Felony hazing charges were filed against 11 people involved in the death of FAMU drum major Robert Champion last year. ¹ Two others were charged with misdemeanors for participation in the incident. Champion was the subject of ritualistic band hazing while the band was in Orlando for the Florida Classic football game. The hazing incident occurred on a bus rented for the Marching 100 FAMU’s award winning band after the school lost a football game. “Some university band members have said Champion died after taking part in an annual rite of passage called “Crossing Bus C,” an initiation process in which pledges attempt to run down the center aisle from the front door of the bus to the back while being punched, kicked and otherwise assaulted by senior members.”

Some, including Champion’s family question whether more serious charges should be alleged. Felony hazing is a third degree felony under Florida law. If convicted the students face a maximum sentence of six years in prison. To convict the defendants of first degree murder it would be necessary to show that that the killing was premeditated. There is certainly no evidence of premeditation. Under Florida law second degree murder is “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” But the death was the result of the combined action of at least thirteen people. Besides bruises on his body there were no signs that Champion was subject to an “act imminently dangerous to another and evincing a depraved mind regardless of human life.” He died from internal hemorrhaging which would not have been visible to those on the bus. To prove manslaughter, under Florida law it is necessary to prove culpable negligence.

“In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or shows such an indifference to the rights of others as is equivalent to an intentional violation of such rights.”

Its possible the state could prove manslaughter against at least some of the defendants. But it would not be easy. Its probable that some if not all of the defendants had participated in prior similar incidents of hazing. Hazing occurred on a regular basis at FAMU and in the Marching 100. Never before had it resulted in death and there was really no reason for the participants to fear that Champion would die. As a result it would be hard to “show a reckless disregard for life.” The difficulty of proving manslaughter increases in light of the fact that there were over twenty people on the bus and it would be necessary to show facts indicating that each individual had the state of mind necessary for a finding of guilty to a manslaughter charge. Possible but unlikely. Proving felony hazing is much easier, but not a foregone conclusion. The state will have to show that Champion died as a result of hazing and that the individual defendants participated in the hazing.

Robert “Rider” Dewey was released from prison today after spending seventeen years of a life sentence for a murder and rape that he did not commit. Advanced DNA testing proved that the blood found on Dewey’s shirt was his own, not that of the victim. Previous DNA examination had proved that the semen found at the scene was not Dewey’s. DNA testing also lead to a warrant being issued for Douglas Thames who is currently imprisoned in Colorado for a similar rape/murder conviction.

Colorado does not have a death penalty. All people convicted of first degree murder are automatically sentenced to life in prison without parole. If the state had a death penalty Dewey may have been executed before modern advances in DNA exonerated him.

The Eleventh Circuit Court of Appeals remanded the death sentence conviction of Vernon Madison to the Alabama courts for a proper determination of his Batson objection. Madison who is African American has had three trials for the murder of a White police officer. The first trial was reversed for Batson error. In Batson v. Kentucky the Supreme Court set a three step procedure to deal with claims of using race as a determinate in jury selection. First the party making the claim must make a prima facie case that the opposing party used race in making peremptory strikes. Second the other party must give a race neutral explanation of the strikes. Finally the objecting party must prove purposeful racial discrimination.

In Madison’s third trial the court denied his Batson objection after the defense made its initial prima facie case and without the prosecutor giving any race neutral explanation, saying that the defense had not proved “bias on the part of the State.” But at that stage the defense is not required to prove bias. It is only required to make a prima facie case. Among the factors that a court must look to in determining whether a prima facie case has been made are the prosecutor’s pattern of strikes against black jurors, the prosecutor’s questions and statements during voir dire examination, the failure of a prosecutor to ask meaningful questions to the struck jurors, and whether or not the case is racially or ethnically sensitive,” and evidence of past discrimination in jury selection. Here the appellate court found sufficient evidence that the defense presented a prima facie case. The venire consisted of 60 potential jurors. Fifteen of them were African American. Two of the African Americans were excused for cause. The prosecutor used six of his eighteen peremptory challenges to challenge African Americans. He did not ask any of them significant questions and he failed to voir dire three of them. It was a racially sensitive case since Madison is African American and he is accused of killing a White police officer.

For these reasons the appellate court found that a prima facie case had been made and remanded the case to the state courts to complete the Batson process.

Patrick Wood was convicted of murder. The Colorado Court of Appeals denied his appeal and the state Supreme Court refused to hear the matter. He filed a writ of Habeas Corpus in the Federal District Court. The District Court invited the state to argue the issue of timeliness of the writ. The State responded that it “[would] not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.” The District Court denied the appeal on its merits. He appealed to the Tenth Circuit Court of Appeals. The Tenth Circuit requested briefing on the merits and on the timeliness of the writ. After the issues were briefed the Tenth Circuit denied the appeal based solely on the timeliness of the writ.

The question on appeal to the Supreme Court was the ability of a Federal Court to raise on its own motion the question of the statute of limitations. The Supreme Court held that the Federal Courts may raise the issue of the timeliness of a writ of Habeas Corpus. But if a state purposely waives the right to raise the issue, as Montana did in this case, it is an abuse of discretion for the Federal courts to raise the issue.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) a writ of habeas corpus is timely if it is filed within one year of the judgment becoming final by the conclusion of direct review or or the expiration of the time to file for such review. If direct review was completed prior to the passage of AEDPA the statute began to run with the effective date of the AEDPA on April 24, 1996 Furthermore the time is tolled for any period during which post conviction relief is pending in the state court.

Wood’s direct appeals were concluded in 1990 when the Colorado Supreme Court refused to hear the case. Thus the year began to run on April 24, 1996 unless there was pending at that time in state court a motion for post conviction relief. In 1995 he had file a motion to vacate his conviction and there is no record that it was ever acted upon. Therefore Wood claimed that it was still pending in 2004 when he filed a second motion in the Colorado courts. It was denied four days after it was filed. Exactly one year after it was denied Wood filed his writ of habeas corpus in the District Court. Thus he claimed it was timely, In any case the Supreme Court ruled that since the state waived opposition to the timeliness of the writ the Tenth Circuit abused its discretion in requiring briefing on the issue and finding it untimely. As a result the Supreme Court remanded the case to the Tenth Circuit for further action.

A North Carolina Judge revoked the death penalty for Marcus Reymond Robinson and sentenced him to life in prison without parole after finding that “race was a materially, practically and statistically significant factor in the decision to exercise preemptory challenges during jury selection by prosecutors ….” North Carolina’s Racial Justice Act provides for statistical evidence to be used to establish that “race was the basis for seeking or obtaining the death penalty in any case.” Under the law those on death row can challenge their sentence claiming “that a death sentence was more likely to be sought or imposed on defendants of one race, that it was more likely when the victim was a certain race or that racial bias influenced jury selection.”

In the 1987 Supreme Court case McCleskey vs. Kemp the Supreme Court ruled that the Constitution did not require states to permit the use of statistical evidence to show bias in sentencing but it left the door open for states to legislatively or judicially require such.

In North Carolina a defendant is three and a half times more likely to receive a death penalty if the decedent is white. Furthermore prosecutors use peremptory challenges to remove African Americans from juries twice as often as they use challenges to remove Whites. While the state is appealing the decision we can expect to see more death row inmates win motions under the Racial Justice Act. Out of 158 people on North Carolina’s death row 151 have filed challenges.

But what I don’t get is if the jury selection process was tainted by racial prejudice why does the conviction remain. If the prejudice only affected the sentencing the decision makes sense but jury selection affects not only the sentencing but the conviction, also. Shouldn’t Robinson be granted a new trial?

Special Prosecutor Angela Corey charged George Zimmerman, Wednesday, with second degree murder in the shooting of Trayvon Martin.

Second degree murder is probably the correct charge. It is certainly not first degree murder which requires premeditation and malice aforethought. While these terms may be somewhat vague they certainly do not describe the murder of Trayvon Martin which occurred on the spur of the moment without planning. The only other choice of a charge would be manslaughter. The basic difference between murder and manslaughter is that second degree murder, unlike manslaughter, requires the intent to kill. Just about any time you point a gun at a man’s chest and shoot it you have the intent to kill.

The real issue in this case is not whether or not it is second degree murder but rather whether Zimmerman was acting in self defense.

This will not be an easy case for the prosecution. Generally in criminal law the judge determines what law applies to a case and the jury determines what the facts are and applies those facts to the law as it is given to them by the judge. But under Florida law, if the defense raises the issue of the state’s “Stand Your Ground” law the judge makes an initial determination before the trial. In doing so the judge must, after a hearing, determine the facts and apply the law. This requires the prosecution to go through an additional hoop to get a conviction.

But Corey has shown that she is not afraid of the law. If you are afraid of the law you are practicing the wrong type of law. She will aggressively pursue a conviction. Whether she will get it or not will be up to the jury. But there was certainly sufficient evidence to charge Zimmerman. As it is often the case the evidence came out of Zimmerman’s own mouth when he admitted to the police on the night of the incident that he killed Martin.

Kenneth Clair was convicted of the 1984 murder of Linda Rogers. His appeals were denied and he requested appointed counsel to file a Federal habeas. His request was granted and counsel was appointed. Two associates in the firm accepted jobs at the Federal Public Defender. The Federal Public Defender substituted in as counsel.

After an evidentiary hearing and the completion of post hearing briefs Clair requested the appointment of substitute counsel,claiming inter alia that his counsel refused to work with his investigator and did not attempt to prove his innocence. After briefing and a hearing Clair changed his mind and agreed to continue representation by the Federal Public Defender. Three weeks later Clair again requested the appointment of substitute counsel. In addition to the prior reasons he said that his counsel refused to investigate new evidence that became available. But the court denied the request without a hearing and without listening to Clair.

The appointment of substitute counsel is authorized by 18 USC 3599. But the section does not state what standard the court should use to grant or deny such motions. Clair argued that the court should use an “interests of justice” standard which is the same standard used in non-capital cases. The government argued that substitution of counsel can only happen when there is an “actual or constructive denial” of counsel. Specifically it stated that either the lawyer must lack the qualifications necessary for appointment under the statute; the lawyer must have a “disabling conflict of interest”; or the lawyer must have “completely abandoned” the client. The court sided with Clair. There is no reason in law to accept the government’s stricter standard and it is illogical to make it more difficult for a capital defendant to change lawyers than a defendants charged with lesser offenses.

But the Court found that there was no abuse in discretion in denying Clair’s motion. It would have been better if the trial court held a hearing after the second request and if the court had allowed Clair to explain his position, but the case had been briefed and argued there was little that new counsel could do.

Edward Lee Elmore was convicted of raping and murdering an elderly woman in 1982 in Greenwood, South Carolina. The only physical evidence supporting the conviction was “Negroid” public hair found on her abdomen. The hairs were found by the doctor performing the autopsy. He gave them to Earl Wells, an agent for the South Carolina Law Enforcement Division (SLED) who looked at them through a microscope and placed them in an envelope marked “Item T.” “Item T” was never given to the defense and when appellate counsel requested it they were told it was lost. In 1998, “Item T” was found in Earl Wells’ filing cabinet. It had been there the entire time. Wells said he found it when he was changing offices.

A retired FBI agent examined the hair and said it was not “Negroid.” It was Caucasian. Elmore’s attorney had the hair DNA tested. It did not belong to the victim, but apparently belonged to a White male who raped and killed the victim. Elmore, of course, is African American. In 2000 the matter went back before the trial court. But the court ruled that there was insufficient evidence to order a new trial. The appellate court and the South Carolina Supreme Court upheld the decision. Finally, last year the Fourth Circuit Court of Appeals ordered a new trial.

Instead of going to trial the prosecution agreed to release Elmore after he spent 11,000 days in prison, most of the time on death row. In order to get out he had to plead guilty while denying that he committed the murder. On Friday he walked out the front door of the courthouse in Greenwood, a free man.

Was justice done–No. An innocent man spent thirty years in prison for a murder he did not commit. Twelve of those years were spent after there was no reasonable claim left that he was guilty. The original conviction was obtained in violation of Brady when the prosecutor did not turn over “Item T” to the defense. The fact that it was found in the investigator’s file box certainly indicates that the failure to turn over the evidence was intentional. ¹ The racial undertones of convicting an African American man for the rape and murder of a White woman cannot be overlooked. Particularly the truth of the matter is that a White man raped and killed the woman. Furthermore, even though there is no doubt about his innocence the prosecutor forced Elmore to plead guilty to a crime he did not commit to get out of prison. It is a disgusting example of American justice, or shall we say injustice.

In a highly unusual move the Supreme Court issued a per curium decision and a three justice dissent by Justice Breyer ¹ on a Petition for Writ of Certiorari. ²

The appeal in question is from a Third Circuit Court of Appeal grant of habeas corpus ordering a new trial for a 1984 murder conviction and a sentence of death. The allegation is that the District Attorney withheld Brady discovery. The main witness at the trial was a co-participant in the murder named Bernard Jackson. The defense found a police activity sheet with the case number, Jackson’s name and a claim by Jackson that one Lawrence Woodlock was a co-participant. The defense claimed that this form is exonerating evidence and the failure to turn it over vacates the conviction. The prosecution claims that the evidence is ambiguous and that Jackson was thoroughly cross examined. The additional cross examination with the activity sheet will not have a material effect upon a jury.

The divided court granted certiorari and sent the case back to the third Circuit to determine whether the activity sheet is so vague that there was no reason to turn it over to the defense. Justice Breyer argued that it was not vague, that it clearly applied to the case and that since there was no question of law certiorari should be denied and the third Circuit decision allowed to stand.

Cory R. Maples was convicted of murder and sentenced to death in Alabama. Alabama does not pay post conviction attorneys. It relies upon pro bono attorneys, generally from large firms out of state. Some defendants never get pro bono attorneys and therefore remain unrepresented. Maples was represented by two New York attorneys associates with the firm of Sullivan & Cromwell, Jaasai Munanka and Clara Ingen-Housz. Alabama law required that Munanka and Ingen-Housz have local counsel who is supposed to fully participate in the case. It also requires that Munanka and Ingen-House be admitted post hac vice to the Alabama bar. John Butler of Huntsville agreed to serve as local counsel but he limited his participation to moving the admission of the New York counsel, pro hac vice.

They filed a motion for post conviction relief under Alabama Rule of Criminal Procedure 32, alleging incompetence of trial counsel. Before the motion was decided both New York attorney left the firm and were unable to continue representing Maples. Neither attorney notified Maples or the court of the change. Notice of the denial of the Rule 32 motion was sent to all counsel. The copies sent to Sullivan & Cromwell were returned, recipient unknown. Butler assumed Munanka and Ingen-Housz received notice and ignored his notice. The clerks’s office made no further attempt to find Ingens-Housz and Munanka. As a result Maples lost his chance to appeal the denial of the Rule 32 motion. By the time Maples found out about the failure to file an appeal it was too late. His motion to file a late appeal was denied. The Alabama Court of Criminal Appeals, the Alabama Supreme Court, the Federal District Court and the Eleventh Circuit Court of Appeal all refused to give him relief. Finally the Supreme Court last week reopened the case. It ruled that while the normal rule is that since attorneys act as agents for their clients the failure of an attorney to meet a deadline is attributed to the client, in this case since the attorneys abandoned Maples they were no longer working as his agents. Furthermore since Maples had no way of knowing that he had been abandoned by his attorneys he could not be held responsible for failure to comply with the deadline for an appeal of the Rule 32 motion.

The Supreme Court remanded the case to determined if he had been prejudiced by the failure to file an appeal. Considering that Maples’ inexperienced trial attorneys got $40 per hour for in court time and $20 per hour for out of court time with a $1000 cap on out of court time it is likely that his new appellate counsel can find incompetence. But then again the way the lower courts treated him he may have problems.

I have seen no evidence that Munanka, Ingen-Housz and Butler have been reprimanded by the Bar for abandoning their client. I hope a civil suit is being filed.