Sixth Circuit Hears Ineffective Assistance of Counsel Appeal From Lillelid Murderer

The recently decided Sixth Circuit case of Howell v. Hodge began in 1997 when Karen Howell and five of her friends set off from Pikeville, Kentucky to New Orleans. At the time, Howell was only 17-years-old, another of the group was 14 and the rest were over 18. The group of friends brought two guns with them on their journey and discussed forcibly trading in their broken down car for a newer one along the way.

While stopped in Greeneville, Tennessee, an opportunity to steal a better car presented itself. A Jehovah’s Witness, Vidar Lillelid, came up to Howell and her friends and began to share his religious views. One of Howell’s compatriots brandished a gun and walked Lillelid back to his family’s van despite Mr. Lillelid’s offer of his wallet and his keys. The group ended up ordering Lillelid to pull over on a secluded stretch of road, at which point, all four members of the family were shot multiple times. The only person to survive was the Lillelid’s two-year-old son who lost an eye in the attack.

Howell and her group attempted to flee to Mexico but were caught in Arizona after failing to cross the border. Howell and her friends still had several of the Lillelid’s possessions when they were apprehended.

Prosecutors in Tennessee then filed charges and initially sought the death penalty. In exchange for dropping the death penalty charges, the group pled guilty to the crime, with Howell and the other minor pleading guilty in adult court. Howell was eventually sentenced to three life sentences to be served consecutively without the possibility of parole.

Howell then filed a petition for relief, claiming that she received ineffective assistance of counsel. She said that her attorney at the time should have insisted that she take a psychological evaluation to determine if her mental state required that she be committed to a psychiatric institution, which would have prevented her being transferred to adult court. The case made its way to the Tennessee Supreme Court, which found that although the attorney had indeed been deficient, Howell was not able to show prejudice.

The Sixth Circuit agreed to hear the case and laid out that for an ineffective assistance of counsel claim to succeed under the Sixth and Fourteenth Amendments, a claimant must show that deficient performance resulted in prejudice. The Sixth Circuit agreed with lower courts that there were reasonable grounds to believe Howell was not “committable” at the time of her trial. Thus, her attorney’s lack of action to get her a psychological evaluation does not prove prejudice. Moreover, the Sixth Circuit says that for a claimant to make such an ineffective assistance claim, he or she must establish that, but for their counsel’s ineffectiveness, he or she would not have pled guilty and would instead have gone to trial. Howell never says that, just that she might have been committed to an institution for a brief period of time for evaluation.

The Sixth Circuit ultimately affirmed the conviction and the ruling of the Tennessee Supreme Court. The Court found that the test for ineffective assistance of counsel is a demanding one that requires claimants prove that the likelihood of a different result is substantial, not just conceivable.

To read the full opinion, click here.

See Our Related Blog Posts:
Sixth Circuit Hears Criminal Trade Secrets Case Concerning Giant Tires

By Lee Davis

Man on Death Row Gets New Trial in Kingsport Killing

The Tennessee Court of Criminal Appeals recently ruled that Steven James Rollins, a former death row inmate involved in the fatal stabbing of an elderly East Tennessee bait shop owner, ought to receive a new trial.

Rollins was convicted of first-degree murder and robbery in the killing of 81-year-old James T. Bussell inside Bussell’s Fisherman’s Paradise bait shop near Kingsport, TN in August of 2001. Rollins was originally sentenced to death, but the sentence was overturned in 2010 and a new sentencing hearing was ordered. The decision was then appealed to the Tennessee Court of Criminal Appeals which decided to reverse his conviction.

The Court of Criminal Appeals ruled that Rollins had received ineffective assistance of counsel and that the trial was also defective due to a “biased juror.” The two issues were related given that the Court found that Rollins’ attorney failed to properly question prospective jurors to help with weeding out those with biases.

The problematic juror was identified as “Juror 9.” In a 2008 affidavit, the juror admitted to knowing Bussell and having bought bait from him once a week before he was killed. The juror said that he had made up his mind about Rollins the moment they seated the jury. He said he could tell just by looking at him that he was guilty. The juror sealed the deal about his own bias by admitting that, in his opinion, “death is the only appropriate punishment” for someone who is convicted of murder.

The Court of Criminal Appeals said that Juror 9’s failure to admit his friendship with Bussell amounted to a presumption of bias. Given this bias, the Court found that Rollins was denied his right to a fair and impartial jury. The Court went on to highlight how Rollins’ attorney failed to ask jurors if they knew the victim, something the Court found to be “objectively unreasonable” and amounting to a “deficient performance.”

To read the full opinion, click here.

See Our Related Blog Posts:
The Tennessee Court of Criminal Appeals on Split Confinement
TN Court of Criminal Appeals Rejects Petition From Defendant With Life Sentence

Tennessee Supreme Court Overturns Death Sentence Due to Misconduct

By Lee Davis

• State of Tennessee v. Hubert Glenn Sexton

1926 Tennessee Supreme Court: W.L. Cook, William Swiggart, Grafton Green, C.J., Colin McKinney and A.W. Chambliss 

The Tennessee Supreme Court recently overturned the death sentence for Hubert Glenn Sexton who was previously convicted of murdering a Scott County, Tennessee couple in their bed. The Supreme Court ordered that a new jury hear the case and decide whether he does indeed deserve the death penalty.

The high court found a multitude of problems with the evidence and sentencing phase of Sexton’s murder trial. Examples include inappropriate remarks made by jurors and the impact of prejudicial evidence that was admitted.

Sexton was convicted of first-degree murder by a jury for the May 2000 murders of Stanley and Terry Sue Goodman. The Goodmans were shot to death while they slept in their home only days after Sexton was accused of sexually abusing one of Stanley Goodman’s children.

Despite the problems uncovered by the Supreme Court, the justices refused to take the additional step of overturning his murder conviction. The majority clearly believed Sexton was guilty of the crime, stating that, “Aside from the unfairly prejudicial nature of the inadmissible evidence and the inappropriate argument by the prosecution, however, the proof of guilt for each of the two murders was simply overwhelming.” The doubt about Sexton’s guilt is very small as Sexton reportedly told at least three different friends that he had murdered the Goodmans.

The problems with the case began before the trial even started as the voir dire process was tainted. Apparently some people were improperly excluded as jurors. Later, jurors heard allegations of the sexual abuse Sexton was alleged to have committed but never officially charged with, something that never should have happened. The Court said that prosecutors should have instead attempted to charge Sexton separately for the abuse. The jurors were further prejudiced by hearing that Sexton initially agreed to take a polygraph but later changed his mind.

The accumulation of misconduct was enough to earn Sexton a new sentencing trial but not enough for a reprieve.

To read the full opinion, click here.

Read: “Tenn. Supreme Court overturns death sentence in E. Tenn. Case,” by Sheila Burke, published at TimesNews.net.

See Our Related Blog Posts:
Tennessee Supreme Court to revisit "constructive possession" in State v. Robinson
TN Court of Criminal Appeals Finds Video Must Be Reviewed by Trial Court

Alarming Flaws in Forensic Analysis Revealed

by Janie Parks

The Washington Post reported earlier this week about potential flaws in forensic analysis by the FBI. In the early 1990's the Justice Department began a review of cases where the defendants were convicted in part because of forensic analysis in FBI crime labs. The review focused on cases involving one FBI agent in particular whose methods had been questioned in recent cases. According to the Post, the FBI was aware of its potential flaws in forensic evidence protocol across the agency, but decided to narrow its investigation to just those cases involving one agent. Over a span of 9 years, the investigation revealed hundreds of cases where the forensic evidence was either analyzed in a sloppy manner or was analyzed in the wrong manner by the FBI. The Post formed a task force to conduct its own investigation after obtaining thousands of files pursuant to the Freedom of Information Act. According to its findings, the FBI-led investigation found over 250 convictions in which the scientific review had been completed. What is most troubling about the task force investigation is that it revealed fewer than half of the defendants in the over 250 questionable convictions had been notified that their cases had been reviewed. According to the FBI, they were only obligated to inform the prosecutors of each case. Only about half the prosecutors disclosed the review to the defendants.

The Investigation conducted by the FBI has led to some exonerations of defendants, many of whom were serving life sentences. In fact, many have already served over 20 years. A truly unfortunate case involved Benjamin Boyle, a Texas man on death row. Boyle was executed in 1997, more than a year after the FBI began its review of the forensic evidence in his case. According to the Prosecution's memo, Boyle would not have been eligible for the death penalty without the forensic evidence presented against him. That same forensic evidence may have been poorly handled and could have potentially exonerated him.

What is particularly disturbing about this is the amount of cases they haven't reviewed. How many convicts were convicted due to forensic analysis? How was that forensic evidence analyzed? Two cases in the D. C. Superior Court at the moment were not reviewed by the FBI. However, in both cases, both defendants are seeking exonerations based on invalid hair and fiber analysis.

In the case of Santae Tribble, Tribble was convicted of murdering a taxicab driver in July 1978. Tribble became a suspect and was eventually arrested and charged with the murder. During the trial, an FBI forensic analyst testified that they recovered a stocking a block away from the crime scene with 13 hairs on it. According to the analyst, the hairs were matched to Tribble. After hearing that evidence, and despite the fact that Tribble had a solid alibi, the jury convicted Tribble of murder. He was sentenced to life, and is now on parole. In January, Tribble's attorney was able to have that evidence re-examined. According to the reexamination, none of the 13 hairs on the stocking matched Tribble's hair or shared his genetic profile. However, according to the analyst at trial, the hairs from the stocking matched Tribble's hair "in all microscopic characteristics." Upon re-examination, one of the hairs was found to have characteristics specific to the Caucasian race. Tribble is African American. Further, one of the 13 hairs was found to be of inhuman origin: it belonged to a dog. Needless to say, tribble filed a motion for exoneration and it is currently pending.

Kirk Odom was convicted of rape of a young woman in 1981. The victim identified Odom in a lineup, but later admitted at trial that it was very dark outside. The State presented evidence at trial of a hair found on the victim's nightgown. According to the FBI analyst, the hair found on the nightgown was "microscopically like" Odom's hair. He was convicted and is now out on parole. Again, in January, further tests on the evidence revealed that the DNA sample taken from the hair did not match Odom's DNA. He filed a motion for exoneration on March 14.

It bears repeating that each of these cases were not part of the FBI investigation.

So where do we go from here? I'd imagine it won't be too long before an agency-wide investigation of the FBI forensic analysts is commenced. If that investigation occurs, it will have some potentially shocking and disappointing results. We'll keep you updated.

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

• Maples v. Thomas, Alabama DOC

The U.S. Supreme Court decided Mapels v. Thomas in a 7-2 vote on Wednesday that an Alabama death row prisoner should be allowed to appeal despite having missed a deadline after his attorneys dropped his case without notifying him. The two attorneys at the major New York firm of Sullivan and Cromwell failed to alert Alabama judicial authorities so that when the court clerk sent papers to the attorneys the firm’s mailroom returned them unopened, marked “Return to Sender.”

Writing for the majority, Justice Ruth Bader Ginsburg said, “Abandoned by counsel, (Cory) Maples was left unrepresented at a critical time … and he lacked any clue of any need to protect himself.” Ginsburg continued, “In these circumstances, no just system would lay the default (arising from a missed deadline) at Maples’ death-cell door.”

The decision meant a reversal of an earlier decision by the US Court of Appeals for the 11^th Circuit. Maples had been convicted and sentenced to death for the 1995 killings of two companions, Stacy Terry and Barry Robinson, after a wild night of heavy drinking. At the trial in 1997, Maples pleaded not guilty and was represented by two court-appointed Alabama attorneys. It was noted that only one of those trial lawyers had earlier served on a capital case and that their compensation was limited.

Only Justices Antonin Scalia and Clarence Thomas dissented. They instead believed that a state is permitted to enforce its deadlines and court procedures related to death penalty appeals even when lawyers are at fault.

The case garnered much attention as the firm at the center is so prominent. The NAACP sided with Maples in the case and twenty states joined Alabama in arguing against the claim for ineffective assistance of counsel.

Ginsburg emphasized Maple’ unusual situation. After the Sullivan and Cromwell lawyers volunteered to represent Maples, pro bono, and had filed a petition challenging his murder conviction, they left their law firm for jobs elsewhere. Ginsburg stressed that when they left the firm in 2002, Jaasi Munanka and Clara Ingen-Housz did not tell Maples or seek permission from an Alabama trial court to withdraw. After their departure no other attorneys at Sullivan and Cromwell took over the case. A few months after the departure a trial court denied Maples’ petition and the clerk of court sent notice to the lawyers. The firm returned the notices unopened. Maples was then blocked from appealing the denial because he missed the deadline as the clock had started running the day the denial was issued.

Ginsburg made clear that usually attorney “negligence or oversight” would not result in a new hearing. What happened in this case was characterized as something altogether different, “Maples alleges something graver than attorney oversight. He contends that his attorneys abandoned him.”

The decision in Maples v. Thomas means that Maples will now be allowed to present arguments on his Sixth Amendment claim of ineffective assistance of counsel.

Read: “Alabama Inmate Must Be Given Second Chance After Mailroom Mix-Up, Justices Rule,” by Adam Liptak, 

Earlier:

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession 

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not 

Retrial for Christian/Newsom Slayings Prompts Outcry to TN Supreme Court

Lemaricus Davidson

Despite being inundated with thousands and thousands of emails, the Tennessee Supreme Court has said that nothing can be done regarding the expected retrial for those convicted in the Christian/Newsom slayings.  And, of course the rules of criminal procedure would bar any attempt to circumvent or expedite the process.

The high court has said that justices cannot and will not consider the email petitions received by them, regardless of how many people ultimately send them in. Thus far more than 16,000 people nationwide have signed and forwarded an online petition requesting that the Tennessee Supreme Court, Tennessee Governor Bill Haslam and former Knoxville Mayor Daniel Brown do what they can to prevent the convictions of the four defendants from being thrown out for the 2007 kidnapping, rape, torture and murder of Channon Christian and Chris Newsom.

Christian, 21, and Newsom, 23, were on a date when they were carjacked the night of Jan. 7, 2007. They were held hostage at a rented house on Chipman Street in North Knoxville, where they were raped, tortured and killed.

Four separate juries found four people — Lemaricus Davidson, Letalvis Cobbins, George Thomas and Vanessa Coleman — guilty in the couple’s murders. However, Special Judge Jon Kerry Blackwood decided earlier this month that all four defendants in the Christian/Newsom case must receive new trials. Judge Blackwood granted the retrials due to extreme judicial misconduct found during a TBI investigation of former Knox County Judge Richard Baumgartner, who presided over the four previous trials.  Judge Baumgartner was recently disbarred after admitting he had a drug addiction.  This admission apparently is only the tip of that iceberg.

Judge Blackwood is one of the most accomplished and well respected members of the bench statewide.  As a Senior Judge, he is often called upon by the Supreme Court to hear the most difficult cases across the state.  Often these cases involve conflicts with attorneys or District Attorney's offices and in some cases, like this one, even errant judges.  Attorneys who have practiced before him praise him for his legal knowledge, fairness, and ability to quickly sort out the thorniest of legal issues.  If Judge Blackwood says that justice dictates that these cases require a new trial, then it is from the facts and circumstances that happened on Judge Baumgartner's watch that this remedy is demanded. Those familiar with Judge Blackwood--prosecutors and defense attorneys alike--will tell you, he coddles no defendant and suffers no foolish lawyer.  This decision to order four new trials was difficult to make, knowing full well the pain it would bring to the victim's families.  But, that Judge Blackwood would make this most unpopular decision is a testament to the power of the rule of law in Tennessee and a strong signal that the law applies even to those who seem most undeserving.

Laura Click, spokeswoman for the Tennessee Administrative Office of the Courts said she gets the email petitions constantly. “It's the exact same email, over and over again.”

Click said that while the justices care that the public is so invested in the case they will not be swayed by the outpouring. The Court can only look to the law and to do otherwise would be a breach of judicial ethics. 

Meanwhile, Knox County prosecutors have said they will appeal the case to the state Court of Criminal Appeals. John Gill, special counsel for the Knox County district attorney general said that the appeal should be filed by early January.

Click went on to say that, “The Code of Judicial Conduct prohibits judges from commenting on any cases that may come before them. Should the state file an appeal from the trial judge’s decision granting the motions for retrials, the appellate courts will consider the appeal based on the facts and information filed with the court as part of the regular appeals process, described in the Tennessee Rules of Appellate Procedure,” Click said.

 Channon Christian & Chris Newsom

Christian’s cousin, Brandon Sterne, started the online petition at http://www.change.org within a few days of Blackwood’s decision. Despite the news from the Supreme Court, the petition drive has not stopped; as of last count there 18,155 signatures.

Sources:

• STATEMENT REGARDING THE PETITION TO STOP THE RETRIALS FOR THE MURDERS OF CHANNON CHRISTIAN AND CHRISTOPHER NEWSOM 

• “Tennessee court system says Christian/Newsom petition in vain,” by Matt Lakin, published at KnoxNews.com.

Supreme Court Denies Stay of Execution for Troy Davis

"The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the court is denied." Supreme Court: Wed., Sep. 21, 2011


The NYT reports that Troy davis was executed last night in the controversial case in Georgia after the Supreme Court refused a stay of execution.

Mr. Davis, 42, who was convicted of murdering a Savannah police officer 22 years ago, entered the death chamber shortly before 11 p.m., four hours after the scheduled time. He died at 11:08.

This final chapter before his execution had become an international symbol of the battle over the death penalty and racial imbalance in the justice system.

“It harkens back to some ugly days in the history of this state,” said the Rev. Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.

Mr. Davis remained defiant at the end, according to reporters who witnessed his death. He looked directly at the members of the family of Mark MacPhail, the officer he was convicted of killing, and told them they had the wrong man.

“I did not personally kill your son, father, brother,” he said. “All I can ask is that you look deeper into this case so you really can finally see the truth.”

The Georgia State Board of Pardons and Parole on Tuesday denied Mr. Davis’s clemency after a daylong hearing and announced that that there would be no reconsideration of the case, and a polygraph test--requested by Davis Attorneys--was refused.


Because so many of the ID witnesses at trial have recanted, six in all, the case has become a symbol across the nation and beyond for the problems in administering the death penalty for many with claims of selective enforcement and obvious issues of race and poverty adding to the debate about the validity of a state's moral use of the ultimate penalty.

Sixth Circuit reverses on whether Michigan’s abolition of the Death Penalty is a “Mitigating Factor” that the jury may consider

• UNITED STATES v. MARVIN CHARLES GABRION, II

In this Sixth Circuit appeal the Court considers whether Michigan’s long standing abolition of the Death Penalty is a “Mitigating Factor” that the jury may consider? There are no cases previous to this one that have ruled in a federal death case on the question of permitting evidence or argument concerning a given state jurisdiction’s policy against the death penalty. Here the Court reverses and holds that it is a relevant consideration for the jury and orders a new penalty phase of the trial.

The facts are that  Marvin Gabrion was accused of raping Rachel Timmerman in August 1996. Then he murdered her and her infant daughter in June 1997 while awaiting trial in state court for raping her. The jury verdict at the guilt phase of Gabrion’s federal murder trial accepted the government’s evidence that Gabrion bound Rachel Timmerman with chains during the first week of June 1997, took her while alive in a small boat, and dumped her into Oxford Lake with cinder blocks to weigh her down. Her bloated, drowned body was found on July 5, 1997, after it had been in the lake for several weeks. The lake was a shallow swamp filled with vegetation so that the body would stay where it was dumped from the boat and would not be carried to another location by a current or wind. The body was within the Manistee National Forest, hence federal jurisdiction, 227 feet south of the boundary. Timmerman’s eyes and mouth were covered with duct tape wrapped around her head. In addition to overwhelming circumstantial evidence, three witnesses testified that Gabrion had made statements to them incriminating himself in Timmerman’s murder.

The Federal trial court engaged in this colloquy with the prosecutor early in the case:

Prosecutor: . . . They’ve [the capital punishment decision makers in the Justice Department] told us that they do not factor into their consideration the fact that a case might come from a state that does not recognize the death penalty as opposed to a state that does.

COURT: Well, I’m not — I don’t want to argue with you, but I want to pose this question. Shouldn’t it make a difference? The people of the State of Michigan are ultimately sitting on the jury. The people of the State of Michigan are ultimately the ones of which this judge and the prosecution team and the defense team are comprised. Under a system of federalism, aren’t the state’s public policy considerations of some significance to the Department of Justice.

In reversing the death penalty decision the court made the following observations and findings.

At the sentencing phase of a death case the question is not a semi-technical question like a sentencing enhancement issue under the U.S. Sentencing Guidelines. The death penalty is never a “mandatory minimum.” In such a case each juror must call on individual judgment drawn from a lifetime of experience and learning and must decide whether to impose the death penalty or a life sentence. The broad, multi-dimensional question of the death penalty is also the reason the error in this case cannot be said to be “harmless” under the doctrine of “harmless error.” (18 U.S.C. § 3595(c) provides: “The court of appeals shall not reverse or vacate a sentence of death on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless.”) We have no way of knowing beyond a reasonable doubt what one or more jurors would have done after listening to a lawyer arguing for life by effectively using Michigan’s longstanding policy to buttress the argument, even with respect to a murderer as vile as Gabrion. Accordingly, we reverse on this issue for a new penalty phase of the trial.

Georgia Records Inmate's Execution

Andrew DeYoung was executed Thursday in Georgia for killing his parents and sister in 1993. He was executed by lethal injection using a new anesthetic called Pentobarbital. According to an attorney currently appealing the sentence for another death row inmate, this new anesthetic causes unnecessary pain and suffering. Specifically, it is argued that the drug does not induce a deep enough coma to prevent the immense pain caused by the two drugs that follow. As a way to determine if the drug causes unnecessary pain, the Georgia Supreme Court held on Wednesday that the execution could be recorded.

Georgia is the first state to record an execution by lethal injection. California recorded an execution in the gas chamber in 1992, and the execution of Timothy McVeigh was recorded and broadcast on a closed circuit. No other states with the death penalty currently allow recorded executions.

Critics of the decision by the Georgia Supreme Court fear that although the recording was placed under court seal, the video could be leaked to the public in some way. They also warned of various safety concerns involving the presence of the camera man inside the execution room.

For what it's worth, DeYoung showed no signs of pain during his execution. He remained calm and was able to state as his last words, "I'm sorry for everyone I've hurt."

Sixth Circuit Allows Execution to Proceed Today

• DANIEL LEE BEDFORD, Petitioner-Appellee, v. DAVID BOBBY, Warden

The Sixth Circuit vacated a District Court stay to allow the execution Daniel Lee Bedford to proceed.  This last minute flurry of legal activity was in Federal Court after all of Bedford's other claims had been exhausted. In this petition he was seeking to show he was not mentally competent to be executed.  The Sixth Circuit found no merit to his claims. The Columbus Dispatch reports that: 27 years later, frail killer meets his own end.  At 3:08 AM today Bedford was executed by lethal injection for his 1984 double murders; his lawyers and the brother of one victim, his former girlfriend, were in attendance.

Tennessee Death Penalty Drug Seized By DEA

• Justice Department Pursues 'Strange' Probe of Execution Drug 

Judson Berger reports that the DEA has seized the Death Penalty Drug, sodium thiopental, used in Tennessee, Georgia and Kentucky.

The investigation stems from concerns about the overseas source of the drug, .... The seizures started in Georgia, where the Drug Enforcement Administration in March grabbed their supply of sodium thiopental. From there, the DEA swooped into Tennessee, Kentucky and other states to confiscate their stash, forcing the states to either find an alternative chemical or suspend executions. 

Dorinda Carter, with the Tennessee Department of Correction, said the state turned over its "entire supply" at DEA request in late March. "They had some concerns about our domestic vendor's import procedures," she said.

Supreme Court Summarily Reverses Sixth Circuit and Reinstates Death Penalty

• DAVID BOBBY, WARDEN, PETITIONER v. HARRY MITTS

Tennessee has a death penalty statute that splits the jury's responsibilities into two parts: phase one is guilt v. innocence; and in cases with a conviction for first-degree murder, there is a second phase, the penalty phase, where the jury decides between life in prison (with parole possible), life without any possibility of parole, and in the most serious cases death. Ohio has a similar statute and it is the second part of Ohio's statute, the penalty part, that is at issue in Bobby v. Mitts. Today the Supreme Court summarily reversed the Sixth Circuit and reinstated the death penalty against Harry Mitts.

Previously, the Sixth Circuit Court of Appeals determined that jury instructions in this Ohio death penalty case ran against the Supreme Court's decision in  Beck v.  Alabama, and accordingly the Court of Appeals vacated Mitts’s death sentence.  The Sixth Circuit stated that Ohio's statute impermissibly required the jury to first decide whether  to “acquit” Mitts of the death penalty before considering mercy and some form of life imprisonment.


In reversing the Sixth Circuit, the Supreme Court found no constitutional violation  because the Court reasoned a jury convicted Mitts on two counts of aggravated murder and two counts of attempted murder and they knew that this second phase of the trial involved certain imprisonment of one kind or another. These jurors were specifically instructed that if they did not find that the aggravating factors outweighed the mitigating factors—and therefore did not recommend the death penalty—they would choose from two life sentence options. Because the choice did not force the jurors to make a decision upon a mistaken presumption that Mitts could possibly go free, if not given the ultimate penalty, the Court saw no violation.  Significantly, the Court drew a distinction between this penalty phase and the choices made by a jury during the guilt v. innocence phase of the trial.

  

The Prosecution Rests, but I Can’t. By John Thompson

Earlier we posted about John Thompson and how his civil jury award of 14 million dollars was overturned by the Supreme Court.  Below is Mr. Thompson's open letter published in the New York Times.  We found it compelling and have reproduced it below.

• John Thompson NYT

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

(...Continued...)

John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.

Death Penalty? What aggravating circumstances under Tennessee law are present in Jesse Matthews’ case?

Jesse Matthews is currently in the Hamilton County Jail charged with felony murder after the murder of Sgt. Tim Chapin with the Chattanooga Police Department.

What aggravating circumstances are present in his case which makes him eligible for the death penalty? After a felony murder conviction, you can expect the State of Tennessee to introduce proof of a whopping six (6) aggravating circumstances to support their argument for the death penalty. Tennessee code lists sixteen (16) different aggravating circumstances. By my count, at least six (6) apply. They are as follows: -The defendant was previously convicted of one (1) or more felonies who elements include the use of violence to the person; -The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder; -The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; -The murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any robbery; -The murder was committed by the defendant…during the defendant's escape from lawful custody or from a place of lawful confinement; -The murder was committed against any law enforcement officer who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that the victim was a law enforcement officer engaged in the performance of official duties.

A death penalty jury will weigh these aggravating circumstances and compare them with nine (9) mitigating circumstances. The jury must unanimously agree that the State has proven at least one or several aggravating circumstances beyond a reasonable doubt and that the aggravating circumstances outweigh any mitigating circumstances beyond a reasonable doubt before the death penalty will be valid.

• Chattanoogan.com article on Jesse Matthews
• timesfreepress.com article on medical examiner's report
• wrcbtv.com update of Jesse Mathews w/ video

TN Supreme Court Holds That Raw IQ Scores Are Not Alone The Limiting Factor In Death Penalty Cases For Intellectual Disability

• MICHAEL ANGELO COLEMAN v. STATE OF TENNESSEE

The Tennessee Supreme Court finds in the case of death penalty inmate Coleman that Tenn.Code Ann. §39-13-203(a)(1) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated.


The underlying facts to Coleman's case are that the victim, Leon Watson, left his home on the morning of May 2, 1979 to go to a nearby grocery store. On the way, he was confronted by Michael Coleman and another.  Coleman robbed and killed Watson, Coleman fired the fatal shot. Coleman also looked through Watson’s wallet and stole a pistol and citizens’ band radio from Watson’s car. A short time later, officers arrested Coleman on another charge. After being advised of his Miranda rights, Coleman confessed that he had shot and robbed Watson.  After a jury trial, Coleman was convicted of robbery and murder and given the death penalty--in part due to his prior violent history including convitions for felonies.  Mitigation evidence on the issue of intellectual disability was limited to raw IQ test scores.

On this appeal from death row, considering the issue of intellectual disability as a possible mitigating factor, the Tennessee Supreme Court observed: "our review of all the cases involving the application of Tenn. Code Ann. § 39-13-203 reflect that the parties and the courts have not been limiting their consideration of whether a criminal defendant has a functional intelligence quotient of seventy (70) or below to the defendant’s raw I.Q. test scores. Even though the state is asserting here that raw I.Q. test scores are the sine qua non for determinations under Tenn. Code Ann. § 39-13-203(a)(1), it has not been hesitant in other cases to present evidence challenging the accuracy of I.Q. test scores that are not favorable to its position."


Accordingly, Coleman's case is remanded to the trial court where Coleman and the state are free to present additional evidence regarding whether Coleman meets the definition of intellectual disability under Tenn. Code Ann. § 39-13-203(a).

Justice Thomas Opinion is a Rebuke to the Ninth Circuit and District Court in this Death Penalty Case

• CULLEN, ACTING WARDEN v. PINHOLSTER

This Justice Thomas opinion is a rebuke to the Ninth Circuit and District Court grant of post conviction relief to a California Death Penalty inmate Scott Pinholster. The Supreme Court essentially found that the California state court process was not flawed enough to be in violation of federal law.


The short facts: In 1982 Scott Pinholster and two others broke into a house at night and brutally beat and stabbed to death two men who interrupted the burglary.  A jury convicted Pinholster of first-degree mur­der, and he was sentenced to death. After the California Supreme Court twice denied Pinholster habeas relief,  a Federal District  Court held an evidentiary hearing and granted Pinholster ha­beas relief  under 28 U. S. C. §2254. The  District Court concluded that Pinholster’s trial counsel had been consti­tutionally ineffective at the penalty phase of trial. The Court of  Appeals for the Ninth Circuit af­firmed.  Consid­ering the new evidence adduced in the District  Court hearing, the Court of Appeals held that  the California Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.”  §2254(d)(1). The Supreme Court granted certiorari and reversed.


Lack of mitigation evidence presented is the substantial claim behind these ineffective assistance of counsel appeals.  At the penalty phase, counsel did not call a psychiatrist, though they had consulted Dr. John Stalberg at least six  weeks earlier.  Dr. Stalberg noted Pinholster’s “psychopathic personality traits,” diagnosed him with antisocial personality disorder, and concluded that he “was not under the influence of extreme mental or emotional disturbance” at the time of the murders. 


This is a lengthy opinion with several justices sharing in parts but not all of the decision but the majority says that: "Even if the Court  of Appeals might have reached a different conclusion as an initial matter, it was  not an unreasonable application of our precedent for the California Supreme Court to con­clude that Pinholster did not establish prejudice." The Court said that reviewing federal courts are limited to the record of what was raised in and by the state courts under 28 U. S. C. §2254. The Ninth Circuit is Reversed.