This week, the New York  Times wrote a short article informing its readers of the case that is going before the United States Supreme Court out of California, Martel v. Clair (you can follow the case online via the USSCt docket ).  The High Court will be considering the following issue – and only this issue – in its review:

Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.

This week, the Justices heard oral argument in this case and next week, you can listen to that December 6, 2011, oral argument online here.   The State of California (technically, warden Michael Martel) was represented by Ward A. Campbell, Supervising Deputy Attorney General and the Death Row Inmate Kenneth Clair was represented by Seth P. Waxman out of Washington, D. C.

The Facts Behind Martel v. Clair

Back in 1987, California Death Row Inmate Kenneth Clair was sentenced to die for the sexual assault / strangulation death of Linda Faye Rodgers.  After the trial, Mr. Clair filed a petition for habeas corpus and a federal public defender was appointed to represent Clair in this federal court proceeding.  

Clair’s efforts in the federal system and state system went forward for many years.  The federal district judge ruled that the federal proceedings would be stayed while Clair’s state remedies were "exhausted" including those on claims raised after the murder trial was done.   At the California Supreme Court, a second habeas corpus request by Clair was denied, and the ball was back in the court of the federal system to seek relief.

In June 2005, Clair wrote a letter requesting a new lawyer and sent it to the federal judge, the second letter that Clair had sent to the court.  Clair had already written the judge to voice his concerns and complaints about his lawyer and what Clair saw as his attorney’s neglect and disinterest in his case.  

The federal court had done something after that complaint letter: the attorney was questioned and the lawyer responded to the court by reporting that there had been a conference with their client, Mr. Clair, and that the attorney-client relationship would be continuing.  The conference happened in April 2005. 

Key to the second Clair letter: Clair told the court that a private investigator had discovered physical evidence that had never been tested and that his lawyer hadn’t looked it over, much less had it tested or tried to introduce it at trial.  The investigator also wrote the judge, and confirmed what the Death Row inmate had written.  

Here’s the shocker:  after getting that PI letter and the inmate’s letter, the federal judge didn’t move forward to investigate what this was all about.  The  U.S. Court of Appeals for the Ninth Circuit ultimately ruled that the district court abused its discretion and now, the case is before the High Court for review.

From the briefing:

At the end of ten years of capital federal habeas corpus proceedings in the district court, respondent suddenly complained about and sought replacement of his court-appointed public defender with a new appointed lawyer. The district court refused, explaining that "it appears Petitioner’s counsel is doing a proper job" and that "[n]o conflict of interest or inadequacy of counsel is shown," and thereupon issued its ruling denying habeas corpus relief.

On appeal, however, the Ninth Circuit appointed a replacement lawyer, vacated the judgment, and remanded for further proceedings to allow the new lawyer to raise additional claims for relief. The Ninth Circuit explained that no showing of ineffectiveness of counsel was required, for it was enough that Clair had expressed "dissatisfaction" and had alleged that the public defender was failing to pursue potentially important evidence. 

 

Court Appointed Death Penalty Counsel – Huge Duty With Insufficient Funding

Last year, we discussed how California in particular was in crisis because of a funding problem in death penalty defense representation, "Lawyers Cannot Afford to Take Death Row Appeals in California."  

Is the fact that this lawyer had to operate on a shoestring budget (and that’s being kind) a factor in the Clair case?  

And, assuming this to be true, then will the U.S. Supreme Court take this opportunity to address the indigent defense crisis in this country, where attorneys are appointed to represent defendants but are not given sufficient funding to do their job?  

The High Court arguably already had this opportunity back in the summer of 2010 and failed to address this problem.  We’ll keep our fingers crossed, but we’re not optimistic.  Money isn’t the focus of the pending case – and there are lots of arguments against the Ninth Circuit’s ruling on all sorts of reasons, including an "administratively unworkable result" challenge by a bunch of state attorneys general, including Florida’s Pam Bondi (read the amicus brief here).  

 

There’s a new blog to check out for those who are interested in the death penalty, published by Athina Ouranidou.  It’s entitled "Artists vs. Death Penalty." 

Athina is in her final year as a law student at Birmingham City University in the United Kingdom.  She’s opposed to the death penalty, and has started publishing Artists vs. Death Penalty as a vehicle for artists to share their work, in its various forms, in a stand against the death penalty.  And, of course, as a means to inspire others as well.

Already, Athina reports that her blog has achieved a steady top ranking in Google Everything Search for the phrase, ‘artists death penalty’ and she’s been interviewed by the Greek magazine “Ανεξartητη Γυναίκα της Θεσσαλονίκης” about the blog site (you can read the interview online – check out page 44).

Check it out!

 

Florida has exonerated more Death Row Inmates than any other state in the nation – 23 inmates, to date – and that’s something we all need to be taking very, very seriously.

Which is exactly what has been happening over in Tallahassee, where a panel made up of respected academics, experts on death penalty legalities, and legislators gathered together to consider how to combat the evident and obvious danger that innocent folk might be executed by the State of Florida.

Seems everyone agrees that there are lots of problems with capital punishment, cost not being the least of them.  However, it doesn’t appear that the swift and clean answer of abolishing the death penalty in Florida will be happening any time soon. 

What was this panel?  It was put together by the Florida State University in commemoration of the 5th anniversary of an ABA study of Florida’s death penalty procedures – which included recommendations that weren’t followed by Florida lawmakers.

For example, Florida still doesn’t need an unianimous jury to sentence someone to death.  Juries can recommend the death penalty by a majority vote, and the judge imposes the sentence (and he or she usually follows the jury’s recommendation).  The ABA  thought that juries in Florida should at least be required to vote 100% in favor of death before it was recommended.  Didn’t happen.

What will result from the panel’s efforts?  Too soon to tell.  We should look for new proposed legislation coming from it … but whether or not those proposals become law in the State of Florida is another ball game.  

DNA testing for Death Row inmates gets a lot of attention over in Texas, but it’s really a national issue — and lots of eyes are turned to Austin this week as the Texas Court of Criminal Appeals stayed the November 8, 2011, execution of Hank Skinner.  Skinner’s fight is far from over: the opinion states that the stay has been granted so the court can " … take the time to fully review the changes in the statute as they pertain to this case."

Skinner still has not found victory in his fight to get evidence tested for DNA that includes the knives used as murder weapons. 

David Protess of the Innocence Project has been following the Hank Skinner story – as well as the importance of DNA testing in death penalty cases – for awhile now.  For details on the Skinner case and this latest ruling’s impact, read his article at the Huffington Post. 

Meanwhile, more and more attention is being given to the actions of a series of prosecutors in the Hank Skinner matter and their apparent blindspot on justice insofar as testing DNA evidence in this case. 

What happens to the prosecutors?  It’s not clear – first things first is getting Skinner’s DNA testing requests approved and testing done.  Moreover, assuming that Skinner is proven an innocent man it’s also not clear what the ramifications of that reality will be on the district attorneys who made decisions in this case.

Perhaps the best news today, other than the stay of execution of course, is the fact that more and more questions are being asked of the propriety of actions and attitudes of the prosecutors in this case (and hopefully, in every death penalty case). 

Are they concerned with justice or are they concerned with politics or sadly, building a winning track record at trial? 

 

 

 

Over in Ohio, Reginald Brooks and his ace defense team are fighting against an execution date of November 15, 2011, when Brooks is scheduled for capital punishment in the homicides of his three sons, killed long ago while they slept (in 1982).

A federal district judge has failed to find error in the changes that the State of Ohio made in its execution methodology: Judge Gregory Frost then rejected Mr. Brooks’ motion that his execution be delayed. 

Meanwhile, on the same day, the Ohio Supreme Court issued its determinations that denied several different requests by Mr. Brooks, also declining to delay an execution day that is two weeks away. 

Read that summary disposition here.

Defense attorneys are working very, very hard on this case.  Brooks’ age has been the basis for requests of mercy and clemency, and arguments have been advanced that he suffers from mental illness. 

The Ohio Parole Board came down against clemency in an unanimous vote on Monday.  Read their Clemency Report here. 

There’s not many more tools in the defense team’s tool box.  Time is running out and no powers that be have seen fit to extend that execution schedule.

Hat’s off to that defense team, today and every day through November 15, 2011.  Few can understand the emotional, raw, intense efforts those death penalty defense attorneys are experiencing right now. 

Perhaps knowing that your work is being acknowledged and appreciated by more folk than you know will be of some help to you.  Because it’s out here. 

Right now, the Florida House of Representatives has before it a bill that would end lethal injections as a method of execution.  This bill doesn’t end the death penalty, though (that’s a different bill): this proposed legislation, if it becomes law, will return Florida to its prior methods of carrying out capital punishment.

That’s right.  Old Sparky or the Firing Squad would be back as the two ways that executions would be carried out here in the State of Florida.

Who’s responsible for this?  Florida State Rep. Brad Drake — and he’s getting lots of news coverage from this, too.  Coast to coast. 

We’ve already written on the method of killing people in electric chairs; go here if you want to know more about it. 

On Texas Death Row, Henry Watkins "Hank" Skinner is fighting to have DNA testing done of evidence that he argues will support his claims of innocence in the beating death of his girlfriend,  Twila Busby, and her two grown-up sons back in 1993. 

In 2010, the U.S. Supreme Court issued its opinion that Skinner could proceed in civil court, arguing violation of his civil rights under the Civil Rights Act (42 U.S.C. § 1983) because the State of Texas post-conviction law on when DNA testing can be done after there has been a trial and a sentencing are in violation of those civil rights. 

The High Court didn’t decide that the DNA testing could happen.  It just opened the doors to a civil courtroom debate on what had happened much earlier, in a criminal one.  This is a big deal.  

Right now, Hank Skinner is scheduled to be executed by the State of Texas on November 9, 2011.

Lots of folk are following the case of Hank Skinner.  Some, because they are interested in the civil rights aspects of the case  Some, because they are against the death penalty.  Others are following along because they believe that Hank Skinner is an innocent man. 

One person with a particularly unique perspective here is Kirk Bloodsworth, who supports Skinner’s request that the DNA be tested as the first Death Row inmate in the United States to be exonerated after post-conviction DNA testing proved Bloodsworth to be innocent.

No matter the reason for your interest, here are some sites that are doing a fine job in bringing consistent information to us all regarding the Hank Skinner case:

What Can You Do for Hank Skinner?

Other than informing others, etc., you can sign the petition by the Texas Coalition here or contact the Texas Governor by phone, fax, or email at the contact information provided on his web site. 

 

. 

 

 

Terry Lenamon fought long and hard to get QEEG Brain Mapping introduced as evidence in the death penalty trial of Grady Nelson last fall.  The QEEG evidence was introduced.  The judge  sentenced Grady Nelson not to a sentence of death, but instead to life imprisonment. 

That was almost a year ago, and now QEEG evidence is being fought for by another death penalty defendant, Huberto Delgado, here in  Florida.

Over in Tampa, Florida Public Defender Julie Holt is pushing for the introduction of  QEEG brain-mapping tests as part of her defense of  Humberto Delgado, who is facing the death penalty for the alleged shooting death of Tampa Police Officer Mike Roberts. 

The prosecution is fighting hard against the introduction of the QEEG evidence and expert testimony has been presented by both sides as to whether or not the QEEG testing and analysis should become evidence at trial.  Trial is set to begin October 31, 2011.  The judge has not yet ruled on the QEEG evidence in the Delgado trial.  

What is QEEG? 

QEEG is different than other brain imaging tools. Past scientific attempts to understand the brain were done via things like x-rays, CAT scans (Computerized Axial Tomography scans) or MRIs (Magnetic Resonance Imaging) — each dealing more with the structure of the brain than how it was operating at any given juncture.

Enter QEEG.  With QEEG (Quantitative Electroencephalography), experts can study how a particular subject’s brain is functioning — in real time — through this painless evaluation of the brain’s electrical activity.

Sensors are being placed upon the scalp which read electrical neuron activity under certain conditions (eyes closed, open, etc.). Result? QEEG, with expert analysis, gives information on exactly how well, or how lacking, a particular person’s brain is capable of functioning.

Cory Maples sits on Death Row over in Alabama, after having obvious and serious errors made by both his trial and appellate counsel which included some pretty big names in the legal industry.

And by "obvious and serious," we really mean blatant, ludicrous, and shameful treatment of an indigent defendant by, among others, one of the purportedly top law firms in the country, Sullivan and Cromwell. 

Maples Argues to the United States Supreme Court This Week

Yesterday, Mr. Maples argued to the highest court in the land for some justice — and now, we must wait and see if the United States Supreme Court will fix a blatant glitch in the system that has allowed Mr. Maples’ case to get as far down the road to execution as it has.

CLICK HERE TO DOWNLOAD THE PDF OF THE ENTIRE OCTOBER 4, 2011, ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT IN THE MATTER OF CORY R. MAPLES V. KIM T. THOMAS, INTERIM COMMISSIONER OF THE ALABAMA DEPARTMENT OF CORRECTIONS. 

Even Business Week reported that oral arguments before the High Court were " lively," and other media sources have gone so far as to characterized what happened on Tuesday as suggesting that the Justices were "unusually sympathetic" toward Maples’ plight. 

One big example, Justice Samuel A. Alito Jr., whose past experience as a federal prosecutor often brings with it a prosecutorial perspective to criminal matters brought before the court (just go read a few, if you’re wondering about this), asked a question that lots of attorneys across the country are asking even now: 

when it was obvious that the ball had been dropped, why didn’t the government agree to waive the deadline and agree to a new hearing?  Or, as Justice Alito asked:

“Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances….Now, when his attorneys moved to file an out-of-time appeal, why wouldn’t you just consent to that?”

Error after Error by Attorneys Appointed to Represent Cory Maples

We’ve been following Mr. Maples case for a long while now; for background, please check out our prior posts "Will A Law Firm Missing a Deadline Fail to Stop the Execution of Alabama Death Row’s Cory R. Maples?" and "Death Penalty Defense: Cory Maples’ Sullivan & Cromwell Representation vs Sakineh Ashtiani’s Mohammed Mostafaei."

Let us all hope and pray that justice is served here. 

To review the United States Supreme Court docket for Cory R. Maples, go here.

 

 

The Florida House of Representatives will be addressing the issue of capital punishment, as the memories of Georgia’s execution of Troy Davis and Florida’s execution of Manuel Valle are still fresh in the minds of legislators and the public at large. 

State Representative Michelle Rehwinkel Vasilinda (D-Tallahassee) has introduced HB 4051, which will now proceed through the usual path of all bills in the statehouse: committee consideration, voting, etc.  Of note, Representative Rehwinkel Vasilinda introduced the same bill last year, and it never got out of committee. 

The bill was introduced in tandem with the execution of Troy Davis and the swirl of media controversy surrounding that event.  Balanced against that in the Florida media is the execution of Manuel Valle, labelled with the phrase "cop killer" in most media accounts of his story. 

Read the language of the original bill, as introduced on September 22, 2011, here as a pdf file available for download. 

From the Florida House of Representatives website, HB 4051 is described as follows:

Death Penalty: Deletes provisions providing for death penalty for capital felonies; deletes provisions relating to representation in death penalty cases; repeals provisions relating to capital collateral representation, jurors in capital cases, prohibiting imposition of death sentence on defendant with mental retardation, determination of whether to impose sentence of death or life imprisonment for capital felony or capital drug trafficking felony, issuance of warrant of execution, stay of execution of death sentence, proceedings when person under sentence of death appears to be insane, proceedings when person under sentence of death appears to be pregnant, grounds for death warrant, execution of death sentence, prohibition against reduction of death sentence as result of determination that method of execution is unconstitutional, sentencing orders in capital cases, regulation of execution, transfer to state prison for safekeeping before death warrant issued, return of warrant of execution issued by Governor, sentence of death unexecuted for unjustifiable reasons, & return of warrant of execution issued by Supreme Court.