June 17, 2019

SB 17-095: Repealing the Death Penalty in Colorado

On January 18, 2017, Sen. Lucia Guzman and Rep. Alec Garnett introduced SB 17-095, “Concerning the Repeal of the Death Penalty by the General Assembly.”

The bill repeals the death penalty in Colorado for offenses committed on or after July 1, 2017, and makes conforming amendments.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 15 at 1:30 p.m.

Tenth Circuit: Isolated Mishap with Execution Does Not Give Rise to Eighth Amendment Violation

The Tenth Circuit Court of Appeals issued its opinion in Estate of Lockett v. Governor Mary Fallin on Tuesday, November 15, 2016.

In 1999, Clayton Lockett kidnapped, raped, sodomized, and shot 19-year-old Stephanie Nieman and then had an accomplice bury her alive. He was found guilty of 19 felonies arising from the incident and was sentenced to death. He was executed in Oklahoma in 2014, using a combination of three drugs—midazolam, vecuronium bromide, and potassium chloride. The doctor and EMT had trouble starting an IV and ultimately inserted the IV into a vein in his groin area. They covered the area with a cloth so that the observers would not see Lockett’s intimate parts. Ten minutes after administering the first drug, midazolam, Lockett was declared unconscious. The executioners then administered the second and third drugs. Unexpectedly, about 15 minutes after the first drug was administered, Lockett began twitching and writhing, tried to rise from the table, uttered some words, and was grimacing in pain. The doctor checked the IV site, which had been covered so as to protect Lockett’s privacy, and discovered the IV had infiltrated so the drugs were not getting to Lockett’s veins. The doctor advised Oklahoma DOC Director Robert Patton that he believed insufficient drugs had entered Lockett’s system to cause his death. The execution was halted 33 minutes after the first drug was administered. However, 43 minutes after administering the first drug, Lockett was pronounced dead.

The Estate of Lockett filed seven claims: (1) “Eighth Amendment violation—Torture,” as to all defendants; (2) “Eighth Amendment—Using Untested Drugs and Human Medical Experimentation,” against all defendants; (3) “Eighth Amendment—Use of Compounded Drugs in Human Medical Experimentation,” against all defendants; (4) “Eighth Amendment—Human Medical Experimentation on Unwilling Prisoners,” against all defendants; (5) “Eighth Amendment—Failure to Train and Supervise,” against Warden Trammell and Director Patton; (6) Fourteenth Amendment—“Failure to Protect State-Created Rights Procedural Due Process Violation,” against all defendants; and (7) “Sixth Amendment Right to Counsel and First Amendment Access to the Court Violation,” against Warden Trammell and Director Patton. Governor Fallin, Director Patton, and Warden Trammell filed a motion to dismiss under F.R.C.P. 12(b)(6), as did Dr. Doe. Both motions asserted qualified immunity among other defenses. The district court granted both motions to dismiss on qualified-immunity grounds and sua sponte dismissed the claims against the other Doe defendants. The district court found the Estate had failed to prove defendants violated clearly established law.

On appeal, the Tenth Circuit evaluated whether the defendants were entitled to qualified immunity, based on whether the Estate asserted facts sufficient to show a violation of a clearly established right. As to Dr. Doe, since he was a private party, the Tenth Circuit also had to find that he was entitled to government qualified immunity. The Tenth Circuit found that he was. A government employee in the same position as Dr. Doe would have been entitled to qualified immunity, and the Tenth Circuit found that Dr. Doe was, too, finding “Dr. Doe is entitled to assert qualified immunity because the purposes of qualified immunity support its application here: carrying out criminal penalties is unquestionably a traditional function of government, exactly the sort of activities that Richardson reasoned qualified immunity was meant to protect.”

Turning to the Estate’s claims, the Tenth Circuit first addressed its claims of torture and deliberate indifference. The Tenth Circuit noted a single reference in the torture claim to “deliberate indifference,” although there were several references to torture. Although the Tenth Circuit would generally find that the deliberate indifference claim was waived, it addressed the claim because Appellees suffered no prejudice from the claim. The Tenth Circuit noted a deficiency in that the Estate did not account for how cruel and unusual punishment claims operate in the death penalty context. Because the Supreme Court has found capital punishment constitutional, and some pain and suffering is inherent in capital punishment, there must be an additional showing of torture or needless addition of pain in order for an Eighth Amendment violation to stand. The Tenth Circuit noted that the Supreme Court’s death penalty opinions recognize that executions can go awry, and that an isolated mishap will not rise to the level of an Eighth Amendment violation. The Tenth Circuit found that Lockett’s infiltrated vein, coupled with the unusual difficulty securing an IV site, constituted precisely the sort of “isolated mishap” contemplated by the Supreme Court. Although the infiltrated IV could have been discovered sooner had the IV site not been covered, the covering was done to protect Lockett’s privacy, not in an attempt to cause pain and suffering.

The Estate also asked the Tenth Circuit to take judicial notice of news articles about Lockett’s botched execution, as well as Justice Sotomayor’s dissent in Glossip v. Gross, in which she discussed Lockett’s execution. The Tenth Circuit declined to take judicial notice of the news articles or the dissent. The Circuit found it inappropriate to take judicial notice of the opinions contained in the news articles, noting that judicial notice is reserved for facts beyond debate. The Tenth Circuit also declined to take judicial notice of Justice Sotomayor’s dissent, because it may only take judicial notice of the fact of the opinion and not its contents.

The Estate also claimed that the defendants violated Lockett’s Eighth Amendment rights by being deliberately indifferent to his serious medical need to die as quickly as possible. The Tenth Circuit noted that, at the same time, the Estate acknowledged that the EMT and doctor had difficulty placing an IV, and did not have alternative veinous access. The Estate argued that the appellees had no plan to respond to or prevent Lockett from suffering a prolonged death. The Tenth Circuit did not find deliberate indifference on the part of the appellees. The Tenth Circuit affirmed the district court’s decision that there was no violation of a clearly established right. The Tenth Circuit further found the appellees violated no clearly established law despite Lockett suffering pain during his execution. The IV infiltration was an “isolated mishap,” not something designed to cause additional pain. The Tenth Circuit noted that Oklahoma has changed its execution procedures to conform to the Supreme Court’s approved procedure in Baze, so the situation is unlikely to arise again in another execution.

The Tenth Circuit next addressed the Estate’s claims that Defendants Patton and Trammell failed to promulgate policies that would prevent Lockett’s execution from violating the Eighth Amendment. The Tenth Circuit found that the Estate’s reliance on the requirements enumerated in Baze was misplaced; because some of the procedural safeguards were in place, and because Oklahoma adopted more procedural safeguards after Lockett’s execution, the Tenth Circuit found no error. The Tenth Circuit noted that the Estate’s claims contained only a high level of generality, which was impermissible.

The Tenth Circuit also dismissed the Estate’s aggregation claim. Because the Estate did not set forth clearly established law to support its aggregation claim, the Tenth Circuit dismissed it. The Tenth Circuit also found no procedural due process violation because Lockett had an opportunity to challenge the drug protocol and failed to do so. Similarly, the Tenth Circuit found that Lockett had no right to counsel during the execution.

The Tenth Circuit affirmed the district court. Judge Moritz wrote a separate concurrence; she would have declined to reach the constitutional issues as to any of the Estate’s questions.

Tenth Circuit: District Court Did Not Abuse Discretion by Denying Competency Based Stay of Habeas Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Ryder v. Warrior on Monday, January 11, 2016.

In 1999, James Ryder killed Daisy Hallum and her adult son Sam in a dispute over personal property. Mr. Ryder had been storing supplies at the Hallum residence for his upcoming move to the Yukon Territory, where he was planning to flee and live in the wild in order to avoid an impending apocalypse, but when he went to collect them the Hallums refused to give him his supplies so he murdered them. The State of Oklahoma charged him with two counts of first degree murder. Before trial, psychologist Dean P. Montgomery issued a report to Mr. Ryder’s trial counsel expressing his belief that Mr. Ryder suffered from a longstanding schizoid personality disorder and was incompetent to stand in his own defense. Mr. Ryder’s trial counsel did not inform the court of Dr. Montgomery’s conclusions, however, because based on his own interactions with Mr. Ryder counsel did not have a “good faith doubt” as to Mr. Ryder’s competency to stand trial.

Mr. Ryder was convicted on both counts. Before the penalty phase of the trial, Mr. Ryder’s counsel filed an application for determination of competency supported by Dr. Montgomery’s report. The trial court held a hearing outside the presence of the jury, and denied the request for a separate competency hearing, instead questioning Mr. Ryder. Mr. Ryder assured the court that he understood that he had been convicted of two counts of first degree murder and the state was pursuing the death penalty. He testified that he understood the purpose of mitigation evidence and did not want to present any, and informed the court that he had never been treated for mental illness. During this hearing, the court questioned Mr. Ryder’s counsel about the mitigation witnesses he wished to call. Mr. Ryder became upset and exclaimed that he did not want anyone to testify and did not want a second stage. He left the courtroom. After Mr. Ryder returned, the court ruled he was competent to stand trial and to waive his right to present mitigation evidence. Mr. Ryder’s counsel requested leave to present mitigation evidence anyway, arguing that Mr. Ryder had a Sixth Amendment right to effective representation. The court granted counsel’s request. Mr. Ryder was eventually given a sentence of life without parole for Sam’s death and the death penalty for Daisy’s.

On direct appeal to the OCCA, Mr. Ryder was represented by different counsel. Appellate counsel argued that the trial court erred in failing to make a proper competency determination prior to the sentencing phase and the trial counsel was ineffective for failing to apprise the court of Mr. Ryder’s competency issues before trial. The OCCA remanded to the trial court to determine whether a retrospective competency evaluation was feasible and, if so, to conduct the evaluation. The trial court determined it was feasible and held a retrospective competency evaluation. During voir dire, defense counsel told the jury that Mr. Ryder was on death row, and prospective juror asked the prosecutor about it. The court instructed the jurors that their only task was to determine whether Mr. Ryder was competent. During trial, defense counsel called one witness—Dr. Montgomery. Dr. Montgomery testified that he believed Mr. Ryder suffered from a serious delusional disorder under the schizophrenic group of disorders. The State called three witnesses, who all testified as to their interactions with Mr. Ryder and their perceptions of those interactions. The jury found Mr. Ryder had been competent at the time of his first trial. Mr. Ryder appealed to the OCCA, which affirmed. He then filed a motion for postconviction relief with the OCCA, which was denied, and petitioned the U.S. Supreme Court for certiorari, which was also denied.

Mr. Ryder then filed a habeas petition in the U.S. District Court for the Eastern District of Oklahoma. He raised eleven grounds for relief and asked that the petition be held in abeyance based on his incompetency. The district court ordered an evidentiary hearing and referred the matter to a magistrate judge for a determination of competency. After a court-ordered competency evaluation and its follow up, the state and defense counsel entered into a stipulation that each of their experts would testify that Mr. Ryder was not competent. The magistrate judge entered an order that Mr. Ryder was not competent, and the district court thereafter ordered an evidentiary hearing to determine whether Mr. Ryder was competent when the statute of limitations ran on his habeas proceedings. After a hearing, the court concluded that Mr. Ryder had failed to show he was incompetent when the statute of limitations ran. The district court subsequently entered an order denying habeas relief. The Tenth Circuit later granted a COA on three grounds, which are the subject of this appeal.

The Tenth Circuit first addressed the district court’s denial of a competency-based stay to the habeas proceedings. The Tenth Circuit noted that the Supreme Court recently determined that there is no right to competency during habeas proceedings, but district courts retain discretion to issue stays where proper. The Tenth Circuit noted that the merits of Mr. Ryder’s claims were adjudicated in the OCCA, and therefore were subject to the limits imposed in § 2254. The Tenth Circuit concluded the district court did not abuse its discretion in denying a competency based stay.

The Tenth Circuit next addressed the merits of Mr. Ryder’s habeas claims, noting that its review was constricted by AEDPA. In reviewing his ineffective assistance of counsel claim during the retrospective competency evaluation, the Tenth Circuit found that Mr. Ryder could not prove deficient performance, because his counsel’s strategic decisions were reasonable and well within the broad spectrum of competent representation. The Tenth Circuit thoroughly evaluated each of Mr. Ryder’s claims and denied relief as to each one. The Tenth Circuit similarly rejected Mr. Ryder’s ineffective assistance of trial counsel claims, thoroughly examining each one and denying relief.

The Tenth Circuit remarked that the tragic reality in this case is that Mr. Ryder’s untreated mental illness likely influenced his decision to withhold mitigating evidence from the jury, and the condition responsible for Mr. Ryder’s unwillingness to present mitigating evidence may have been the very evidence that could have persuaded the jury to have leniency. However, the Tenth Circuit could only presume that Mr. Ryder’s mental condition had not yet deteriorated to the point of incompetency by the time he made the decision to withhold mitigating evidence from the jury.

The Tenth Circuit affirmed the district court.

Tenth Circuit: No Error Where More than One Aggravating Circumstance Proved by Same Facts

The Tenth Circuit Court of Appeals issued its opinion in Jackson v. Warrior on Tuesday, November 10, 2015.

Shelton Jackson repeatedly threw the two-year-old son of his girlfriend, Monica Decator, on the ground, severely injuring the child. He hid the injured child in the crawl space of a nearby vacant house. He went to a convenience store and emptied Ms. Decator’s bank account at an ATM, then went to watch wrestling at his uncle’s apartment as he regularly did. When he returned home, he killed Ms. Decator to keep her from reporting the child abuse to authorities. He then set fire to the house. He was arrested the next afternoon, when the bus in which he was traveling to Houston made a regularly-scheduled stop. At a police station in Tulsa, he gave directions to the child’s location and gave a statement confessing to the child abuse and killing. He was charged with first degree murder, first degree arson, and injury to a minor child. A jury found him guilty of all three crimes and recommended the death penalty. On appeal, the OCCA found that Jackson’s trial attorneys were constitutionally ineffective because they conceded his guilt without consulting with him or obtaining his consent or acquiescence. The OCCA reversed and remanded the murder conviction and death sentence, and affirmed the arson and child abuse charges.

On remand, Jackson was again convicted of first degree murder. At sentencing, the state urged four aggravating factors to support a death sentence: (1) the murder was especially heinous, atrocious, or cruel; (2) Jackson killed Ms. Decator to avoid prosecution for a previous crime; (3) he posed a continuing threat; and (4) During Ms. Decator’s murder, Jackson knowingly created a great risk of death to more than one person. The state offered evidence from the trial as proof of the first three factors and introduced the testimony of a doctor to prove the fourth factor. The sentencing court dismissed the continuing threat aggravator. The defense introduced mitigating evidence, mainly based on Jackson’s history, including cognitive and functional disabilities from fetal alcohol syndrome, severe abuse, teasing, and time in a correctional facility that was later discovered to fail to protect children from abuse. The defense also introduced the testimony of Arthur Farakhan, who testified that Jackson was involved in a program for disadvantaged youth and that his life would have value in prison. The jury returned a death sentence.

On appeal after remand, Jackson asserted multiple contentions of error, including that there was insufficient evidence to prove the great risk of death aggravator beyond a reasonable doubt. The OCCA affirmed the murder conviction and death sentence. Jackson then sought post-conviction relief, contending his counsel was ineffective for calling Farakhan and failing to object to his potentially prejudicial testimony, and also for failing to raise that claim on direct appeal. The OCCA denied all requested relief. Jackson then filed a petition for habeas relief in federal district court, again arguing the evidence was insufficient to prove the great risk of death aggravator and that both trial and appellate counsel were ineffective. The district court denied habeas relief but granted a certificate of appealability.

On appeal to the Tenth Circuit, Jackson argued the trial court’s submission to the jury of the great risk of death aggravator unconstitutionally skewed its deliberations during the penalty phase. The Tenth Circuit recited Oklahoma law, which allows the “great risk of death” aggravator when another person is endangered by defendant’s acts in killing the victim. Jackson strenuously objected to the use of the great risk of death aggravator, contending that the focus should be on the killing act itself, and when he killed Ms. Decator the child was not present. The state argued that Jackson created a great risk of death to the child by killing Ms. Decator because, as his mother, she was the only person likely to look for the child. The trial court agreed with the state. The OCCA did not decide the issue because the facts used to support the great risk of death aggravator were the same facts as used to prove the “avoid arrest” aggravator, so the jury deliberations were not unconstitutionally skewed. The Tenth Circuit analyzed the case on which the OCCA relied, Brown v. Sanders, 546 U.S. 212 (2006). The Tenth Circuit determined that although Oklahoma was a state that weighed aggravating and mitigating factors, Sanders applies equally in weighing and non-weighing states, and the OCCA applied the correct rule in affirming Jackson’s sentence.

Jackson next argued that even if the OCCA applied the Sanders rule correctly, it erroneously conflated admissibility and “aggravatability.” The OCCA held that the great risk of death aggravator was not supported by any evidence that was not also admissible to support other aggravators. The OCCA held that the evidence of the nature and extent of the child’s injuries could have been admitted to prove the valid avoid arrest aggravator. The Tenth Circuit further noted that evidence of the child’s injuries supported Jackson’s knowledge of those injuries and motive of avoiding arrest and prosecution. The Tenth Circuit found that the OCCA’s determination that the physician’s testimony could support the avoid arrest aggravator was not objectively unreasonable. Jackson argued that the physician’s testimony would not have been admissible to prove the avoid arrest aggravator, but the Tenth Circuit disagreed, dismissing Jackson’s argument that the evidence before the jury should have been limited to what Jackson himself admitted. The Tenth Circuit found that the nature and extent of the child’s injuries was best described by a doctor.

Turning to Jackson’s ineffective assistance claim regarding Mr. Farakhan, the Tenth Circuit again found that the OCCA’s decision was objectively reasonable. Mr. Farakhan was brought to testify in Jackson’s mitigation, but he held strong opinions that the death penalty was appropriate for intentional murder. The state questioned Mr. Farakhan about his views on the death penalty, and during this questioning defense counsel did not object. Jackson contends this was error, and his counsel should not have called Mr. Farakhan in the first place because of his views on the death penalty. The OCCA found that defense counsel’s decision to call Mr. Farakhan was neither unreasonable nor unsound, and although the prosecutor’s questioning was improper, the single potentially prejudicial statement did not undermine the rest of the mitigating evidence. The Tenth Circuit applied a “doubly deferential” standard to evaluate the ineffective assistance claim, based on both Strickland and AEDPA. The Tenth Circuit found the OCCA reasonably rejected Jackson’s ineffective assistance claim, since there was ample evidence weighing both for and against the death penalty and it substantially outweighed any potential prejudice from Mr. Farakhan’s single statement.

Finally, Jackson argued that there was cumulative error requiring reversal. The Tenth Circuit found no error, so Jackson could not prove cumulative error. The Tenth Circuit affirmed Jackson’s conviction and sentence.

Tenth Circuit: Trial Counsel’s Strategic Decision Does Not Constitute Ineffective Assistance

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Warrior on Tuesday, November 10, 2015.

As Paul Howell parked his Suburban in his parents’ driveway with his two young daughters and his sister, he was shot by a black man in a white shirt with a black hat and a red bandanna covering his face. His sister grabbed the girls out of the backseat and ran them into the house, and Howell’s parents ran out to find their son, lifeless, in the driveway. The Suburban was gone. Howell died later that day from a gunshot wound to the head. Police later found the Suburban in a convenience store parking lot on the south side of Oklahoma City and canvassed the area, looking for suspects. They interviewed Kermit Lottie at a nearby auto body shop, who informed them that Ladell King and at least one other person had attempted to sell him the Suburban the previous day but he refused to buy it. Police tracked down King later that day, and he gave them a phone number and address for Julius Jones.

Police surrounded Jones’s parents house and called him to tell him that they wanted to talk to him about the murder. Jones escaped through a second-story window. Officers obtained warrants and searched the house, finding in Jones’s room a white t-shirt and black stocking cap that matched the descriptions given by Howell’s sister. Police also found a .25-caliber semi-automatic pistol and ammunition matching the bullets in the Suburban and Howell. Two days later, officers arrested Christopher Jordan, and after a citywide search, they found and arrested Jones. Jordan pleaded guilty and agreed to testify against Jones at trial. Jones was eventually found guilty of first-degree felony murder and sentenced to death.

Jones appealed his convictions and death sentence to the Oklahoma Court of Criminal Appeals (OCCA). He asserted numerous claims of error, including that his trial counsel, David McKenzie, was ineffective for failing to call Emmanuel Littlejohn, an inmate who briefly shared a cell with Jordan, who Jones asserted would have testified that Jordan admitted to shooting Howell and said that Jones wasn’t involved at all. After interviewing Littlejohn and speaking to his attorney about his credibility, McKenzie decided that Littlejohn was a “pathological liar” and lacked credibility. The OCCA found that Jones’ argument about McKenzie’s ineffective assistance went to trial strategy, and found nothing unreasonable about McKenzie’s decision not to call Littlejohn. The OCCA affirmed his convictions and sentence.

Next, Jones sought post-conviction relief in state court, claiming, among other things, that McKenzie was ineffective for failing to investigate whether anyone could corroborate Littlejohn’s story. Jones asserted that Christopher Berry, another inmate who had shared a cell pod with Jordan, had heard Jordan bragging about shooting Howell. McKenzie was also Berry’s attorney, but he never asked Berry about Jones’ case. The OCCA rejected Jones’ claims, noting that Berry suffered from the same credibility problems as Littlejohn and the inmates’ accounts showed only that Jordan changed his story to suit his needs.

Jones then sought federal habeas relief. The federal district court rejected all of Jones’ eight asserted grounds for relief, but granted a certificate of appealability on only one issue: whether McKenzie was ineffective for failing to investigate Littlejohn’s claim that Jordan confessed to the shooting. Using the Strickland analysis, the Tenth Circuit determined that the OCCA had denied relief on the performance prong and had not evaluated the prejudice prong. The Tenth Circuit found that the OCCA had applied the correct legal standard in its decision, and had analyzed trial counsel’s purported deficiency for failing to investigate and present the two witnesses at trial. The Tenth Circuit found Jones failed to establish that the OCCA’s decision was contrary to established law. The Tenth Circuit similarly found no basis for Jones’ claim that the OCCA’s decision was based on an unreasonable determination of the facts.

The Tenth Circuit affirmed the district court’s denial of habeas relief, and denied Jones’ motion to extend the COA to include several additional claims of ineffective assistance.

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.

Tenth Circuit: Lesser Included Offense Must Have Nearly Identical Elements as Charged Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Barrett on Wednesday, August 19, 2015.

Kenneth Barrett had outstanding warrants for failure to appear at a state court trial for drug charges, and in 1999 an Oklahoma drug task force learned Barrett was manufacturing and selling methamphetamine out of his home. Officers obtained a warrant and devised a plan to execute it at night. Barrett opened fire on the officers as they attempted to execute the warrant, killing one officer. Barrett was charged in Oklahoma state court with one count of first-degree murder and three counts of shooting with intent to kill. His first state trial resulted in a hung jury, and in 2004 he was retried and found guilty of two lesser included offenses—manslaughter instead of first-degree murder and assault with a dangerous weapon instead of shooting with intent to kill. He was sentenced to 30 years in prison.

In September 2004, Barrett was charged with various federal drug and murder offenses in the U.S. District Court for the Eastern District of Oklahoma: (1) causing Officer Eales’ death in the course of using a firearm in the furtherance of a drug-trafficking offense, (2) causing Eales’ death in the course of using a firearm in the furtherance of a crime of violence, and (3) intentionally killing Eales during a federal drug offense while Eales was engaged in his official duties. A jury convicted him of all three counts. He was sentenced to life in prison on the first two counts and death on the third count. On direct appeal, the Tenth Circuit affirmed the convictions and sentence. Barrett then sought relief under 28 U.S.C. § 2255, but the district court denied a COA. The Tenth Circuit granted a COA on seven issues related to ineffective assistance of counsel.

The Tenth Circuit addressed Defendant’s arguments in turn. It found no error with defense counsel’s decisions to utilize the same police tactics expert that was used in the state court, since the strategy worked in state court. The Tenth Circuit noted that the decision of which expert to call is quintessentially a matter of strategy for the trial attorney and it would hesitate to question any of defense counsel’s decisions. Defendant also argued his trial counsel erred by failing to counter the government’s crime scene reconstruction expert, and the Tenth Circuit again disagreed, finding the expert’s testimony was full of problems for the prosecution and defense counsel was well within reason to use the same strategy they used in the state trial. Defendant also argued his counsel was ineffective for failing to present mental health evidence during the guilt phase, but the Tenth Circuit determined Defendant failed to show prejudice.

Next, Defendant argued the jury instructions insufficiently advised the jury on lesser included offenses. The Tenth Circuit evaluated Defendant’s proffered lesser included offense instructions and found them inapposite because they were not lesser included offenses of the charged offenses. The Tenth Circuit noted that, to be a lesser included offense, it must contain the same elements as the charged offense except for the thing that makes the greater offense greater. Because the elements of the proposed lesser included offenses were not the same as the charged offenses, Defendant’s argument failed. Defendant’s arguments that his counsel should have requested instructions on victim identity and drug manufacturing similarly failed.

The Tenth Circuit last addressed Defendant’s argument that his counsel was ineffective for failing to explore evidence of his mental health issues during the penalty phase. The Tenth Circuit examined the record and found that defense counsel had not explored potential mitigating evidence of Defendant’s mental health issues at all. The Tenth Circuit reversed the death sentence and remanded for resentencing.

The Tenth Circuit reversed and remanded the death sentence and affirmed in all other respects.

Tenth Circuit: High AEDPA Burden Precludes Reversal Where Error Not Clearly Shown

The Tenth Circuit Court of Appeals issued its opinion in Hancock v. Trammell on Tuesday, August 18, 2015.

Phillip Hancock’s ex-girlfriend was staying with Bob Jett when Hancock was asked to come pick her up. When he arrived at Jett’s house, the girlfriend was not there but Jett and another man, James Lynch, were. Later, Ms. Shawn Tarp arrived at the house and the four did meth together. An altercation ensued, and Jett, who was armed, tried to force Hancock into a large cage with Lynch’s help. Jett was swinging a metal bar at Hancock, and it may have hit his head. At some point during the scuffle, Hancock got the gun from Jett and shot both Jett and Lynch. Lynch collapsed and Hancock chased Jett out the back door, then shot him again. Tarp was hiding in a back room, and after the shots subsided she emerged, but Hancock did not shoot her. He calmly apologized to her for what she witnessed and asked her to wait a few minutes before leaving, which she did.

Hancock was charged with two counts of first-degree murder. He admitted that he shot the men, but asserted he did so in self-defense. The jury rejected his defense and found him guilty on both counts of murder. He was sentenced to death. He was unsuccessful in his direct appeal to the Oklahoma Court of Criminal Appeals (OCCA) and in post-conviction proceedings. He applied for a writ of habeas corpus from the federal district court, which denied his request, and he appealed to the Tenth Circuit. Four issues were certified for review: (1) whether the state court denied him due process by allowing the prosecution to elicit testimony about his prior conviction for manslaughter in which he asserted self-defense, (2) whether the state court misled the jury by giving unwarranted instructions on self-defense and allowing the prosecutor to make improper comments in closing, (3) whether Hancock’s trial counsel was ineffective for failing to request a jury instruction on the lesser-included offense of manslaughter, and (4) cumulative error.

The Tenth Circuit first addressed the issue of the 1982 manslaughter conviction. Hancock urged a right to habeas relief because the OCCA did not adjudicate the merits of his due process claim and it based its decision on an unreasonable factual determination. The Tenth Circuit held that Hancock failed to raise his due process claim in district court and therefore forfeited the argument. The Tenth Circuit noted, however, that even if the OCCA did not specifically mention Hancock’s due process claim, it unquestionably reviewed his claim on the merits. The Tenth Circuit continued that Hancock’s argument was invalid because the OCCA concluded Hancock waived his argument by eliciting evidence of the manslaughter conviction on direct examination.

Hancock also argued the OCCA mistakenly thought the state court had allowed the manslaughter evidence as impeachment evidence under Okla. Stat. tit. 12, § 2609(B), which governs impeachment with convictions over 10 years old. The Tenth Circuit noted “If the OCCA had misunderstood the basis for the district court’s ruling, as Mr. Hancock argues, the mistake would likely have constituted an unreasonable determination of fact and allowed us to consider the merits of the underlying constitutional claim,” but determined that Hancock had not met the heavy AEDPA burden of showing a factual misunderstanding. Hancock argued the state did not allow the evidence under § 2609(B); rather, he argued it either admitted the evidence as “other act” evidence under Okla. Stat. tit. 12, § 2404(B), or as a form of relevant evidence. The Tenth Circuit noted that although the state court did not rely on § 2609(B), the OCCA clearly did, but it did not say whether it thought the state court had relied on § 2609(B) also. The Tenth Circuit remarked that it could reach the merits of the constitutional claim only if the OCCA rested its decision on a mistaken factual view of the record. The majority wrestled with the OCCA opinion and decided that although it was not clear on which section the OCCA based its opinion, Hancock failed to meet his high burden to show that the OCCA’s view was mistaken. The dissent, penned by Judge Lucero, strongly disagreed with the majority’s conclusion, finding that the OCCA’s opinion was incorrect and its error substantially influenced Hancock’s due process rights. Judge Lucero would have reversed and remanded on this point.

The Tenth Circuit turned its attention to Hancock’s argument that the state court erred by limiting the self-defense instruction and allowing the prosecutor to make improper closing remarks based on the limited instruction. At trial, the court instructed the jury on self-defense and the “aggressor” exception. Hancock argued there was no evidentiary basis for three parts of the instructions: (1) self-defense is not available for a person who voluntarily enters into combat, (2) a person can regain the right to self-defense if he withdraws from the confrontation, and (3) the use of words alone cannot turn someone into an aggressor. The Tenth Circuit found no error. The Tenth Circuit reviewed Hancock’s claim that the evidence was insufficient to justify these portions of the instructions and disagreed, finding the evidence showed that there was mutual combat between Jett and Hancock, at some point Jett turned away from Hancock and he chased after Jett to shoot him again, and Jett was provoking Hancock with his words. The Tenth Circuit similarly rejected Hancock’s argument that the prosecutor’s closing remarks about Jett running away were improper, finding Hancock forfeited this argument by failing to raise it in his habeas petition.

Next, the Tenth Circuit turned to Hancock’s argument that his trial counsel was ineffective because he failed to request an instruction on criminal attempt manslaughter. Because the trial counsel had requested and received a heat of passion manslaughter instruction, the Tenth Circuit found it was a reasonable trial strategy for counsel to have chosen the heat of passion instruction over the criminal attempt instruction, which was less applicable to the facts of Hancock’s case. The Tenth Circuit disagreed with Hancock that his counsel’s decision constituted deficiency.

Finally, the Tenth Circuit found no cumulative error. The Tenth Circuit found no constitutional violations and lack of prejudice on Hancock’s ineffective assistance claims. Hancock also requested to expand his certificate of appealability, but the Tenth Circuit denied his motion, finding that no reasonable jurist could find the district court’s conclusions wrong.

The Tenth Circuit affirmed Hancock’s convictions and sentence. Judge Lucero wrote a thoughtful and provocative dissent.

Tenth Circuit: Counsel Vigorously Defended Client so Potential Substance Abuse Immaterial

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Trammell on Friday, April 6, 2015.

Two masked gunmen robbed a bank in Tulsa, Oklahoma, and during the robbery each gunman fired several shots, killing one person and seriously wounding two others. Substantial evidence linked Jeremy Williams and Alvin Jordan to the robbery and both were charged with first-degree murder (with alternate theories of malice and felony murder), armed bank robbery, and shooting with intent to kill. Williams alone went to trial.

Although there was some question about which gunman fired the shots that killed the bank teller, the state argued it did not matter if Williams was the gunman, because the felony murder charge did not depend on it, and he could still be found guilty of malice murder if he aided and abetted Jordan. The jury received instruction on this issue and ultimately found Williams guilty of both felony and malice murder. After weighing the mitigating and aggravating circumstances, the jury applied the death penalty. Williams appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed the sentence and convictions on direct appeal. Williams filed a petition for federal habeas relief in federal district court, which denied his claims without an evidentiary hearing but granted a certificate of appealability on two claims: (1) ineffective assistance of counsel, mostly during the guilt phase of trial, and (2) ineffective assistance of counsel at sentencing. The Tenth Circuit added two issues: (1) sufficiency of the evidence to support Williams’ malice murder conviction, and (2) cumulative error.

The Tenth Circuit first addressed the sufficiency of the evidence claim. Although no evidence proved Williams caused the death of the teller, Oklahoma law provides that anyone who aids or abets a crime can be charged as a principal. The Tenth Circuit found problems with the OCCA’s statement in a footnote about abandoning prior precedent that would omit a mens rea from aiding and abetting, but found that even if the OCCA purportedly abandoned its previous test for aiding and abetting, it used that test to affirm Williams’ convictions. After evaluating all applicable defenses, the Tenth Circuit found the evidence sufficient to support Williams’ malice murder conviction.

Next, the Tenth Circuit turned to the ineffective assistance of counsel claims. Although Williams had two attorneys, his claims were focused on the actions of the lead counsel during the guilt phase. Williams contends that lead counsel was under the influence of drugs and alcohol throughout the trial and “may have been” constructively absent. Williams raised the substance abuse argument after finding a listserv email authored by his attorney regarding the emotional toll of trying a death penalty case, in which the attorney said he used valium just to get through the day and only laid off the valium and alcohol for trial. The OCCA and district court both rejected the substance abuse arguments because both Williams’ lawyers fought valiantly on his behalf at trial and vigorously asserted professional efforts on his behalf. The Tenth Circuit, applying the Strickland standard, affirmed.

Turning to Williams’ specific claims about counsel’s deficient performance, the Tenth Circuit again evaluated each claim under the Strickland standard. Williams claimed his counsel should have objected to the introduction of evidence regarding a stolen watch with Williams’ DNA on it. The Tenth Circuit found that, considering the amount of other evidence of Williams’ thievery, which he used to explain the shoe print at the bank and the wad of cash at the apartment, there was no error in counsel’s failure to object to the watch evidence.

The Tenth Circuit found that allowing an officer to testify regarding the presumed origin of some scrapes on Williams’ shin was perhaps prejudicial, but any error in counsel’s failure to object to this testimony was outweighed by the sheer volume of evidence against Williams, and the Tenth Circuit could not say that but for the evidence Williams would have had a reasonable probability of acquittal. The Tenth Circuit dismissed most of Williams’ other claims because counsel’s conduct was reasonable.

Turning to Williams’ allegations of prosecutorial misconduct to which his counsel failed to object, the Tenth Circuit found the issue inadequately brief and therefore waived. The Tenth Circuit found no ineffective assistance of counsel that could have precluded acquittal.

As to Williams’ claims of ineffective assistance during the penalty phase, the Tenth Circuit found most of his claims inadequately exhausted. The Tenth Circuit could not consider on habeas appeal the claims Williams failed to raise on direct appeal. As to the partially exhausted claims, the Tenth Circuit found the chances that the OCCA might excuse his noncompliance with the ban on successive appeals “slim to none” and applied an anticipatory procedural bar. Turning to the OCCA’s treatment of Williams’ state court claims, in which it found counsel’s performance a reasonable exercise of trial strategy, the Tenth Circuit agreed. Even assuming deficient performance, the Tenth Circuit found Williams could not establish prejudice.

Finally, the Tenth Circuit evaluated Williams’ claims for cumulative error and found no reason to overturn the OCCA’s or district court’s opinions. The district court’s judgment was affirmed and the Tenth Circuit denied Williams the opportunity to expand his certificate of appealability.

Law School for Journalists: Issues that Arise in Death Penalty Cases

LawSchoolForJournalistsOn Thursday, April 16, Our Courts Colorado and the Colorado Bar Association hosted “Law School for Journalists: Issues that Arise in Death Penalty Cases,” at the CBA-CLE offices. Speakers Forrest W. Lewis, Bob Grant, and Judge Marcia S. Krieger discussed what unfolds, procedurally and factually, in death penalty cases. They also answered specific questions regarding the Aurora movie theater shooting case. The presentation was streamed online for those who could not attend in person.

The Colorado Bar Association and the Colorado Judicial Branch jointly offer “Law School for Journalists,” an ongoing series of classes designed to provide reporters with background information about issues in the legal system and judiciary.

Tenth Circuit: § 1983 Challenges Unlikely to Succeed on Merits; Stay of Execution Denied

The Tenth Circuit Court of Appeals issued its opinion in Warner v. Gross on Monday, January 12, 2015.

In early 2014, Oklahoma changed its execution procedure for lethal injections due to the state’s inability to obtain two of the drugs previously used. In April 2014, Clayton Lockett was the first Oklahoma state prisoner to be executed using the new procedures, and his execution did not go smoothly. The IV used to deliver the lethal drug cocktail infiltrated, or leaked into his tissue instead of delivering the drugs to his veins. He experienced unusual effects from the lethal injection but eventually died anyway. After Lockett’s execution, the state developed new protocols for lethal injections, including establishing two viable IV sites and using various combinations of drugs, including midazolam, a sedative.

In November 2014, four inmates with scheduled execution dates as soon as January 15, 2015, among a group of twenty-one Oklahoma death row inmates, filed a § 1983 lawsuit challenging the constitutionality of Oklahoma’s new lethal injection procedure. Their complaint alleged eight counts, two of which are relevant to their appeal. Count 2 challenges the use of midazolam as violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. Count 7 also raises an Eighth Amendment claim, asserting that the state is effectively experimenting on unwilling human subjects by using the untested procedure. After a three-day evidentiary hearing, the district court denied plaintiffs’ motion for preliminary injunction, concluding the inmates failed to show a likelihood of success on the merits. The plaintiffs appealed as to Count 2 and Count 7, and filed an emergency motion for stay of execution.

The Tenth Circuit conducted an abuse of discretion review and found none. The Tenth Circuit examined the long history of challenges to capital punishment, noting (1) the Supreme Court has never held that capital punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, (2) the Supreme Court has never invalidated a state’s chosen procedure for carrying out the sentence, (3) there must be some means of carrying out the death sentence, and the Constitution does not demand avoidance of all pain, and (4) a stay of execution may not be granted unless the prisoner demonstrates a substantial risk of severe pain from the state’s chosen lethal injection procedure.

The plaintiffs contested the district court’s finding that the testimony of the defendants’ expert witness, Dr. Roswell Lee Evans, the Dean of the School of Pharmacy at Auburn University, was persuasive. The Tenth Circuit examined Dr. Evans’s credentials and found him to be well-qualified to render an expert opinion on the effects of midazolam. The plaintiffs also argued that the district court misapplied Supreme Court precedent in Baze v. Rees, 533 U.S. 35 (2008). The Tenth Circuit disagreed, instead concluding that the plaintiffs failed to show that midazolam created a risk of extreme pain.

The Tenth Circuit affirmed the district court’s denial of the motion for preliminary injunction. In a footnote, the Tenth Circuit added that, in “an abundance of caution,” the opinion was circulated to all the judges prior to publication, and no judge requested en banc review.

Tenth Circuit: Death Row Inmate Cannot Show Ineffective Assistance for Failure to Call Witness

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Trammell on Friday, December 5, 2014.

On July 28, 1999, Paul Howell was fatally shot in his Suburban in his parents’ driveway in Oklahoma City. Two days later, police found Howell’s Suburban, canvassed the neighborhood where it was found, spoke to various people, and eventually investigated Julius Jones as the suspect in the killing and robbery. Police also investigated Christopher Jordan as the co-conspirator. Police obtained a warrant to search Jones’ parents’ house, where they found the gun used to shoot Howell wrapped in the bandanna worn during the robbery hidden in a hole in the ceiling above Jones’ room. Police found the weapon’s magazine hidden inside the door chime housing.

Jones and Jordan were charged conjointly with conspiracy to commit a felony and with the murder of Howell. Jones was also charged with possession of a firearm by a convicted felon. Jordan pleaded guilty and agreed to testify against Jones as part of his plea agreement. After a jury trial, Jones was convicted on all three charges. He was sentenced to death on the murder charge, 25 years’ imprisonment on the conspiracy charge, and 15 years’ imprisonment on the weapon charge, to run concurrently.

Jones filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA) asserting 19 propositions of error, including an ineffective assistance of counsel claim based on his trial counsel’s failure to call Emmanuel Littlejohn as a witness. Littlejohn was Jordan’s cellmate, to whom Jordan had confided that Jones was not involved in the murder and robbery and that Jordan had committed the crimes. Jones’s trial counsel, David McKenzie, in his affidavit, stated he had personally interviewed Littlejohn and spoken to Littlejohn’s attorneys, and had decided not to call him as a witness due to concerns about his credibility. The OCCA affirmed Jones’s convictions and sentences, and expressly rejected his ineffective assistance claim. Jones filed a petition for rehearing and motion to recall the mandate. The OCCA granted the rehearing petition but ultimately concluded there was no merit to Jones’s issues on rehearing and denied the mandate motion. The U.S. Supreme Court denied certiorari.

Jones filed an original application for post-conviction relief with the OCCA while his direct appeal was still pending. Proposition One alleged various instances of ineffective assistance of counsel, including allegations that another inmate also overheard Jordan claiming responsibility for the robbery and murder and alleging ineffective assistance for his counsel’s failure to discover this witness. The OCCA denied Jones’s petition for post-conviction relief and expressly rejected Jones’s argument about the other inmate. Jones then filed a petition for federal habeas relief, again asserting an ineffective assistance of counsel claim based on his counsel’s failure to explore the other inmate’s corroborating testimony. The district court denied his petition and refused to issue a COA. The Tenth Circuit subsequently issued a COA on the issue of whether trial counsel provided ineffective assistance by failing to investigate Littlejohn’s claim.

The Tenth Circuit evaluated Jones’s ineffective assistance claim based on the standard set forth in the U.S. Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must show that (1) counsel committed serious errors such that the legal representation fell below an objective standard of reasonableness [the performance prong], and (2) there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different [the prejudice prong]. Jones conceded that the OCCA’s resolution of the ineffective assistance claim he raised on direct appeal “was likely reasonable.” Jones instead asserted that McKenzie’s failure to seek corroboration of Littlejohn’s proposed testimony was error.

The Tenth Circuit rejected Jones’s arguments, finding them based on the erroneous premise that the OCCA’s resolution rested on Strickland‘s performance prong. The Tenth Circuit instead discerned that the OCCA examined the proffered testimony and decided it would not alter the outcome of the proceedings, therefore implicating the prejudice prong. This effectively disposed of Jones’s arguments on appeal, and the Tenth Circuit affirmed the district court’s denial of Jones’s habeas petition.