Case Law Update: 2011-2014 Cumulative Edition

Holding: Where counsel told court that “the last time she talked to Defendant, he wanted her off his case,” the court was required to conduct a preliminary examination of effectiveness of counsel.
Gibson v. State, 2013 WL 363427 (Ga. App. 2013):

Holding: A restitution hearing is a critical stage of proceedings at which Defendant is entitled to counsel.
People v. Murphy, 2013 WL 3025202 (Ill. App. 2013):

Holding: Counsel’s simultaneous representation of Defendant and state’s witness in case was per se conflict of interest.
Camm v. State, 2011 WL 5546909 (Ind. Ct. App. 2011):

Holding: Permanent conflict of interest was created where prosecutor had entered into a contract to author a book about a murder prosecution, requiring a special prosecutor for defendant’s third retrial, even though the prosecutor had cancelled the contract when defendant’s conviction was reversed.
Camm v. State, 90 Crim. L. Rep. 267 (Ind. Ct. App. 11/15/11):

Holding: Where prosecutor had entered into book contract to write about case, he was disqualified under Model Rule 1.8(d) from prosecuting the case, even though the contract was ultimately cancelled.
Tigue v. Com., 2011 WL 3962504 (Ky. Ct. App. 2011):

Holding: Defendant was denied counsel at critical stage where his counsel failed or refused to file motion to withdraw guilty plea.
People v. Buie, 2011 WL 93003 (Mich. App. 2011), appeal granted, 489 Mich. 938, 797 N.W.2d 640 (2011):

Holding: Permitting witnesses to testify via two-way, interactive video technology without defendant’s consent was plain error in that it violated defendant’s right to confrontation.
People v. Washington, 2013 WL 1632694 (N.Y. App. 2013):

Holding: Even though Driver has already consented to a breath test for DWI, where their attorney then appears, police must make reasonable efforts to inform Driver of their counsel’s appearance if such notification will not substantially interfere with the timely administration of the test.
People v. Bowles, 90 Crim. L. Rep. 264 (N.Y. App. Div. 11/1/11):

Holding: Defendant has due process right to effective assistance of counsel in assessment hearing under New York’s Sex Offender Registration Law because of stigmatizing effect of registration.
People v. Strotehrs, 2011 WL 3503237 (N.Y. App. Div. 2011):

Holding: Beginning suppression hearing without defense counsel being present was fundamental error, even though counsel for co-defendant was present; defendant entitled to new suppression hearing.
Ohio Supreme Court Bd. of Comm’rs on Grievances & Discipline, Op. 2013-4 (10/11/13), reported in 94 Crim. L. Rep. 182:

Holding: A Public Defender generally will be permitted to impeach a former client with a prior conviction. Rule of professional conduct that lawyers have a continuing obligation to past clients including a duty to avoid using “information relating to the representation to the disadvantage of the former client” has an exception for information that “has become generally known.” That exception applies where a Public Defender seeks to examine a former client about a prior conviction because the prior conviction is generally known as a matter of public record. However, counsel would be prohibited “from using any other information” learned during the prior representation. “For example, if the former client indicated to the public defender a willingness to lie under oath within the prior representation, the public defender may not use that information against the former client.” A lawyer should not be forced against his own judgment to continue a representation that requires the lawyer to impeach a former client. Additionally, if a conflict is found, the conflict would be imputed to every lawyer in that Public Defender’s office.
State v. Kasler, 2013 WL 4792539 (Ohio App. 2013):

Holding: Trial court abused discretion in denying appointed counsel to 21-year-old college student; even though Defendant lived with parents whose household income exceeded indigency limits, Defendant repeatedly said that her parents would not help her hire counsel; the trial court believed Defendant’s parents “ought to” hire counsel, but the relevant inquiry was whether Defendant alone had the ability to hire counsel.
Faulkner v. State, 2011 WL 4089863 (Okla. Crim. App. 2011):

Holding: Where Prosecutor had represented Defendant 18 months earlier to enable him to adopt child, it was conflict of interest for Prosecutor to then prosecute Defendant for sex abuse of the adopted child.
Rubalcado v. State, 94 Crim. L. Rep. 763 (Tex. App. 3/19/14):

Holding: Defendant’s invocation of counsel at a bail proceeding is enforceable against investigators from another county, even though they may not have actually been aware of the invocation; one set of state actors (the police) cannot claim ignorance of Defendant’s unequivocal request for counsel from another state actor (the court); the 6^th Amendment requires imputation of knowledge from one State actor to another because it protects a person’s encounter with the State.
Adams v. State, 2013 WL 6516398 (Tex. App. 2013):

Holding: Defendant was denied 6^th Amendment right to counsel where on first day of trial he requested additional time to hire counsel, where he did not unequivocally waive counsel, and where the court appointed only a “shadow” counsel for the trial.
Bowen v. Carnes, 2011 WL 2408749 (Tex. Crim. App. 2011):

Holding: Trial court abused discretion in disqualifying Defendant’s retained defense counsel because he had previously represented one of the State’s witnesses in an unrelated case.
Death Penalty
State ex rel. Taylor v. Russell, 2014 WL 6961207 (Mo. banc Dec. 9, 2014):

Even though Warden contended that allowing co-defendant/brother of Defendant to witness Defendant’s execution would compromise safety of prison, Sec. 546.740 provides that Defendant may designate any witness who is not another inmate and who is at least 21 years old to be a witness; writ of mandamus granted to require Warden to allow co-defendant/brother as witness.

Facts: Death-sentenced Defendant sought to designate his co-defendant/brother to witness his execution. The State contended that since victims would be present, this would present a security risk for the prison, so the Warden was authorized to exclude him. Defendant brought a writ of mandamus to compel Warden to allow co-defendant/brother to attend.

Holding: Sec. 546.740 allows a death-sentenced Defendant to designate “any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution” provided such persons are at least 21 years old. Sec. 217.025.6 allows a Warden to take actions “necessary for the proper management” of prisons. Where one statute deals with the subject matter in a general way, and the other in a specific way, to the extent they conflict, the specific statute controls over the general one. Here, the statutes conflict, but Sec. 546.740 is the more specific so it controls. It requires that the Warden “shall” allow the designated witnesses. The designated witness is not incarcerated and is not under 21. Therefore, he must be allowed. To the extent Warden believes safety is at issue, he may provide security officers. Writ of mandamus granted.
State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014):

Holding: Rule 91 habeas corpus is proper means to assert claim that Defendant is incompetent to be executed. However, Defendant failed to meet threshold showing of incompetence required by Panetti and Ford.

Dissenting opinion: Dissenting opinion questions constitutionality of competency to be executed statute, Sec. 552.060, because it has a “fundamental structural flaw” in that it places the decision to invoke the statute in the executive branch; Ford criticized Florida’s statutory scheme for consolidating whether a defendant is competent in the governor and administrative officials in the executive branch.
State v. Bowman, No. SC90618 (Mo. banc 4/12/11):

State cannot present in penalty phase evidence about Defendant’s prior convictions which were later reversed, even though this also constituted prior bad acts and non-statutory aggravating circumstances.

Facts: Defendant was charged with a murder which occurred in 1977. The evidence against Defendant was DNA in the victim’s underwear and an eyewitness who picked Defendant out of a photo line up 30 years after the murder. After 1977, Defendant was convicted of two additional murders in Illinois, but those convictions were later vacated by Illinois courts. In the death penalty phase, the State was permitted to introduce evidence about Defendant’s prior Illinois convictions. The jury imposed death.

Holding: Johnson v. Mississippi, 486 U.S. 578 (1988), held that the reversal of a prior conviction that the jury considered in imposing death undermines the validity of the death sentence. In State v. McFadden, 216 S.W.3d 673 (Mo. banc 2007), this Court used Johnson to reverse a death sentence because two of six aggravating factors found by the jury consisted of McFadden’s conviction and death sentence in another case. This case is similar to McFadden. The State argues that the evidence of Defendant’s vacated convictions is admissible as unadjudicated prior bad acts, also referred to as non-statutory aggravating circumstances. Even if true, however, this Court cannot assume that the jury’s weighing process and sense of responsibility were unaffected by its knowledge that Defendant previously had been convicted of two murders. Death sentence is vacated and remanded for new penalty phase trial.

Concurring and dissenting opinion: Judge Wolff would hold that the evidence, although (barely) sufficient to convict, is not sufficient to sustain a death sentence. He notes problems with the DNA evidence, problems with reliability of an eyewitness identification 30 years after the fact, and evidence that another person may have committed the crime. He would impose a sentence of life without parole under Sec. 565.035.5(2).
* Hall v. Florida, 95 Crim. L. Rep. 261, ___ U.S. ___, 134 S.Ct. 1986 (U.S. 5/27/14):
Holding: Atkins prohibits States from setting strict IQ limits to prove intellectual disability (mental retardation) and does not give States “unfettered discretion to define the full scope of the constitutional protection”; “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”
* Hinton v. Alabama, ___ U.S. ___, 94 Crim. L. Rep. 613, 134 S.Ct. 1081 (U.S. 2/24/14):

Holding: Counsel in capital case was ineffective for erroneously believing that he could not seek extra funding to hire a more qualified forensic expert; even though choice of expert is usually a strategy decision, the attorney’s decision here was not based on any strategy but on a mistaken belief that the only available funds were capped at $1,000 and that there was only one ballistics expert available at that rate; “[a]n attorneys’ ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”
* Woodward v. Alabama, ___ U.S. ___, 94 Crim. L. Rep. 254, 134 S.Ct. 405 (U.S. 11/18/13):

Holding: Justices Sotomayor and Breyer issue dissenting opinion from denial of cert. in which they suggest that Alabama’s death penalty system which allows judges to override juries’ sentences of life and judicially impose death (1) violates 8^th Amendment because evidence indicates that judges are motivated to do this by electoral pressures of running for office, and (2) violates 6^th Amendment right to have a jury decide factual findings that increase punishment under Apprendi and Ring.
*Valle v. Florida, 90 Crim. L. Rep. 33 (U.S. 9/28/11)(Breyer, J., dissenting):

Holding: Justice Breyer dissents from denial of cert. posing question of whether decades of incarceration on death row violates 8^th Amendment ban on cruel and unusual punishment; to those who say the Defendant is responsible for the delays, the “delay reflects the State’s failure to provide the kind of trial and penalty procedures that the law requires.”
* Leal Garcia v. Texas, ___ U.S. ___, 89 Crim. L. Rep. 625 (U.S. 7/7/11):

Holding: The mere introduction of legislation in the U.S. Senate to implement the Vienna Convention on Consular Rights (re: notification of consular officials that their national has been arrested) is not a sufficient reason to stay execution of a Mexican national because the legislation has not yet passed.
* Bobby v. Mitts, ___ U.S. ___, 89 Crim. L. Rep. 163, 2011 WL 1631037 (U.S. 5/2/11):

Holding: Habeas relief not warranted where jury instruction told jurors they must acquit Defendant of death penalty before considering lesser punishments; instruction told jurors not to deliberate on lesser punishments unless they have decided that prosecutors failed to prove that the aggravating circumstances outweighed the mitigating circumstances.
* Cullen v. Pinholster, ___ U.S. ___, 89 Crim. L. Rep. 5, 131 S.Ct. 1388 (U.S. 4/4/11):

Holding: Federal habeas court is limited to reviewing the evidence that was before the state court in determining under 28 USC 2254(d)(1) if state court decision is “contrary to, or an unreasonable application of clearly established federal law”; federal court should not have considered new mitigating evidence that was not presented to state court in considering ineffective assistance of counsel claim; it was not unreasonable for state court to conclude that counsel made a strategic decision not to present further evidence of defendant’s mental problems because that could lead jury to believe that defendant could not be rehabilitated.
U.S. v. Pleau, 90 Crim. L. Rep. 100 (1^st Cir. 10/13/11):

Holding: Where the federal gov’t sought to obtain custody of Defendant for death penalty charges under Interstate Agreement on Detainers (IAD) but State governor refused to allow the transfer since State had no death penalty, the federal government was then precluded from seeking to obtain Defendant’s custody through a writ of habeas corpus ad prosequendum since it had originally sought to use the IAD.
Blystone v. Horn, 2011 WL 6598166 (3^rd Cir. 2011):

Holding: State appellate court’s determination that petitioner did not experience ineffective assistance of counsel was contrary to clearly established federal law, where counsel failed to develop expert mental health testimony and institutional records in mitigation of a death sentence.
Cauthern v. Colson, 2013 WL 603891 (6^th Cir. 2013):

Holding: Prosecutor’s reference at capital sentencing hearing comparing Defendant to notorious recent murderers were inflammatory and personalized to jurors by making them feel personally unsafe if they did not return a death verdict.
Woodall v. Simpson, 2012 WL 2855798 (6^th Cir. 2012):

Holding: Death penalty Defendant had 5^th Amendment right to a no adverse inference from his failure to testify in penalty phase instruction.
Black v. Bell, 2011 WL 6224560 (6^th Cir. 2011):

Holding: State appellate court’s assessment of capital defendant’s level of intellectual and adaptive functioning for Atkins purposes was contrary to federal law, where the court did not specify which IQ scores it relied on and why.
Sowell v. Anderson, 2011 WL 5526381 (6^th Cir. 2011):

Holding: Failure to conduct thorough investigation of defendant’s childhood constituted ineffective assistance of counsel where the state was seeking the death penalty and reports on the record referenced defendant’s horrific childhood.
Foust v. Houk, 2011 WL 3715155 (6^th Cir. 2011):

Holding: Death penalty counsel ineffective in not obtaining records about client’s life history and failing to interview family members.
U.S. v. Gabrion, 89 Crim. L. Rep. 713, 2011 WL 3319532 (6^th Cir. 8/3/11):

Holding: Defendant charged with federal death penalty has right to present as mitigating evidence fact that State in which he is charged has abolished the death penalty.
Goodwin v. Johnson, 2011 WL 181468 (6^th Cir. 2011):

Holding: Death penalty counsel ineffective in penalty phase in failing to present evidence of childhood abuse, alcoholic and drug using mother, sexual molestation and abandonment by both parents.
James v. Schriro, 2011 WL 4820605 (9^th Cir. 2011):

Holding: Defendant was prejudiced by ineffective counsel at penalty phase of capital murder trial where counsel failed to conduct a basic investigation of defendant’s social history, mental health and drug abuse.
Dodd v. Trammell, 93 Crim. L. Rep. 776 (10^th Cir. 9/16/13):

Holding: Habeas relief granted where victim impact statement in death penalty case contained recommendation for death; prohibition on victim’s sentencing recommendation in death penalty case in Booth v. Maryland, 482 U.S. 496 (1987) remains good law despite Payne.
Ochoa v. Workman, 2012 WL 130718 (10^th Cir. 2012):

Holding: Inmate’s habeas claims were Atkins claims, despite the fact that they implicated Fourteenth Amendment Due Process Clause protections.
Arthur v. Thomas, 91 Crim. L. Rep. 72 (11^th Cir. 3/21/12):

Holding: Even though other cases have upheld lethal injection protocol, this does not preclude Defendant from trying to show that the protocol would be cruel and unusual in his particular case.
Magwood v. Warden, Alabama Dept. of Corrections, 2011 WL 6306665 (11^th Cir. 2011):

Holding: Death sentence violated fair-warning requirement of the Due Process Clause, as it was based on an unforeseeable and retroactive judicial expansion of narrow and precise language of the death penalty statute.
Conner v. Hall, 89 Crim. L. Rep. 666 (11^th Cir. 7/7/11):

Holding: Atkins mental retardation claim is not defaulted in federal habeas because state court had not been consistently and regularly applying a state default.
Johnson v. Secretary, 2011 WL 2419885 (11^th Cir. 2011):

Holding: Death penalty counsel ineffective in failing to investigate bad childhood, abusive and alcoholic father, and family abandonment; counsel only interviewed Defendant about his background and waited to 11^th hour to prepare for penalty phase.
Ferrell v. Hall, 2011 WL 1811132 (11^th Cir. 2011):

Holding: Counsel was ineffective in failing to investigate mitigation where Defendant exhibited “red flags” of mental disorders, including facial tics, strange affect, obsessive religious beliefs, and odd behaviors; counsel failed to investigate and present abusive childhood, poverty and mental health as mitigation.
Roane v. Leonhart, 2014 WL 259659 (D.C. Cir. 2014):

Holding: Capital Defendant had right to intervene in lethal injection protocol litigation against Gov’t.
Cook v. FDA, 93 Crim. L. Rep. 583 (D.C. Cir. 7/23/13):

Holding: The FDA’s policy of not addressing state government’s importation of drugs used for executions violates the FDA Act; thus, court affirms injunction that blocked importation of such drugs.
Roth ex rel. Bower v. Dept. of Justice, 89 Crim. L. Rep. 621 (D.C. Cir. 6/28/11):

Holding: Death-sentenced Defendant is entitled to use FOIA to obtain records from FBI showing he is innocent; claim of innocence outweighs privacy rights of third parties mentioned in FBI investigative records.
Johnson v. U.S., 2012 WL 1836282 (N.D. Iowa 2012):

Holding: Counsel was ineffective in penalty phase in failing to provide drug expert witness with data regarding Defendant’s prior drug history.
Brumfield v. Cain, 2012 WL 602163 (M.D. La. 2012):

Holding: A capital murder defendant satisfied Louisiana’s test for mental retardation, so that his execution was barred under Atkins.
U.S. v. Sampson, 2011 WL 5022335 (D. Mass. 2011):

Holding: Where juror provided inaccurate responses during voir dire, a new trial was required to determine whether the death penalty was justified.
Branch v. Epps, 2011 WL 6026516 (N.D. Miss. 2011):

Holding: Death penalty petitioner was entitled to habeas relief on grounds of mental retardation, as shown by Stanford-Benet Intelligence Scale, WAIS, adaptive functioning problems, and presence before age 18 with no signs of malingering.
Steele v. Beard, 2011 WL 5588711 (W.D. Pa. 2011):

Holding: Pennsylvania’s standard jury instruction form on mitigating evidence and the verdict form violated Eighth Amendment in penalty phase of capital murder case in that the forms likely misled the jury to believe unanimity was required regarding mitigating evidence.
Wolfe v. Clarke, 2011 WL 3251494 (E.D. Va. 2011):

Holding: Even though venirepreson said initially that he couldn’t impose death, where he later said there were times he could impose it and he’d follow the law and listen to the facts, he should not have been struck by the court under Witherspoon/Witt.
U.S. v. Stitt, 2010 WL 5600986 (E.D. Va. 2010):

Holding: Confrontation Clause applies to capital penalty phase.
Morehart v. Barton, 2011 WL 1599648 (Ariz. 2011):

Holding: Murder victim’s family had no right to attend ex parte hearing on defense mitigation investigation.
Hobbs v. Jones, 2012 WL 2362712 (Ark. 2012):

Holding: Statute which delegated to the DOC the authority to determine which chemicals to use for lethal injection violated separation of powers because the Legislature gave unfettered discretion to DOC on all protocols and procedures.
Miller v. State, 2012 WL 129708 (Ark. 2012):