DEATH SENTENCES PROTECTED BY KINDLER DECISION

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					C R I M I N A L                     J U S T I C E                 L E G A L              F O U N D A T I O N




CJLF                                                 Advisory
                                          Volume 27, No. 4                                                         Fall 2009

                 CJLF TAKES ON THE ACLU
             IN DEATH PENALTY CHALLENGE
        “The current lack of clear guidelines invites second-guessing by federal judges, which always
                                       delays and often denies justice.”

    The United States Supreme Court           and, when Wood learned that Gosha             Later that night, Wood snuck into the
 has agreed to review an Alabama              was dating another man, he attacked her    Gosha home, placed a shotgun to the
 murderer’s claim that one of his three       with a knife. While Gosha managed to       head of Ruby while she slept, and
 state-appointed lawyers failed to ad-        escape, she lost the use of two fingers    pulled the trigger. As his cousin drove
 equately represent him during his sen-       when her wrist was slit during the at-     him from the murder scene, Wood
 tencing hearing. The defendant in the        tack.                                      threw the shotgun shells out of the win-
 case of Wood v. Allen is seeking a deci-        The following month, Wood and a         dow, and told his cousin he had
 sion overturning his death sentence be-      cousin went to Gosha’s house. When         “blowed her (Gosha’s) brains out, and
 cause he claims his defense attorneys        her mother answered the door and de-       all she did was wiggle.”
 did not thoroughly investigate and pro-      manded that he leave, Wood told Ruby,
 duce evidence of his borderline range        “I will get you some day.”                                     continued on page 2
 of intellectual functioning.
    The Criminal Justice Legal Founda-
 tion has joined the case to oppose the
 defendant’s claim. “This case presents
 an opportunity to scale back the ability
                                              DEATH SENTENCES PROTECTED
 of patently guilty capital defendants to
 claim ineffective assistance of counsel         BY KINDLER DECISION
 for virtually anything the defense attor-
 ney did, or did not do, during sentenc-         On December 8th, a unanimous            process, can be brushed aside by fed-
 ing that might have influenced the           United States Supreme Court vacated a      eral judges on a subsequent review of
 jury,” said CJLF Legal Director Kent         lower court decision which had over-       the case. The state court had decided
 Scheidegger. “The current lack of clear      turned the death sentence of a Pennsyl-    that Kindler forfeited many of his
 guidelines invites second-guessing by        vania murderer. The decision limits the    claims when he escaped from jail while
 federal judges, which always delays          authority of the lower federal courts to   his motion was pending. In 2008, the
 and often denies justice,” he added.         disregard state procedural rules.          federal Third Circuit Court of Appeals
    The defendant, Holly Wood, was               “The Court’s decision in Beard v.       decided that Pennsylvania’s fugitive
 convicted on strong evidence for the         Kindler is an important victory for the    forfeiture rule could not be invoked to
 shotgun murder of his girlfriend in Sep-     enforcement of the criminal law gener-     prevent its review on habeas corpus of
 tember 1993. At the time of the murder,      ally and capital punishment in particu-    the murderer’s claims because the rule
 Wood was on parole after serving 5           lar,” said Kent Scheidegger, Legal Di-     provides a state judge with the discre-
 years of a 15-year prison sentence for       rector of the Criminal Justice Legal       tion to grant review.
 shooting a former girlfriend in 1985.        Foundation. The Foundation’s amicus           CJLF joined Pennsylvania and 25
    Evidence introduced at his murder         curiae (friend of the court) brief was     other states to encourage a decision
 trial indicates that shortly after his re-   cited twice in the opinion by Chief Jus-   overturning the lower court’s ruling and
 lease on parole, Wood moved in with          tice Roberts.                              clarifying the standard that state proce-
 Ruby Gosha, his new girlfriend—the              The issue before the court was          dural rules must meet in order to be re-
 mother of this child. Within three           whether state procedural rules, adopted    spected by federal courts.
 months, the relationship had soured          to prevent manipulation of the legal
                                                                                                             continued on page 4
The Criminal Justice Legal Foundation is a nonprofit,
public interest law foundation representing the interests
of law-abiding citizens in court. CJLF is an independent
corporation supported by tax-deductible contributions
                                                                   “DEATH PENALTY CHALLENGE”
from the general public and is qualified under IRC                   continued from front page
501(c)(3). CJLF does not engage in any form of
political or lobbying activity. The Advisory is published
by the Criminal Justice Legal Foundation, Michael
Rushford, Editor, Post Office Box 1199, Sacramento,                   At his trial, Wood was represented adequately represent him at the penalty
California 95812, (916) 446-0345.                                  by three attorneys. The lead attorney hearing. The conclusion of this review
                         OFFICERS                                  was a former Assistant Attorney Gen-       was that neither claim was supported by
Chairman Emeritus ............................. Jan J. Erteszek
                                                                   eral and Deputy District Attorney who, the evidence. On federal habeas corpus,
Chairman ....................................... William A. Shaw   in private practice, had represented the district court agreed that Wood was
Vice Chairman ................................. Rick Richmond      “probably a thousand criminal defen- not retarded, but announced that his de-
President & CEO .......................... Michael Rushford
                                                                   dants,” including three death penalty fense counsel was ineffective for failing
Secretary/Treasurer .......................... Mary J. Rudolph
                                                                   cases. The second attorney had repre- to further investigate and introduce evi-
                BOARD OF TRUSTEES
                                                                   sented defendants in over 50 felony tri- dence of his intellectual functioning. On
JOSEPH F. ALIBRANDI, CEO                                           als over his 30-year career.                          appeal, the Eleventh Circuit
   Alibrandi Associates, LLC
                                                                   The third attorney was a re-                          Court of Appeals reversed this
STEVE AYERS, CEO
   Armour Steel Company                                            cent law school graduate as-                          holding.
WILLIAM E. BLOOMFIELD, JR., Chairman                               sisting in his first jury trial.                         When the Supreme Court
   Web Service Company                                                Faced with overwhelming                            agreed to review Wood’s ap-
        .
PETER P COPSES, Senior Partner                                     evidence of guilt, the de-                            peal of that ruling, the Ameri-
   Apollo Management, LP                                           fense team sought a psychi-                           can Civil Liberties Union and
PATRICK A. DOHENY                                                  atric evaluation of Wood.                             the National Association of
   Oil and Gas Producer
                                                                   The evaluation revealed that                          Criminal Defense Attorneys
JERRY B. EPSTEIN, Founder and General Partner
                                                                   Wood had a low IQ, but that         Holly Wood
                                                                                                                         joined his appointed attorney
   Del Rey Shores and Marina Harbor
                                                                   he suffered no mental im-                             to encourage a decision to
JAMES J. HAWK, President & CEO
   Hoffman Associates, Inc.                                        pairment that prevented him                           overturn his death sentence.
MICHAEL H. HORNER, President                                       from understanding that his criminal The defense and its supporters claim that
   Tom Sawyer Camps, Inc.                                          behavior was wrong, and he had a “nor-     Wood’s trial counsel failed to thoroughly
SAMUEL J. KAHN, President                                          mal thought process.” Wood also told investigate his mental condition, and that
  Kent Holdings and Affiliates                                     the doctor that he had trouble control- the least experienced attorney on Wood’s
FAYE BATTISTE OTTO, President                                      ling his anger and had wanted to injure legal team had chosen not to present the
   American Forensic Nurses
                                                                   others in the past. Recognizing that the evidence of his low IQ to the sentencing
J. KRISTOFFER POPOVICH, Chairman
    Hoffman Video Systems
                                                                   evaluation and Wood’s own statements jury.
RICK RICHMOND, Managing Partner
                                                                   about being prone to violent behavior         At the invitation of the Solicitor Gen-
   Jenner & Block                                                  might harm the defense, his lead attor-    eral of Alabama, CJLF has joined the
GINO RONCELLI, Founder & CEO                                       ney asked the court to suppress it and case to introduce a scholarly amicus cu-
   Roncelli Plastics, Inc.                                         all other psychiatric and psychological riae (friend of the court) brief. The
MARY J. RUDOLPH, Trustee                                           evidence from the trial and sentencing Foundation argues that Wood’s claims,
  The Erteszek Foundation                                          hearing.                                   and all the related evidence, were prop-
MICHAEL RUSHFORD, President & CEO                                     Following Wood’s conviction for erly reviewed by the Alabama courts and
   Criminal Justice Legal Foundation
                                                                   capital murder, his defense counsel pre- that federal law requires that the state
ROBERT W. TEMPLETON, C.F.A., President
  RWT Investment Advisors, Inc.
                                                                   sented testimony and other evidence to court decision stand unless it is unrea-
WILLIAM A. SHAW, President & CEO
                                                                   discourage a death sentence at the pen- sonable. A federal court’s simple dis-
   Roxbury Properties, Inc.                                        alty hearing. This included evidence of agreement on a debatable point is not
TED G. WESTERMAN                                                   his difficult childhood, his mother’s sufficient to overturn a final judgment.
   Gordon West Partners, LLP                                       death when he was 10, and his only The Eleventh Circuit decision correctly
HON. PETE WILSON                                                   brother’s death the next year. In spite concluded that the state court decision is
  36th Governor of California                                      of this, the jury recommended a death well within the bounds of reasonable-
    LEGAL DIRECTOR and GENERAL COUNSEL                             sentence.                                  ness.
KENT S. SCHEIDEGGER                                                   After his conviction and sentence          The CJLF brief also asks the Court to
                                                                   were upheld on direct appeal, Wood consider paring back earlier rulings,
          LEGAL ADVISORY COMMITTEE                                 challenged his sentence on state post- which have created an environment
HON. JOHN A. ARGUELLES                                             conviction review. Three separate evi- where the failure to present any detail of
  Justice, California Supreme Court (Ret.)
                                                                   dentiary hearings were held between a murderer’s life at the penalty hearing
HON. GEORGE DEUKMEJIAN
  35th Governor of California                                      2000 and 2003 to consider Wood’s can support the claim that the defense
HON. MALCOLM M. LUCAS, Chief Justice
                                                                   claims that he was mentally retarded lawyer was incompetent.
  California Supreme Court (Ret.)                                  and that his defense counsel failed to
HON. EDWIN MEESE III
  Former United States Attorney General
HON. EDWARD PANELLI
  Justice, California Supreme Court (Ret.)                                                Advisory layout design by Wendy M. Kelly

2                                                                                  ADVISORY                                                    Fall 2009
                   JUVENILE LIFE WITHOUT PAROLE
                      SENTENCES CHALLENGED
         The United States Supreme Court has agreed to review
      two Florida cases involving juveniles convicted in adult
      court of violent crimes who are challenging their sen-
      tences to life in prison without the possibility of parole
      (LWOP). At issue in Graham v. Florida and Sullivan v.
      Florida is whether an LWOP sentence for offenders un-
      der 18 is a violation of the Constitution’s Eighth Amend-
      ment prohibition against cruel and unusual punishment.
         CJLF has joined both cases to encourage a decision                 Terrance Graham             Joe Sullivan
      announcing that the Eighth Amendment does not prohibit
      states from sentencing violent criminals who committed
      their crimes before their 18th birthday to LWOP.             decision applied retroactively to his case to prohibit
         “The defendants and their supporters in these cases are   criminal defendants under 18 from receiving LWOP for
      trying to impose their own policy preferences on the         crimes other than murder. The trial court rejected that
      country through judicial activism,” said Kent                claim and the state appeals court affirmed the lower
      Scheidegger, the                                                                                    court’s decision.
      Foundation’s Legal          “The defendants and their supporters in these cases are trying to          On December 2,
      Director. “With impose their own policy preferences on the country through judicial 2004, Terrance Gra-
      very rare excep-                                                                                    ham was on proba-
                              activism,” said Kent Scheidegger.
      tions, the Constitu-                                                                                tion for robbery and
      tion leaves deci-                                                                                   assault and one
      sions about how states sentence criminals to the voters      month away from his 18th birthday. That evening he and
      and their legislators,” he added.                            two other armed males forced their way into the Jackson-
         The defendants, Joe Sullivan and Terrance Graham,         ville home of Carlos Rodriguez. While Graham held
      are habitual criminals convicted of violent crimes.          Rodriguez at gunpoint, he gave orders to his accomplices
         In 1989, Joe Sullivan, then age 13, along with two ac-    to ransack the house. They found a guest in the bathroom
      complices, broke into the Pensacola home of an elderly       and brought him into the room where Rodriguez was be-
      woman while she was out, to steal her valuables. Later       ing held and took his crucifix and gold chain. Graham
      the same day, Sullivan and an accomplice returned to the     and his accomplices then put the two victims in a closet,
      house. As the accomplice distracted the woman at the         blocked the door with furniture and left. The trio then
      front door, Sullivan entered through another door, threw a   allegedly committed another robbery, which resulted in
      slip over her head, and threatened to kill her. He then      one of Graham’s accomplices being shot. Graham then
      took her to a bedroom. In the bedroom Sullivan removed       drove to a hospital and dropped off both accomplices.
      the woman’s clothes and brutally beat and raped her. The     While leaving the parking lot, Graham nearly collided
      victim underwent surgery due to injuries resulting from      with a police detective’s car and led the detective on a
      the rape. Sullivan had previously been convicted of 17       high speed chase. He was arrested after crashing into a
      other crimes, including several felonies. His record also    telephone pole. Officers found three handguns in the car.
      included assaults on other juveniles while serving time          At the police station, after Graham waived his
      for prior convictions.                                       Miranda rights a police detective asked him, “aside from
         Evidence introduced at trial included Sullivan’s          the two robberies tonight, how many more were you in-
      palmprint in the victim’s bedroom, testimony from a          volved in?” Graham answered, “two or three before to-
      neighbor who saw Sullivan on the victim’s porch mo-          night.”
      ments before the assault, and from a police officer re-          In court, the prosecution introduced Graham’s incrimi-
      sponding to the neighbor’s call who saw Sullivan running     nating statements and testimony from Rodriguez identify-
      from the house. The victim was also able to identify         ing Graham as the leader in the robbery. The stolen cru-
      Sullivan’s voice. Sullivan was subsequently convicted of     cifix found on one of the accomplices and statements
      two counts of sexual battery and two counts of burglary      from both accomplices, admitting their participation in
      and was sentenced to life in prison without the possibility  the robbery with Graham, were also admitted. Graham
      of parole.                                                   testified that he knew nothing about the robberies or the
         Sixteen years after his conviction and sentence were      guns found in his car. He denied making incriminating
      affirmed on direct appeal, Sullivan applied for post-con-    statements to the police and claimed that he fled from po-
      viction relief. In his 2007 petition, Sullivan cited the Su- lice to avoid being caught violating the 10 p.m.
      preme Court’s 2005 decision in Roper v. Simmons,             probation curfew.
      which announced that sentencing a murderer under 18 to
      death violated the Eighth Amendment. He claimed this                                     continued on page 5


Fall 2009                                                    ADVISORY                                                            3
“DEATH SENTENCES PROTECTED”
    continued from front page


   The case involves the conviction and sentence of Joseph            Brunswick. Upon his return to Philadelphia, Kindler’s motion to
Kindler for the kidnap and brutal murder of David Bernstein. In       reinstate his post-verdict claims was denied, and he was formally
the summer of 1982, Bernstein joined Kindler and Scott Shaw in        sentenced to death. On direct appeal, the Pennsylvania Supreme
the burglary of a store in Lower Moreland Township, Pennsylva-        Court upheld Kindler’s conviction and sentence and refused to
nia. Police stopped the getaway car as the trio tried to flee, but    consider his post-verdict claims. The court concluded that when
while Bernstein and Shaw were apprehended, Kindler managed            he escaped, Kindler forfeited his right to have the claims re-
to escape. During questioning, Bernstein identified Kindler as        viewed and that the trial judge retained the discretion to deny re-
the mastermind of the burglary and agreed to testify against both     view.
Kindler and Shaw.                                                         In 2000, a federal district judge overturned the judgment, de-
   Following Kindler’s arrest and release on bail, Kindler, Shaw      ciding that a jury instruction used at Kindler’s trial was contrary
and Shaw’s girlfriend, Michelle Raifer, decided to kill Bernstein     to a rule created by the Supreme Court five years after the trial.
to prevent his testimony. In the early morning of July 25,            In 2008, the federal Third Circuit Court of Appeals affirmed the
Bernstein opened his apartment door to Raifer and Kindler at-         lower court’s ruling, concluding that the state’s fugitive forfeiture
tacked him with a baseball bat. After hitting him in the head with    rule could not be invoked to deny review because the rule had not
the bat approximately 20 times, Kindler directed Shaw to jab him      been enforced under the unique circumstances of this case, and
with an electric prod. Then, Kindler and Shaw dragged the             because, in spite of the rule, the trial judge had the discretion to
heavily bleeding Bernstein to Raifer’s car. They drove to the         hear Kindler’s claim.
Delaware River and threw him in. Discovering that Bernstein               When the United States Supreme Court agreed to hear
was still alive, the two men held him underwater until he             Pennsylvania’s appeal of that ruling, CJLF accepted the Philadel-
drowned. They finally weighted his body down by tying a cinder        phia District Attorney’s invitation to join the case. The Attorneys
block to his neck. As they drove back to Kindler’s home, the trio     General of California, Arizona, Colorado, Connecticut, Dela-
discarded the weapons at various sewer outlets along the way.         ware, Florida, Idaho, Indiana, Louisiana, Minnesota, Mississippi,
   Within hours of the killing, police tracked down Raifer’s          Missouri, Nebraska, New Hampshire, New Mexico, Ohio, Okla-
blood-soaked car, which had been identified by several wit-           homa, Oregon, Pennsylvania, South Carolina, Tennessee, Utah,
nesses. When confronted with evidence implicating her, Raifer         Virginia, Washington, West Virginia, and Wisconsin have also
confessed, describing how the murder plan was carried out, and        filed arguments in this case to protect procedural default rules.
directed police to the sewer outlets where the weapons had been           In a scholarly amicus curiae (friend of the court) brief, CJLF
discarded.                                                            argued that if state discretionary rules are deemed automatically
   A Philadelphia jury found Kindler guilty of first-degree mur-      inadequate, this will compel states to adopt rigid rules that more
der with aggravating circumstances and set the penalty at death.      severely impact criminal defendants, in order to avoid the cost of
Prior to formal sentencing by the judge, Kindler filed post-ver-      review on federal habeas corpus. In the court’s opinion, Chief
dict claims attacking the instruction given to the sentencing jury.   Justice Roberts cites the Foundation’s brief as he states, “We are
Before the claims could be reviewed, he escaped from jail and         told that, if forced to choose, many States would opt for manda-
made his way to Canada. The trial judge dismissed Kindler’s           tory rules to avoid the high costs that come with plenary review.
post-verdict claims, concluding that by escaping he had waived        That would be unfortunate in many cases, as discretionary rules
the right to have them reviewed.                                      are often desirable.”
   Seven months later, Kindler was arrested in Quebec, but while          “This decision will reduce unnecessary and often unjust re-
an extradition request was under review, he escaped again. He         view of death sentences given to clearly guilty murderers,” said
remained at large until his face appeared on a 1988 episode of        Scheidegger. “The language of the opinion and Justice
“America’s Most Wanted,” which led to his capture in New              Kennedy’s concurrence also indicate further reductions are com-
                                                                      ing in the future.”




                                                              www.cjlf.org
                                                                        ,
                           CJLF is on the Web! An overview of CJLF reports on Foundation cases and the legal
                        arguments filed, press releases, and a listing of publications are available on CJLF’s Web
                                                                    site.

                                   Persons interested in our work can communicate with CJLF via e-mail at:
                                                        http://www.cjlf.org/contact.htm.

                          Also, check out our updated blog, Crime & Consequences, offering a fresh perspective on
                             crime and law. For news and commentary on major criminal justice issues go to:

                                  www.crimeandconsequences.com
4                                                               ADVISORY                                                        Fall 2009
      SHORT TAKES:
       ABA Ranks CJLF Blog Among the Nation’s Top 100. An article in the December 2009 issue of the
       American Bar Journal on the “Third Annual ABA Journal Blawg 100”, which ranks blogs that cover the
       nation’s legal landscape, lists the Criminal Justice Legal Foundation’s Crime and Consequences blog. The
       ABA’s article is available at:         http://www.abajournal.com/blawg100/2009/justice.      Crime and
       Consequences is one of five “blawgs” included under the ABA’s Criminal Justice category. The article
       quotes Stephen E. Maher, an attorney from the Attorney General’s Office of Ohio, Capital Crimes Section
       saying Crime and Consequences is “most informative for the prosecution crowd.” You can judge for yourself
       by going to: www.crimeandconsequences.com.

       CJLF Article Published in Engage: A scholarly article examining how a criminal suspect’s exercise of the
       right to remain silent in the United States differs from interrogations in England has been published in the
       November 2009 issue of Engage, The Journal of the Federalist Society. The article, Miranda With an
       English Accent, by Foundation Attorney Lauren Altdoerffer, notes that in England, a defendant’s decision not
       to give an alibi to police following his arrest, can be introduced to question an alibi presented at trial. The
       result, according to the article, is that British suspects are more likely to talk to police than their American
       counterparts. Ms. Altdoerffer suggests changing the Miranda warning to include words similar to the
       caution given in England: “You do not have to say anything. But it may harm your defence if you do not
       mention when questioned something which you later rely on in Court.” The full article is available in the
       online version of Engage at: www.fed-soc.org/publications/pubid.1695/pub_detail.asp




“JUVENILE LIFE WITHOUT PAROLE”
   continued from page 3

   The court found Graham had commit-          Health America also submitted a joint         after that judgment and is therefore de-
ted the robbery and thereby violated the       brief (APA Brief). The arguments assert       faulted. His claim, that the Roper v.
conditions of his probation. The sen-          that the Roper v. Simmons decision ex-        Simmons decision applies retroactively
tencing judge noted that Graham had            tends beyond the death penalty to in-         to his case and overrides the state’s time
been given a lenient sentence initially        clude LWOP, which they characterize as        limit, is not supported by Supreme Court
and that many people had tried to help         a sentence “to die in prison.” The APA        precedent or the Roper decision, which
him turn his life around. After stating, “it   brief cites research which they conclude      is focused solely on the death penalty.
is apparent to the Court that you have         shows that the brains of those under 18       The Foundation is asking the Supreme
decided that this is the way you are going     years old are too immature to be fully        Court to dismiss the appeal for lack of
to live your life and that the only thing I    responsible for their actions, and that       jurisdiction.
can do now is try to protect the commu-        violent behavior by those under 18 is un-        The argument that the Roper decision
nity from your actions,” the judge sen-        likely to continue into adulthood.            extends to prohibit juvenile LWOP is
tenced Graham to life without parole.             CJLF, the National District Attorneys      based on the proposition that those under
   Graham’s claim that his sentence vio-       Association, 16 members of the U. S.          18 are uniformly immature and no sound
lated the Eighth Amendment was re-             House of Representatives, the Center for      judgments can be made about their future
jected by the Florida Court of Appeal,         Constitutional Jurisprudence and the 18       behavior. The Foundation argues that
and the state Supreme Court refused to         states of Louisiana, Alabama, North Da-       the research cited in the APA Brief pro-
disturb that holding.                          kota, Delaware, Oklahoma, Indiana,            vides no support for that proposition and
   Both Sullivan and Graham appealed           Pennsylvania, Kentucky, Michigan,             actually contradicts it. The Foundation
the state court decisions in their cases to    South Carolina, Mississippi, South Da-        also cites other research showing that
the United States Supreme Court. When          kota, North Carolina, Tennessee, Texas,       maturity levels and the patterns of vio-
the high court agreed to review the 2          Utah, Virginia, Washington, and Wyo-          lent behavior among juveniles are not
cases, at least 15 groups submitted am-        ming have submitted argument in sup-          uniform.
icus curiae (friend of the court) briefs in    port of state authority to impose LWOP           “Some people who commit violent
support of the defendants’ claim, includ-      for the worst juvenile criminals.             crimes prior to their 18th birthday con-
ing the NAACP Legal Defense and Edu-              With regard to the Sullivan case, the      tinue to commit violent crimes into
cation Fund, Amnesty International, the        Foundation’s amicus curiae (friend of         adulthood. States which identify and
American Bar Association, and the Sen-         the court) brief notes that Florida law re-   confine the worst of these predators are
tencing Project. The American Psycho-          quires a defendant to submit his post-        protecting innocent people from becom-
logical Association, the American Psy-         conviction claims within two years of the     ing victims of crime,” said Scheidegger.
chiatric Association, the National Asso-       final judgment on the direct appeal.          Watch for a decision on this important
ciation of Social Workers, and Mental          Sullivan’s appeal was filed over a decade     case in a future Advisory.

 Fall 2009                                                      ADVISORY                                                             5
        MURDERER CLAIMS CONFESSION VIOLATED
                HIS MIRANDA RIGHTS
    The United States Supreme Court has agreed to review a             Prior to trial, Thompkins moved to suppress his confes-
Sixth Circuit Court of Appeals ruling, which overturned the         sion, arguing that the questioning by police violated his
conviction of a Michigan man serving a life sentence for            Miranda rights. After this motion was denied, Thompkins
                           murder. The lower court ruled that       was tried on several charges related to the murder of Samuel
                           the confession made by defendant         Morris. Evidence of guilt included: physical evidence; tes-
                           Van Thompkins was given in re-           timony from a friend Thompkins told about the killing; the
                           sponse to police questioning that        driver of the van, Eric Purifoy; the eyewitness testimony of
                           violated his Miranda rights. In          France; and Thompkins’ confession. In his defense,
                           Berghuis v. Thompkins the ques-          Thompkins claimed that Purifoy, identified by France as the
                           tion before the Court is whether a       driver of the van, was actually the shooter and that he
                           suspect’s initial silence during ques-   (Thompkins) was an uninvolved passenger. He was subse-
                           tioning by police must be inter-         quently convicted of the murder and related charges and sen-
                           preted as a decision to invoke his       tenced to life in prison.
     Van Thompkins         right not to talk to police without an      Thompkins’ conviction and sentence were upheld by the
                           attorney present, even though he         Michigan Court of Appeals, and his appeal of that holding
eventually did answer questions later in the interview.             was denied by the state Supreme Court. The appellate court
    The crime occurred on January 10, 2000, when, according         rejected Thompkins’ claim that his initial silence during
to court records, Samuel Morris and his friend Frederick            questioning indicated that he had invoked his Miranda
France were driving through a strip mall parking lot in             rights. The Federal District Court later denied the claim on
Southfield, Michigan, at around 9:00 p.m. Morris stopped            habeas corpus. Thompkins luck changed when he appealed
the car when a group of young men, including Thompkins,             that holding to the Federal Sixth Circuit Court of Appeals.
walked in front of it and began staring at them.                    The court’s November 19, 2008 ruling overturned the con-
    Morris and France got out of the car and exchanged words        viction. The federal court ruled that the state court’s deci-
with the group. They then re-entered their car and started to       sion was unreasonable and that federal law supported the
drive away. Thompkins and the other men followed in a blue          conclusion that Thompkins’ behavior during questioning “of-
and white van, and then pulled alongside. Thompkins, who            fered a clear and unequivocal message to the officers:
was seated in the van’s front passenger seat, reportedly said       Thompkins did not wish to waive his rights.” The federal
to Morris, “What you say, Big Dog,” immediately before fir-         court also ruled that Thompkins’ defense attorney was inef-
ing several shots into Morris and France’s car. Morris died         fective because he failed to ask for a jury instruction limiting
of multiple gunshot wounds, but France survived his injuries.       the jury’s consideration of Purifoy’s conviction.
While France was in the hospital, police showed him a photo-           When the U. S. Supreme Court agreed to consider
graph taken by a mall security camera showing three men at          Michigan’s appeal, CJLF joined the case. The Foundation’s
the crime scene. France identified Thompkins as the shooter         scholarly amicus curiae (friend of the court) brief argues that
and the other two as the driver of the van and a passenger.         the Michigan appeals court decision to uphold Thompkins’
While police were able to locate the other two men,                 conviction was reasonable. The Sixth Circuit’s ruling vio-
Thompkins fled to Ohio. Over a year later, he was arrested in       lated an act of Congress that imposed limits on federal court
Columbus, where he gave police several false pieces of iden-        review of state decisions. The state court applied the correct
tification and claimed that his name was Detniuan Isiah             standards announced by the Supreme Court to the facts of
Reed. After Thompkins, who had several prior convictions,           this case and reached a reasonable decision. Congress has
was identified by his fingerprints, two Michigan police de-         forbidden federal courts from second-guessing the state
tectives met him at the Ohio jail for questioning.                  courts and overturning their judgments merely because the
    Before questioning Thompkins, a detective read him his          federal court disagrees on a close question.
Miranda rights. Thompkins did not sign the standard form               “A decision favoring the murderer in this case would ex-
indicating that he understood his rights, and he did not ask        pand Miranda to keep incriminating evidence out of crimi-
for an attorney or tell the detectives that he would not answer     nal trials,” said Foundation Attorney Lauren Altdoerffer. “It
their questions. For nearly three hours, his responses to           would also define as prejudicial error a defense attorney’s
questions were limited to “yeah,” “no,” or “I don’t know,”          decision not to ask for an unnecessary jury instruction, and
and occasionally nodding his head. Finally, one of the detec-       would make it easier for defendants to bring ineffective as-
tives asked Thompkins, “Do you pray to God to forgive you           sistance of counsel claims.”
for shooting that boy down?” Thompkins answered, “yes”
and lowered his eyes.




6                                                             ADVISORY                                                     Fall 2009
                 MURDERER CHALLENGES RACIAL
                    MAKEUP OF JURY PANEL
   The United States Supreme Court has            court for an evidentiary hearing on the               by a single parent compared to 19% of
agreed to review a federal appeals court          claim. The court found that the popula-               white families. The census also reported
ruling, which overturned a murder con-            tion utilized for jurors consisted of per-            that 30% of local black households did
viction because the racial makeup of the          sons who have been issued driver’s li-                not have a car compared to 6% of white
jury panel varied from that of the com-           censes or state identification cards. The             households.
munity where the trial was held. In the           Secretary of State would select, at ran-                  Finally, a statistician called by Smith
case of Berghuis v. Smith, the high               dom, a percentage of the names from                   estimated that of the 929 prospective ju-
court will decide if the “fair-cross-sec-         Kent County and transmit them to the                  rors summoned at the time of Smith’s
tion” requirement, announced in 1975 in           County Administrator. Neither the mas-                trial, a representative sample would have
Taylor v. Louisiana, forces this result.          ter list, nor the list transmitted to the             had 67.6 blacks (7.28%). Because no in-
   The Criminal Justice Legal Founda-             county, indicated the race of those se-               formation on the race of prospective ju-
tion has joined the case to encourage a           lected.                                               rors is collected, he estimated that the
decision overturning the lower court.                Between 4 and 5 percent of the initial             actual number of blacks was 55.4
   The case involves the 1993 second-             letters mailed by the county to the listed            (5.96%).
degree murder conviction of Diapolis              names were returned as undeliverable,                     Based upon this evidence, the court
Smith for killing a man two years earlier.        and another 15 to 20 percent did not re-              concluded that there was no Sixth
There were 37 witnesses to the crime,             spond. About half of the latter group re-             Amendment violation in the jury selec-
which occurred in a bar in Grand Rapids,          sponded to a second notice. Some re-                  tion for Smith’s trial. The Michigan
Michigan. According to testimony, on              spondents were exempted because they                  Court of Appeals reversed that holding,
the evening of November 7, 1991, a fight          could not speak English, were serving a               but it was later overturned by a 2000
broke out between a friend of Smith and           sentence for a felony, were physically or             state Supreme Court decision which
Christopher Rumbly. Smith pulled a                mentally unable to serve, or had com-                 noted that Smith had failed to show a
gun, grabbed Rumbly by the shirt collar           pleted jury duty within the past twelve               “systematic exclusion” of blacks in the
and shot him once in the chest, killing           months. The names left on the list were               jury pool.
him. A bouncer who was attempting to              then randomly selected for summons.                       In 2006, a Federal District Court on
break up the fight was wounded by the             Those who received a summons could be                 habeas corpus rejected Smith’s chal-
same bullet. The jury convicted Smith,            excused for hardship, including single                lenge to the Michigan Supreme Court
and he was sentenced to life in prison            parents with no child care and people                 decision. Two years later, a panel of the
with the possibility of parole.                   with employment or transportation con-                Federal Sixth Circuit Court of Appeals
   On appeal, Smith claimed that his              siderations.                                          overturned Smith’s conviction, announc-
Sixth Amendment right to a jury repre-               Testimony by experts at the hearing                ing that the Michigan Supreme Court de-
senting a fair-cross-section of the com-          noted that black prospective jurors were              cision was unreasonable application of
munity was violated because the percent-          more likely to seek exemption due to                  federal law. The ruling found that, by
age of blacks on his jury was lower than          child care or transportation issues than              allowing more blacks than whites to be
the percentage of blacks living in Kent           whites. An expert called by Smith cited               excused from jury service for child care
County, Michigan. The Michigan Court              census data for the county which showed
of Appeals remanded the case to the trial         that 64% of black families were headed                                  continued on back page

    CJLF’s participation in the cases re-
ported in this Advisory would not have                        THIS IS MY CONTRIBUTION TO CJLF
been possible without the contributions
of our loyal supporters. Last winter, CJLF    Please fill out and mail with your check to:
arguments helped win Supreme Court                                          Criminal Justice Legal Foundation
decisions to uphold the use of consecu-                                          Post Office Box 1199
tive sentences to keep habitual felons in
prison, overturn a misguided Ninth Cir-
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cuit ruling which had voided a Califor-       Name: ___________________________________________________________________
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Thanks very much for your help!                                                                                                          Fall 2009

 Fall 2009                                                          ADVISORY                                                                     7
                          Warmest Holiday Wishes from the CJLF Staff!




                                     Front row: Michael Rushford, Kent Scheidegger, Brian Martin
                                Back row: Irma Abella, Lauren Altdoerffer, Josette Andrews, Wendy Kelly




“RACIAL MAKEUP OF JURY PANEL”
  continued from page 7

and transportation hardship, the Kent County jury selection pro-     tentional discrimination in the selection of jurors. Although the
cess had systematically excluded blacks, violating the fair-         requirement that a jury pool mirror the local population has little
cross-section requirement.                                           to do with the reliability of a jury verdict, it will require counties
   Earlier this year, the United States Supreme Court agreed to      to force single mothers and those without transportation to serve
hear Michigan’s appeal of that ruling. CJLF has joined the case      on juries. The Foundation is asking the Court to abandon the
to argue that the Court’s 1975 holding in Taylor v. Louisiana        requirement.
created a Sixth Amendment right to a fair cross-section of the           “The Equal Protection Clause has been a very effective
community although there is no mention of this right in the          weapon against discrimination in the selection of jurors,” said
Amendment and no support for it in previous Supreme Court            Foundation Legal Director Kent Scheidegger. “The additional
decisions. The Foundation’s scholarly amicus curiae (friend of       cross-section requirement does nothing to improve the fairness
the court) brief notes that Supreme Court precedent and federal      of trials. It is often contrary to other important goals, including
law have relied on the Fourteenth Amendment’s Equal Protec-          obtaining responsible jurors and lessening the burden of jury se-
tion Clause to develop very effective rules prohibiting any in-      lection on those least able to bear it,” he added.




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