Troy Davis Loses; Federal Judge Moore Takes 172 Pages to Tell Us Why - Look for an Appeal

Troy Davis has the eyes of the world on his situation, as he sits on Georgia's Death Row proclaiming his innocence.  We've posted before about the variety of celebrities and notables who have actively worked toward freeing a man that they believe is innocent. People like the Pope.  Former US President Jimmy Carter.  Bishop Desmond Tutu. 

It's rare for a Federal District Court Judge to undertake this type of review.

So, when the United States Supreme Court - in a rare, rare decision - sent Troy Davis's case back down the federal court ladder and ordered Federal District Judge William Moore to take a gander at Davis' claims of new evidence, it had to be a tad bit intimidating for the federal judge. 

It's not every matter that comes before a judge, even a federal district judge, that has the eyes of the Pope watching and waiting to grade his papers.  Much less the American public

Perhaps that's why it took Judge Moore almost half a ream of paper to explain why he was coming down against Troy Davis.  In fact, the Judge's Order is so long that the Southern District of Georgia's website breaks it down into two downloads:  pages 1 - 62 and  pages 63 - 172.  (Click on the page numbers here t read the Judge's opinion for yourself, word by word.)

Judge Moore Rules Against Troy Davis - Why? 

Simply put, the judge didn't believe that there was new evidence brought before him that substantiated Troy Davis' innocence. 

Clear and Convincing Standard

He set a high hurdle at the outset.  First things first, Judge Moore set the legal standard for the evidence at "clear and convincing" -- that's a very high standard to meet.  As in, Davis had to "show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence."

Then, he opined that should this burden be met, then he would hold it to be unconstitutional to execute Mr. Davis, upon "...a truly persuasive demonstration of innocence."

Overstated, Smoke and Mirrors - Holds Clear and Convincing Standard Not Met

His Footnote 108: "After careful consideration and an in-depth review of twenty years of evidence, the Court is left with the firm conviction that while the State's case may not be ironclad, most reasonable
jurors would again vote to convict Mr. Davis of Officer MacPhail's murder. A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence. To act contrarily would wreck complete havoc on the criminal justice system. See
Herrera, 506 U.S. at 417."

from pp. 170-171: "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value. After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence that would entitle him to habeas relief in federal court. Accordingly, the Petition for a Writ of Habeas Corpus is DENIED."

From the Pattern Jury Instructions from the Eleventh Circuit (emphasis added):

p. 20:  "The Government's burden of proof is heavy, but it doesn’t have to prove a Defendant's guilt beyond all possible doubt. The Government's proof only has to exclude any "reasonable doubt" concerning the Defendant's guilt. A "reasonable doubt" is a real doubt, based on your reason and
common sense after you’ve carefully and impartially considered all the evidence in the case.
“Proof beyond a reasonable doubt” is proof so convincing that you would be willing to rely and act on it without hesitation in the most important of your own affairs. If you are convinced that the Defendant
has been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so."

p.  80 : "Clear and convincing evidence is evidence sufficient to persuade you that the Defendant’s
claim is highly probable. It is a higher standard of proof than a preponderance of the evidence but less exacting than proof beyond a reasonable doubt." [From instruction on insanity.]

Mental Illness and the Death Penalty: Here's a Story You Should Read

Deldelp Medina wrote a personal piece about the death penalty for the San Jose Mercury News -- a poignant piece that provides a perspective that serves us all well.  Sure, it's focusing upon the California death penalty, which has become a California election issue.  However, it also tells the tale of a Miami murder case, a Florida death penalty situation. 

Victim's son kills during psychotic break, State seeks death penalty anyway

Ms. Medina's aunt was murdered by her cousin, the victim's son, while he was suffering a psychotic break.  This poor young man had suffered through a life of trauma upon trauma, it was well known that he was mentally ill.  Still, the Miami prosecutors sought the death penalty against him -- and he had only his indigent defense appointed counsel, overworked and underfunded, standing with him.  That and his loyal family.

Deldelp and her family members won their fight.  I'll leave it to you to read Deldelp's story, after all - it's hers. 

Why bother?  What's important about this piece is the access it provides not only into the defendant's family, here by a twist of fate also the victim's family, but into how it often takes a team of advocates, paid and unpaid, to win in any indigent defense death penalty case. 

The fight for mitigators begins early in a case.

Part of the fight for mercy -- the application of mitigators -- occurs long, long before a jury is selected.  Often, it starts soon after the arrest because the prosecution usually sets its sights on a capital murder win very early on. 

That fever can escalate in the face of very real psychological issues self-evident in the defendant - things that will never allow any ultimate execution, should it come to that.  The United States Supreme Court has held it to be unconstitutally cruel and unusual punishment to execute someone who is found legally insane.

Deldelp's cousin will spend the rest of his life in a mental health facility: he was ruled legally incompetent to stand trial.  As you can learn from reading Deldelp's work, Mercy triumphed over Judgment that day - and this, in the world of death penalty advocacy, is victory we seek to achieve.  

Casey Anthony and the Death Penalty: I Give My Opinion to the Orlando Sentinel

Casey Anthony isn't facing a jury yet, but major decisions regarding her jury trial for the murder of her daughter, Caylee Marie Anthony, are being made now as Belvin Perry, Chief Judge of the Ninth Judicial District Court of Florida issues his rulings on important motions presented to him by the prosecution and the defense. 

Shortly after he took over the Casey Anthony case this Spring, Judge Perry made budget rulings, for example.  Now, Judge Perry is making the call on evidence boundaries: making decisions that will impact the scope and the length of the trial proceeding.

Judge Perry's Recent Rulings Impact Whether There Will Be the Death for Casey Anthony

Florida law establishes both the aggravating factors and the mitigating circumstances that can be applied in any capital case.  These are lists that can be used by prosecutors and defendants - not all will apply in every case.  Not all apply in Casey Anthony's case.  (See the list of aggravators with a brief summary here.) 

Long before trial, evidence must be collected by each side that substantiates the aggravating factors or mitigating circumstances that will be used in a particular matter.  So, there must be a ruling on what the Judge is going to allow from the lists.  Neither side wants to waste time and money gathering evidence for a factor that the judge is going to say isn't applicable in the case.

Some of those motions were filed in the Casey Anthony matter.  Judge Perry ruled against the defense's motions to limit the aggravating factors available to the prosecution.  Perry has okayed the State of Florida presenting evidence in any penalty phase of the trial on several aggravating factors.  This will only come up if Casey Anthony is found guilty of murdering her daughter, Caylee Marie Anthony.  

My Take on Things -- as I Told the Orlando Sentinel

Since I shared this with the Orlando media, I feel it's important to share this with my faithful readers, as well:  I do not believe that the Casey Anthony case is going to reach death.  Yes, I know that this is a high-profile case.  Yes, I know that there are a lot of people that want the death penalty sentence for this defendant.  Yes, I know that I was asked this earlier and refrained -- but that was when there was still an argument that this would not be a capital case.  That decision has been made: the defense fight to prevent the State of Florida from seeking the death penalty failed. 

All this being considered, from my perspective as a Death Qualified Criminal Defense attorney with years of experience in this area, I do not believe that there will be capital punishment in the Casey Anthony case. 

Why No Death Penalty for Casey Anthony?

Why?  From my perspective, and admittedly this is the viewpoint of a defense advocate speaking from years of death-qualified experience and education on mitigating factors involving mental health issues and the like, when the aggravators are balanced against the mitigators, I do not believe that the death penalty can result.  Legally, the scales don't fall that way. 

That, of course, is my opinion.  And, it's just my opinion.  The jury may not agree with me -- but as the Orlando Sentinel article  points out -- in Florida, the jury doesn't make the ultimate call in a death case. 

So the real question at trial will be if the Ninth Judicial District's Chief Judge Belvin Perry agrees with me. 

California Death Penalty: Guest Blogger Asks How Would You Spend $64 Million?

Once again, we welcome James Clark, Death Penalty Field Organizer for the ACLU of Southern California as we repost his recent article dealing with the financial realties of capital punishment upon a state's budget. 

In the past, we've pointed to the obvious money motive for California - and other states - to end the death penalty on merely a bottom line, dollars and cents, approach.  (See, e.g., California Could Save $1 Billion By Abolishing Death Penalty.  How Bad Will It Get B4 They Do?)

However, today Mr. Clark provides us with the perspective of a Californian, speaking to his neighbors and friends who are living in the beautiful state we all know is facing financial ruin. 

Here is James Clark's article (with his approval, of course).  It's worth your time to read it:

How Would You Spend $64 Million?
by: ACLU
Fri Aug 13, 2010 at 11:32:01 AM PDT

By James Clark, Death Penalty Field Organizer, ACLU of Southern California

Remember that episode of The Simpsons where Homer is so broke he breaks into his daughter's piggy bank, only to find it full of IOUs from himself?

On Wednesday, that scene was reenacted in Sacramento, with Gov. Schwarzenegger playing the role of Homer. The governor announced that he would be "borrowing" $64 million from the General Fund in order to move forward with one of his pet projects, the construction of a new death row facility at San Quentin. And $64 million is just the tip of the iceberg. Altogether, the new facility is expected to total upwards of $400 million. That's half a million dollars per prison cell — roughly the cost of a nice house in California.

Of course, the General Fund is virtually broke already, so our governor is borrowing against nonexistent budget. And didn't Gov. Schwarzenegger threaten that he wouldn't sign a budget at all? Every government agency in the state is in fiscal emergency, our social safety net is in tatters, and the state is weeks away from paying state employees with IOUs.

Which is why building a new death row is exactly what we don't need need right now.

California has by far the largest and most costly death row in the country, with over 700 inmates, nearly double the closest runner-up. All of these inmates live in a prison that predates the Civil

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Terry Lenamon's List of Federal Death Penalty Aggravating Factors and Mitigating Circumstances

Earlier, we posted an organized list of the mitigating factors recognized by the various states still imposing the death penalty, and that effort has received a good response. It's been helpful. 

Accordingly, In tandem with that state list, we provide an itemized list (hopefully user-friendly) of the corresponding mitigating factors - as well as aggravating factors - that are recognized in federal death penalty cases (non-military).

Federal Death Penalty Statutes - Overview

Federal law provides for the sentence of death when a wide variety of crimes have been committed.  Under federal law, you can be executed without having yourself killing anyone.  For a complete list of the various federal statutes allowing for the death penalty, please refer to the excellent resource list provided by the Death Penalty Information Center.  There's over 40 listed there, at last count. 

In federal death penalty cases, the defense must have two attorneys, and one of them must be death-penalty qualified.  After guilt has been adjudicated, there is a separate trial to determine first if capital punishment is legally an option; thereafter, evidence is presented on the aggravating factors and the mitigators. 

Mitigating circumstances need only be proven by a preponderance of the evidence; however, the prosecution must establish its aggravating circumstances beyond a reasonable doubt.  The federal death penalty jury cannot sentence a defendant to death unless the vote is unanimous. 

Mitigating Factors In Federal Death Penalty Cases

(1) Impaired capacity.

The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

(2) Duress.

The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

(3) Minor participation.

The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.

(4) Equally culpable defendants.

Another defendant or defendants, equally culpable in the crime, will not be punished by death.

(5) No prior criminal record.

The defendant did not have a significant prior history of other criminal conduct.

(6) Disturbance.

The defendant committed the offense under severe mental or emotional disturbance.

(7) Victim’s consent.

The victim consented to the criminal conduct that resulted in the victim’s death.

(8) Other factors.

Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

Aggravating Factors in Federal Death Penalty Cases

Federal law defines different aggravating factors depending upon the crime involved: treason, for example, has a different set of aggravating factors than homicide or a drug conviction.  The aggravating factors in federal capital punishment cases are as follows:

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Timothy O'Reilly Trial Hits Penalty Phase This Week in Michigan's Federal Death Penalty Trial

News coverage of Timothy O'Reilly's murder trial this week is providing an example of what occurs during the penalty phase of a death penalty case, specifically one in the federal system, as the Detroit federal courtroom hears testimony from both prosecution and defense in the Timothy O'Reilly case. 

A jury has just returned a guilty verdict in the matter, finding that Timothy O'Reilly committed the crime of murdering Norman Stephens, 30, during an armed robbery of the Dearborn Federal Credit Union in Dearborn. Michigan.  This week, the penalty phase began.

Aggravating Factors - Prosecution's Argument to the Jury that O'Reilly Should Get Death Penalty

It's reported that many have cried as the victim's wife, daughter, niece and nephews testified about the slain armored car guard.  The victim's family spoke today about the loss they have experienced in the eight years since their loved one died.  The prosecution's remaining aggravated evidence is from tape-recorded jailhouse conversations between O'Reilly, his family, and other prisoners. 

Mitigators - Defense's Evidence to the Jurors Against O'Reilly Receiving Capital Punishment

Tomorrow, O'Reilly's defense team is expected to give mitigating evidence to the jury that will include evidence on abnormalities in Mr. O'Reilly's brain function as well as the troubled childhood that he suffered.  They will ask the jury to forego the penalty of death, and opt for a life sentence in the case.

Mitigation evidence should take the rest of this week, with jurors making their decision as soon as next week, after formal deliberations begin.  And, these Michigan men and women will need to have some time to consider everything they've heard as they decide whether or not they will be merciful.  The federal death penalty decision must be a unanimous one.

What is the Penalty Phase in a Trial?

As we've discussed here before, during the trial phase of any capital punishment case it is guilt that is at issue.  Judgment is the focus.  If the defendant is adjudged guilty, as O"Reilly has been found, then mercy takes the place of judgment for the decision-maker.

First, the prosecution provides evidence of factors it believes supports its request for death as the appropriate punishment for this man.  Afterwards, the defense produces evidence of mitigating circumstances that argue against the ultimate price for the adjudicated crime. 

Michigan?  Yes, The O'Reilly Case is a Death Penalty Case Out of Michigan.

We've posted about this case earlier, since it is very unusual to be discussing a capital punishment case coming out of Michigan.  The State of Michigan removed the death penalty from its books over a hundred years ago (1846). 

However, Tim O'Reilly was charged and is being tried under federal law, in federal court -- and of course, the death penalty is still an option under federal law.  Occasionally, the federal death penalty will come into play: recent examples include the Oklahoma trial of Timothy McVeigh and the recent Florida trial in the Turnpike killings

And the truth remains:  had this man been charged under state law instead of federal, he would have been tried in a state courtroom close to the district court in which his fate resides, with jurors theoretically chosen out of the same population as sets in the federal trial today.  Death?  If he were in the Michigan courthouse, of course, it wouldn't be on the table. 

Death Penalty Defense: Cory Maples' Sullivan & Cromwell Representation vs Sakineh Ashtiani's Mohammed Mostafaei

The dichotomy speaks for itself, really, and it's a lot to ponder.  First, in the national news this week, we have a prominent New York law firm, Sullivan & Cromwell, whose errors may cost Alabama Death Row's Cory Maples his life.  On the other end of the spectrum, we learn yesterday that Iran's Sakineh Mohammedi Ashtiani's death penalty attorney who had been missing for almost a week, Mohammed Mostafaei, is alive and seeking asylum in Turkey after, apparently, advocating too well for his adultery-charged client who faces execution by stoning. 

The Quality of Representation Received by Alabama Death Row's Cory Maples

Earlier this week, we wrote on the Cory Maples situation.  In sum, two New York associates from swanky Sullivan & Cromwell walked into an Alabama trial court, post-conviction (pro hac vices granted), and filed a motion under Rule 32 of the Alabama Rules of Criminal Procedure.  Thereafter, the two associates left the law firm, and when the court clerk sent out notices that the Rule 32 motion had been denied (tick tick tick of the appellate clock), Sullivan & Cromwell returned the notices: "return to sender." 

Of importance, the Rule 32 Motion was denied in part because of (1) failure to state a claim and (2) asserting arguments that were to be made in direct appeal. Also of importance, their signature blocks never gave the firm's name, just the individual attorneys -- and yet, the law firm kept the representation after the two lawyers left its employ, learning of the missed appellate deadlines only after their client's mother called to check on status.  

This very serious situation has been made the subject of this week's Brief of the Week at the National Law Journal.   

The Quality of Representation Received by Iran's Sakineh Mohammedi Ashtiani

After writing about the possibly imminent stoning execution of Sakineh Mohammedi Ashtiani, a woman tried twice for adultery and sentenced - without evidence - to death by stoning under Iranian law, it was even more shocking to learn that fellow blogger and Death Penalty defense attorney for Ashtiani, Mohammed Mostafaei, had gone missing after leaving an interrogation by prison official. 


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WIll A Law Firm Missing a Deadline Fail to Stop the Execution of Alabama Death Row's Cory R. Maples?

New York Times columnist Adam Liptak once again does us all a great service by bringing the national media spotlight to bear upon the crisis facing Cory R. Maples, who sets today on Alabama's Death Row. 

Sullivan & Cromwell Missed the Deadline to Appeal

Maples' case currently awaits the determination of the United States Supreme Court.  The High Court must decide the fate of Cory Maples, who relied upon the well-known law firm Sullivan & Cromwell to represent his interests -- only to have the deadline pass for him to file an appeal. 

That's right:  elite Sullivan & Cromwell representation and a basic, basic deadline was blown. 

What the Heck Happened?

As Liptak explains, the Big Firm did not place its firm name within the signature block of the two associates that were on the record as being Maples' defense counsel.  Nevermind the question of whether or not these two were death qualified, had any past criminal defense experience, etc.  We don't get there (yet). 

Apparently, Sullivan & Cromwell felt it would be bad public relations to represent a man facing death at the hands of the State of Alabama so shame (and that's the core issue here, let's not beat around the bush) kept the firm name off the mailing list.  Which wasn't such a big deal until the two lawyers left the firm.

Did Sullivan & Cromwell forward the mail addressed to the two associates to their new mailing address?  No.  They sent the notices back to the court.  That's right: the court.

Return to Sender

Sullivan & Cromwell returned the court's correspondence back to the court itself.  As the New York Times reports, there were TWO envelopes sent back to the court clerk. 

One was marked “Return to Sender — Left Firm” handwritten across the front and just to make sure, it was also stamped “Return to Sender — Attempted Not Known.” The second piece of court correspondence was stamped “Return to Sender — Attempted Unknown,” without any added handwritten message.

Curious by its absence, any reference to the forwarding addresses of the two lawyers who had left the firm.  Surely the law firm knew them.  Surely the State Bar website could provide them.  Apparently, the Sullivan & Cromwell perspective was that the court could figure it out -- it wasn't Sullivan & Cromwell's problem.

Except it was.  And it is.  Because the representation of Cory Maples didn't leave with the two associates -- it was merely reassigned to two other firm lawyers. Who knew zip about what was happening until Cory's mother called to check on the status of the appeal.

What Did Sullivan & Cromwell Do Next?

Swanky Sullivan & Cromwell went before the Atlanta federal appeals court on behalf of Cory Maples.  And lost.   Now, the firm has seen fit to bring in a former United States solicitor general, Gregory G. Garre, to argue on behalf of Mr. Maples before the United States Supreme Court.  And, indirectly of course, he's arguing for Sullivan & Cromwell at this point. 

His big argument to the High Court on why they should grant his petition?  That Cory Maples should not be responsible for his lawyer's mistake. 

However, the federal precedent is filled with clients that do get left holding the bag for their lawyer's mistakes - limitations are passed, deadlines are missed, and the law usually says that the client's remedy is to sue the law firm for malpractice.  Except that Cory Maples can't get his life back from Sullivan & Cromwell.  Sullivan & Cromwell's mail room glitch might well cost Mr. Maples his life. 

Another Lesson in the Crisis of Indigent Defense of Death Penalty Defendants

Why was an elite New York law firm appointed to represent an indigent criminal defendant?  The New York Times reports that the trial lawyers actually told the jury during the penalty phase that they weren't experienced here, and warned the jurors they “may appear to be stumbling around in the dark.” Result?  The jury came back in favor of the death penalty, with a vote of 10 to 2.

It's all about money.  Alabama doesn't budget for indigent appellate defense for those on death row.  Alabama lets elite firms take these cases on pro bono, and they don't even have to be within the state lines: elite firms like Sullivan & Cromwell.   

The reality is that the error that may cost Cory Maples his life isn't just the fault of Sullivan & Cromwell.  It's the responsibility of all who fail to acknowledge and provide for adequate funding for qualified, experienced indigent defense representation in capital punishment cases. 

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