A Criminal Enterprise

Williams v. Louisiana – Cert Conference on May 13th

Posted in Cases, News by Bidish J. Sarma on May 6, 2010

The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana.  Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply.  The Court is set to meet on the petition on May 13th. 

Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race.   But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish.  The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).

The State’s Brief in Opposition can be found here: State’s Brief on Cert 

Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL


Cert Petition on Proportionality Review in Louisiana

Posted in Uncategorized by Bidish J. Sarma on March 16, 2010

On March 10, our office filed a cert petition in the case Williams v. Louisiana.  The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness.  The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”

The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.

You can view the petition in its entirety right here: Cert Petition FINAL

“The Numbers Speak”

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

Jeff Gamso at “Gamso – For the Defense” put up a thoughtful post that is responsive to the question I posed in my entry on the Gallup poll numbers.  You can visit check out his insightful analysis here: http://gamso-forthedefense.blogspot.com/2009/11/numbers-speak.html.


Court-Watching: Smith v. Spisak

Posted in Cases, News by Bidish J. Sarma on October 21, 2009

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Spisak case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

The State’s cert petition to the Supreme Court raised two issues for the Court to resolve: (1) Whether the Sixth Circuit’s ruling that the trial court’s jury instructions violated Mr. Spisak’s constitutional rights contravened the Anti-Terrorism and Effective Death Penalty Act (AEDPA); and (2) Whether the Sixth Circuit’s ruling that the defense lawyer’s closing argument rendered his assistance ineffective contravened AEDPA.  When the Court agreed to hear the case, those concerned with the rights of criminal defendants shuddered, particularly because the Supreme Court had already remanded the case once before in 2007.  See Hudson v. Spisak, 128 S. Ct. 373 (2007) (noting that three liberal Justices – Justice Stevens, Justice Ginsburg, and Justice Breyer – would deny the petition for writ of certiorari).  By all accounts – before and after oral argument – it appears the defendant (and the Sixth Circuit) should brace for a ruling that puts him back under a sentence of death.

To the extent facts about offenders influence how courts view the legal issues presented in a case, Mr. Spisak has effectively made himself as unsympathetic as possible.  The State’s brief on the merits highlights some of the key facts from the notorious Ohio case:

Respondent Frank G. Spisak, Jr. killed Horace T. Rickerson, Timothy Sheehan, and Brian Warford in a series of shootings at Cleveland State University in 1982. . . . He said that his actions were motivated by his hatred of gay people, blacks, and Jews, and he specifically targeted the campus of Cleveland State University. . . . During his days-long testimony, Spisak . . . identified Hitler as his spiritual leader. . . . Other cues during the trial reinforced the depravity of Spisak’s beliefs. Before trial, Spisak grew a moustache and shaved it to resemble Hitler’s. And on cross examination, after the prosecutor read into evidence a violent letter from Spisak that was laced with racist epithets, Spisak declared “HeilHitler” and performed the corresponding salute.

With these facts in the background, Richard Cordray, the Attorney General of Ohio, began his oral argument on behalf of the State.  He first addressed the Sixth Circuit’s ruling that the trial court’s jury instructions violated the rule set forth by the Supreme Court in Mills v. Maryland.  Justice Sotomayor immediately asked the first question, pointing out an oddity to the Sixth Circuit’s ruling:

JUSTICE SOTOMAYOR: Why? I — I have been trying to figure out why the State court would know in its decisionmaking that Mills commanded a different result when Mills was issued after the State denied its petition for rehearing.

MR. CORDRAY: It’s a bit of a conundrum, Your Honor, because Mills was issued after the Ohio Supreme Court’s decision here, but before it became final on direct review when cert was denied by this Court in March of 1989.

Kent Scheidegger over at Crime & Consequences elaborates on the conundrum here (http://www.crimeandconsequences.com/crimblog/2009/10/spisak-new-rules-and-justice-s.html), and appreciates the signal that Sotomayor may be willing to enforce AEDPA “vigorously.”

As the argument proceeded, Mr. Cordray explained why the State believes the Sixth Circuit’s ruling is a new extension of the rule enshrined in Mills.  One might wonder if Mills itself is in trouble with this Court, or if the Court will give a green light to states that want to stop the practice of instructing the jury about the effect of one juror holding out on a death sentence:

MR. CORDRAY: At the time, the instructions pushed the jury toward unanimity one way or the other. Do the aggravators outweigh the mitigators or do they not? Since that time, the Ohio Supreme Court as a matter of practice has been willing to go further and instruct the jury, or have the jury be instructed, that if a single one of you feels that the aggravators do not outweigh the mitigators, that will preclude a death sentence. But that has never been constitutionally required by this Court. It is an extension of Mills v. Maryland that has never been so held by this Court, and in fact is a source of a — of a significant overwhelming majority of circuits the opposite way.

The State’s argument proceeded on to the second issue – the defense counsel’s closing argument.  Based on the questions the Justices asked Respondent, it seemed that the State’s argument here was well-received by most Justices.

Mr. Michael Benza argued on Mr. Spisak’s behalf.  At the outset, Chief Justice Roberts and Justice Scalia jumped on his claim that the defense counsel’s closing argument constituted ineffectiveness assistance.  Even Justice Breyer seemed to endorse the trial counsel’s strategy to agree that his client was a cold-blooded and unsympathetic murderer, but argue that he is clearly mentally ill and therefore should not be executed:

JUSTICE BREYER: What would you have done? I mean, I’m — I’m not experienced in this. But I mean, I have heard the other side and I have read the argument. And it makes sense logically to say he has the worst defendant he has ever seen. He’s murdered lots of people in cold blood. He gets up on the stand and says: I’m going to kill a lot more. He sounds totally bonkers. And — and he says to the jury, I can’t tell you that what he did was not aggravating; it was terrible. I can’t tell you that there’s anything here that should make you feel better about him; there is nothing. But we are a nation of people who are humane and our law says don’t put a person to death when he fills with his nuttiness that third prong, which is a lower standard of insanity than I had to meet. But it’s clearly met and here are the experts; I point to their testimony, and that’s what they said. So be humane.

In what seems to be a rare occurrence, Justice Scalia agreed with Justice Breyer, and went even further: “I thought it was a brilliant closing argument. . . . This was an extraordinary trial, and it seems to me that the — that the technique that — that counsel used to try to get mercy for this fellow was — was the best that could have been done.”

After Mr. Benza defended his position, he and the Justices were sidetracked for several minutes on an interesting question about AEDPA deference.  I explore this discussion below.  That peripheral discussion became so involved that Justice Ginsburg had to remind the Respondent that he had a limited amount of time: “Mr. Benza, you might want to use what time is remaining to deal with the other issue, which we haven’t talked about at all.”

On the Mills issue, Mr. Benza gave a straightforward answer to the timing conundrum originally raised by Justice Sotomayor:

Teague says that the decision for application of a newly established law or a new established constitutional rule is predicated on the denial of direct appeal, which in this case would be the cert denied by this Court of the direct appeal of the case, which happened in 1989, a year after the decision in Mills was handed down.

He then argued that the Ohio jury instructions were confusing because they would lead a reasonable juror to believe that there must be unanimity on the existence of a mitigating factor before it could be considered and given effect by any juror.

As this AP article points out, “most of the justices were skeptical of Benza’s arguments.”  There is little doubt about how this case will come out.

Although not central to the dispute in this case, Mr. Cordray raised a suggestion that later became the source of a major discussion between the Justices and Mr. Benza.  In arguing that appellate courts must give deference to trial court decisions under AEDPA, Mr. Cordray explained why the trial court’s summary disposition of the ineffective assistance claim warranted deference under the two-prong Strickland test:

If the court simply gives a summary affirmance or summary disposition and doesn’t specify which prong, I think the Court has to give deference under both prongs, because the alternative would be to give deference under neither prong, which is inconsistent with the — the AEDPA statement that we have to did defer to an adjudication on the merits by a State court.

Mr. Benza, however, argued that the trial court’s summary adjudication did not trigger AEDPA’s deference requirement:

MR.BENZA: We have no idea whether they decided that there was deficient performance, but no prejudice — that there was, in fact, deficient performance, but no prejudice, that this was not deficient because it was reasonable strategy. It is also possible that the lower courts were misapplying [the law].

I found this line of argumentation fascinating because it implicates the vast majority of decisions made by trial courts in habeas review.  Rather than give detailed reasons for their rulings, many trial courts deal with claims summarily.  I have always found it troubling that such cursory explanations become essentially unreviewable on appeal.  Apparently, the Respondent’s lawyer in this case agrees.  Justice Scalia does not, however:

JUSTICE SCALIA: When we — when you don’t know what a lower court has done, the rule is you assume the best, not the worst. Isn’t that the standard rule of review?

But, Mr. Benza elaborated on the problem as it applied to this case: “The problem that you have in that is, when you try to apply AEDPA to this particular claim, you don’t know how the state court, in fact, decided this case.”

Justice Breyer explained that the Respondent’s position has far-reaching implications:

JUSTICE BREYER: How — how does that work? Certainly, it’s a fairly common thing, that the defendant will make — let’s say, 20 arguments, maybe he would even number them. And it’s fairly common to find a court of appeals in a state that says, as to argument number 17, and then they characterize it, we reject that argument.

Mr. Benza took the (gutsy) position that:

MR. BENZA: I would — I think the issue then would become that, when a state court chooses to summarily deny, without evaluation, an explanation of the merits of the claim, that, when it comes to habeas review, the constraints of AEDPA are lifted.

The Justices took exception with this proposition, and worried that it would overburden lower courts to require that they elaborate on all of their decisions.  Yet, if giving reasons for rulings is the essence of providing justice, Mr. Benza’s proposition does not seem so crazy to me.

Abolitionist Australia proves indecisive on capital punishment

Posted in News by Sophie Cull on October 16, 2009

When people down here in the South ask me why I have come all the way from Australia to work in an anti-death penalty law office, I reply that I’m really interested in the work and that I can’t do it in Australia since we don’t have capital punishment. Once and a while this conjures a surprised and even shocked response – “Australia doesn’t have the death penalty?”

The city of Melbourne in south-east Australia held a rally on October 10 for the seventh World Day Against the Death Penalty. Two thousand people attended. This may sound like a meager number, but keep in mind two things: 1) Australia’s population is pretty small and 2) there is little reason for people there to care about capital punishment at all since it no longer affects them… right?

But capital punishment is still a live issue in Australia. What’s more, Australia’s position on the death penalty is far from clear cut.

In 2003, then Prime Minister John Howard publicly called for a national debate on the reintroduction of the death penalty following the handing down of a death sentence to one of the Bali Bombers. Howard suggested that in the climate of the War on Terrorism, it was a much needed discussion that should take place in parliament.

In times of peace there is no question that, even when popular opinion does not reflect it, Australia is an abolitionist nation. As one of the 31 sponsors of the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, Australia has made an international statement that it does not support the use of capital punishment in any context. Yet when heinous acts are perpetrated against Australian citizens, particularly offenses of terrorism, Australia cannot seem to take a firm stand.

In fact, the Australian Federal Police (AFP) have been involved in a number of cases in recent years that have resulted in the handing down of death sentences. Prime Minister Howard authorised the AFP to help gather evidence and statements and to subpoena witnesses to assist in the conviction and sentencing to death of the Bali Bomber, Amrozi. Likewise, in the case of the Bali Nine – which involves nine Australian drug mules caught in Indonesia, three of whom were sentenced to death in 2006 – the AFP assisted the Indonesian authorities in the Nine’s arrest and conviction. The AFP’s co-operation with Indonesian police in this way violates Australia’s international obligations to work towards the worldwide abolition of the death penalty, as was recognised by the UN Human Rights Committee in the case of Judge v Canada:

For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application.
Judge v Canada (2002) UN Doc CCPR/C/78/D/829/1998, [10.4]

What’s more, Howard’s position on the Bali Bombers has endangered Australians fighting death row abroad: when petitioning for an Australian’s life in Singapore, Howard’s earlier remark that he didn’t see why ‘anyone would consider execution barbaric for the Bali Bombers’ was thrown back in his face. The Australian was hanged.

The Bali Nine case is particularly worrisome since it involves non-violent drug offenses and the imminent execution of Australian citizens – yet even the current Australian government seems reluctant to try to bring them home.

The father of Scott Rush, one of the Bali Nine, recently launched a petition put forward by the Australian Services Union and the Victorian Committee of Make the Death Penalty History that calls for the national outlawing of capital punishment in Australia and for Australians convicted of capital offenses overseas. In August, Australia’s federal Attorney General also publicly called for capital punishment to be nationally outlawed.

In a time of ‘peace’, there may be enough parliamentary support to push through such a bill if a politician is willing to take up the cause. But anti-death penalty advocates know time is short. In the event that a terrorist attack reaches Australian shores in the next few years (which, we are reminded, is a real possibility) then there is reason to think that Australians might see capital punishment as the only appropriate response.

The Governor of Texas, the Execution of an Innocent Man, and the Incomplete Search for Public Accountability

Posted in News by Bidish J. Sarma on October 2, 2009

It is relatively rare for an American politician seeking office or re-election in a State that has retained the death penalty to make a strong statement against capital punishment.  (Ohio’s Jennifer Brunner is a refreshing exception).  However, one might expect a State’s leader to respond to compelling evidence that his government executed an innocent man with measured concern and a desire to uncover the truth.  Not in Texas.

Nearly one month ago, the New Yorker published David Grann’s riveting and alarming piece that suggests that Texas wrongfully executed Cameron Todd Willingham in 2004.  Despite the compelling expert evidence available in 2004 that indicated Mr. Willingham was convicted on the basis of ‘junk science,’ Texas moved brazenly forward with his execution.  After Grann’s article rocked the nation in September, the Texas Forensic Science Commission prepared to make an official state-sponsored inquiry into Willingham’s conviction and the testimony that led to his death by lethal injection.  Yet, two days before the inquiry was set to begin, Texas Governor Rick Perry sabotaged the effort.  According to this Dallas Morning News article, “The hearing of the Texas Forensic Science Commission, scheduled for Friday in Irving, was abruptly canceled by the new chairman the governor chose, Williamson County District Attorney John Bradley. He is considered one of the most conservative, hard-line prosecutors in Texas.”

Though Perry defends his decision to appoint Bradley and railroad the commission as nothing more than a “typical” use of his appointment power and executive prerogative, nobody is buying his line.  There is no such thing as ‘business as usual’ when the State uses its coercive power to execute an innocent man.

For anti-death penalty activists, Perry’s actions represent a mixed blessing.  On the one hand, Perry has exploded the long-held hope that a State would officially recognize that it had mistakenly executed someone who was actually innocent.  On the other hand, Perry has only drawn more attention to the issue.  I find myself a little surprised he didn’t let the hearings proceed as scheduled and then strong-arm the Commission’s members (behind closed doors) to publish an equivocal report that did not firmly accept responsibility for wrongdoing.  Instead, Perry has made a naked attempt to undermine the Commission’s work.  His move seems to emanate from a deep fear that what most of us think is true: Cameron Todd Willingham was an innocent man.

Maybe anti-death penalty advocates have been unrealistic to hope that a State would acknowledge such a tragic mistake.  Maybe we already have all the evidence we need.  Who really needs Rick Perry’s stamp of disapproval, after all?

But, I wonder if other government officials can take action in Texas.  Can the legislature rebuke Perry?  Or, more importantly, can the legislature create a non-executive commission to undertake the task originally charged to the Texas Forensic Science Commission?  If that is too much to hope for, perhaps the judiciary should step in.  Judges and Justices concerned with the fair operation and administration of the Texas criminal justice system are not powerless people.  Why can’t the judiciary establish its own commission to investigate whether any innocent individuals have been executed in Texas?  The judicial branch is certainly empowered to ensure that it is working effectively, efficiently, and, above all, justly.  The appearance of impropriety and injustice can sap the judiciary of its public legitimacy, and undermine people’s faith in the criminal justice system.  The judiciary has an obligation to protect itself.

As advocates, we need not focus only on the Governor, deplorable as his actions may be.  Let us hold the entire government responsible, until someone steps up.  Inaction here is as contemptible as Perry’s bad action.  Once again, who needs Rick Perry?

Strickland Prejudice: What Would One Juror Do?

Posted in Uncategorized by Robert Smith on September 23, 2009

I finally read the 5th Circuit’s recent decision in Linda Carty’s case. (fifth circuit opinion here, Clive Stafford Smith’s Op-ed in the Guardian available here, StandDown Texas post here and here ). My major beef is not with the court’s final decision (I don’t know the facts well enough to know if this was the right outcome), but with how courts in general handle the question of whether a defendant was prejudiced by the ineffective assistance of her counsel (the same goes for Brady “materiality” and Brecht “harmless error”).

In reviewing Carty’s ineffective assistance of counsel claim, the Fifth Circuit concluded that, yes, counsel was deficient, but

Carty bears the burden of showing a reasonable probability of a different result had Corona not testified. Although this is a close case, she has not made the requisite showing that his testimony rendered her conviction “fundamentally unfair or unreliable.”

Although the proffered testimonies would have given more detail and more focus to the mitigating evidence, in light of the totality of the evidence presented at trial, they were not of sufficient quality and force to establish a reasonable probability that, had the jury heard them, it would have elected to impose a life sentence.

[The improperly admitted] testimony provided nuance to the case but did not alter the entire evidentiary picture.

Carty has not shown that but for trial counsel’s deficient failure to advise Corona of his marital privilege there was a reasonable probability that she would not have been convicted of capital murder.

The Strickland standard turns on what a jury would have decided (guilt/innocence or life/death) absent the ineffective assistance. For example, when evaluating whether a death sentence should be overturned due to penalty phase ineffective assistance of counsel, the standard is whether a reasonable probability exists that, absent the errors, the sentencer would have concluded the balance of aggravating and mitigating circumstances did not warrant death.

Question: How do three judges on the Fifth Circuit know what a jury would have decided? Or, put differently, what decisional guideposts do courts use to decide whether a jury (in most cases, one juror–since one juror’s decision is enough to change the outcome) would have reached a different conclusion.

Answer: There are no set standards.

The Fifth Circuit in this case looked at the “overwhelming evidence of guilt” and whether the new evidence was merely “cumulative” to other evidence presented at the penalty phase.

But shouldn’t appellate judges know how actual juries decide issues (setting aside for a moment the alternative option that SCOTUS can decide instead to do away with the charade and change the standard to whether or not the outcome is now objectively unreliable)?

For example, while the degree to which new evidence is cumulative is relevant, how it is relevant differs based on the facts of a case. In Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004), the Ninth Circuit explained that “a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented.” The Third Circuit took a similar approach in Jermyn v. Horn, concluding that although child abuse evidence was presented at the penalty phase, “strong and specific testimony about a horrific home” presented at the post-conviction hearings evidenced abuse of an “entirely different weight and quality.” 266 F.3d 257, 310-311 (3d Cir. 2001).

The approach taken by the Ninth and Third circuits accord with the weight of social science research (including studies of capital jury decision-making and interviews with actual capital jurors). Evidence that is more vivid and comprehensive can do more than “provide[] nuance to the case” and in fact can “alter the entire evidentiary picture”

Who delivers the message (lay, expert, lay AND expert? Family member?) can also make a difference in the outcome of a case, especially when the only other mitigation evidence comes from the defendant. As Judge Cole wrote, dissenting from the Sixth Circuit’s 2006 opinion in Slaughter v. Parker,

The [majority’s] holding presumes a defendant’s self-serving testimony—even when he testifies to spare his own life—has the same impact regardless of whether other witnesses corroborate it. That conflicts with the Supreme Court’s recognition in Skipper v. South Carolina, 476 U.S. 1, 8 (1976), that a defendant’s testimony is inherently suspect and a jury will naturally discount it.” Slaughter v. Parker, 467 F.3d 511, 513 (6th Cir. 2006) (Cole, J., dissenting).

Again, social science research confirms Judge Cole’s intuition: simply adding another supporting  voice to the chorus  may enhance the credibility of a position.

I am not advocating (at least not here) for any specific criteria. But I think it would be nice to tether appellate determinations about what a juror would do to something more than whatever the judge would do if she was to sit on the new jury.

I also think it is important to abandon  “linear” or  “additive” models, as scholars have long done. Justice Souter in Old Chief came close to making the case:

Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict

Note: My thoughts on this issue stem from an amicus brief that Charles Ogletree and I wrote shortly after I graduated from law school. That case, Jeffrey Leonard’s (known only as “James Earl Slaughter” until after he was convicted and sentenced to death), is a prime example of how excluding new evidence that isn’t different in kind can be the equivalent of treating a stick figure of a woman and the Mona Lisa as being the same. Our amicus in that case is embedded below and Judge Cole’s unforgettable dissent from the denial of rehearing en banc is here (and is absolutely worth a read, and I cannot resist including his intro at the very end of this post).

View this document on Scribd


We are uneasy about executing anyone sentenced to die by a jury who knows nearly nothing about that person. But we have allowed it. We are also uneasy about executing those who commit their crime at a young age. But we have allowed that as well. We are particularly troubled about executing someone who likely suffers brain damage. We rarely, if ever, allow that—especially when the jury is not afforded the opportunity to even consider that evidence. Jeffrey Leonard, known to the jury only as “James Slaughter,” approaches the execution chamber with all of these characteristics. Reaching this new chapter in our death-penalty history, the majority decision cannot be reconciled with established precedent. It certainly fails the Constitution. This Court’s seven to seven stalemate regarding the en banc petition, however, leaves this precarious decision intact. Accordingly, I dissent from the denial of rehearing en banc.