On March 23, 2020, the Supreme Court (Kagan, with Roberts, Thomas, Alito, Gorsuch and Kavanaugh; dissent by Breyer, with Ginsburg and Sotomayor) held that the Due Process Clause does not compel the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. Kahler v. Kansas, 589 U.S. ___ (March 23, 2020).
On February 24, 2020, the parties agreed to the dismissal of the certiorari petition in Methena v. Malvo, 18-217, in light of new law in Virginia eliminating a sentence of life without parole for juveniles. (Malvo, who was a juvenile at the time of the murders he was convicted of, was sentenced to life in prison without parole under a discretionary, rather than mandatory, sentencing scheme.) The question presented to the Supreme Court, on which it had granted review, was: "Did the Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?"
On February 25, 2020. the Supreme Court issued its decision in McKinney v. Arizona, 589 U.S. ___ (Jan. 25, 2020). The Supreme Court (Kavanaugh, J., with Roberts, C. J., and Thomas, Alito and Gorsuch, JJ.) held that reweighing of the existing aggravating and mitigating circumstances under Clemons v. MIssissippi, is a permissible remedy for an Eddings violation, i.e., where constitutionally relevant mitigating circumstances were not considered by the sentencer, and when an Eddings error is found on collateral review, a state appellate court may conduct the reweighing on collateral review. The Court, among other things, rejected McKinney's argument that Clemons no longer remains good law in the wake of Ring v. Arizona, 536 U. S. 584, and Hurst v. Florida, 577 U. S. ___. The Court explained: "Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances." And although there was a Ring/Hurst violation in this case because the sentencing judge rather than the jury found the aggravating factors, that provided no basis for relief to McKinney because Ring and Hurst do not apply retroactively in collateral proceedings such as this one. The Court was unpersuaded by McKinney's attempt to characterize the state supreme court's decision below as reopening the direct appeal.
Justice Ginsburg filed a dissent, joined by Breyer, Sotomayor, and Kagan, JJ. Justice Ginsburg states: "I would rank the Arizona Supreme Court’s proceeding now before this Court for review as direct in character. I would therefore hold McKinney’s death sentences unconstitutional under Ring, and reverse the judgment of the Arizona Supreme Court."
On January 23, 2020, the Florida Supreme Court reversed a grant of sentencing relief to Florida death row inmate Mark Poole. State v. Poole, ___ So.3d ___ (Fla. Jan. 23, 2020). The post-conviction court had granted relief based on its application of Hurst v. State, 202 So.3d 40,57 (Fla. 2016), which had held: "[B]efore the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death." Poole's sentencing jury had not been unanimous as to the death sentence and the post-conviction court concluded that the Hurst violation was not harmless beyond a reasonable doubt. The Florida Supreme Court revisited its earlier decision and "recede[s] from Hurst v. State except to the extent that it held that a jury must unanimously find the existence of a statutory aggravating circumstance beyond a reasonable doubt." This holding does not impact the revised Florida statute that now requires jury unanimity for a death sentence.
On November 25, 2019, United States District Court Judge Otis D. Wright, II of the Central District of California granted federal habeas relief to Anthony Oliver on a Batson claim. Oliver v. Davis, 2:10-cv-08404-ODW (C.D. Cal. Nov. 25, 2019) - Order Granting in Part and Denying in Part Petition for Writ of Habeas Corpus. Oliver, a Black man, was convicted and sentenced to death in Los Angeles County for a double murder and the attempted murder of a third victim. All victims were Black. Oliver's mistrial request was granted during the initial trial proceedings following the verdicts of acquittal of police officers in the Rodney King case which resulted in "civil unrest" in Los Angeles. During the subsequent jury selection proceedings, Oliver raised several challenges to the prosecution's removal of seven Black prospective jurors. Looking only to one of these prospective jurors, and after engaging in comparative juror analysis as had the California Supreme Court, Judge Wright ruled that " the only finding supported by the record is that the prosecutor’s excusal of V.H. was 'motivated in substantial part by discriminatory intent.' (Citation omitted.) Petitioner has shown that the California Supreme Court made an unreasonable determination of the facts under § 2254(d)(2) in denying his Batson claim and has shown clear and convincing evidence to rebut the presumption of correctness under § 2254(e)(1)."
On November 22, 2019, United States District Court Judge S. James Otero of the Central District of California granted federal habeas relief as to the death sentence of Mary Ellen Samuels based on trial counsel's ineffective assistance in failing to limit and exclude the mass of bad character evidence that was admitted during the guilt-innocence phase of the trial. Samuels v. Espinoza, 2:10-cv-03225-SJO (C.D. Cal. Nov. 22, 2019) - Order Denying in Part and Granting in Part Petition for Writ of Habeas Corpus. Samuels was convicted of soliciting and conspiring in the murders of Robert Samuels, her husband, and James Bernstein, her husband's alleged killer. The jury returned a verdict of death after almost five days of deliberations. The sole prosecution witness at the penalty phase was the sister of Samuels' deceased husband who provided relatively brief victim impact testimony. The prosecution relied overwhelmingly on the guilt phase evidence in seeking a death sentence. "The bulk of the objectionable evidence concerned Petitioner's use of cocaine and marijuana, her daughter Nicole's use of cocaine and Petitioner's provision of cocaine to her, Petitioner's provision of cocaine to Nicole's friends, alcohol use by Nicole and her underage friends while out with Petitioner, and photographs Petitioner took with Nicole to enter a "cheesecake photo" contest. The evidence was not relevant to the crimes charged, even considering Nicole's alleged involvement in the crimes and considering relevance broadly." Reviewing the record, Judge Otero concluded that "[h]ad counsel adequately objected and refrained from introducing the evidence at the guilt phase of trial, there is a reasonable probability that the trial court would have excluded it. There is also a reasonable probability that the jury would have returned a verdict for life without the possibility of parole." Further, the claims satisfy the limitations on relief in 28 U.S.C. § 2254(d) because "[i]t would be unreasonable to conclude that the evidence was not prejudicial when considered at the penalty phase of trial or that counsel acted strategically in presenting or failing to object to it."
On October 15, 2019, on remand from the Supreme Court (McWilliams v. Dunn, 137 S.Ct. 1790 (2017)), the Eleventh Circuit (Tjoflat, with Wilson; Jordan concurring in the judgment) issued a decision holding that James McWilliams is entitled to habeas relief as to his death sentence due to a violation of Ake v. Oklahoma, 470 U.S. 68 (1985). The Supreme Court had found that the trial judge’s refusal to provide McWilliams with requested psychiatric assistance at sentencing, which the Alabama appellate courts had upheld, was a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law” and that a violation of Ake had occurred. It then remanded for the Eleventh Circuit to reassess its prior flawed determination that any "error" did not have the "substantial and injurious effect or influence" required to warrant a grant of habeas relief and to decide if “access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered.” McWilliams, 137 S.Ct. at 1801. Looking to Brecht v. Abrahamson, 507 U.S. 619 (1993), the panel majority found that the error at issue was structural and, therefore, not subject to harmless error analysis. The majority explained:
On October 17, 2019, the Eleventh Circuit (Marcus, with E. Carnes and Tjoflat), in a pre-AEDPA case, issued a decision affirming the grant of habeas relief to Lawrence Jefferson on a claim of ineffective assistance of counsel at the sentencing phase. Jefferson had been sentenced to death for the robbery-murder of a co-worker. A key issue in the appeal was whether the adverse factual findings by the state habeas court were entitled to the pre-AEDPA presumption of correctness. See Jefferson v. Upton, 560 U.S. 284 (2010) (per curiam). The district court found that they were not. The Eleventh Circuit agreed, noting: " The state habeas court adopted verbatim the State’s proposed order; it offered no guidance to the Assistant Attorney General drafting the proposed order, including how to resolve important credibility conflicts; apparently, it did not review the order, other than signing it, dating it, and changing the concluding sentence, notwithstanding the glaring errors it contained; and it did so ex parte without so much as affording Jefferson a chance to challenge any of it or propose an alternative order."
On August 14, 2019, the Fifth Circuit Court of Appeals granted a stay of execution to Texas death row inmate Dexter Johnson and authorized the filing of a second or successive habeas petition raising an Atkins claim. Click here to view the Fifth Circuit's opinion.
On July 25, 2019, the United States Department of Justice announced that Attorney General William P. Barr had directed the Federal Bureau of Prisons to adopt a proposed Addendum to the Federal Execution Protocol. This Addendum replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital. Also pursuant to the Attorney General's direction, execution dates were set for five federal death row inmates: Daniel Lewis Lee, Lezmond Mitchell, Wesley Ira Purkey, Alfred Bourgeois, and Dustin Lee Honken.
On June 18, 2019, Senior United States District Court Judge William T. Lawrence of the Southern District of Indiana ruled that Bruce Webster "has satisfied his burden of proving his intellectual disability by a preponderance of the evidence and is thus ineligible for the death penalty." Webster v. Lockett, 2:12-cv-86-WTL-MJD (S.D. Ind. June 18, 2019)
On June 19, 2018, the Department of Justice sent a letter to Texas Attorney General Ken Paxton requesting answers to questions about Texas' pending request for certification for purposes of obtaining the benefits of Chapter 154 of Title 28. The questions were based largely on comments submitted in response to the Texas application. There is no specific due date for the response.
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