SCOTUS decision denies constitutional rights to those claiming actual innocence

 The United States Supreme Court released an opinion that will cause profound suffering and perhaps even death as people are denied their constitutional rights, reported Slate. No, the court did not release the final version of the opinion in Dobbs v. Jackson Women’s Health Organization, the case in which a leaked draft revealed that the court is poised to overrule Roe v. Wade and Planned Parenthood v. Casey, which recognize the right to end a pregnancy through an abortion. Instead, the decision today is a little-known habeas decision, Shinn v. Martinez Ramirez, involving two men in Arizona who have been condemned to death row. The consequences of Martinez Ramirez will also be disastrous for anyone relying on their constitutional right to effective counsel. And, like the Dobbs leak, today’s decision also makes clear that the court’s conservative supermajority is hellbent on smashing and grabbing precedent and constitutional rights no matter the consequences.

Shinn v. Martinez Ramirez involves a pair of consolidated cases in which two people who were convicted in Arizona state courts argued that they had received ineffective assistance at their trials. The two defendants in Martinez Ramirez argued that the process of obtaining their convictions or sentences violated the Sixth Amendment to the Constitution, which guarantees the effective assistance of counsel. One of the defendants, Barry Jones, maintained that his lawyers were so ineffective they failed to uncover evidence that he was innocent of the crimes. Jones was convicted at trial and sentenced to death. The other defendant argued that his lawyers failed to uncover mitigating evidence that would have persuaded the jury to sentence him to a term of years in prison rather than the death penalty.

That two Arizona defendants would have received constitutionally ineffective assistance at their trials is no accident. Indigent defense—defense for people who lack the resources to hire their own lawyer—is in crisis in this country. Indigent defense is woefully underfunded, and public defenders handle hundreds of cases per year, many more than they have the time or resources to manage effectively. States also heavily restrict the procedures and resources that would allow public defenders to develop their cases in greater depth.

Unfortunately, the problem does not end there. Instead, it continues throughout state criminal proceedings into post-conviction proceedings, where defendants are supposed to be able to enforce their Sixth Amendment right to effective assistance of counsel. That is because when a defendant receives ineffective assistance of counsel at trial, the trial lawyer can’t simultaneously argue that they are providing ineffective assistance. Neither can the defendant’s lawyer on appeal, when the case is restricted to the record at trial. Ineffective assistance claims often depend on evidence outside the record, like what a lawyer failed to uncover. And so ineffective-assistance-of-trial-counsel claims are raised during post-conviction proceedings that happen after an appeal. During post-conviction proceedings, a defendant is supposed to be able to expand the initial trial record and point to all of the things that his trial lawyer failed to uncover.

That’s how it’s supposed to work. But just as there is an indigent defense crisis in this country, there is also a post-conviction crisis. Post-conviction proceedings are woefully underfunded, and lawyers are limited in the time and resources they have to pursue post-conviction relief. So defendants who are represented by ineffective lawyers at trial may then be represented by an ineffective lawyer during their post-conviction proceedings, when they are supposed to be arguing that their trial lawyer was ineffective. And—surprise—the ineffective post-conviction lawyer may fail to argue that the trial lawyer was ineffective, or may fail to develop any evidence in support of that claim.

A decade ago, the Supreme Court responded to this problem with a simple and elegant solution. In a pair of decisions, the court said that if a defendant is represented by an ineffective lawyer during their post-conviction proceedings, and that lawyer fails to argue that the defendant was represented by an ineffective lawyer during the defendant’s trial, a federal court can still hear the defendant’s claim that they received ineffective assistance at trial in violation of the Sixth Amendment. That’s because the defendant isn’t at fault for failing to present their ineffective-assistance-of-trial counsel claim when, through no wrongdoing on their part, the state appoints an ineffective lawyer to represent them during post-conviction proceedings, and that ineffective lawyer fails to argue the defendant received shoddy legal help during trial.

That’s where the law stood before today, when the court took a wrecking ball to those decisions. Martinez Ramirez held that there is nothing a federal court can do when a defendant received ineffective assistance at their trial in violation of the Sixth Amendment and was then appointed an ineffective attorney during post-conviction proceedings who did not present evidence to support the claim that the defendant received ineffective assistance at trial. Specifically, the court held that the federal statute governing post-conviction review, the Antiterrorism and Effective Death Penalty Act, prohibits the federal court from considering evidence that the ineffective post-conviction lawyer failed to uncover. As it did in the case of Jones, this evidence may indicate that the defendant is innocent of the crime for which he was sentenced to death.

The court recognized that Martinez Ramirez nullified the prior decisions that offered defendants a shot at relief, writing that “any such hearing” permitted under those decisions “would serve no purpose,” since a federal court could not consider the evidence in deciding whether the defendant’s rights under the Sixth Amendment were violated. As Justice Sonia Sotomayor wrote in a dissent for the three Democratic appointees, the court’s decision “makes illusory the protections of the 6th Amendment.”

Sotomayor’s dissent accurately described the court’s decision as “perverse” and “illogical,” arguing that “it makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in post-conviction proceedings” but to “fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim.” Rather, Sotomayor continues, by definition the defendants “are not at fault for their state postconviction counsel’s failure to develop evidence. [They] acted diligently, but their attorneys’ errors, paired with the State’s choice of how to structure their review proceedings, constituted external impediments.” Simply put, the defendants haven’t failed to develop the factual basis of their claims. And the Antiterrorism and Effective Death Penalty Act, she continues, accordingly doesn’t prevent them from introducing new evidence in federal court when properly interpreted. 

It’s true, of course, that a rational governor or parole or commutations board might pardon or commute the sentences of persons who were convicted of crimes they did not commit, or persons who received sentences they shouldn’t have. But that doesn’t excuse the court’s decision that gives them the choice not to do so—and to potentially go ahead and execute innocent people whose constitutional rights were violated.

It is no secret that there are innocent people in prison for crimes they did not commit. Nor is it a secret that some of those innocent people were sentenced to death. Some of them are probably still on death row today. In this case, for example, four federal judges on two different courts concluded there was a reasonable probability that Barry Jones did not commit the crime for which he was sentenced to death after a trial where the state denied him his Sixth Amendment right to the effective assistance of counsel. Today, the Supreme Court essentially told the state that it can go ahead and execute him anyway.

To read more CLICK HERE

 

SCOTUS adds three criminal cases to April docket

The Supreme Court on added three criminal cases to its docket, reported Jurist. Each of the three cases are likely to be argued in the court’s April argument session.

Vega v. Tekoh addresses whether an officer can be sued for failing to provide Miranda warnings. The Ninth Circuit issued a 5-4 decision, finding that officers can face civil penalties for failing to advise a suspect of their right to silence and legal counsel.

Nance v. Ward raises the issue of whether a prisoner can be executed by means that are not authorized by statute when the authorized means of execution, lethal injection, is potentially unconstitutional. Prisoner and petitioner Michael Nance has severely compromised veins and other underlying conditions that could make the injection immensely painful and risky. In such a challenge, the prisoner must choose an alternative method that is feasible and available. Lethal injection is the only method of execution authorized in the state of Georgia.

Finally, Shoop v. Twyford concerns the interplay of the All Writs Act and a habeas statute in determining whether a prisoner is entitled to hospital transport to receive a brain scan that the prisoner believes is relevant to their habeas case.

To read more CLICK HERE

California Supreme Court to review referendum to streamline death penalty

The California Supreme Court is considering whether a voter-approved initiative that seeks to streamline the death penalty process is unconstitutional, reported Capital Public Radio.

Ron Briggs, a former El Dorado County Supervisor and former death penalty proponent, is suing the state in hopes of blocking Proposition 66. He says capital punishment is not an effective crime deterrent, costs the state billions of dollars and is unconstitutional.

Justices spent a lot of time during oral arguments questioning a provision that requires death penalty appeals to be heard within five years. Right now appeals can take decades.

Plantiffs are arguing that mandate is simply not possible, while proponents counter the Supreme Court should give the measure a chance to work.

Elizabeth Semel, a UC Berkeley School of Law professor, directs the University's Death Penalty Clinic. She says there is a question of whether the proposition violates the state's separation of powers by taking away court authority.

She also says it's an important case to watch because it could affect the administration of justice.

"Because of the insistence under this initiative that cases be decided on what can only be called a rocket docket — that is at exponential speed — the court will have to crowd out decision making about many other important cases."

Prop 66 supporters say the lawsuit is frivolous and a slap in the face to the voters of California.

California’s capital punishment process has been mired in court challenges over lethal injection drugs and procedures. The state last executed a death row inmate in 2006.

The justices have 90 days to issue their ruling.

To read more CLICK HERE

Scalia: No constitutional protection for wrongfully executed

When it comes to the death penalty Justice Antonin Scalia doesn't pull any punches.  When writing the dissent in the case of Troy Anthony Davis, No. 08-1443 in 2009, Scalia said:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

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Sex offenders being held in custody because of residency restrictions

Dozens of sex offenders who have satisfied their sentences in New York State are being held in prison beyond their release dates because of a new interpretation of state residency restrictions, reported the New York Times.

The law, which has been in effect since 2005, restricts many sex offenders from living within 1,000 feet of a school. Those unable to find such accommodations often end up in homeless shelters.

But in February, the Department of Corrections and Community Supervision, which runs the prisons and parole system, said the 1,000-foot restriction also extended from homeless shelters, making most of them off limits because of the proximity of schools.

The new interpretation has had a profound effect in New York City, where only 14 of the 270 shelters under the auspices of the Department of Homeless Services have been deemed eligible to receive sex offenders. But with the 14 shelters often filled to capacity, the state has opted to keep certain categories of sex offenders in custody until appropriate housing is found.

About 70 of the 101 sex offenders being held are New York City residents, prison authorities said. Some have begun filing habeas corpus petitions in court, demanding to be released and claiming the state has no legal authority to hold them.

The onus of finding a suitable residence upon release is on the sex offender; the state authorities will consider any residence proposed, but will reject it if it is too close to a school or violates other post-release supervision conditions.

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Death Row Inmate Wins Habeas Relief in Federal Court

After two decades on death row and several fruitless appearances before Pennsylvania state court judges, James Dennis has won habeas relief in federal court, reported The Legal Intelligencer.

Detailing three examples of exculpatory evidence that were withheld by prosecutors in the case that led to Dennis' conviction for killing a teenage girl during the theft of her earrings in 1991, U.S. District Judge Anita B. Brody of the Eastern District of Pennsylvania held that each instance qualified as a Brady violation and, because the state appeals courts didn't consider the cumulative effect of those violations, she wouldn't be constrained by AEDPA.

The Antiterrorism and Effective Death Penalty Act, called AEDPA, requires federal courts considering habeas claims from state prisoners to afford significant deference to the findings of the state courts that have considered the merits of claims brought to federal court. But, if the claims weren't decided on the merits in state court, then the federal court can conduct de novo review, according to the opinion.

"I need not defer to the Pennsylvania state court decisions here," Brody said, since neither of the state appeals proceedings weighed the combined impact of the three Brady violations. "As a result, AEDPA deference does not apply and I review this claim de novo."

In order to make a successful Brady claim, so named for the landmark U.S. Supreme Court opinion in Brady v. Maryland in 1963, the petitioner has to prove three things: that the evidence that had been withheld was favorable to his case; that it was suppressed, on purpose or by mistake, by the state; and that the case was prejudiced as a result, according to the opinion.

Brody found that the three claims made by Dennis — that prosecutors withheld statements made by a man named William Frazier that three other people had committed the crime; that the state didn't turn over a receipt that would have corroborated Dennis' primary alibi; and that it didn't disclose a police activity sheet with evidence that a key eyewitness, the friend of the deceased, had recognized the shooter from her high school — qualified as Brady violations.

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GateHouse: Kennedy assassin claims Manchurian defense

Matthew T. Mangino
GateHouse News Service
June 14, 2013

This month marks the 45th anniversary of the assassination of Robert F. Kennedy. His senseless and tragic death came about on the evening of June 5, 1968, in the kitchen of the Ambassador Hotel in Los Angeles.

Moments before entering the hotel kitchen, Kennedy had given a victory speech after winning the important California Democratic primary for president of the United States.

Kennedy was being ushered through the hotel kitchen by a group of campaign volunteers. The kitchen was crammed with supporters and well-wishers. Suddenly, Kennedy was shot by Sirhan Sirhan, a young man angered over Kennedy’s pro-Israeli position in the Middle East.

Less than five years earlier, Kennedy’s brother, President John F. Kennedy, was struck down by an assassin’s bullet, and only two months earlier civil rights leader Martin Luther King, Jr. was slain in Memphis, Tenn., by an assassin.

Sirhan was convicted ten months later and within a week of his conviction he was sentenced to death. The sentence was commuted to life in prison in 1972 after the California Supreme Court vacated all pending death sentences.

Sirhan remains in a California prison and has been denied parole 14 times, most recently in 2011. However, his lawyers have come up with a new plan for his release that reads like the plot of a Hollywood movie.

Although Sirhan’s conviction occurred more than four decades ago, he has asked the court to review his conviction through a Writ of Habeas Corpus. His direct appeal rights have long been exhausted, but habeas corpus remains a viable option. 

Appeals are used to correct errors that occurred before or during trial based on evidence found on the court record. A Writ of Habeas Corpus asks the court to consider “new” evidence that the trial judge might not have heard.

 

In 2008, Sirhan’s lawyers hired memory expert Daniel Brown, a professor of psychology at Harvard Medical School. Brown was described by Sirhan’s lawyers as "one of the world's foremost experts in hypno programming."

 

Brown interviewed Sirhan for 60 hours over a three-year period. Sirhan now remembers that when he fired his shots in the hotel kitchen he believed he was at a gun range and shooting at circular targets, reported CNN.

 

Sirhan’s lawyers believe he was programmed to cause a distraction in the kitchen, allowing a second gunman to secretly shoot Kennedy from behind. Lawyers say that Professor Brown believes a mysterious young woman in a polka dot dress lured Sirhan into the kitchen as part of the alleged mind control plot.

 

The conspiracy claim is bolstered somewhat by an analysis of a recently uncovered tape recording of the shooting.  The recording is the only known soundtrack of the assassination and it reveals at least 13 shot sounds over a period of less than six seconds. This appears to contravene the theory at trial that eight shots were fired by Sirhan.

 

Sirhan’s claims of hypno programming and assassination might make for an action-packed Hollywood thriller — if it hadn’t already been written, produced and premiered more than 50 years ago. "The Manchurian Candidate" released by MGM in 1962 starred Frank Sinatra and portrayed a supposed war hero who was brainwashed into becoming an unwitting assassin.

 

At times, truth is stranger than fiction. In the case of Sirhan Sirhan, fiction is being used to cobble together a cockamamie claim that is beyond strange and just downright fantastic.

 

Unfortunately, Sirhan’s claim can’t be completely written off — especially not in California. The Twinkie defense worked for Dan White after he assassinated San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978. 

 

Thirty-five years later, can the Manchurian defense work for Sirhan Sirhan?

 

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

 

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RFK killer claims an unusual defense

Matthew T. Mangino
The Vindicator
June 9, 2013

Last week marked the 45th anniversary of the assassination of Robert F. Kennedy. His senseless and tragic death took place June 5, 1968, in the kitchen of the Ambassador Hotel in Los Angeles.

Moments before entering the kitchen, Kennedy had given a victory speech after winning the California Democratic primary for president of the United States.

Kennedy was being ushered through the hotel kitchen by a group of campaign volunteers. Suddenly, he was shot by Sirhan Sirhan, a young man angered over Kennedy’s pro-Israeli position.

Less than five years earlier, Kennedy’s brother, President John F. Kennedy, was struck down by an assassin’s bullet and only two months earlier civil rights leader Martin Luther King, Jr. was slain in Memphis, Tenn., by an assassin.

Sirhan was convicted 10 months later and within a week of his conviction, he was sentenced to death. The sentence was commuted to life in prison in 1972 after the California Supreme Court vacated all pending death sentences.

Movie plot

Sirhan remains in a California prison and has been denied parole 14 times, most recently in 2011. However, his lawyers have come up with a new plan for his release that reads like the plot of a Hollywood movie.

Although Sirhan’s conviction occurred more than four decades ago, he has asked the court to review his conviction through a Writ of Habeas Corpus. His direct appeal rights have long been exhausted but habeas corpus remains a viable option.

In 2008, Sirhan’s lawyers hired memory expert Daniel Brown, a professor of psychology at Harvard Medical School.

Brown interviewed Sirhan for 60 hours over a three-year period. Sirhan now remembers that when he fired his shots in the hotel kitchen he believed he was at a gun range and shooting at circular targets, reported CNN.

Sirhan’s lawyers believe he was programmed to cause a distraction in the kitchen, allowing a second gunman to secretly shoot Kennedy from behind. Lawyers say that Professor Brown believes a mysterious young woman in a polka-dot dress lured Sirhan into the kitchen as part of a mind-control plot.

The conspiracy claim is bolstered somewhat by an analysis of a recently uncovered tape recording of the shooting. The recording is the only known soundtrack of the assassination, and it reveals at least 13 shot sounds over a period of less than six seconds. This appears to contravene the theory at trial that eight shots were fired by Sirhan.

Sirhan’s claims of hypno programming and assassination might make for an action-packed Hollywood thriller — if it hadn’t already been written, produced and premiered more than 50 years ago. “The Manchurian Candidate” released by MGM in 1962 starred Frank Sinatra and portrayed a supposed war hero who was brainwashed into becoming an unwitting assassin.

At times, truth is stranger than fiction. In the case of Sirhan Sirhan, fiction is being used to cobble together a cockamamie claim that is beyond strange and just downright fantastic.


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa.

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U.S. Supreme Court Rules for Prisoners in Two Cases

The U.S. Supreme Court recently decide two federal habeas appeals in favor of  prisoners, with the crucial deciding vote in each case going to Justice Anthony Kennedy, reported The National Law Journal.

In Trevino v. Thaler, Justice Stephen Breyer, writing for the five-justice majority, extended a narrow 2012 decision concerning the right of a state prisoner to raise a claim of ineffective assistance of counsel in a federal habeas proceeding after failing to do so in a state post-conviction proceeding.

Breyer wrote that the Texas procedural system "as a matter of its structure, design, and operation—does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal."

Chief Justice John Roberts Jr., joined by Justice Samuel Alito Jr., dissented, accusing the majority of throwing over "the crisp limit we made so explicit just last Term." He added, "The questions raised by this equitable equation are as endless as will be the state-by-state litigation it takes to work them out."

Utah and 24 other states filed an amicus brief supporting Texas. They warned that the vast majority of States do not channel all ineffectiveness-assistance claims to collateral proceedings.

The National Law Journal reported that the second habeas case, found the same five justices joining in an opinion by Justice Ruth Bader Ginsburg. In McQuiggin v. Perkins, the majority held that a prisoner's convincing showing of actual innocence can overcome the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act (AEDPA) for filing a federal habeas petition.

"To invoke the miscarriage-of-justice exception to AEDPA's statute of limitations, we repeat, a petitioner 'must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,'" wrote Ginsburg. "Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing."

To read more: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202601899502&slreturn=20130429201925

Only limited stays for competency during habeas appeals

In Ryan v. Gonzales and Tibbals v. Carter the U.S. Supreme Court ruled that federal courts have the equitable power to issue limited stays when inmates are incompetent to assist in their habeas proceedings, according to the ABA Journal.

But the unanimous opinion by Justice Clarence Thomas rejected arguments that prisoners have a statutory right to competency stays in habeas appeals that is derived from federal statutes. And Thomas said that, in most cases, an inmate’s mental incompetence during a habeas proceeding will not eviscerate his statutory right to counsel.

“Given the backward-looking, record-based nature of most federal habeashabeas petitioner regardless of the petitioner’s competence,” Thomas said. “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.”

Thomas ruled in the consolidated cases of Gonzales and Carter, both on death row. Gonzales was convicted in the stabbing death of an Arizona man during a burglary of his home, while Carter was convicted in the rape and stabbing death of his adoptive grandmother in Ohio. Thomas’ decision could benefit Carter when the courts consider his case on remand.

Thomas said there is no right to competency deriving a federal statute providing for the appointment of counsel for indigent capital defendants pursuing habeas appeals. Nor is there a right in a federal law providing for competency proceedings before trial, or after the beginning of probation or supervised release, he said.

Thomas did acknowledge, however, that federal judges had the equitable power to stay proceedings based on incompetence of a habeas petitioner, reported the ABA Journal.  
To read the full opinion: http://www.supremecourt.gov/opinions/12pdf/10-930_7k47.pdf

Troy Davis' Rare Innocense Hearing Continues

Witnesses Recant Testimony

The hearing for Troy Anthony Davis continues today in a Savannah, Georgia courtroom. Davis is on death row. He is presenting evidence concerning his claim of innocence in the murder of a Savannah police officer in 1989.

He was granted extraordinary relief by the U.S. Supreme. Davis filed an original writ of habeas corpus, a request for his release filed directly with the Supreme Court rather than in the lower court, a claim that has been sparingly granted in the last 100 years.

Last year, the Court ruled by a vote of 7 to 2, that the district court was to "receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence," In re Troy Anthony Davis, 557 U.S. ___ (2009), http://www.supremecourt.gov/opinions/08pdf/08-1443Stevens.pdf.

Yesterday, the Atlanta Journal Constitution reported, four key prosecution witnesses gave markedly different statements than those they gave at trial, either saying they never saw Davis kill a Savannah policeman or never heard him confess to the crime.

Also Wednesday, a 36-year-old prison inmate offered surprise testimony, saying in court for the first time that he witnessed another man shooting and killing off-duty police officer Mark Allen MacPhail as he rushed to help a homeless man being pistol-whipped in a Burger King parking.

The Journal Consitution also reported that the state called several witnesses. State attorneys called three Savannah-Chatham County police officers to the stand at the close of Wednesday's testimony. The officers insisted they did not threaten or coerce any witness into giving false testimony. Lt. Carl Ramey testified that Sapp flagged down police to tell them Davis had told him he killed MacPhail.

"I know why you're here," Sapp told officers patrolling the neighborhood, Ramey testified. "You're here for Troy."

Burton noted the officers conducted interviews just a few hours after the killing, suggesting there was not enough information available at the time to tell a witness what to say, even if the officers were inclined to do such a thing.

To read more: http://www.ajc.com/news/atlanta/witnesses-back-off-testimony-555778.html