Entries tagged with “death penalty” from Harmfulerror

Ybarra (Robert) v. State of Nevada,

Docket No. 52167

Carson City - 10:00 a.m. - Full court

Robert Ybarra was convicted of first-degree murder, battery with the intent to commit a sexual assault, and sexual assault in White Pine County.  This court affirmed the judgment of conviction and death sentence.  Thereafter, Ybarra unsuccessfully sought post-conviction relief four times.  In this, his fourth post-conviction petition, Ybarra claimed that he was mentally retarded and therefore not subject to the death penalty under Atkins v. Virginia.  Initially, the district court denied the petition as procedurally barred, but on appeal this court determined that the district court erred by dismissing the claim and remanded the matter for appropriate proceedings.  On remand, the district court considered additional pleadings, conducted an evidentiary hearing, and rejected Ybarra's mental retardation claim on the merits.  This appeal followed.  ISSUES:  (1) Did the district court err by concluding that Ybarra was not mentally retarded (2) Did the denial of Ybarra's motion to recuse the district court judge violate his state and federal right to due process.

Hardy Companies, Inc. v. SNMARK, LLC,

Docket No. 52758

Carson City -10:30 a.m. - Full Court

This mechanic's lien dispute centers around the attempt by appellant W.E. O'Neil Construction Company of California and its subcontractor appellant Hardy Companies, Inc., to foreclose mechanics' liens on property owned by respondent SNMARK, LLC.  O'Neil had contracted with lessee Wickes Furniture to build out a large commercial space in a shopping center owned by SNMARK.  Neither O'Neil nor Hardy served pre-lien notices on SNMARK.  However, SNMARK knew about and was involved with the construction.  The district court in Clark County determined none of the lien claimants served SNMARK with a pre-lien notice, as required by NRS 108.245.  The district court granted SNMARK's motion to expunge the mechanics' liens and granted summary judgment.  This appeal followed.  ISSUES:  (1) Was O'Neil excused from serving pre-lien notice because it was the prime contractor and contracted directly with the owner? (2) Did SNMARK's actual notice negate the need to serve the property owner with a pre-lien notice? (3) Has the actual knowledge exception from Fondren v. K/L Complex, Ltd., 106 Nev. 705, 800 P.2d 719 (1990) been overruled by subsequent legislative amendments? (4) Is SNMARK estopped from invoking the pre-lien statute because it is not a disinterested owner? 

Lawrence v. Clark,

Docket No. 54165

Carson City -11:30 a.m. - Full Court

This matter involves land that was held and administered by the Colorado River Commission (CRC), an executive agency of the State of Nevada.  Pursuant to the Fort Mohave Valley Development Law (FMVDL), the CRC administered thousands of acres in the Fort Mohave Valley, which is part of the Colorado River basin in Clark County, Nevada.  In 2007, the Legislature substantially revived the FMVDL. The revision was primarily concerned with transferring public lands from the CRC to Clark County. The revised FMVDL ordered the CRC and the Nevada State Land Registrar to convey all the land once administered by the CRC to Clark County. The CRC executed a deed to Clark County for all of the land--the Registrar did not. It deeded most of the land but refused to deed over a small portion of land that lies just adjacent to the Colorado River (the Disputed Land).  Respondent Clark County filed a complaint for declaratory relief seeking to have the district court order appellant James R. Lawrence, in his official capacity as the Nevada State Land Registrar, to convey the Disputed Land. The Registrar filed a counterclaim, requesting a declaration that the Disputed Land was subject to the public trust doctrine and therefore inalienable. The district court granted the County's motion for judgment on the pleadings, and the Registrar appealed. ISSUE: Did the district court err when it granted the County's motion for judgment of the pleadings?

Somewhat lost among the four opinions issued yesterday was a per curiam decision in Sears v. Upton (scroll down a few pages).  It's a must-read for those handling capital or habeas cases.  The Court finds that the lower courts erred in assessing the prejudice caused by counsel's failure to fully investigate and present mitigating evidence.  The trial court had found that the defendant could not demonstrate prejudice because some mitigating evidence was presented, despite the fact that the mitigation presented at trial was minimal, and the mitigation that was available but not presented was overwhelming.  "Although the [trial] court appears to have stated the proper prejudice standard, it did not correctly conceptualize how that standard applies to the circumstances of this case."  Chief Justice Roberts and Justice Alito would have not granted certiorari.  Justice Scalia authored a dissenting opinion that is joined by Justice Alito.

Sherman (Donald) v. State of Nevada (Death Penalty),

Docket No. 50653

Las Vegas - 10:00 a.m. - Full Court

In this case, Donald Sherman is appealing the denial of his second post-conviction petition for a writ of habeas corpus.  Sherman was convicted of first-degree murder, burglary, and robbery for beating his estranged girlfriend's father to death with a hammer in Clark County.   The Supreme Court affirmed Sherman's conviction and death sentence on direct appeal.  Sherman then filed his first post-conviction petition for a writ of habeas corpus in district court, as well as a supplemental petition.  Both were denied by the district court and the Supreme Court upheld the decision.  Sherman then filed this second post-conviction petition, which the district court also denied based on procedural rules.  The denial of that petition is the subject of this appeal.  ISSUES: Did the district court err in determining that Sherman's claim under McConnell v. State was procedurally barred because Sherman failed to demonstrate prejudice? Did Sherman's claim pursuant to Brady v. Maryland provide good cause sufficient to overcome the procedural default? 

Hoffman (Stuart) v. Spring Valley Hospital,

Docket No. 52813

Las Vegas - 11:30 a.m. - Full Court

This appeal arises from a dispute between Spring Valley Hospital and Medical Center and Dr. Stuart Hoffman.  Spring Valley suspended Dr. Hoffman's medical privileges and submitted a report about Hoffman to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act.  Hoffman disputed the report and filed suit in district court against Spring Valley alleging breach of contract, breach of implied covenant of good faith and fair dealing, rescission, defamation per se, and declaratory relief.  Spring Valley filed an answer to Hoffman's complaint and moved for summary judgment, which the district court granted, concluding that federal law preempted Hoffman's state law claims.  ISSUES:  Did the district court's order granting summary judgment operate as a dismissal under NRCP 12(b)(5)?  Did the district court err by dismissing Hoffman's claim on the ground that the Health Care Quality Improvement Act preempted his state law claims?   

Harris (Linda) v. Asayama (Miyoko),

Docket No. 51388

Las Vegas - 1:30 p.m. - Full Court

This appeal involves procedural issues of first impression regarding the dismissal of a tort action stemming from a motor vehicle accident for failing to timely hold a case conference within NRCP 16.1(e)(1)'s 180-day period.  Linda Marie Harris was injured when her car collided with a vehicle driven by Miyoko Asayama.  Harris filed a district court complaint, which she served on Asayama on March 2, 2007.  Harris allegedly gave Asayama an open-ended extension of time to answer and Asayama filed an answer on June 14, 2007.  On August 6, 2007, Harris filed a request for exemption from arbitration, which the Alternative Dispute Resolution Commissioner granted on August 24, 2007.  Harris subsequently held an early case conference on December 26, 2007, after noticing the conference two days earlier, on December 24.  Asayama did not attend the December 26 conference, however, as she had informed Harris on December 24 that the notice of the conference was inadequate and that her counsel was scheduled to be off on December 26.  Harris subsequently filed an individual case conference report on January 22, 2008.  In the meantime, Asayama filed a motion to dismiss the lawsuit because Harris failed to hold an NRCP 16.1(b)(1) case conference within the 180-day period set forth in NRCP 16.1(e)(1). The district court granted the motion to dismiss because a case conference was not held in a timely manner and there were no compelling and extraordinary circumstances warranting an extension.  ISSUES:  Was Harris's complaint deemed to be in the court-annexed arbitration program from the moment of filing until it was exempted from the program?  When does NRCP 16.1(e)(1)'s 180-day period for holding a case conference start to run for cases that are not eligible for automatic exemption from the court-annexed arbitration program?  Did the district court abuse its discretion by granting Asayama's motion to dismiss the complaint, without prejudice, under NRCP 16.1(e)(1) for failing to timely hold a case conference? 

Moon (Joon) v. McDonald Carano Wilson LLP,

Docket No. 51124

Las Vegas - 2:00 p.m. - Full Court

This appeal involves procedural issues of first impression regarding the dismissal of a professional negligence and breach of contract lawsuit against a Nevada law firm for failing to timely file a case conference report within the 240-day period set forth in NRCP 16.1(e)(2).  On November 3, 2006, Joon S. Moon and Patterson Laboratories, Inc., (collectively, Moon) filed a district court complaint against McDonald Carano & Wilson, LLP, and its attorneys William A.S. McGrath and John J. Laxague (collectively, MCW). Moon served the complaint on December 29, 2006, and MCW filed an answer in January 2007.  On March 29, 2007, the arbitration commissioner exempted the case from arbitration.  On November 6, 2007, MCW filed a motion to dismiss under NRCP 16.1(e)(1) and (2), claiming that Moon failed to hold a case conference within the applicable 180-day period and/or file a joint case conference report within the applicable 240-day period.  Moon opposed the motion to dismiss, claiming that an early case conference was held on April 18, 2007, and that the case conference report was not due until November 26, 2007.  Moon filed his case conference report on November 21, 2007.  The district court entered an order dismissing the case after determining that the case was never submitted, ordered, accepted, or remanded into the court-annexed arbitration program and that there was no automatic suspension of the Nevada Rules of Civil Procedure.  ISSUES:  Was Moon's complaint deemed to be in the court-annexed arbitration program from the moment of filing until it was exempted from the program? When does NRCP 16.1(e)(2)'s 240-day period for filing a case conference report start to run for cases that are not eligible for automatic exemption from the court-annexed arbitration program? Did the district court abuse its discretion in dismissing Moon's complaint, without prejudice, under NRCP 16.1(e)(2) for failing to timely hold a case conference? Did Moon fail to hold a case conference so that NRCP 16.1(e)(1) provides an alternative basis for affirming the district court's order? 

Via Scotusblog, the US Supreme Court issued several opinions this week:

Wood v. Allen - Interpretation of 28 USC 2254(d)(2) and its requirement that federal habeas relief not be granted, in relevant part, unless the state court's decision was based "on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."  The issue of whether the state court unreasonably applied Strickland is not addressed. 

South Carolina v. North Carolina - original action concerning apportionment of river water, the opinion addresses the standard for a nonstate entity's intervention in an original action.

Kucana v. Holder - judicial review of discretionary immigration decisions by the Attorney General is prohibited only for determinations made discretionary by statute, not by regulation. 

Presley v. Georgia - per curiam, 7-2 - In addition to a First Amendment right of access to jury selection, there is also a Sixth Amendment right to public proceedings for the accused.  Before closing the courtroom, trial courts are obligated to take every reasonable measure to accomodate public attendance at criminal trials.

Wellons v. Hall - per curiam, 5-4 - The Court decides the defendant was entitled to discovery.  It pretty much speaks for itself:

"From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner's constitutional claims. We know that the Court of Appeals committed the same procedural error that we corrected in Cone v. Bell, 556 U. S. ___, ___ (2009) (slip op., at 17-18). We do not know how the court would have ruled if it had the benefit of our decision in that case.

Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurorsand a bailiff had planned a reunion, and that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts," 554 F. 3d 923, 930 (CA11 2009). The judge had not reported any of this to the defense."

 

 

Good news and bad news: the Nevada Supreme Court has vacated the death penalty for Herbert Wesley, based upon an invalid aggravating circumstance, and has ordered a new penalty trial; but an execution date for the first week of February 2010 has been set for death row inmate Robert McConnell based upon his Washoe County conviction.

Note - the Sun article states that Nevada's last execution was in 1996.  This is not accurate.  Mack was executed in 2006.

The Nevada Supreme Court has approved a revised code of judicial conduct.  It does not appear that the revisions have been posted to the Nevada Supreme Court's website.

Yesterday, the 9th Circuit, in a 2-1 opinion in Harrison v. Gillespie, found that a defendant's right against double jeopardy would be violated if the State were allowed to seek the death penalty in a second trial.

The jury returned a verdict of guilt on the charge of first-degree murder.  Following the penalty trial, the jury reported that it was deadlocked, and two juror notes indicated that the deadlock was between life with parole, and life without. Harrison's counsel asked to poll the jurors on whether there was unanimous agreement that as to whether aggravated circumstances existed and whether they found that mitigating circumstances outweighed aggravators. The trial court denied the request, and declared a mistrial. The State of Nevada wants to seek the death penalty in a second penalty trial.  Harrison's counsel filed a petition for a writ of mandamus or prohibition with the Nevada Supreme Court, which was denied without analysis of the issue presented.  Harrison then filed a petition pursuant to 28 USC 2241 for a writ of habeas corpus in federal court.  It was summarily denied.  On appeal, the 9th Circuit (Judge Reinardt joined by Senior Judge Hug) granted relief and reversed the district court's denial of the petition. The panel held the trial court abused its discretion by declaring a mistrial without first granting petitioner's request to poll the jury to determine whether it had acquitted petitioner of the death penalty. The panel further held that, because no other alternative would adequately protect petitioner's rights under the Double Jeopardy Clause, the State could not seek and the court could not impose the death penalty at a sentencing retrial. Judge Silverman dissented, after finding that the federal constitution does not require a state trial judge to inquire into the unfinished deliberations of a discretionary matter before declaring a mistrial.

The New York Times notes in an editorial, Prisons and Budgets, that the US has less than 5% of the world's population, but about 25% ot is prisoners.  The costs of such incarcerations are a huge issue for many states.

Adam Liptak reports on the decision by the American Law Institute to abandon efforts at creating a modern framework for the death penalty.  The ALI disavowed the structure it had created "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

A case concerning prosecutorial conduct has been dismissed by the US Supreme Court as moot, after an Iowa county and two men freed after spending 26 years in prison for murder settled the case for $12 million.  Prosecutors had knowingly used false evidence to convict the two men.  The case was argued before the Court in November.   

Via Sentencing Law & Policy, The Department of Justice has established new guidance for federal prosecutors regarding criminal discovery.

Wednesday, December 2, 2009 - Carson City, Full Court

Hamilton (Tamir) v. State of Nevada (Death Penalty)             Carson City - 10:00 a.m. - Full court In this case, Tamir Hamilton is appealing his conviction by a Washoe County jury of sexual assault and first-degree murder, and his sentence of death.  The charges arose from the rape and murder of a 16-year-old girl in her home in Sparks.  During jury selection, the prosecution used peremptory challenges to remove the only two African Americans on the jury panel.  Hamilton objected and argued that the removal of the two jurors violated Batson v. Kentucky.  The district court denied Hamilton's objection, concluding that the State articulated race-neutral reasons for exercising the challenges.  At his trial, Hamilton presented an insanity defense.  ISSUES:  Did the district court err in denying Hamilton's claims pursuant to Batson v. Kentucky?  Did the district court properly rule on evidentiary issues related to Hamilton's insanity defense and properly instruct the jury on insanity?  Washoe Medical Center v. Vanderford (Betty)             Carson City - 11:30 a.m. - Full court This case arises out of serious permanent injuries that a child suffered after a series of visits to the emergency room of Renown Medical Center in Reno.  Betty Vanderford took her son to Renown's emergency room on three different occasions.  Each time, a different doctor saw the child and either referred him to a different doctor or prescribed antibiotics.  After the child collapsed, he was rushed to the emergency room a fourth time and was diagnosed with meningitis.  The child suffered brain damage, blindness, and severe impairment of his motor skills.  Vanderford sued Renown and the doctors for medical malpractice.  The district court granted partial summary judgment to Vanderford, determining that Renown owed the child a duty to provide competent medical care that could not be delegated to independent contractor doctors, and Renown is therefore liable for the acts of the doctors.  Renown is now appealing the district court's decision.  ISSUES:  Did Renown owe a nondelegable legal duty to provide competent emergency medical care to Vanderford's son?  State of Nevada v. Castaneda (Marty)             Carson City - 1:30 p.m. - Full court   This is an appeal of a district court ruling that Nevada's indecent exposure statute is unconstitutional.  After being observed in front of the Clark County jail lifting his shirt, rubbing his chest, and pulling down his pants to expose his buttocks and genitals, Marty Castaneda was charged with two counts of indecent exposure.  Castaneda sought dismissal of the charges, arguing that the indecent exposure statute, NRS 201.220, is unconstitutionally vague and overbroad.  The district court granted the motion and the State has appealed that decision.  ISSUE:  Was the district court correct in concluding that NRS 201.220 is vague and overbroad?

Tuesday, December 1st, 2009 Carson City - Full Court

Monday, 23 November 2009 08:17

Dozier (Scott) v. State of Nevada (Death Penalty)             Carson City - 10:00 a.m. - Full court In this appeal, Scott Dozier is challenging his conviction by a Clark County jury of first-degree murder and robbery, both with the use of a deadly weapon, and his sentence of death.  The charges arose from the shooting death and taking of money from a man in Clark County.  During his trial, the district court denied Dozier's requests to give certain jury instructions, such as an instruction on the elements of voluntary manslaughter.  Dozier has appealed his conviction and has raised numerous issues in the Supreme Court.  ISSUES:  Did the district court err in instructing the jury during the guilt and penalty phases of the trial?  Did the State commit prosecutorial misconduct?  Posas (Emilia) v. Horton (Nicole)             Carson City - 1:30 p.m. - Full court ISSUES:  Did the district court err in giving a jury instruction regarding a "sudden emergency"?  Should the district court have granted the motion to set aside the judgment?  FACTS:  This case arises out of a traffic collision.  Emilia Posas was driving in Las Vegas, when a woman with a stroller started to cross the street in front of her.  Posas stopped suddenly to avoid hitting the pedestrian.  Nicole Horton, who was driving directly behind Posas, rear-ended Posas's car.  Both vehicles sustained major damage and Posas was transported to a local hospital by ambulance.  Posas brought a tort claim against Horton.  At trial, the jury was instructed regarding when a person "confronted with a sudden emergency" will not be guilty of negligence.  The jury returned a verdict in favor of Horton.  After judgment was entered in Horton's favor, Posas made a motion to set aside the judgment based on Horton's expert witness admitting in a different trial that he sometimes lies under oath.  Posas has appealed the judgment and the order denying the motion to set aside the judgment.  Nevada Division of Insurance v. Payroll Solutions Group             Carson City - 2:00 p.m. - Full court This case involves whether the Nevada Division of Insurance may regulate the activities of Payroll Solutions Group.  Payroll is an employee leasing company, which is a company that contracts with client employers to provide administrative services (such as submitting tax documents and providing health care benefits) while the client employer retains operational control over employees (such as hiring and firing).  The Division of Insurance sought to regulate Payroll for operating a multiple employee welfare arrangement (MEWA), because MEWAs are subject to regulation under the state's insurance code.  Payroll argued that it is the "employer" of the leased employees and its employee benefit plan should be considered a single employer plan, subject to regulation exclusively under the Employee Retirement Income Security Act and not subject to state regulation.  After an administrative hearing on the matter, the Division found that Payroll was not the employer of the leased employees and was therefore operating a MEWA without a certificate of authority.  The Division imposed fines of over $1 million.  Payroll petitioned for judicial review in the district court in Clark County, which reversed the decision of the Division, finding that Payroll was indeed the "employer" of the leased employees.  The Division is appealing the district court's decision.  ISSUES:  Is Payroll the "employer" of the leased employees?

In a 4-3 unpublished order, in Rodriguez v. State, the Nevada Supreme Court vacates a sentence of death and remands the case for a new penalty hearing.  The ruling was based upon a finding of ineffective assistance of counsel in the penalty phase for failure to investigate mitigation evidence.

The Death Penalty Information Center has released a new report - Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis.

From the Executive Summary of the report:

"Smart on Crime" is a new report from the Death Penalty Information Center that explores the prospect of saving states hundreds of millions of dollars by ending the death penalty. The report also serves to release a national poll of police chiefs in which they rank the death penalty at the bottom of their priorities for achieving a safer society.

The death penalty in the U.S. is an enormously expensive and wasteful program with no clear benefits. All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty. In a time of painful budget cutbacks, states are pouring money into a system that results in a declining number of death sentences and executions that are almost exclusively carried out in just one area of the country. As many states face further deficits, it is an appropriate time to consider whether maintaining the costly death penalty system is being smart on crime.

The nation's police chiefs rank the death penalty last in their priorities for effective crime reduction. The officers do not believe the death penalty acts as a deterrent to murder, and they rate it as one of most inefficient uses of taxpayer dollars in fighting crime. Criminologists concur that the death penalty does not effectively reduce the number of murders

Via Scotusblog

Tues., Oct. 13:
Padilla v. Kentucky (08-651) -- effect of defense lawyer's wrong advice on consequences of a guilty plea
Smith v. Spisak (08-724) -- unanimity of jury as an issue in finding mitigating evidence in a capital case
South Carolina v. North Carolina (138 Original) -- participation of non-parties in Original cases

Wed., Oct. 14:

Alvarez v. Smith (08-351) -- right to court hearing to challenge forfeiture for a drug crime
Perdue v. Kenny A. (08-970) -- right of attorneys who win a case to receive higher fees

Alvarez v. Smith - Whether local law enforcement agencies may seize and retain custody indefinitely of personal property without judicial or administrative review of the lawfulness of the continued detention of the property. Argument scheduled for 10/14/09

Beard v. Kindler.  Under the adequate-state-ground doctrine, does a state procedural rule like Pennsylvania's fugitive waiver rule preclude federal habeas corpus review even though the state procedural rule is discretionary?Argument scheduled for 11/2/09.

Black v. United States - Whether the "honest services" clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants "reasonably contemplated identifiable economic harm," and if the defendants' reversal claim is preserved for review after they objected to the government's request for a special verdict.

Bloate v. United States -  Whether time granted at the request of a defendant to prepare pretrial motions qualifies as "delay resulting from other proceedings concerning the defendant" and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. Argument scheduled for 10/6/09.

Briscoe v. Virginia - If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

Florida v. Powell - Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?  

Graham v. Florida - Whether the Eighth Amendment's ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of non-homicide.Argument scheduled for 11/9/09

Hemi Group v. New York City - Whether city government meets the Racketeer Influenced and Corrupt Organizations Act standing requirement that a plaintiff be directly injured in its "business or property" by alleging non commercial injury resulting from non payment of taxes by non litigant third parties. Argument scheduled for 11/3/09

Johnson v. United States - Whether under the federal Armed Career Criminal Act a prior state conviction for battery is in all cases a "violent felony," even when the state held that offense does not have as an element the use or threatened use of physical force.  Argument scheduled for 10/6/09  

Maryland v. Shatzer - Whether Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years later. Argument scheduled for 10/5/09 

McDaniel v. Brown - Nevada case - Whether, on federal habeas review, the evidence underlying the defendant's conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).  Argument taken off calendar.

Padilla v. Kentucky - Does the Sixth Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea? Argument scheduled for 10/13/09  

Pottawattamie County v. McGhee - Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant's "substantive due process" rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.  Argument scheduled for 11/4/09

Smith v. Spisak - Did the Sixth Circuit contravene AEDPA by improperly extending Mills v. Maryland [re: mitigation jury instructions in a capital case]? Argument scheduled for 10/13/09

Sullivan v. Florida - Does imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?  Argument scheduled for 11/9/09

United States v. Comstock - Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

United States v. Stevens - Is 18 U.S.C. 48, on depictions of animal cruelty, facially invalid under the Free Speech Clause of the First Amendment? Argument scheduled for 10/6/09

Weyhrauch v. United States - Whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.

Wood v. Allen - Whether the state court's conclusion-that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel-was based on an unreasonable determination of the facts and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision.  Argument scheduled for 11/4/09

McConnell v. State - the Court, sitting en banc, issues a per curiam decision affirming an order of the district court dismissing McConnell's post-conviction petition for a writ of habeas corpus in a capital case.  The Court concludes, in addressing an issue of first impression in Nevada, that challenges to Nevada's lethal injection procedures are not properly raised in a state court habeas petition.  The Court also finds that McConnell's guilty plea was knowingly and voluntarily entered and he did not have a right to effective assistance of stand-by counsel.  The Court next find that appellate counsel was not ineffective for failing to challenge a penalty phase instruction on the ground that it did not specify that the aggravating factors had to outweigh the mitigating factors beyond a reasonable doubt before it could impose death.  The Court next finds that appellate counsel was not ineffective for failing to challenge the Court's mandatory review of death sentences on the ground that there are no standards for the review; for failing to argue that it was prejudicial to have his trial and appeal reviewed by elected judges; for failing to challenge the death qualification process for jurors; and for failing to adequately address the aggravating circumstances issue presented in McConnell I (felony murder aggravators cannot be used if felony murder is the basis for the judgment).

The good news is that the Court rejects the State's argument that McConnell I was wrongly decided and should be overturned.  (Footnote 15).

48991 - Wesley (Herbert) vs. State (Death Penalty-PC)

July 06 (10:00 AM)

Full Court

Herbert Wesley was convicted of two counts of first-degree murder with the use of a deadly weapon for the stabbing deaths of his father, Isaac Wesley, and his stepmother, Doella Wesley, in Clark County. He was also convicted of robbery with the use of a deadly weapon for the theft of property belonging to the victims. This court affirmed the judgment of conviction and death sentence on direct appeal. Subsequently, Wesley filed a post-conviction petition for a writ of habeas corpus, which was denied.  The denial of that petition is the subject of this appeal. ISSUES: Did the district court err by denying Wesley's post-conviction petition as procedurally barred?  Were trial and appellate counsel ineffective?  Is Wesley entitled to a new penalty hearing under McConnell v. State?

49478 - Chappel (James) vs. State (Death Penalty)

July 06 (10:30 AM)

Full Court

After he was mistakenly released from jail, James Chappell went to the home of Deborah Panos, his ex-girlfriend and the mother of his three children, and stabbed her to death with a kitchen knife. A Clark County jury convicted Chappell of burglary, robbery, and first-degree murder and sentenced him to death. This court affirmed Chappell's conviction and death sentence on direct appeal. Chappell sought post-conviction relief in the district court and was granted a new penalty hearing. At the conclusion of the second penalty hearing, the jury again sentenced Chappell to death.  Chappell is now appealing that judgment of conviction.  ISSUES: Was there sufficient evidence to support the use of sexual assault as an aggravating circumstance to justify the death penalty?  Did the district court improperly deny Chappell's motion to compel additional review by the district attorney's death penalty review committee?   Did the district court err by not dismissing three potential jurors for cause?  Did the district court err by admitting certain evidence at the second penalty hearing, including hearsay evidence, presentence investigation reports, victim impact testimony, and Chappell's trial testimony?  Did the prosecutor commit misconduct during closing arguments?

50166 Foster vs. Dingwall
July 06 (11:30 AM)

Full Court

This is an appeal from a $72 million judgment awarded by the Clark County district court in a contract action after the court struck the appellants' pleadings and entered a default judgment as a sanction for discovery misconduct.  ISSUES: Did the district court err when it struck appellants' pleadings and entered a default judgment in favor of the respondents?  Did the district court err in calculating the sanctions?  Did the district court err by awarding compensatory and punitive damages and attorney fees?  Was the district court's award of special master fees appropriate?

 

52110 Mendoza-Lobos (Douglas) vs. State

July 06 (1:30 PM)

Full Court

Douglas Mendoza-Lobos is appealing his conviction in Washoe County for burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon.  ISSUES: Did the district court's statement on the record satisfy the requirements of NRS 193.165(1) in determining the length of the enhancement sentence?  Did the district court impose an excessive sentence by running the sentences for each count consecutively?

53079 Yarber (Robert) vs. State
July 06 (2:00 PM)

Full Court

Robert Yarber appeals from his conviction in Washoe County, pursuant to a guilty plea, for attempted murder with the use of a deadly weapon.  ISSUES: Did the district court err by failing to make findings about the basis for imposing a term for the deadly weapon enhancement that was equal to the term for the crime of attempted murder?

 Webcasting of the argument is available at the Court's website.

In FCC v. Fox Television Stations, in a 5-4 decision authored by Justice Scalia, the Court upheld the Federal Government's power to ban on radio and TV of the words "fuck" and "shit."  The majority refers to the words as the "f-word" and the "s-word," but I'm not afraid of the words so there they are.  Fortunately, the censors have not yet banned them on the internet, but who knows - that may be next.  Anyway, the majority finds that the FCC may sanction television stations for a single utterance of such words by a celebrity during an awards show, even though the station does not control the content of the celebrity's speech.  Justice Scalia apparently is not a fan of such persons as he refers to them as "foul-mouthed glitteratae from Hollywood."  The Court holds that the flat ban on certain words is not "arbitrary and capricious," but leaves open the question of whether the First Amendment is violated by the ban.  The Second Circuit will address that issue on remand.  Justice Thomas filed a concurring opinion.  Justice Kennedy filed an opinion concurring in part (he does not join part III-E of the Scalia opinion).  Justice Stevens authored a dissenting opinion as did Justice Ginsburg.  Justice Breyer filed a dissenting opinion which was joined by Justices Stevens, Souter, and Ginsburg.

After reading the 72 page opinion, I recommend George Carlin- Seven Dirty Words You Can't Say on Television. 

The Court also issued an opinion in Cone v. Bell.  In one of of the very few capital cases heard this term, the Court issues a 7-2 decision reversed an order of the Sixth Circuit which had affirmed the denial of federal habeas relief.  The majority, in an opinion authored by Justice Stevens, held that the lower federal courts were wrong in finding a procedural bar as the facts did not support either of the two procedural bars argued by the state.  The Court also hald that a full review of suppressed witness statements and police reports was required to determine whether they would have bolstered the defense mitigation case for the penalty hearing.  Although the evidence was insufficient to establish an insanity defense for the trial phase, evidence of habitual use of excess amounts of drugs and the impact of that addiction during the murders was relevant as mitigation.  Chief Justice Roberts filed an opinion concurring in the judgment.  Justice Alito filed an opinion concurring in part and dissenting in part.  Justice Thomas filed a dissenting opinion which was joined by Justice Scalia. 

 

 

Via Scotusblog:

The Supreme Court granted certiorari in five cases today:

Salazar (Interior Secretary) v. Buono  : government's appeal testing Congress' power to allow a religious display to remain on public property simply by transferring ownership to a private group or individual.  The case also raises issues about who may sue to challenge such displays. 

 Alvarez v. Smith:  The legal standard for a court hearing to test the forfeiture of property used in a drug crime.

Padilla v. Kentucky : The duty of an attorney to advise a client facing mandatory deporation from the U.S. after pleading guilty to trafficking in marijuana.

Union Pacific Railroad v. Brotherhood of Locomotice Engineers: The scope of federal courts' authority to second-guess arbitration decisions made to resolve labor disputes in the railroad and airline industries.

Smith v. Spisak:  Judges' duty to advise jurors on whether unanimity is required in finding factors that bear upon imposing a death sentence.

Johnson v. U.S. : The status of a state conviction for felony battery as a violent crime under the federal Armed Career Criminal Act.  The Court granted questions 1 and 2 in the petition, both related to that issue. The Court declined to hear a third question, asking the Court to overrule its 1998 decision in Almendarez-Torres v. U.S. -- allowing a judge, rather than the jury, to rule on prior convictions as a basis for enhancing a criminal sentence.  The Court has refused several times to consider that issue, which involves the only exception to the jury role the Court mandated in Apprendi v. New Jersey (2000) and later cases.

Scotusblog provides links to the opinions below, petitions for certiorari, briefs in opposition, replies and briefs of amicus curiae.

Justice Ginsburg was present for the Court's announcement of the orders and today's oral arguments.

Assemblypersons Anderson, Leslie, Ohrenshall, Segerblom, Buckley, Atkinson, Claborn, Hogan, Horne, McClain, Munford and Pierce have introduced Assembly Bill 190, which if enacted would establish a moritorium on the execution of sentences of death until July 1, 2011 and would conduct a study on the fiscal costs of the death penalty in Nevada.  The study would require an examination and analysis of the costs of prosecuting and adjudicating capital cases compared to noncapital cases.

Nevada is not alone in considering the fiscal impact of the death penalty.  Both New Mexico and Montana are considering abolishing the death penalty in those states.

Other states have studied the fiscal impact of the death penalty and all have concluded that the death penalty is far more expensive than a sentence of life without the possibility of parole.  Details are available after the jump.

The Nevada Supreme Court has issued a stay of discovery ordered by Judge Mosley in the capital case of State v. Curtis Bonilla.  I don't remember how to download a pdf and the order is not published on the Court's website, so here's the text:

"This is an original petition for a writ of mandamus or prohibition challenging a district court order granting the State's motion for production of discovery pursuant to NRS 174.245, including materials to be presented during the penalty phase in a death penalty case.  Petitioner requests a stay of the proceedings and requests this court to prohibit the district court from ordering pretrial discovery of petitioner's penalty phase evidence before a finding of guilt is returned.  Cause appearing, we grant a stay of the district court's order to the extent that it compels discovery of petitioner's penalty phase evidence before the jury returns a verdict on the guilt phase of the trial.

Further, we have reviewed the petition, and it appears that petitioner has set forth issues of arguable merit and may have no plain, speedy and adequate remedy in the ordinary course of the law.  Accordingly, the State, on behalf of respondents, shall have 10 days from the date of this order within which to file an answer, including authorities, against issuance of the requested writ." 

 

In an unpublished decision of December 31, the Nevada Supreme Court granted a new penalty hearing in the capital case of Jones v. State.  The Court found ineffective assistance of trial counsel based upon failure to investigate mitigating evidence and failure to prepare for the penalty phase.  The Court also found extensive prosecutorial misconduct in the closing argument on the penalty phase.  The Court acknowledged that it relied upon an erroneous standard of review on direct appeal when it affirmed Jones' death sentence despite a finding of prosecutorial misconduct because of "overwhelming evidence of guilt."  "Rather than focusing on the evidence of guilt, when reviewing prosecutorial misconduct committed during a penalty hearing, the focus of the prejudice inquiry should be on the penalty proceedings and whether the misconduct 'so infected the proceedings with unfairness as to make the results a denial of due process."  Someone puzzling is the fact that the opinion with the erroneous standard was published, but the Court's acknowledgement of its use of incorrect standard is unpublished, so the erroneous standard appears to stand as valid despite its obvious flaw.  The Court affirms Jones' judgment of conviction as to issues raised concerning the guilt phase.

Disclosure: I am counsel for Jones.

Nika v. State - In an en banc opinion authored by Justice Hardesty, with Justices Cherry and Saitta dissenting, the Court finds the following:  "The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn instruction, and our decision in Byford v. State, which addressed specific concerns about that instruction.  Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective affect. In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder.  We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided.  Nika's conviction was final before Byford was decided.  Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial." 

In reaching this decision, the Court criticizes the Ninth Circuit's opinion in Polk v. Sandoval:  "The fundamental flaw, however, in Polk's analysis is the underlying assumption that Byford merely reaffirmed a distinction between 'willfulness,' 'deliberation,' and 'premeditation.'  It was based on that assumption that Polk concluded that the Kazalyn instruction was erroneous and that the instructional error violated the federal Constitution by omitting an element of the offense.  That underlying assumption ignores our jurisprudence."

The Court, however, also recognized that portions its holdings in Garner and Byford were not correct: "Despite our disagreement with the assumption underlying the decision in Polk, we acknowledge that the change effected by Byford properly applied to that case as a matter of due process.  The United States Supreme Court has indicated that for purposes of due process, the relevant consideration 'is not just whether the law changed' but also 'when the law changed.'  Thus, if the law changed to narrow the scope of a criminal statute before a defendant's conviction became final, then due process requires that the change be applied to that defendant.  In such cases, retroactivity is not at issue; rather, due process requires that the conviction be set aside if required by the change in the law. In this respect, our decision in Garner erroneously afforded Byford complete prospectivity because as a matter of due process, the change effected in Byford applies to convictions that were not yet final at the time of the change.  Polk involved such a conviction.  This case, however, does not. Because Nika's conviction was final when Byford was decided, whether the change effected in Byford applies to Nika is a matter of retroactivity analysis.  This court previously has held that Byford has no retroactive application on collateral review. We reaffirm that decision today."

Justice Hardesty will become the Chief Justice in  2009.

Margaret Rudin will receive a new trial.  Duh.  Who didn't see this coming.  Apparently Chris Owens, who stated to the RJ "I think it's a joke that the taxpayers will have to fund a new trial for someone who had three attorneys."  Gotta wonder if Mr. Owens would be so openly critical of a judge who was not retiring.   And for that matter, what about the joke on the taxpayers who had to fund the trial for Bryan Crawley, who received a sentence of life without the possibility of parole following a month long trial - the same sentence he would have received had the Clark County District Attorney's Office agreed to plea the case prior to trial in lieu of seeking the death penalty.  At a time when there is serious consideration of laying-off teachers and refusing hospital services because of financial concerns, did the D.A.'s office really need to incur well over $100,000 on behalf of the taxpayers in a case which could have easily been resolved prior to trial?

The Maryland Commission on Capital Punishment has issued its Final Report to the General Assembly.  The Commission recommends abolishment of capital punishment after exploring racial disparities, jurisdictional disparities, socio-economic disparities, a comparison of costs associated with the death penalty, a comparison of the effects of prolonged court cases, the risk of innocent people being executed, and other issues.

The Death Penalty Information Center has issued its Year End Report.  The Center notes that 2008 saw a 30-year low in new death sentences for the county at 111.  There were 284 death sentences in 1999.  There were 4 exonerations in 2008 and 37 executions, 95% of which were in the South. 

 

 

In Sechrest v. Ignacio, the Ninth Circuit Court of Appeals reverses death sentences based upon a 1983 conviction for two murder convictions in Washoe County.  The 41 page opinion addresses procedural default issues, law of the case, an alleged Miranda violation, and several penalty phase issues.  The Court holds that the prosecutor's repeated misstatements regarding the likelihood of Sechrest's release from prison by parole were he to be sentenced to life without the possibility of parole violated his due process right to a fair trial, and that the violation had a substantial and injurious effect on the jury's sentencing decision.  The prosecutor had made four statements indicating that Board of Pardon Commissioners could -- and likely would -- release Sechrest if the jury returned a verdict of less than death.  The Court found the misconduct to be prejudicial after noting that "a jury sitting in a capital case must be given a clear choice between the death penalty and a life sentence." 

The Court also found that while the prosecutor's misconduct alone justified its holding, testimony by a psychiatrist exacerbated the prejudicial effect of the prosecutor's remarks.  Defense counsel had retained a psychiatrist to evaluate Sechrest.  Although defense counsel decided not to call the witness, counsel gave a copy of the expert's report to the State.  The State then called the psychiatrist as a witness and elicited the fact that he had examined Sechrest at defense counsel's request.  The psychiatrist informed the jury of Sechrest's criminal history, stated that he had a callous disregard for human life, and was an incurable sociopath who, if released, would pose a danger to others, particularly to little girls.  The Ninth Circuit rejected the findings by the state district court and federal district court that the psychiatrist's testimony was cumulative and instead noted the significance of testimony presented by a mental health expert.

The Court next found that defense counsel was ineffective for three reasons.  First, defense counsel should not have allowed the prosecution to review the psychiatrist's confidential report on Sechrest's mental health.  Counsel had decided not to call the psychiatrist as a witness, but inexplicably disclosed the confidential and privileged report to the prosecution.  Without this report the prosecution would not have had access to this privileged information.  "Defense counsel had absolutely no obligation to disclose [the] confidential report to the prosecution."  Second, defense counsel should not have stipulated to the prosecutor calling the psychiatrist as a witness for the prosecution.  Further, the jury was told that the psychiatrist was hired by the defense.  The Court rejected defense counsel's explanation at an evidentiary hearing, in which he stated that he did not object because he believed the psychiatrist would provide helpful information about Sechrest's troubled background, as this was not a sound strategic decision.  The Court found the explanation to be implausible as defense counsel did not call the witness and did not pursue or argue any mitigating factors related to Sechrest's troubled background.  Third, defense counsel's preparation for Dr. Gerow's testimony fell far below an objective standard of reasonableness.  Defense counsel did not speak with the psychiatrist after agreeing to let him testify for the prosecution.  The lack of preparation was evidence from counsel's lackluster performance at trial.

Congratulations on the victory to Tiffany Murphy and Michael Pescetta of the Federal Public Defender's Office.

Valdez v. State - The facts of this capital case are highly unusual in that when the jury returned its verdict of guilt on the charge of first-degree murder, the foreperson announced that they had also reached a decision as to whether Valdez should receive the death penalty.  In other words, the jury decided the penalty before the penalty hearing.  The Nevada Supreme Court, in a 5-2 conviction reverses the judgment.  The opinion is authored by Justice Hardesty.  Justices Gibbons and Parraguirre dissented.

The Court first concludes that the district court (Judge Bonaventure) erred by failing to instruct the jury in writing, after the close of argument, that it was not to deliberate as to Valdez's possible penalty until after the sentencing hearing.

The Court next finds that the jury acted improperly by deliberating the penalty while deciding the issue of guilt and that the district court abused its discretion in denying a mistrial based upon this misconduct.

The Court next clarifies the proper harmless-error analysis for prosecutorial misconduct of constitutional and nonconstitutional dimenstion.  The Court finds that the prosecutors engaged in several instances of misconduct throughout the trial and that this misconduct contributed to the cumulative error that warrants reversal of the judgment of conviction.

Disclosure - I am counsel for Valdez.

The Court issued a third opinion today, Boucher v. Shaw.  It involves a certified question from the Ninth Circuit under NRAP 5 concerning whether under NRS 608 individual managers can be held liable as employers for unpaid wages.

 

 

There's not enough money for primary and secondary education, critical health care, rebate checks for the elderly poor, college education, child welfare and juvenile services, local government operations, and a number of other basic government programs, but apparently there's enough money for the death penalty. 

With the current economic crisis at the local, state and national levels, all government programs -- including the death penalty -- should be evaluated as to whether they provide a benefit to the public and whether those benefits are worth the cost of the program.  In this time when programs such as prenatal care and cancer treatments are no longer being funded, despite their proven success, it is necessary to ask why we are paying for capital punishment.

The death penalty is a costly enterprise.  Capital trials require appointment of two attorneys instead of one; Nevada attorneys appointed to take capital cases are paid $125 an hour, $25 more than other appointed counsel in criminal cases; extra time, which means extra money, is required for jury selection and lengthy penalty phases; and mitigation investigation, which is required by the federal and state constitutions, usually costs tens of thousands of dollars, or more, for mitigation specialists, travel and expert witnesses.  Most of these costs are incurred even if the case eventually negotiates to a sentence of less than death.  In the event that the State obtains the death penalty, the costs continue to mount.  Counsel is required for state and federal post-conviction proceedings, but is discretionary in other cases.  Post-conviction proceedings involve further investigation and mitigation evaluations and usually take over a decade, whereas other murder cases are often resolved to finality in less than half of that time.  Prison costs are also higher as death row inmates are housed in single cells in a high security prison, at a cost which is about $10,000 per year higher than the cost per year of other inmates.

Other states (California, Maryland, Kansas, Washington, New Jersey, Tennessee, North Carolina) have completed studies concerning the cost of the death penalty and all have concluded that the cost of the death penalty far exceeds the cost of a system which imposes a maximum penalty of lifetime incarceration.  The federal government also finds that death penalty cases are far more expensive than cases in which the death penalty could be sought but is not.  The economic realities of the death penalty are further reflected by the fact that in Nevada rural counties, with their very limited budgets, have not sought the death penalty in years while urban Clark County remains the source of nearly all death sentences in the last five years.

It's time for Nevada and Clark County to assess whether we can afford the death penalty.  Part of the analysis is the cost.  The other part of the analysis is the benefit to the public.  I submit there is none.  There are few credible studies which show any kind of deterrent effect.  To the contrary, the murder rate of non-death penalty states is far below the murder rate of states with the death penalty.  Life imprisonment is sufficient to make the public safe.  Indeed, in the words of a former San Quentin warden, who presided over several executions, "resources now spent on the death penalty could be used to investigate unsolved homicides, modernize crime labs and expand effective violence prevention programs, especially in at-risk communities.  The money could also be used to intervene in the lives of children at risk and to invest in their education -- to stop future victimization. . . .  To take a life in order to prove how much we value another life does not strengthen our society.  It is a public policy that devalues our very being and detracts crucial resources from programs that make our communities safe." 

We are spending millions of dollars a year to enforce the death penalty above what it would cost to sentence first degree murderers to life in prison without parole. Imagine how that money could be spent: on education, on helping poor communities, on basic medical care, or a host of other programs that are watching their budget be cut at drastic levels.

An honest evaluation of the death penalty in Nevada is long overdue.

State v. Harte - The Court, sitting en banc, affirms an order of a district court partially granting a post-conviction petition for a writ of habeas corpus in a death penalty case.  The Court rejects the State's argument that McConnell v. State (felony murder cannot be used as the sole basis for liability for first degree murder and also used as an aggravating circumstance) was wrongly decided.  The Court also rejects the State's argument that there should be a new trial, rather than just a new penalty hearing, in capital cases in which the sole aggravating circumstance is found invalid under McConnell.  The majority opinion is authored by Justice Maupin and joined by Justices Gibbons, Douglas and Cherry.  Justices Hardesy, Parraguirre and Saitta concur but express a belief that there are three fundamental flaws in McConnell's analytical framework.

Hernandez v. State - The Court, sitting en banc, affirms a district court order denying a post-conviction petition for a writ of habeas corpus in a capital case.  In doing so, the Court declines to extend McConnell v. State to bar the dual use of torture as a theory of first-degree murder and as an aggravating circumstance to support a death sentence.  The Court, however, finds the aggravating circumstance of burglary to be invalid under McConnell, reweighs the aggravating and mitigating evidence and affirms the death sentence.  The Court rejects other post-conviction claims.  Justice Cherry dissents in part after finding that the defendant should have received a new penalty hearing because the jury may have imposed a sentence of less than death without the invalid aggravating circumstance.

Cortinas v. State - The Court (Justices Hardesty, Parraguirre & Douglas) holds that traditional harmless-error review applies when a general verdict based on multiple theories of liability may rest on a legally invalid alternative theory.  The Court also reaffirms its prior holdings that robbery is a general intent offense.

Rubio v. State - Counsel's affirmative misrepresentations of immigration consequences is an exception to the general rule that deportation is a collateral consequence that does not affect the voluntariness of a guilty plea.  Misrepresentations by a court interpreter, however, are not an exception to the general rule.  The Court also rules that the district court abused its discretion in failing to hold an evidentiary hearing on claims of ineffective assistance of counsel.

 

Opinions in civil cases: 

Rivero v. Rivero -

Cook v. Sunrise Hospital & Medical Center -

Five Star Capital Crop. v. Ruby -

Estate of LoMastro v. American Family Ins. -

Village League v. State, Bd. of Equalization -

Mesagate HOA v. City of Fernley -

Lehrer McGovern Bovis v. Bullock Insulation

Via the Death Penalty Information Center, a 55 page report, Update on the Cost, Quality, and Availability of Defense Representation in Federal Death Penalty Cases, has been issued by the US Courts' Judicial Conference Committee on Defender Services.  The numbers are interesting:

From 1989 through 2007, 435 federal death penalty prosecutions have been authorized.

There have been 176 federal death penalty trials, involving 233 defendants.  61 defendants were sentenced to death (26% of those tried received death verdicts).

The study examines the cost of federal capital cases by examining cases with defendants who were eligible for the death penalty and comparing those authorized for the death penalty by the Attorney General against those which were not authorized. The cases examined took place between 1998 and 2004. The median cost for a non-authorized case was $76,665.  Cases in which prosecutors were authorized to seek the death penalty were substantially more expensive with a median cost of $353,185.  The median cost for authorized cases that went to trial was $465,602.

The death penalty cases also showed a far greater number of attorneys per case, with a median of 436 hours in non-authorized cases and 2,014 in death authorized cases.  Authorized death cases that went to trial had a median of 2,746 attorney hours while plea cases averaged 1,028 hours. 

Death authorized cases also carry a much higher cost for expert witnesses.  While non-authorized cases had a median cost of $5,275 for experts, death authorized cases had a median cost of $83,090 for all cases and $101,592 for those cases that went to trial.

The cost of the defense case had a huge impact upon the verdict received in the case.  Defendants who received the least amount of attorney and expert time, and whose defense representation thus cost the least, facted a higher probability of receiving a sentence of death.  1/3 of the defendants had trials that had a defense cost of $320,000 or less.  Those defendants received a death sentence in 44% of the cases.  In the remaining 2/3 of cases, which cost in excess of $320,000, the defendant received a death sentence only 19% of the cases.