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James S. Liebman and Anthony Amsterdam have authored a new article discussing the potential implications of the Supreme Court's recent opinion overruling deference to certain federal agency decisions.  The article is loper_bright_and_the_great_writ.pdf: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again?  The abstract of the article reads:

On June 10, 2024, the Supreme Court granted Alabama's certiorari petition in Alabama v. Williams, 23-682 (case below: 73 F.4th 900 (11th Cir.), vacated the judgment finding Marcus Williams entitled to habeas relief as to his death sentence, and remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Thornell v.

The Supreme Court in Thornell v. Jones, 602 U.S. ___ (May 30, 2024), reversed the grant of habeas corpus relief by the Ninth Circuit Court of Appeals to Arizona death row inmate Danny Jones on a claim of ineffective assistance of counsel at sentencing.  Jones was sentenced to death for three murders with aggravating circumstances factors of multiple murder, murder for pecuniary gain, “especially heinous, cruel or depraved” murders and murder of a young child.  The Supreme Court found that the Ninth Circuit had departed from Strickland v. Washington's prejudice inquiry in at least three ways: (1) "it failed adequately to take into account the weighty aggravating circumstances in this case"; (2) it applied a "clearly unsound" rule prohibiting a court considering a Strickland claim from "assessing the relative strength of expert witness testimony," e.g., comparing defense expert testimony with a contrary opinion of a prosecution expert in order to determine what weight to accord to the defense expert; and (3) finding the District Court erred by attaching diminished persuasive value to Jones’s mental health conditions because it saw no link between those conditions and Jones’s conduct when he committed the three murders.  This last mistake by the Ninth Circuit was based on its misinterpretation of Eddings v. Oklahoma, 455 U. S. 104 (1982).  The Supreme Court clarified that while Eddings held that a sentencer may not “refuse to consider . . . any relevant mitigating evidence” (Id., at 114), it did not hold that a sentencer cannot find mitigating evidence unpersuasive.

When the Strickland prejudice analysis is properly applied, Jones is not entitled to habeas relief: "Most of the mitigating evidence Jones presented at the federal evidentiary hearing was not new, and what was new would not carry much weight in Arizona courts. Conversely, the aggravating factors present here are extremely weighty. As a result, there is no reasonable probability that the evidence on which Jones relies would have altered the outcome at sentencing."

On January 22, 2024, the Supreme Court (with Justice Gorsuch recused) granted one of two pending certiorari petitions filed by Oklahoma death row inmate Richard Glossip, 22-7466.  The questions presented in the petition are:

     Justin Sneed was, in the State’s words, its “indispensable witness,” and Richard Glossip’s “fate turned on Sneed’s credibility.” Sneed is the person who “bludgeoned the victim to death, and his testimony linking Glossip to the murder was central to the conviction.” State Stay Resp. 10, Glossip v. Oklahoma, No. 22A941 (U.S.). He only claimed Mr. Glossip was involved after being fed Mr. Glossip’s name six times and threatened with execution. And his accounting of basic facts about the crime has shifted dramatically with each telling.

     With Sneed’s credibility already tenuous, the State undisputedly hid from the jury Sneed’s having “seen a psychiatrist” who diagnosed Sneed with a psychiatric condition that rendered him volatile and “potentially violent,” particularly when combined with methamphetamine use, a street drug Sneed was abusing at the time he murdered Barry Van Treese. Id. In fact, the State allowed Sneed to affirmatively tell the jury he had not seen a psychiatrist.

     Before the Oklahoma Court of Criminal Appeals (OCCA), the State confessed error, admitting that the failure to disclose the truth about Sneed’s psychiatric condition, leaving the jury with Sneed’s uncorrected false testimony and then suppressing this information for a quarter-century, rendered “Glossip’s trial unfair and unreliable.” Id. at 4–5. Before this Court, the State has admitted Mr. Glossip is entitled to a new trial on these grounds, as well as in light of “cumulative error” regarding “multiple issues raised in Glossip’s Post-Conviction Relief Application.” Id. at 4. But the OCCA has refused to stop the execution of an innocent man who never had a fair trial.

     This petition presents the following questions:

     1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

        b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).

2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).

The Supreme Court added the following question for the parties to address:

Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment. 

On December 13, 2023, the Supreme Court granted the certiorari petition of the Director of the Arizona Department of Corrections in Thornell v. Jones, 22-982.  The question presented is:

     Over thirty years ago, Respondent Danny Lee Jones beat Robert Weaver to death and also beat and strangled Weaver’s 7-year-old daughter, Tisha, to death, for which he was convicted and sentenced to death. The district court denied habeas relief following an evidentiary hearing on Jones’s ineffective-assistance-of-sentencing-counsel claims. But a Ninth Circuit panel reversed the district court, giving no deference to the district court’s detailed factual findings. Judge Mark Bennett authored a nine-judge dissent from the denial of en banc rehearing.

     The Question Presented is:

     Did the Ninth Circuit violate this Court’s precedents by employing a flawed methodology for assessing Strickland prejudice when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the State’s rebuttal when it reversed the district court and granted habeas relief?

On September 27, 2023, United States District Court Judge Robert Pitman of the Western District of Texas issued an opinion and order ruling that Scott Panetti's execution would violate the Eighth Amendment because he lacks a rational understanding of the connection between his offense and his sentence of death.  It was undisputed that Mr. Panetti is severely mentally ill, suffering from chronic schizophrenia for over forty years.  Although he appeared to factually understand that he is to be executed and the State’s stated reasons for such, i.e., his capital murder conviction, he maintained persecutory delusions about the "real" reasons Texas intended to put him to death: (1) to cover up the conspiracy he uncovered concerning pedophilia, corruption, and drug trafficking, and (2) to prevent him from preaching and “saving souls.”

The New Negative Habeas Equityby Professor Lee Kovarsky of University of Texas School of Law, discusses recent Supreme Court jurisprudence that "asserts discretionary authority for lower courts to reject relief to which claimants are otherwise entitled." Professor Kovarsky's essay urges skepticism about the Supreme Court's analysis, which he argues "relies on a superficial literalism that is impossible to square with statutory context, structure, and history."

The Defender Services Committee of the Administrative Office of the U.S. Courts authorized creation of the National Mitigation Coordinator position in 2004 to increase the quality, quantity, and diversity of the pool of mitigation specialists available to handle capital cases in the federal courts.  Russ Stetler served in that position from 2005 until his retirement from fulltime work in the spring of 2020. Dana Cook served in the position beginning in 2020, but decided to return to direct work with clients at the Defender Association of Philadelphia, effective July 1, 2023. The Indiana Federal Community Defenders office now administers the position and is seeking candidates with the requisite qualifications and experience, including strong writing skills, to fill the position as soon as possible. Russ Stetler has agreed to provide continuity on ongoing projects until a new person has been hired.

For information about applying for the position, click here.  For answers to frequently asked questions about the position, click here

Mitigation Works: Empirical Evidence of Highly Aggravated Cases Where the Death Penalty was Rejected at Sentencing, Russell Stetler, Maria McLaughlin, Dana Cook, 51 Hofstra L. Rev. 89 (2022) -

     This Article updates data presented in this law review in 2018 documenting almost two hundred capital cases presenting serious aggravating circumstances where juries nonetheless chose life sentences. This updated Article adds more than four hundred new cases in the same highly aggravated categories to the total, which is now over six hundred cases. The new case lists, which do not purport to be exhaustive, further support the point that the effective investigation and presentation of mitigating evidence can forestall a death sentence no matter how death-worthy the crime facts may appear at first glance.

The Supreme Court has issued its ruling in Cruz v. Arizona, 598 U.S. ___ (Feb. 22, 2023), reversing the Arizona Supreme Court's denial of post-conviction relief to John Montenegro Cruz and remanding for further proceedings.  At Cruz's trial, he had invoked Simmons v. South Carolina, 512 U.S. 154 (1994), and asked that the jury be informed that a life sentence in Arizona would be without parole.  The trial court refused, finding that Simmons did not apply to Arizona's sentencing scheme.  On appeal from the ensuing death sentence, the Arizona Supreme Court affirmed, agreeing that Simmons did not apply in Arizona.  The Arizona Supreme Court repeated its interpretation of Simmons in subsequent cases.  In 2016, the Supreme Court summarily reversed the Arizona Supreme Court in Lynch v. Arizona, 578 U. S. 613 (2016) (per curiam), and held that it was fundamental error to conclude that Simmons “did not apply” in Arizona. 578 U. S., at 615.  Cruz responded by filing a successive motion for post-conviction relief in state court. The Arizona Supreme Court denied relief, concluding that Lynch was not a “significant change in the law” as required by state law for the filing of a successive petition.  

The Supreme Court held that the state court's application of its procedural rule in Cruz's case did not provide an "adequate" state ground for precluding review of the federal claim.   This was because the Arizona Supreme Court's interpretation of its procedural rule in Cruz's case was entirely new and in conflict with prior case law.  The majority opinion was authored by Justice Sotomayor and joined by Chief Justice Roberts, and Justices Kagan, Kavanaugh and Jackson.  Justice Barrett wrote a dissenting opinion, joined by Justices Thomas, Alito and Gorsuch.