unfairly inflammatory. The 8th Circuit's opinion is Weaver v. Bowersox, 438 F.3d 832 (8th Cir. 2006). The arguments which caused the reversal are set forth below the jump.

Fry v. Pliler presents the issue of whether a trial judge's order to exclude evidence that a third party was guilty of the crime can ever be excused as "harmless error."

In a another case, Bowles v. Russell, the Court will consider whether a federal appeals court may dismiss as too late an appeal that a district court had authorized, out of the usual time limits but after the district court had reopned the appeal time. I am not certain as to whether this is a civil or criminal case.

Thanks to scotusblog for the info.

Continue reading "US Supreme Court grants cert. on 2 criminal cases" »

November 28, 2006

Jury rejects death sentence but splits on life with & life without

The Las Vegas Review Journal reports that the jury considering the sentence of James Harrison was unable to reach a verdict. Nine of the jurors wanted life without parole and three wanted life with the possibility of parole. None of the jurors wanted the death penalty.


Editorial: This case illustrates why the Nevada Supreme Court should stay out of the "reweighing" business. Harrison was convicted of first degree murder of a victim who suffered 128 stab wounds, nine blows to the head, and had a swastika carved into his back. The prosecutors claims that Harrison did the stabbing and mutilation to earn entrance into an Aryan gang. Despite the existence of several aggravating circumstances, none of the jurors believed that the death penalty was appropriate. In several recent cases the Nevada Supreme Court has found aggravating circumstances to be invalid but also affirmed the sentences of death after finding "beyond a reasonable doubt" that the finding of the aggravating circumstance did not contribute to the jury's verdict and that the jury would have imposed death in any event. The Harrison case proves the unpredictability of the death penalty and the fact that there is no way to determine, beyond a reasonable doubt, that a jury would return a death sentence in any situation.

November 17, 2006

Press coverage on McConnell retroactivity

Death Row Capital Cases Under Review - Las Vegas Review Journal

2004 Decision Altered Death Penalty Law - Las Vegas Review Journal

Supreme Court Applies Death Sentence Rule To Past Cases - Nevada Appeal

November 07, 2006

Nevada Supreme Court hears oral argument in Marlo Thomas case

The Nevada Supreme Court held oral argument in the appeal of Marlo Thomas v. State. The case presents the question of whether hearsay is admissible in a penalty hearing under Crawford. Thomas is represented by Special Public Defender David Schieck.

April 26, 2006

Confidential Execution Manual Published

Thanks to the fine work of the Reno Gazette Journal, Nevada's "Confidential Execution Manual" has finally been published. Defense attorneys have sought access to this document for several years without success. The 43 page manual is available here.

Mack's execution is scheduled for tonight at 9 pm.

April 17, 2006

Updated 9th Circuit Capital Punishment Handbook available

The good folks at Capital Defense Weekly have provided a link to the 2006 Capital Punishment Handbook by the Ninth Circuit. Beware: It's a 759 page pdf so downloading and printing may be a resource intensive project.

April 10, 2006

Nevada Supreme Court affirms grant of new penalty hearing for Chappell

The Reno Gazette Journal reports that the Nevada Supreme Court affirmed an order of the district court partially granting a habeas petition and order a new death penalty hearing in the case of State v. Chappell. The Court concluded that two aggravators - burglary and robbery - must be stricken because the State argued Chappell's guilt under a felony murder theory at trial.

Congratulations David Schieck, counsel for Chappell.

February 22, 2006

Death Row Reduced to 82 in Nevada by Plea Deal

Congrats to Karen Connolly for getting Steven Kacmarek Off Death Row.

Today: February 22, 2006 at 7:43:57 PST
Deal takes convicted murderer off death row By Matt Pordum <matt.pordum@lasvegassun.com> Las Vegas Sun
Nevada's death row population dropped to 82 last week after a negotiation between prosecutors and convicted murderer Steven Kaczmarek.
Prosecutors offered Kaczmarek a deal to end an appeal. He will now serve life in prison without the possibility of parole for the September 2002 robbery and murder of Pedro Villareal in a Fremont Street apartment.
Then 33-year-old Kaczmarek and Alisha Burns, then 15 and described as his girlfriend, met Villareal at a fast-food restaurant. Authorities said Villareal propositioned Burns, a runaway from Ohio, for sex in exchange for $200. The three went to Villareal's apartment where Villareal was choked and then drowned.
Burns was sentenced to life in prison for her involvement in the killing, with parole eligibility after 10 years.
Kaczmarek's attorney, Karen Connolly, said the outcome of the deal satisfied both sides because the prosecutors are guaranteed "he's never getting out of prison."
"I find the death penalty to be morally repugnant, and I'm ecstatic he's (Kaczmarek) off death row," Connolly said.
Appellate Chief Deputy District Attorney Steven Owens wouldn't say why the deal was offered other than to say that "some of the issues raised in the appeal had enough merit for us to negotiate the case."
"He pleaded guilty to everything he was previously convicted of by a jury and received the same sentences, except for now he will serve life without parole instead of death for the murder charge," Owens said. "There is a benefit to the state to having him plead guilty because it severely limits his abilities to ever appeal the case again."
Connolly, said she believed prosecutors offered the deal after recognizing that errors by Kaczmarek's trial attorneys, Paul Wommer and Greg Denue, might have resulted in him receiving a new penalty hearing.
Connolly said they failed to offer the jury any mitigating evidence before jurors determined Kaczmarek's fate.
She said evidence existed that Kaczmarek was physically abused by his mother's boyfriend when he was 7 years old, drank alcohol and smoked marijuana with his uncles when he was only 8 years old and had an IQ that placed him on the borderline of mild retardation.
"He was sitting on death row after absolutely no mitigating evidence was presented at all in his defense despite the fact he had a long history of issues beginning during the early years of his childhood," she said.
Wommer said he and Denue tried to get Kaczmarek's mother to testify at the hearing.
"His mother lived in Ohio, and Greg (Denue) had been in contact with her and we were planning on bringing her out for the penalty phase to make a plea for her son's life," Wommer said.
"She wasn't really receptive to the idea and after the trial when we called her to ask her to testify she said she couldn't come because a new Wal-Mart was opening. I guess she couldn't miss it."
Wommer said instead Kaczmarek's mother faxed a one-page letter in which she said, "Steven didn't have the greatest direction growing up and she should have paid better attention to him."
Matt Pordum can be reached at 474-7406 or at pordum@lasvegassun.com.
Problems or questions?

Death Row Reduced to 82 in Nevada by Plea Deal

Congrats to Karen Connolly for getting Steven Kacmarek Off Death Row.

Today: February 22, 2006 at 7:43:57 PST
Deal takes convicted murderer off death row By Matt Pordum <matt.pordum@lasvegassun.com> Las Vegas Sun
Nevada's death row population dropped to 82 last week after a negotiation between prosecutors and convicted murderer Steven Kaczmarek.
Prosecutors offered Kaczmarek a deal to end an appeal. He will now serve life in prison without the possibility of parole for the September 2002 robbery and murder of Pedro Villareal in a Fremont Street apartment.
Then 33-year-old Kaczmarek and Alisha Burns, then 15 and described as his girlfriend, met Villareal at a fast-food restaurant. Authorities said Villareal propositioned Burns, a runaway from Ohio, for sex in exchange for $200. The three went to Villareal's apartment where Villareal was choked and then drowned.
Burns was sentenced to life in prison for her involvement in the killing, with parole eligibility after 10 years.
Kaczmarek's attorney, Karen Connolly, said the outcome of the deal satisfied both sides because the prosecutors are guaranteed "he's never getting out of prison."
"I find the death penalty to be morally repugnant, and I'm ecstatic he's (Kaczmarek) off death row," Connolly said.
Appellate Chief Deputy District Attorney Steven Owens wouldn't say why the deal was offered other than to say that "some of the issues raised in the appeal had enough merit for us to negotiate the case."
"He pleaded guilty to everything he was previously convicted of by a jury and received the same sentences, except for now he will serve life without parole instead of death for the murder charge," Owens said. "There is a benefit to the state to having him plead guilty because it severely limits his abilities to ever appeal the case again."
Connolly, said she believed prosecutors offered the deal after recognizing that errors by Kaczmarek's trial attorneys, Paul Wommer and Greg Denue, might have resulted in him receiving a new penalty hearing.
Connolly said they failed to offer the jury any mitigating evidence before jurors determined Kaczmarek's fate.
She said evidence existed that Kaczmarek was physically abused by his mother's boyfriend when he was 7 years old, drank alcohol and smoked marijuana with his uncles when he was only 8 years old and had an IQ that placed him on the borderline of mild retardation.
"He was sitting on death row after absolutely no mitigating evidence was presented at all in his defense despite the fact he had a long history of issues beginning during the early years of his childhood," she said.
Wommer said he and Denue tried to get Kaczmarek's mother to testify at the hearing.
"His mother lived in Ohio, and Greg (Denue) had been in contact with her and we were planning on bringing her out for the penalty phase to make a plea for her son's life," Wommer said.
"She wasn't really receptive to the idea and after the trial when we called her to ask her to testify she said she couldn't come because a new Wal-Mart was opening. I guess she couldn't miss it."
Wommer said instead Kaczmarek's mother faxed a one-page letter in which she said, "Steven didn't have the greatest direction growing up and she should have paid better attention to him."
Matt Pordum can be reached at 474-7406 or at pordum@lasvegassun.com.
Problems or questions?