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.”
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The New Negative Habeas Equity by 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.
The print edition of ANTHONY G. AMSTERDAM & RANDY HERTZ, TRIAL MANUAL 7 FOR THE DEFENSE OF CRIMINAL CASES is now available for purchase from Amazon. The three volumes are listed separately seriatim in the “Books” section of the Amazon website. If you want to buy the entire book, be sure to put all three volumes in your cart. The price for all three is down to $38.00 plus tax and shipping.
The American Law Institute is in the final stages of publishing the seventh edition of ANTHONY G. AMSTERDAM & RANDY HERTZ, TRIAL MANUAL 7 FOR THE DEFENSE OF CRIMINAL CASES. Lawyers in public defender offices, nonprofit legal services offices, and pro bono criminal practice can obtain a free copy of the .pdf version of the manual for downloading from the ALI website by filling out the form at https://www.ali.org/trial-manual/
Although the book is a trial manual, not a postconviction manual, it does cover all of the criminal-procedure issues that arise in pretrial and trial proceedings – from Faretta admonitions through inflammatory prosecutorial closing argument, jury misconduct, and posttrial motions – which are the grist of substantive postconviction guilt-phase claims. It is an invaluable resource for attorneys specializing in capital postconviction litigation. Note, however, that the manual’s treatment of the penalty phase of capital cases – and of capital cases as such – is cursory. This is meant to convey the message that capital defense is a specialty and should be conducted by learned counsel or under the supervision of learned counsel. A hard copy of the manual will be available in the near future for those who do not qualify to receive the free copy.
TRIAL MANUAL 7 FOR THE DEFENSE OF CRIMINAL CASES
by Anthony G. Amsterdam and Randy Hertz
The Trial Manual 7 for the Defense of Criminal Cases is a guidebook for criminal defense lawyers at the trial level. It covers the information a defense attorney has to know, and the strategic factors s/he should consider, at each of the stages of the criminal trial process. It is
On June 21, 2022, the Supreme Court issued its decision in Shoop v. Twyford, a death penalty case out of Ohio where a federal district court in habeas corpus proceedings had issued an order allowing the transportation of Mr. Twyford to a medical facility for neurological testing and the Sixth Circuit Court of Appeals had affirmed the order. The Supreme Court ruled:
A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U. S. C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.
On June 21, 2022, the Supreme Court issued its decision in Shoop v. Twyford, a death penalty case out of Ohio where a federal district court in habeas corpus proceedings had issued an order allowing the transportation of Mr. Twyford to a medical facility for neurological testing and the Sixth Circuit Court of Appeals had affirmed the order. The Supreme Court ruled:
A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U. S. C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.
The Supreme Court issued its decision in Shinn v. Martinez Ramirez, 596 U.S. ___, 2022 WL 1611786 (May 23, 2022), holding that the equitable rule announced in Martinez v. Ryan providing that ineffective assistance of postconviction counsel can provide “cause” to forgive the procedural default of a claim of ineffective assistance by trial counsel does not permit a federal court to dispense with 28 U.S.C. § 2254(e)(2)’s narrow limits on federal evidentiary hearings even where a prisoner’s state postconviction counsel was at fault for failing to develop the state-court record on the ineffective assistance of trial counsel claim.