Robert Jeffery Farmer was convicted of two murders in separate trials in Nevada and sentenced to death. Four circumstances in aggravation were alleged. But the three judge panel only made findings as to two statutory aggravating circumstances, both of which involved claims that the murder occurred during the commission of other felonies. ¹ It found both of these to be true. After he was sentenced the death penalty was vacated when the Nevada Supreme Court found the circumstance in aggravation unconstitutional. The prosecutors then tried to reinstate the two circumstances in aggravation for which the panel did not make findings. Farmer appealed alleging a violation of the Fifth Amendment’s ban on double jeopardy.

The Supreme Court has ruled that an aggravating circumstance in a capital case, like a criminal charge is subject to the double jeopardy clause.

If the three judge panel’s failure to make a holding on the two indicated that it found the allegations not true double jeopardy would prevent a retrial on the allegations. But if no such holding can be implied double jeopardy is not applicable.

In a case with similar facts, Poland v. Arizona, The Supreme Court held that where neither the trial court or the appellate court finds that the prosecution failed to meet its burden and where the trial court sentenced the defendant to death, the double jeopardy clause is not violated by retrying an alleged circumstance in aggravation where there was no finding on the circumstance in the trial court.

Mumia Abu-Jamal, the former Black Panther convicted of the 1981 killing of Philadelphia police Officer Daniel Faulkner will no longer face the death penalty. In 2008 a Federal court ordered a new penalty phase trial. Facing another trial and the possibility of another thirty years of appeals Philadelphia District Attorney Seth Williams decided against another penalty phase trial. Abu-Jamal will spend the rest of his life in prison without the chance for parole.

Not only are many of the witnesses now deceased or unavailable but the cost of the litigation would be significant. Even proponents of the death penalty must question must question whether the last thirty years of appeals were worth it.

But this may not be the end of the litigation. There are serious questions as to whether Abu-Jamal was guilty in the first place.

Michael Allen and Cleamon Johnson were convicted of murder in California. During jury deliberation, two jurors, one of whom was the foreperson complained that Juror No. 11 had prejudged the case prior to the beginning of deliberation.

They pointed to a statement that Juror No. 11 allegedly made during deliberation that the prosecution at the end of its case had not proved the defendant’s guilt. But as the California Supreme Court pointed out the statement made during deliberation does not mean that Juror No. 11 had decided the case prior to the beginning of deliberation. Juror No. 11 continued to participate in the deliberation and voted “undecided” in the first trial vote. Therefore the trial court incorrectly ruled that Juror No. 11 decided the case prior to deliberation.

The trial court also ruled that Juror No. 11 based the decision in part on evidence that was not before the jury. A major witness at trial said he saw Michael Allen shoot the victims. However the defense showed that the witness was logged in at work at the time of the job. The witness testified that a coworker, Jose, logged him in. Juror No. 11 said he did not believe the witness. Based upon his experience Hispanic workers never log in other people. The Court ruled that while jurors cannot not bring in exterior expert knowledge, into the deliberation, particularly if it differs with the court’s instructions, it is expected that they will bring into the deliberations their life experience and that is what Juror No. 11 did.

As a result the court reversed the convictions and gave the prosecution a chance to retry the case. This was the first reversal, in 25 murder cases, by the Supreme Court this year.

Oregon governor John Kitzhaber suspended the scheduled execution of Gary Haugen and he vowed to do the same for any other planned execution during his term of office. He called the death penalty morally wrong and promised to fight to change Oregon law to abolish the death penalty. Furthermore he said the system is expensive and unworkable.

Two men have been executed in Oregon since it reinstated the death penalty in 1984. Both of the executions occurred during Kizhhaber’s first term in office. As in the case of Haugen both of the prior executions happened after the men requested that no further appeals occur and requested execution. The system is so backlogged that no one has lived to complete the appeals and to be executed.

The trend in this country is certainly away from using the death penalty. In the last four years New Jersey, Illinois and New Mexico have abolished the death penalty. Nationwide the number of executions are decreasing. Last year 112 people were sentenced to death.while in the 1990′s there were approximately 300 each year. Last year there were only 46 people executed. The abolition of the death penalty may be on the California ballot. Maryland and Connecticut are also considering measures to end executions.

Rodney Acala was convicted of killing four women and a young girl in California and was sentenced to death. He is now fighting extradition to New York where he faces two more murder cases. He says he needs to stay in California to prepare his appeal. The claim may be unique but he may have reasonable grounds for his request. He served as his own attorney in the murder trials and therefore he is the only one who can review the transcript and prepare for certification of the transcript. In a death penalty case this is a major task. It may require any number of court appearance which may be difficult to accomplish if he is extradited to New York.

Also of interest is why does New York want him back to try him for two murders that happened over thirty years ago. Manhattan District Attorney Cyrus R. Vance Jr. says he wants Acala back in order to obtain justice. This is a rather vague and meaningless claim. But there are reasons. What happens if Acala wins his appeal. ¹It may take ten years and by then any witnesses to the 1970′s New York murders may be dead.

But in the end the Vance needs to balance his desire to prosecute Acala against the cost and the resources necessary to prosecute a 68 year old man who is likely to spend the rest of his life in a California prison fighting the death penalty.

Herbert Watkins Skinner received another reprieve from the death penalty. He was convicted of killing his girlfriend, Twila Busby, and her two adult sons. A previous execution date was suspended when the Supreme Court ruled that he had the right to sue the State of Texas to allow DNA testing of a number of items involved in the murder. But the Texas attorney general continued to fight in the lower courts to prevent the DNA testing. Last week the trial court agreed with the district attorney, but today the Texas Court of Criminal Appeals ordered a delay in the scheduled Wednesday execution to allow a full consideration of changes in the Texas law regarding DNA testing. Since the Supreme Court decision Texas has expanded the situations under which a defendant can obtain post conviction DNA testing of evidence.

Among the items Skinner wants tested are ” vaginal swabs from Busby contained in a rape kit; clippings from her fingernails; two knives, one found on Busby’s front porch and the second found in a plastic bag in the living room; a dish towel; and blood and hairs from a jacket found next to Busby’s body.” The Texas Attorney General argues that there is so much evidence against Skinner that even if the items had been tested before the trial and the DNA tests were negative Skinner would still have been convicted. After the murder Skinner was found at a friend’s house four blocks from the murder. There was a trail of blood from the murder scene to the friend’s house. The authorities claim that Skinner’s hands were cut with the same knife used to stab Busby’s sons. DNA tests on items already tested implicate Skinner. But as the foreman of the jury stated in a letter to the Dallas Morning News, “Since the trial, I and many of my fellow jurors have grown increasingly concerned that key pieces of DNA evidence from the crime scene remain untested,” the foreman, Danny Stewart, wrote. “Either the tests confirm Skinner’s guilt or prove his innocence and prevent the state from making an irreversible mistake. There is simply no downside.”

On July 7 Humberto Leal Garcia, a Mexican citizen was executed by the State of Texas for the rape, kidnapping, and murder of a 16 year old girl in 1994. Earlier on the seventh the Supreme Court refused to grant a temporary stay of the execution in order to grant Congress time to pass legislation implementing the Vienna Convention on Consular Relations. The International Court in Case Concerning Avena and other Mexican Nationals found the United States to be in violation of the Convention by failing to provide notice to arrestees that they are entitled to get assistance from the Mexican Consulate and in failing to provide foreign nationals with hearings to determine whether or not they were prejudiced by the lack of notice.

President George W. Bush attempted to implement the Convention through a presidential memorandum. But the Supreme Court in Medellín v. Texas ruled that only Congress can pass implementing legislation. A bill is currently pending before Congress to implement the Convention and provide for a hearing for foreign nationals not notified that they have a right to assistance from their consulate.

Both Leal and the Federal government filed briefs requesting the stay. But the majority per curiam opinion denied to grant the stay. It accepted the arguments of the State of Texas that Medellin is the law of the land and that it precluded any stay. The minority brief written by Justice Bryer pointed to the deference normally given to the president in foreign policy matters who through the brief of the Solicitor General argued that an execution in violation of the Vienna Convention would cause significant damage to our foreign relations. Breyer pointed out that by staying the execution until the Supreme Court begins its 2011-2012 session in September, the court would give Congress time to enact implementing legislation. But the majority, citing Medellin, denied the stay and Leal was executed.

Last year the Supreme Court upheld the Ohio conviction of Frank Spisak over charges that the jury instruction failed to comply with Mills v. Maryland. Monday the Supreme Court in Bobby v. Mitts again upheld the same Ohio instruction against allegations that it failed to comply with Beck v. Alabama.

The Mitts jury was instructed:

“[Y]ou must determine beyond a reasonable doubt whether the aggravating circumstances, which [Mitts] was found guilty of committing in the separate counts, are sufficient to outweigh the mitigating factors you find are present in this case.

“When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which [Mitts] has been found guilty of committing outweigh the mitigating factors, if any, then you must return such finding to the Court.

“I instruct you as a matter of law that if you make such a finding, then you must recommend to the Court that the sentence of death be imposed on [Mitts].

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“On the other hand, [if] after considering all the relevant evidence raised at trial, the evidence and testimony received at this hearing and the arguments of counsel, you find that the state of Ohio failed to prove beyond a reasonable doubt that the aggravating circumstances with which [Mitts] was found guilty of committing outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court.”

He claimed that this violated Beck. Beck “held that the death penalty may not be imposed ‘when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.’” Thus the question in Beck was that the jury was prevented from deciding whether or not the defendant was guilty of first degree murder or a lesser conviction for homicide. This forced the jury to either convict the defendant of murder or find him/her not guilty. The Supreme Court was afraid that the jury in this situation would convict the defendant of murder even though he/she was only guilty of a different crime of violence in order to prevent him/her from going free.

In Mitts, the question involved the penalty phase of a jury trial, unlike Beck which involved the guilt phase. Mitts argued that the jury instruction required the jury to first decide whether to acquit Mitts and then decide whether to give him life in prison. According to Mitts this offered the same unconstitutional choice found in Beck. By requiring the choice on acquittal to come first they might sentence him to the death penalty fearing that a guilty person might get off free since at that point they did not know about the life in prison choices.

But the Supreme Court ruled that Beck only applied to the guilt phase. There was no chance that the jury would recommend the death penalty fearing that otherwise he would get off since they had already found him guilty of two counts of aggravated murder and two counts of attempted murder. As a result the Supreme Court reversed the Sixth Circuit opinion and reinstated the death penalty.

The Third Circuit Court of Appeals, granted Mumia Abu-Jamal’s writ of habeas corpus in so far as it reversed the sentence of death for the 1981 murder of Philadelphia Police Officer Daniel Faulkner.

After exhausting his remedies in the Pennsylvania state courts famed journalist Abu-Jamal, for the murder of Faulkner, filed a writ of habeas corpus in Federal Court challenging his conviction and the death penalty. The District Court and the Third Circuit reversed the sentence of death but upheld the conviction. Both Abu-Jamal and the Pennsylvania attorney general appealed to the Supreme Court. Abu-Jamal argued that the jury instructions wrongly instructed the jury that before it could consider a mitigating circumstance it must unanimously find the circumstance to be true. The Supreme Court upheld the conviction but sent the reversal of the death penalty back to the Third Circuit ordering it to reconsider the reversal in light of the recent Supreme Court case, Smith v. Spisak.

During the penalty phase of a capital case the jury must look at the mitigating circumstances and determine if they outweigh the aggravating factors. But the jury in Abu-Jamal’s case was told that it could not consider all of the mitigating factors, it could only consider those mitigating factors that the jury unanimously found to be true. This violates Mills v. Maryland. In Spisak the jury was told that it must unanimously agree on whether the mitigating circumstances outweighed the aggravating circumstances, not that each mitigating circumstance must be unanimously found to be true. As a result the court found that Spisak is not relevant to the determination of whether Abu-Jamal’s death sentence is upheld and it reinstated it original grant of habeas corpus reversing the sentence of death. It remanded the case to the Pennsylvania courts with instructions either to grant a new sentencing hearing or to sentence Abu-Jamal to life in prison.

According to a study by the Death Penalty Information Center (DPIC) the number of people executed in this country continues to decline. The number of people executed this year will be less than half the number executed in 1999 and 12 per cent less than last year. In 1999 there were 98 executions this year there have been 46. This year 114 people were sentenced to death as compared to 234 people in 2000. Even major death penalty states like Texas and Virginia have seen major declines in the use of the death penalty. California which has more people on death row than any other state has not had an execution in over four years.

Time Magazine lists four reason for the decline. First there has been a change in public opinion. A DPIC study shows that only one third of the people prefer the death penalty when compared to death without parole for murderers. Second, growing state deficits and the considerable cost of death penalty appeals and executions. Third, the growing public awareness that the justice system is not perfect and that innocent people can be executed. The use of DNA testing has brought into question a number of death penalty sentences. In one Texas case scientists have found that there was no basis for the conviction and execution of a man convicted of killing his children through the use of arson. Fourth,the regional disparities in the use of the death penalty. The majority of people executed are in the South. the attorney general of Ohio says that small counties, unlike larger counties can no longer afford to use the death penalty.