Harmful Error

January 15, 2007

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[Update: Harmful Error (arguably the leading source for Nevada Supreme Court & criminal law in Nevada, has more on the three penalty phase Confrontation Clause cases noted in the Weekly, as well as a reversal, Donald Sherman v. State, an unpublished order permitting a second post-conviction petition to be filed. Sheman is unpublished hasn’t been picked up by the subscription law services yet.]

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Decisions from some unusual suspects are noted repeatedly this edition.

The Pennsylvania Supreme Court in two cases, Comm. v. Damon Jones and Comm. v. Samuel Carson, orders a remand for further proceedings on counsel’s alleged ineffectiveness. In Carson the court orders an evidentiary hearing on the reasonableness of trial counsel´s investigation which missed his traumatic upbringing and resulted in a failed penalty phase defense. In Jones the remand is ordered on a layered ineffectiveness claim, specifically on whether appellate counsel should have raised an ineffectiveness claim on direct appeal as to trial counsel’s failure to investigate.

In a trilogy of cases, Charles Summers v. State, Donte Johnson v. State, and Marlo Thomas v. State, the Nevada Supreme Court holds that the Confrontation Clause is not applicable to the penalty phase of a trial on the basis of the U.S. Supreme Court´s decision in Williams v. New York. Writing in Summers, a LWOP case, the Court holds that “neither the Confrontation Clause nor Crawford apply to evidence admitted at a capital penalty hearing and the decision in Crawford does not alter Nevada´s death penalty jurisprudence. Because Summers did not enjoy a right to cross-examine the declarants who were the source of alleged testimonial hearsay within documentary exhibits admitted at his capital penalty hearing, he has shown no error occurred on this issue.”

On January 5, 2006, the Supreme Court granted the cert petition of Texas death row inmate Scott Panetti. Panetti v. Quarterman, 06-6407. The case below is Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006). The question presented is: “Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of severe mental illness, has a delusional belief as to why the State is executing him, and thus does not appreciate that his execution is intended to seek retribution for his capital crime?”

A week after the Panetti cert grant the Supreme Court granted cert on the state’s petition in Uttecht v. Brown, 06-413. The question presented is: “In Wainwright v. Witt, 469 U.S. 412 (1985), and Darden v. Wainwright, 477 U.S. 168 (1986), this Court held that a state trial judge may, without setting forth any explicit findings or conclusions, remove a juror for cause when the judge determines the juror´s views on the death penalty would substantially impair his or her ability to follow the law and perform the duties of a juror. The Court further held that a federal habeas court reviewing the decision to remove the juror must defer to the trial court´s ability to observe the juror´s demeanor and credibility, and apply the statutory presumption of correctness to the judge´s implicit factual determination of the juror´s substantial impairment. Did the Ninth Circuit err by not deferring to the trial judge´s observations and by not applying the statutory presumption of correctness in ruling that the state court decision to remove a juror was contrary to clearly established federal law?” I should note that this is a Judge Kozinski opinion below & a head scratcher as to how it got cert as it is well within the normal range of life/death-qualification jury selection relief granted cases.

Other notable Supreme Court news includes Wednesday’s oral arguments on “Texas Day” at the Supreme Court when the Court will hear three different capital cases from Texas; Wednesday, coincidentally, is the 30th anniversary of the resumption of executions with the killing of Gary Gilmore by firing squad). The transcript of the recent oral argument in Schriro v. Landrigan is here.

In the news, most notably since the last edition, is the New Jersey Study Commission Report which called for abolition of the death penalty and a vastly expanded Life Without Parole law. In Kentucky & Pennsylvania recent polling strongly indicates erosion for the support of the death penalty where an alternative of life without parole or a substantial term of years is an option. The Connecticut Supreme Court, apparently sitting in something that approximates a “single justice session,” issued an order permitting discovery of the state’s capital charging practices.

Looking ahead to the next edition, the South Carolina Supreme Court in State v. Troy Burkhart orders a new penalty phase ordered on the use by the State at trial of evidence of prison conditions. In Brandon Washington v. State the Alabama Court of Criminal Appeals remands as the the trial court sentenced Washington without a presentence investigation and report but rather used an old Pardons & Parole youthful-offender report.

As always, thank you for reading. - k