The Supreme Court, yesterday, reversed the murder conviction of Juan Smith for the failure of the government to comply with Brady v. Maryland. In Brady the Supreme Court held that prosecutors have a duty to provide the defense with all evidence that is both exculpatory and material.

Several men broke into the New Orleans residence of Rebe Espadron in a home invasion robbery and killed five people. Smith was convicted on the basis of only one witness. Larry Boatner, one of the survivors, identified him from a picture spread and was the sole witness against Smith at trial. But prior to trial the prosecution failed to provide the defense with a number of Boatner’s statements, in some of which he said that he could not identify the killers. Since the statements could have been used at trial to impeach Boatner there iss no question that the statements are exculpatory. The Court also found the statements material since “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” When there is only one witness, his credibility is crucial to the prosecution and the failure to provide Brady evidence for impeachment can make a major difference.

The sad part is that New Orleans prosecutors have a long history of violating Brady. They have been called on this before but they continue to violate the law. They don’t seem to learn

One issue not raised in the Supreme Court decision is the unreliability of eyewitness testimony. Here you have only one eyewitness who’s statements are all over the book. At one point he says he did not see the faces of the murderer. At another point he says he could not recognize the murderers. And at a third point, while he is on the witness stand he states he is absolutely positive that the defendant is the murderer. As we have pointed out in the past eyewitness testimony is the number one cause of DNA post conviction exonorations. Over 75 per cent of those exonorated by the Innocence Project have been convicted on the basis of eyewitness testimony.

Two doctors,Steven Brigham, 55, of Voorhees, New Jersey and Nicola Riley, 46, of Salt Lake City were arrested and charged with fetal homicide in Maryland, based on a botched abortion.

Under Maryland law it is unlawful to kill a viable fetus. But to be convicted of murder the state has to prove that the doctors intended to kill a viable fetus.

Brigham, who owns American Women’s Services (AWS), is charged with five counts of first degree murder, five counts of second degree murder and one count of conspiracy. His employee, Riley is charged with one count of first degree murder and one count of second degree murder, as well as the conspiracy charge. It is unclear how they get the five counts of murder. But, it is alleged that Brigham and Riley began a late term abortion on an eighteen year old patient at Brigham’s Vorhees, New Jersey clinic. Late term abortions are illegal in New Jersey so they brought the patient of Maryland to complete the abortion. Due to problems during the abortion the patient suffered from a ruptured uterus and bowel injuries. According to the New Jersey State Board of Medical Examiners the teenager was one of five women who Brigham began late term abortions in New Jersey and completed them in Maryland.

To make matters even more complicated Brigham practiced at American Family Planning (AFP) Inc in Pensacola, Florida during the 1990′s. AFP gave Brigham’s address as its mailing address. AFP’s building was the subject of a fire causing between $50,000 and $75,000 worth of damage, Sunday. There is no proof of a relationship between the fire and the Maryland charges but an investigation is continuing. ¹

The one thing we know for sure is that it is too early to prejudge the situation. The indictment has not even been released and the defendants have not been extradited. Brigham does not seem to have too many friends either inside the abortion community or outside. While many people might like to see him go down that does not mean he is guilty. We need to wait until the evidence has been released and the case is more clear. Nor is he guilty purely because he has a history of discipline by state medical boards.

The Arkansas Supreme Court reversed a murder conviction for jury misconduct last week. The court found two instances of jury misconduct in the trial of Erickson Dimas-Martinez. ¹ First it found that one juror tweeted during trial. The tweets while somewhat vague appeared to be about the trial. After the judge admonished not to tweet. The juror tweeted again showing an unwillingness to follow court orders.

While the juror’s tweeting raises questions about the juror’s ability to follow the judge’s orders such as those regarding the law it is hard to see where the defendant was prejudiced by the juror’s actions. The primary reason for limiting jurors’ communication with the outside world regarding the trial is to prevent them from being influenced by people who have not been sworn as jurors and who have not heard the evidence. But here the communication was one way. There was no evidence that anyone gave the juror feedback regarding the tweets or in anyway influenced the juror.

A second juror fell asleep several times during the trial. While in the past the Arkansas Supreme Court has refused to reverse convictions due to a juror sleeping, in this case the trial court was repeatedly told that the juror had fallen asleep and the court was told contemporaneously with the juror sleeping. In prior cases the court had not been told until after the trial was over. Furthermore, the bailiff saw the juror sleeping and offer the juror water.

The matter of a juror sleeping in the courtroom is another matter. In order to properly deliberate and determine the guilt or innocense of a defendant a juror must listen to all of the evidence and visually see the witnesses. Part of the job of a juror is to observe the witnesses and determine from visual observation whether they believe the juror is telling the truth. Therefore whether or not the juror fell asleep during the trial the juror’s closing his eyes interfered with the juror’s ability to properly carry out the juror’s duties.

The Supreme Court reversed the conviction base on juror misconduct and remaded the case for a new trial.

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.

Oscar Ramiro Ortega-Hernandez is being charged with attempting to assassinate the president for shooting at the White House last week. His conviction is hardly a forgone conclusion. For one thing to show that he “attempted” to assassinate the president the prosecution will have to show that he “intended” to kill Obama. This may be somewhat difficult since he shot several shots at the White House from 700 to 800 yards away, without knowing whether or not the president was home (He wasn’t) or what room he was in. But then again there are statements that he has made to various people which come pretty close to threats to kill the president. A jury can use these quotes as evidence that Ortega-Hernandez intended to kill Obama. Ortega-Hernandez is quoted as saying that he wanted to “hurt” Obama and that he “needed to kill” Obama. Witnesses said that Ortega-Hernandez accused Obama of being the “Anti-Christ” and the “Devil.” Ortega-Hernandez said he would not stop “until it is done” and that “Obama needed to be taken care of.” These statements can be used at trial as evidence of his intent to kill the president.

To be guilty of attempted murder you have to know that you are attempting to kill a human being. According to some reports, Ortega-Hernandez thought Obama was the Anti-Christ and that Ortega-Hernandez was Jesus. Well if you don’t think Obama is a human being you cannot be guilty of attempted murder.

Of course this raises the question of Ortega-Hernandez’s sanity. If you don’t know what you are doing (shooting at a human being) your not sane and you cannot be convicted of murder.

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.

Archie Dixon and Tim Hoffner kidnapped Chris Hammer, murdered him, stole his car and sold it.

Hammer’s mother reported his disappearance the day after he was buried alive by Dixon and Hoffner. ¹ On November 4, 1993 the police had their first conversation with him when he dropped by the police station to retrieve his car which had been towed. They gave him his Miranda rights. He refused to answer questions and left. On November 9 he was arrested for forging Hammer’s name on the check he received for selling Hammer’s car and interrogated without Miranda warnings. He admitted to forging the name but denied being involved in anything else. During the interrogation detectives told him that Hoffner was cooperating and only one of them would get a “deal” therefore he better start talking. Later that day Hoffner led the detectives to the body and Hammer was charged with murder. He was Mirandized and admitted to the killing.

At trial the unMirandized admission to the forgery was excluded but the Mirandized admission to the murder was admitted. He filed a habeas alleging that the admission to the murder should have been excluded as a fruit of the unMirandized admission to the forgery.

The Sixth Circuit granted the habeas but the Supreme Court reversed. In a per curiam decision

Since Dixon did not admit to the murder in the unMirandized statement he could not have felt coerced into admitting the murder in the later Mirandized statement. Moreover, according to the court the two statements were clearly independent. After the first statement he was transferred from the police station and back again. In that period he learned that Hoffner had directed the police to the body and they found it. This change in circumstances was presumably more important in Dixon’s change in attitude than the fact that he had given an earlier unMirandized statement. As a result the Mirandized admission was not coerced and it was admissible. The Supreme Court found that the
Sixth Circuit erred in granting the habeas which did not meet AEDPA test that requires Federal courts “show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” when granting a writ of habeas corpus in a state case.

The Supreme Court upheld a murder conviction despite a Bruton error. In 1968 the Supreme Court ruled in Bruton v. United States that the prosecution could not use a confession of a non-testifying co-defendant to convict someone. Furthermore it held that merely telling the jury to ignore the incriminating evidence found in the confession was insufficient. It was necessary to either sever the defendants or redact those part of the confession which identify co-defendants.

At Eric Greene’s murder trial statement of non-testifying co-defendants was used by the prosecution. Instead of severing the trials or redacting the incriminating sections the prosecution replaced names with phrases such “this guy”. He was convicted and appealed. While the appeal was pending before the Pennsylvania Supreme Court the United States Supreme Court ruled in Gray v. Maryland that substitution of words for names such as occurred at Greene’s trial does not meet constitutional muster.The Pennsylvania Supreme Court refused to hear his appeal and Greene filed a Federal habeas.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a Federal Court cannot grant a writ of habeas corpus in any case that has been adjudicated on its merits in state court unless the adjudication is contrary to clearly defined law as determined by the United States Supreme Court. The Supreme Court held this morning in Greene, aka Trice v. Fisher, that since the last ruling on the merits by a Pennsylvania court occurred prior to Gray, the law was not clearly defined at the time of the determination and the United States District Court was correct in denying Greene’s writ of habeas corpus.

What we have is the Supreme Court upholding a conviction that is clearly based on unconstitutional evidence in which the trial court violated Greene’s right of confrontation. Since the last state court decision on the merits (by the Pennsylvania Superior Court) occurred three months before Gray, Greene is now sitting in prison convicted of murder. If his lawyers had files a writ of certiorari challenging the denial of the Pennsylvania Supreme Court’s decision not to hear his case or if Greene’s lawyers had raised the confrontation issue in a state writ of habeas corpus the conviction would have probably be reversed.

But this instance of considering style over substance is why the AEDPA must be rejected. It does not encourage a search for truth. Rather it requires Federal courts to uphold clearly erroneous state decisions only because the Supreme Court decision came after the state decision or because there is no Supreme Court decision on point.