[I] Introduction to Capital Punishment Law and Litigation 4



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[I] Introduction to Capital Punishment Law and Litigation 4

[A] "The Death Penalty in 2005," Death Penalty Information Center (December 2005) 4

[B] “Death Row U.S.A.,” NAACP Legal Defense and Educational Fund, Inc. (Spring 2006) 4

[C] “A Peculiar Institution? Capital Punishment and the American Civilizing Process,” David Garland, Moffett Lecture on Ethics (Dec. 2004) 4

[II] Framework of the Modern Death Penalty 7

[A] NAACP Litigation Strategy 7

[B] Furman v. Georgia (1972): as applied, discriminatorily and arbitrarily, the DP violates the C&U clause of the 8th amendment 8

[C] Gregg v. Georgia (1976): upholding the const. of GA’s new bifurcated aggravation/mitigation DP statute 13

[D] Woodson v. North Carolina (1976): mandatory DP is unconst. and must make an individualized look into the crime/criminal when applying the DP 16

[E] Coker v. Georgia (1977): it’s unconst. to sentence rapists to the DP 17


[III] Aggravation, Mitigation and Victim Impact 18


[A] Introduction 18

[B] Lowenfeld v. Phelps (1988) 19

[C] “Tokens of our Esteem: Aggravating Factors in the Era of Deregulated Death Penalties,” Jonathan Simon and Christina Spaulding, The Killing State ed., Austin Sarat (1999) 20

[D] Lockett v. Ohio (1978) 23

[E] Eddings v. Oklahoma (1982) 24

[F] Payne v. Tennessee (1991) 25

[IV] Death Qualification and Jury Selection 25

[A] Introduction 25

[B] Wainwright v. Witt (1985): judges who cannot be impartial (that is can’t apply the law free from prejudice) may be excluded for cause 27

[C] Morgan v. Illinois (1991): extending Wainwright to Defendants’ rights to exclude biased jurors 28

[D] Lockhart v. McCree (1986): Rejects argument that “death happy” jurors shouldn’t determine the guilt of Ds because they are more likely to convict 29

[E] Turner v. Murray (1986): you can question jurors about potential racial biases 31

[F] Castenada v. Partida (1977) 32

[G] Batson v. Kentucky (1986) 34

[H] Powers v. Ohio (1991) 35

[I] Stevens/Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice 37

[V] Scottsboro, Lynching and an Historical Context for Death Penalty Litigation 39

[A] The Social Meanings of Lynching: 39

[VI] The Appeals Process: Procedural Default, Retroactivity and Postconviction Litigation 41

[A] Introduction: 41

[B] Ford v. Georgia (1991): state procedural bar/adequacy and a firm and regularly applied procedural bar 46

[C] Lee v. Kemna (2002): state procedural bar/adequacy and exception to usual rule when no state interest is furthered 47

[D] Teague v. Lane (1989): new rules will not retroactively apply if the new rule is announced when you are in the post-conviction stage (after conviction is final); habeas review cannot be used to establish new rules unless one of the two narrow exceptions is made 49

[E] Example: Rule 32, Alabama Rules of Criminal Procedure 50

[F] Brady v. Maryland (1963): prosecutor suppression of companion’s confession 50

[G] Giglio v. United States (1972): application of the Brady holding to a situation when the prosecutor supplied misinfo (on accident) about a deal offered to D’s companion 51

[VII] Race and the Death Penalty 52

[A] Doctrinal Summary 52

[B] McCleskey v. Kemp (1987): statistically sophisticated racial challenge to the const. of the DP rejected 53

[C] Bryan Stevenson/ Close to Death: Reflections on Race and Capital Punishment in America 60

[D] Peek v. State, 488 So.2d 52 (1986): standard for evidence of past crimes & racist judge “admonished” 62

[VIII] Counsel in Death Penalty Cases 63

[A] Introduction: 63

[B] Strickland v. Washington (1984): standard for ineffective assistance claims 64

[C] Wiggins v. Smith (2003): modern application of Strickland test; D wins! 67

[D] Bright/Counsel for the Poor 68

[E] Ake v. Oklahoma (1985) 73

[F] Barbour v. Haley, Brief of Appellants 76

[IX] State Postconviction Proceedings, Juror Misconduct and the Anti-Terrorism and Effective Death Penalty Act 79

[A] Introduction 79

[B] Freeman v. State, 605 So.2d 1258 (Ala.Cr.App. 1992) 79

[C] Juror Misconduct, Alabama Capital Post-conviction Manual 80

[D] Coleman v. Thompson (1991) 81

[E] The Anti-Terrorism and Effective Death Penalty Act of 1996: see attached and below 84

[X] The Anti-Terrorism and Effective Death Penalty Act of 1996 84

[A] The AEDPA Itself 84

[B] Rules Governing Habeas Corpus, 28 U.S.C. § 2254 87

[C] Stone v. Powell (1976) 87

[D] Wainwright v. Sykes (1987): making it clear that the adequate/independent state ground doctrine applies to habeas 89

[E] Harris v. Reed (1989) 91

[F] Miller-El v. Cockrell (2003): standard for granting a petitioner a COA 93

[G] Stevenson, “The Politics of Fear and Death,” (2002) 94

[XI] Innocence and the Death Penalty 96

[A] Introduction 96

[B] Herrera v. Collins (1993) 100

[C] Example: McMillian (see attached) 102

[XII] Mental Illness, Juveniles, and the Death Penalty 102

[A] Introduction 102

[B] Penry v. Lynaugh (1989): executing the mentally retarded is okay; also presents good instructions on how to apply Teague 105

[C] Atkins v. Virginia (2002): killing the mentally retarded is unconst 108

[D] Pate v. Robinson (1966) 110

[E] Ford v. Wainwright (1986) 111

[F] Ford v. Haley (11th Cir. 1999) 113

[G] Roper v. Simmons (2005): can’t kill kids anymore 115

[XIII] Judicial Discretion and the Politics Surrounding Capital Punishment: Commutation, Clemency, Parole 118

[A] Introduction 118

[B] Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases 118

[C] Ring v. Arizona (2002) 126

[D] Ohio Adult Parole Authority v. Woodard (1998) 128

[E] "Death in Arkansas," The New Yorker (1993) 129

[F] “AL Justices Surrender to Judicial Activism” Editorial 129

[G] Videos of Campaign Advertisements of Judges: 130

[XIV] International Law and the Politics of Capital Punishment in America 130

[A] Introduction: 130

[B] Amnesty International, “International Standards on the Death Penalty,” (1998) 130

[C] Mexico v. United States of America (March 2004) 131

[D] Greenhouse, “Bush Decision to Comply with World Court Complicates Case of Mexican on Death Row” (2005) 131



[E] Lagrand, Germany v. United States, (Int’l Court of Justice 2001) 131

[F] Badkhen, "Pendulum Begins Swing Away from Death Penalty” (2005) 132

[G] Callins v. Collins (1994) 132


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