[Deathpenalty] death penalty news----IOWA, COLO., UTAH, MONT., CALIF., USA

[Rick Halperin]

March 3



IOWA:

Death penalty bill stalls; key backer aims for 2018


The lead sponsor of legislation that would have reinstated the death penalty in 
Iowa says scheduling conflicts have doomed the bill and it will not be 
considered again this year. Republican Jerry Behn of Boone has been trying to 
reinstate capital punishment in Iowa since he was first elected to the senate 
in 1996.

"I'm hoping we can get it taken back up next year," Behn said.

Behn's bill only would have allowed a death sentence when someone was convicted 
of kidnapping, rape and then the murder of the victim.

"This is an effort to appease some of those who thought, basically, that the 
death penalty was inappropriate at any time," Behn said this afternoon during 
an interview with three statehouse reporters. "After some of the horrific 
murders that have occurred, I said maybe we can get a consensus to get 
something back on the books again."

Behn said he's especially troubled by the life sentence given to the man 
convicted of the brutal 2005 death of a 10-year-old Cedar Rapids girl who was 
kidnapped, raped and murdered. Jetseta Gage's mother had planned to travel to 
Des Moines this afternoon to testify for Behn's bill. However, the senate 
schedule is chaotic today as senators rush to find meeting rooms and take 
committee votes on dozens of bills. The room in which debate on the death 
penalty bill was to occur was double-booked.

Connie Ryan of the Interfaith Alliance of Iowa was in the hallway outside that 
room.

"We had a line-up of people of faith and civil rights advocates and other folks 
who were prepared to speak and say that Iowa should not ever be a death penalty 
state," Ryan said during an interview.

With DNA evidence exonerating some death row inmates and officials in other 
states struggling to find the right drugs to administer lethal injections, Ryan 
said it would have been "surprising" to see Iowa reinstate capital punishment.

"States were not getting it right...We know as a nation we're having these 
conversation and really questioning whether states across the nation should be 
doing this," Ryan said. "...It was disappointing to see the bill, but we're 
very grateful that the conversation has stopped for the moment, at least."

4 other Republicans serving in the senate co-sponsored the bill with Behn. He 
believes that's the most support he's seen for reinstating the death penalty in 
the past 2 decades.

"I would truly like to believe we'd never have to use it. To say that I am a 
proponent...that's not really accurate. I would just as soon nobody ever had to 
use it," Behn said. "I just think it needs to be a toolbox that's available."

Iowa outlawed capital punishment in 1965. 3 decades later, in 1995, the Iowa 
Senate overwhelmingly rejected a bill that would have reinstated the death 
penalty. Only 11 of the 50 senators voted for it.

(source: radioiowa.com)






COLORADO:

Colorado death row inmate Sir Mario Owens seeks new trial amid juror misconduct 
allegations ---- Arrest warrant issued for juror who skipped court date, case 
could overturn death penalty in notorious murder


Rhonda Fields, left, mother of Javad Marshall-Fields, and Christine Wolfe, 
mother of Vivian Wolfe, Sylvia Marshall, Javad's grandmother, and family friend 
gather outside the courthouse at Arapahoe County Justice Center May 14, 2008.

Sir Mario Owens sits, Monday March. 13, 2006, in Arapahoe County Court during 
the 1st hearing after being indicted in the June 20 double homicide that killed 
a witness and his girlfriend.

An arrest warrant has been issued for a juror who served on one of the most 
high-profile homicide trials of the past decade in Colorado, part of an inquiry 
into possible misconduct that could overturn two separate murder cases and a 
death sentence.

A judge issued the warrant Feb. 17, after the juror failed to show up for a 
court appearance where she was to be questioned about her service in the trial 
10 years ago. In a court document filed last month, defense attorneys for death 
row inmate Sir Mario Owens accuse the juror of numerous instances of misconduct 
during the first of Owens' 2 murder trials, including:

--Repeatedly lying on her juror questionnaire.

--Having an undisclosed friendship with a relative of 1 of the victims in the 
case.

--Not revealing that she knew members of Owens' family, which she told a fellow 
juror after the trial caused her to fear for her safety.

--Not disclosing that her son was friends with several witnesses who testified 
during the trial.

--Not revealing that she spoke with 1 witness at her son's apartment as the 
trial was ongoing.

--Not disclosing that she personally knew several other witnesses - including 
at least 1 who she has since said mouthed the words "Hi, Mom" to her while she 
sat in the jury box.

The Denver Post obtained the court document through a records request, which 
the judge overseeing the case granted after hearing debate between prosecutors 
and defense attorneys.

Jurors are supposed to be impartial, and judges give strict warnings during 
trials that they are not to have contact with witnesses or attorneys in the 
case outside of the courtroom. Any contact is supposed to be immediately 
reported to the judge.

If proved true, these allegations could be enough to overturn Owens' conviction 
in the trial, which involved a 2004 murder in Aurora's Lowry Park. That 
conviction was used to win a death sentence against Owens in a separate murder 
trial, which would also be thrown into doubt.

"The number and types of issues that this juror had,' said Christopher Decker, 
a Denver defense attorney not involved in the cases, 'are unlike anything I've 
ever seen in Colorado law."

Sentences and convictions have been upended in Colorado before based on much 
less extensive allegations of misconduct. For instance, the death sentence for 
convicted killer Robert Harlan was overturned in 2005 after it was revealed 
that jurors consulted a Bible during deliberations. A man accused of killing 
his wife was granted a new trial in 2014 when it was found that a juror in his 
1st trial had not disclosed on her questionnaire that she was a victim of 
domestic violence.

Attorneys for Owens declined to comment. In their court motion filed last 
month, they call the juror's conduct "extraordinary and egregious."

Prosecutors at the Arapahoe County District Attorney's office also declined to 
comment.

In a written response to the defense's motion, prosecutors argue that the 
allegations against the juror "have been thoroughly and repeatedly litigated in 
previous hearings." In particular, they argue that Owens' attorneys failed to 
prove that the juror's friendship with a victim's family member pre-dated the 
trial. They say the juror listened to the evidence in the Lowry Park trial 
fairly.

"This juror has come in and testified under oath that the fact she knew a few 
people who were witnesses did not impact her service in this case," Ann Tomsic, 
a chief deputy district attorney in Arapahoe County, said during a hearing on 
the issue Feb. 17.

The defense's most recent motion and other court documents show that the 
juror's name is Stephanie Griggs. However, she is most commonly referred to in 
the records by her number: Juror 75.

Owens is 1 of 3 inmates on Colorado's death row, and the cases that put him 
there were among the most closely watched in the state's recent history.

In the Lowry Park case, Owens was convicted of 1st-degree murder in the 
shooting death of Gregory Vann. That conviction played a significant role for 
prosecutors in establishing a motive for Owens' involvement in the 2005 
shooting deaths of Javad Marshall-Fields and his fiancee, Vivian Wolfe. 
Marshall-Fields had been wounded during the earlier shooting that claimed 
Vann's life. When he was killed, Marshall-Fields had been scheduled to testify 
against another man - Robert Ray, who is also on death row - accused of 
involvement in Vann's death.

Marshall-Fields' and Wolfe's deaths focused attention on threats to witnesses 
in Colorado and prompted legislation that improved protections. 
Marshall-Fields' mother, Rhonda Fields, responded to her son's death by 
becoming involved in community activism. She is now a state senator.

On Thursday, Fields said she did not see any signs during the trial of possible 
jury misconduct and said she doesn't believe she has ever met Griggs. She said 
Owens' attorneys are just doing their job, but it also pains her that debates 
during the appeals often obscure the lives that were taken.

"I have to let the criminal justice process play out," she said. "But at the 
end of the day it's about murder. And what I want is justice for my son and his 
fiancee."

Owens' and Ray's murder convictions are still in the early stages of the 
appeals process - a process that has been marked by controversy.

In 2012, one set of attorneys for Owens began investigating a report of juror 
misconduct after stumbling across an interview with a juror from the Lowry Park 
trial. In that interview, the juror said another juror - now identified by 
defense attorneys as Griggs - said after the trial was over that she "knew 
Mario's family" and she "was afraid for her safety because she knew about the 
people Mario was with."

Owens' attorneys dug deeper and turned up what they say are examples of 
misconduct. For instance, on the questionnaire that Griggs filled out prior to 
being seated on the jury, she said she had never been convicted of a crime, had 
no family members who had ever been victims of a crime and had never been 
involved in a court case. All 3 of those are false, defense attorneys argue. 
They also allege that she lied about her educational background.

Further investigation found numerous apparent personal connections to the Lowry 
Park trial. Griggs' son has told investigators he was present at the shooting - 
although it is unclear whether she knew that when she served on the jury. Many 
of his friends, who had often spent time at Griggs' house, testified during the 
trial. She saw one friend at her son's apartment the afternoon following his 
testimony.

"Hi, Mom. I saw you today," the witness is alleged to have said to Griggs, 
according to the defense motion filed last month.

"I told her, you need to let whoever you need to let know that you need to get 
off of this, that you're too close," Griggs' son later testified in a 
post-conviction hearing.

Griggs has testified three times in court so far during the post-conviction 
process, according to court documents, and has repeatedly said she recognized 
witnesses during the trial - noting that at least 1 mouthed the words "Hi, Mom" 
to her in the courtroom because her son's friends viewed her like a mother. 
However, apart from 1 instance where she told the judge she recognized someone 
sitting in the courtroom audience, there is no record of her having informed 
anyone during the trial about her connections to the case, according to the 
defense's motion.

In an interview with a police detective after the trial, Griggs said, "Knowing 
them didn't weigh on me" and that she listened to evidence fairly. But in court 
testimony last year, she said she "should have been picked for a different jury 
or not picked at all."

Owens' attorneys argue their client is owed a new trial for Vann's death. If he 
is granted one, that would at a minimum put the death penalty case on hold and 
it would require a new death penalty trial if he is acquitted, said Decker, the 
defense attorney not involved in the cases.

Even if Owens isn't granted a new trial for the Lowry Park case, his attorneys 
say he should still be given a new death penalty trial because the state public 
defender's office, which represented Owens in that case, received a tip prior 
to the death penalty trial about juror misconduct in the earlier case but 
failed to follow up adequately. That failure means Owens was denied his 
constitutional right to effective assistance of legal counsel, Owens' current 
attorneys say.

Judge Christopher Munch, a retired Jefferson County District Court judge who is 
now overseeing the first stage of Owens' appeal, will have to decide what 
happens next. In the Feb. 17 hearing, he said he worried about the consequences 
for the justice system if jurors who serve on high-profile cases can expect to 
have their lives scrutinized during the appeals.

If the misconduct allegations are not true, he said, "What this juror has been 
put through is extraordinary."

Owens' attorney Jonathan Reppucci responded sharply.

"What this juror has put our client through is extraordinary," he said. "This 
juror is a fraud."

There is currently no deadline by which Munch must issue a ruling on the entire 
appeal, although he could decide soon whether to hold new hearings on the juror 
issue.

--------------------------------------------------------------------------------

Timeline in the Sir Mario Owens murder cases --July 4, 2004: Gregory Vann, 20, 
is shot and killed in Aurora's Lowry Park. Vann's friend Javad Marshall-Fields 
is wounded in the shooting.

--July 13, 2004: Robert Ray is arrested and charged as an accessory in the 
Lowry Park shooting. He later posts bond.

--June 19, 2005: Marshall-Fields is threatened and warned not to testify 
against Ray.

--June 20, 2005: Marshall-Fields, 22, and his fiancee, 22-year-old Vivian 
Wolfe, are shot to death while driving on Dayton Street in Aurora. An intensive 
police investigation follows.

--Aug. 12, 2005: Ray's charges in Vann's killing are upgraded to 1st-degree 
murder.

--Sept. 29, 2005: An arrest warrant is issued for Sir Mario Owens on charges of 
1st-degree murder in connection with Vann's killing.

--March 8, 2006: A grand jury indicts Ray and Owens on charges of 1st-degree 
murder in Marshall-Fields' and Wolfe's killings.

--Nov. 3, 2006: A jury finds Ray guilty of attempted murder and of being an 
accessory to murder in the Lowry Park shooting. It does not find him guilty of 
1st-degree murder.

--Jan 30, 2007: A separate jury convicts Owens of 1st-degree murder in Vann's 
killing. Owens' attorneys are now challenging the conviction based on 
allegations of juror misconduct.

--June 16, 2008: Owens is convicted of 1st-degree murder in Marshall-Fields' 
and Wolfe's killings. He is sentenced to death. Prosecutors used Owens' 
conviction in the Lowry Park shooting as evidence in arguing for the death 
penalty.

--June 8, 2009: Ray is convicted of 1st-degree murder and sentenced to death 
for Marshall-Fields' and Wolfe's killings.

--Summer 2012: New attorneys for Owens, working on his appeal, begin 
investigating possible juror misconduct in the Lowry Park trial.

--March 2015 and Oct. 2016: Stephanie Griggs, the juror defense attorneys have 
accused of misconduct during the Lowry Park trial, testifies during appellate 
hearings.

--Feb. 17, 2017: Judge Christopher Munch issues a warrant for Griggs' arrest, 
after she failed to show up for a court appearance she had been summoned to 
attend.

(source: Denver Post)






UTAH:

Utah inmate ordered to stand trial for gruesome slaying of cellmate


A Utah State Prison inmate was ordered Thursday to stand trial for, and could 
face the death penalty if convicted in, the gruesome slaying of his cellmate in 
August.

Timothy Patrick Maez, 38, after a 2-day preliminary hearing in 3rd District 
Court, was bound over to be tried for aggravated murder, a 1st-degree felony, 
after he allegedly used a pen, a spork and a bedsheet to stab and strangle his 
33-year-old cellmate, James Charles Corbett.

Prosecutors they are considering seeking the death penalty for Maez, they said 
Thursday, but they have not made an official declaration.

Maez and Corbett were housed in the prison's Olympus facility, which houses 
inmates who have mental-health issues. They shared a cell in the section for 
inmates who were stabilizing, testified corrections Officer Jeremy Levao.

On Aug. 10 at about 11:30 p.m., just before a routine cell check, Maez punched 
Corbett, slammed his head on the floor, stabbed him with a pen and cut him with 
a razor, testified Unified police Detective Brent Adamson, who investigated the 
slaying. The officer said Maez also told him about stomping a pen into 
Corbett's ear and that he had tried to stab Corbett's eye socket with a spork.

Adamson testified that Maez told him he strangled Corbett with a torn bed 
sheet, and that after the assault, he swallowed 3 pens, which X-rays confirmed.

Maez told Adamson that he stopped choking Corbett when he heard the door to the 
section open, about 2 minutes before the officers came to his cell.

Adamson testified that Maez also told him he hears voices, and a registered 
nurse at the prison, Karlene Tuimauga, confirmed that Maez took anti-psychotic 
medications.

Matthew Athey, an inmate from the neighboring cell, said he heard Maez shouting 
at Corbett during the assault.

Athey said he heard Corbett scream for help during the beating. He talked to 
Maez through a vent after the stabbing and before the choking and said Maez had 
asked him for advice.

According to his testimony, Athey told Maez to either get medical help or 
"finish it."

When officers checked the cell, they found Maez covered in blood and calmly 
holding a cup of tea, said corrections Officer Christopher Facer.

Corbett was taken to the hospital, where he was declared dead.

Utah Chief Medical Examiner Erik Christensen testified that strangulation 
killed Corbett, and that the other injuries wouldn't have been fatal on their 
own.

Inmates, medical personnel and Adamson testified that the cellmates had wanted 
to be separated because Maez had a problem with the nature of Corbett's crime, 
which involved the sexual abuse of a child.

But 4 corrections officers testified that they were unaware of conflict between 
the cellmates or any request made by Corbett to move for safety reasons.

Responding to questions from the defense, corrections Sgt. David Hallan said 
officers don't normally know medical information or the diagnoses of inmates.

"We watch their behavior," Hallan said, adding that if he saw something 
concerning, he would bring it up to the medical staff. Other than 
crisis-intervention training a couple years ago, Hallan said he has never 
received special instructions for how to deal with inmates who have 
mental-health problems.

(source: Salt Lake Tribune)






MONTANA:

Death penalty abolition bill 'dead' in Montana


Efforts have fallen short to procedurally "blast" a bill to end the death 
penalty onto Montana's House floor for full consideration. The March 1 deadline 
for passing legislation to the state Senate has passed.

"We probably had the votes to pass HB 366 out of the House but just didn't have 
a workable path to successfully get it out of the House Judiciary Committee 
after they tabled the bill" on a 9-10 vote Feb. 10, said Matthew Brower, 
executive director of the Montana Catholic Conference, told NCR in an email.

"That's the bad news. The good news," he added, "is that we are seeing 
increasing support for abolition among Republicans. Particularly encouraging is 
the support we are seeing from young Republicans, a number of whom are 
Catholic."

On Feb. 6, Brower and 15 others testified in support of HB 366 ("Abolish death 
penalty and replace with life without parole") before the Judiciary Committee.

Brower also submitted a joint letter from Montana's 2 Catholic bishops - George 
Thomas of Helena and Michael Warfel of Great Falls-Billings - which reiterated 
"their opposition to the death penalty and its harmful impact on all parties 
and on a society that values life," according to the Helena diocese website.

Montana legislators have considered bills to ban the death penalty since 1999.

"The ball is moving in the right direction and we and the Montana Abolition 
Coalition are going to keep working this issue to make sure death penalty 
abolition becomes a reality in Montana," Brower wrote. "So we look forward to 
2019 and begin laying the groundwork for those efforts beginning now."

(source: National Catholic Reporter)






CALIFORNIA:

Defense tries to cast doubt on DNA in Sierra LaMar murder case


Attorneys for a man on trial in the kidnapping and slaying of South Bay 
teenager Sierra LaMar tried to poke holes in the prosecution's case Thursday by 
raising the possibility that DNA from a person unconnected to a killing can 
show up at a crime scene.

While cross-examining Santa Clara County criminologist Michele Bell, an 
attorney for defendant Antolin Garcia-Torres, 25, asked about a local killing 
in which an innocent man???s DNA was found on the victim.

But when defense attorney Bicka Barlow started to ask Bell about the old murder 
case, prosecutor David Boyd quickly requested a sidebar with the judge, who 
later instructed the Santa Clara County jury to disregard Barlow's line of 
questioning.

Barlow did not get the chance to mention what San Jose murder case she was 
referring to. But in 2013, 26-year-old San Jose resident Lukis Anderson was 
charged with murdering Monte Sereno millionaire Raveesh "Ravi" Kumra and then 
was freed from jail after more than 5 months.

Although Anderson's DNA was found on the victim's body, he was eventually 
cleared after it was proved that he was drunk and unconscious at a hospital at 
the time of the slaying.

Anderson's DNA was transferred to Kumra's fingernails after the same 2 
paramedics who treated Anderson for intoxication at a San Jose liquor store 
took the emergency call at Kumra's mansion hours later, according to Santa 
Clara County prosecutors.

But there are several key differences between Anderson's and Garcia-Torres' 
cases, most notably the fact that Anderson had an indisputable alibi, proved by 
hospital records. Garcia-Torres alleges he was fishing alone at the time 
15-year-old Sierra disappeared on March 16, 2012.

Although the body of Sierra - presumed dead by authorities - has not been 
found, her phone was discovered in a field less than a mile from her home a day 
after she vanished. The next day, her purse and the clothes she was believed to 
be wearing when she left home were spotted a short distance from where her 
phone was found. The prosecution's strongest piece of evidence is the strand of 
Sierra's hair found on rope in Garcia-Torres' Volkswagen Jetta. The defense has 
tried to cast doubt on the origin of the hair, citing a months-long gap between 
when the rope was recovered and the hair was found by investigators.

Criminalists with the Santa Clara County crime lab found 3 DNA profiles on 
Sierra's jeans: one belonging to Sierra, one believed to be Garcia-Torres' and 
a 3rd from an unknown contributor.

Garcia-Torres could face the death penalty if convicted of Sierra's abduction 
and murder. He is also being tried on charges he attempted to kidnap and 
carjack 3 women at Morgan Hill Safeways in 2009. One of the sites was a Safeway 
where Garcia-Torres worked.

(source: sfgate.com)






USA:

Chemerinsky: Why the Supreme Court's ruling on race-based evidence matters


The U.S. Supreme Court's decision Feb. 22 in Buck v. Davis is important for the 
criminal justice system on many levels. The court clarified the standard for 
federal courts of appeals when considering whether to allow appeals from the 
denial of habeas corpus petitions. Also, the court found ineffective assistance 
of counsel, something relatively rare for the Supreme Court. Perhaps most 
importantly, the court spoke emphatically about the need to eliminate any taint 
of race from criminal trials.

Facts and procedural history

Duane Buck was convicted of killing 2 people in Texas in 1995. At the penalty 
phase, where the jury was to consider whether to impose the death penalty, the 
initial question was whether Buck posed a future danger. At the time of Buck's 
trial, a Texas jury could impose the death penalty only if it found - 
unanimously and beyond a reasonable doubt - "a probability that the defendant 
would commit criminal acts of violence that would constitute a continuing 
threat to society."

Buck's lawyer called several witnesses, including 2 expert witnesses, on the 
question of Buck's future dangerousness. 1 of these experts, Dr. Walter 
Quijano, had been appointed by the presiding judge to conduct a psychological 
evaluation. Dr. Quijano thought it significant that Buck's prior acts of 
violence had arisen from romantic relationships with women. Buck, of course, 
would not form any such relationships if imprisoned for life. In determining 
whether Buck was likely to pose a danger in the future, Dr. Quijano considered 
7 "statistical factors." The 4th factor was "race." His report read: "4. Race. 
Black: Increased probability. There is an overrepresentation of Blacks among 
the violent offenders."

Despite having this report that said that Buck was more likely to be dangerous 
because of his race, the defense counsel called Dr. Quijano as a witness. On 
direct examination from Buck's lawyer, Dr. Quijano stated that certain factors 
were "know[n] to predict future dangerousness" and he identified race as one of 
them.

On cross-examination by the prosecutor, Dr. Quijano repeated this. The 
prosecutor asked: "You have determined that the sex factor, that a male is more 
violent than a female because that's just the way it is, and that the race 
factor, black, increases the future dangerousness for various complicated 
reasons; is that correct?"

Dr. Quijano replied, "Yes."

Buck was sentenced to death. His conviction and sentence were affirmed on 
appeal, and his state and federal habeas corpus petitions were denied. While 
these proceedings were pending, the State of Texas confessed error in 6 other 
cases where individuals had been sentenced to death in which Dr. Quijano had 
been a witness and said that a defendant was more likely to be dangerous 
because of his race. But it did not do so in Buck's case because it was Buck's 
lawyer who had called Dr. Quijano as a witness.

Buck's 3rd habeas corpus petition in federal court, which was accompanied by a 
motion to set aside the prior decision pursuant to 60(b)(6) of the Federal 
Rules of Civil Procedure, claimed ineffective assistance of counsel based on 
his lawyer calling Dr. Quijano as a witness. The district court denied the 
petition, concluding that Buck could not show that he was prejudiced because 
the jury likely would have sentenced him to death even without Dr. Quijano's 
testimony.

Buck sought to appeal the denial of his habeas corpus petition to the New 
Orleans-based 5th U.S. Circuit Court of Appeals, which under federal law 
requires a certificate of appealability. This requires "a substantial showing 
of the denial of a constitutional right." The 5th Circuit denied a certificate 
of appealability, concluding that Buck's case was "not extraordinary at all in 
the habeas context."

Supreme Court Reverses

The Supreme Court, in a 6-2 decision, reversed the 5th Circuit. Chief Justice 
John G. Roberts Jr. wrote the opinion (PDF) for the court; only Justices 
Clarence Thomas and Samuel A. Alito dissented.

The 1st issue before the court was whether the federal court of appeals erred 
in not granting a certificate of appealability. As the court noted, the 
standard for this was articulated in Miller-El v. Cockrell (2003). The key 
question in granting a certificate of appealability is whether "jurists of 
reason could disagree with the district court's resolution of his 
constitutional claims or that jurists could conclude the issues presented are 
adequate to deserve encouragement to proceed further." This threshold question 
should be decided without "full consideration of the factual or legal bases 
adduced in support of the claims." Notably the court in Miller-El said: "When a 
court of appeals sidesteps [the COA] process by first deciding the merits of an 
appeal, and then justifying its denial of a COA based on its adjudication of 
the actual merits, it is in essence deciding an appeal without jurisdiction."

The court concluded that in denying Buck a certificate of appealability, the 
5th Circuit had improperly decided the merits of his claim. Chief Justice 
Roberts explained that in asking whether Buck had shown "extraordinary 
circumstances," the 5th Circuit focused on the wrong question. Roberts wrote: 
"We reiterate what we have said before: "A 'court of appeals should limit its 
examination [at the COA stage] to a threshold inquiry into the underlying merit 
of [the] claims,' and ask 'only if the District Court's decision was 
debatable.'"

2nd, the court found that there was ineffective assistance of counsel. The test 
for ineffective assistance of counsel was articulated in Strickland v. 
Washington (1984), which requires that a defendant who claims to have been 
denied effective assistance must show both that counsel performed deficiently 
and that counsel's deficient performance caused him prejudice.

As for the former, the court said it was clearly ineffective assistance of 
counsel for the defense to call Dr. Quijano as a witness. The court wrote: "It 
would be patently unconstitutional for a state to argue that a defendant is 
liable to be a future danger because of his race. No competent defense attorney 
would introduce such evidence about his own client."

As for the latter, the court concluded "it is reasonably probable - 
notwithstanding the nature of Buck's crime and his behavior in its aftermath - 
that the proceeding would have ended differently had counsel rendered competent 
representation." The court powerfully stated: "But when a jury hears expert 
testimony that expressly makes a defendant's race directly pertinent on the 
question of life or death, the impact of that evidence cannot be measured 
simply by how much air time it received at trial or how many pages it occupies 
in the record. Some toxins can be deadly in small doses." Importance

The case is significant in many ways. First, the court reaffirms that in 
deciding whether to grant a certificate of appealability, a court should not 
make a determination on the merits, but instead focus on whether the issue is 
reasonably debatable. Second, the court's finding of ineffective assistance of 
counsel is notable because there are relatively few cases in which the court 
has found that this exacting standard has been met. Finally, and perhaps most 
importantly, the court was emphatic that "it is inappropriate to allow race to 
be considered as a factor in our criminal justice system." If the court truly 
follows this, it could have an effect in so many areas where race undoubtedly 
greatly influences the administration of justice for those accused of crimes.

--------------------------------------------------------------------------------

(source: Erwin Chemerinsky is Dean and Distinguished Professor of Law, and 
Raymond Pryke Professor of First Amendment Law at the University of California, 
Irvine School of Law. He is an expert in constitutional law, federal practice, 
civil rights and civil liberties, and appellate litigation. He's the author of 
7 books, including The Case Against the Supreme Court (Viking, 2014)----ABA 
Journal)