Washington Death Penalty Supreme Court Decision
Gregory Decision Takes Two FPD Clients Off Death Row and Ends Many Decades of FPD Representation of Washington State Death Penalty Clients
The Washington State Supreme Court decision in State v. Gregory, striking down the death penalty statute in Washington State as unconstitutional, was met with great relief and deep satisfaction at the FPD. https://www.courts.wa.gov/opinions/pdf/880867.pdf.
We have two clients, and a third person we were assisting, who have now been taken off death row. We represent Cecil Davis, who was sentenced to death in Pierce County Superior Court for a 1997 murder. His first death sentence was overturned by the Washington State Supreme Court and remanded for a new penalty phase hearing. A second jury sentenced him to death, and his direct appeal was rejected. His personal restraint petition was also denied by the Washington State Supreme Court, at which time Seattle attorney Jackie Walsh and the Federal Public Defender were appointed to represent Mr. Davis. A federal habeas corpus petition was filed and stayed pending further PRP litigation in the Washington State Supreme Court. A successor PRP had been filed shortly before the Gregory decision, and another successor petition was about to be filed when Gregory was announced.
In addition to Jackie Walsh, Mr. Davis was represented by FD Michael Filipovic and AFDs Mo Hamoudi and Ashwin Cattamanchi, supported by investigator Jennifer Davis and paralegals Patricia Stordeur, Suzie Strait, and Charlotte Ponikvar. This defense team, with the assistance of David Freedman, Ph.D., mitigation specialist Mirra Schwartz, and a host of experts, worked tirelessly on Mr. Davis’s behalf.
Our second client is Jonathan Lee Gentry, sentenced to death by an all-white jury after a racially charged trial in Kitsap County in 1991. He was represented at trial by former AFD Jeff Robinson. When his case came to our office, he was represented by former AFD and now Chief Magistrate Judge Brian Tsuchida, two former AFDs, and CJA attorneys Scott Engelhard and Meredith Rountree. They were assisted by investigators Jennifer Davis and Deb Malcolm, and paralegal Michael Larson. Mr. Gentry’s case had been through multiple proceedings in federal and state court. When Gregory was announced, he was represented by Tim Ford and Rita Griffith, with investigator Jennifer Davis continuing on as the anchor to the defense team.
The FPD, through investigator Deb Malcolm, was assisting attorney Jeff Ellis in preparation of a clemency petition for Clark Elmore.
Our office has been actively engaged in post-conviction representation of a number of former Washington State death row inmates. We have successfully avoided the death penalty in decisions handed down in the David Rice, Darold Stenson, and Patrick Jeffries cases. The FPD lawyers involved in those cases include former AFDs Peter Offenbecher, Bob Mahler, Rob Owen, Robert Gombiner, Peter Avenia, and Chris Kerkering. Jennifer Davis was the investigator on each case, and was recruited to work on additional federal death penalty cases at the national level. Others involved in these successful cases include AFD Corey Endo, FPD investigators including Mike Stortini, and FPD paralegals including Barbara Hughes.
Our office has been very fortunate not to have lost a single Washington State client to the death penalty. Our good fortune came from the diligence, compassion, and extraordinary efforts of these defense teams—and a little luck.
A special mention must be made of long-time FD Tom Hillier. His vigorous opposition to and advocacy against the death penalty set the tone for our office, the Western District of Washington, and the state of Washington. Our office has never had a Capital Habeas Unit (CHU), but we took these cases and hired and developed lawyers, investigators, and paralegals who could be staunch advocates in this difficult arena. Tom was also instrumental in ensuring that representatives from our office had a place on the Washington State Supreme Court committee that determined which local lawyers would be certified as competent to practice in this specialized area. He ensured that under our federal court CJA Plan, the district court was required to accept the recommendations for representation made by the FPD. When Federal Defenders from other parts of the country asked for help on their federal trial cases, he provided assistance from our staff. Jennifer Davis was sent to work in Idaho, Massachusetts, Missouri, New Mexico, and Alaska. Tom also volunteered our office to assist former AFD Rob Owen with Brandon Bernard, a young man sentenced to death in federal court in Texas. Attorneys from our Tacoma office continue to represent Mr. Bernard, along with investigators Stacey Brownstein and Jennifer Davis, and paralegal Amy Strickling.
A number of staff who were important team members on these cases have asked not to be in the limelight and their names are therefore not mentioned. In addition, all present and former members of our office were involved in this huge effort in one way or another—by participating in strategy discussions, helping out with discrete tasks, making sure the administrative rules and funding were covered, and very often picking up the workload for those who were directly involved in the representation. This was truly a decades-long team effort in which everyone had some part.
Staff News: New Hires
The Federal Public Defender’s Office has hired two 18 month term AFDs to replace AFDs Ashwin Cattamanchi and Kyana Givens during their out of district assignments. Ashwin is working on and receiving training in federal death penalty trial defense, and Kyana is working in Washington D.C. on training and other projects. Their replacements are Chloe Akers and Christopher Sanders.
Chloe Akers has 10 years of public defender experience in Philadelphia, Pennsylvania and Knoxville, Tennessee, and one year at the Federal Defender in Wisconsin. Prior to joining our office, she was lead counsel on a number of homicide defense teams. She successfully tried a number of major felony trials including drug distribution and sexual assault offenses. She also focused on appellate litigation strategies aimed at challenging the mandatory minimum sentencing of children tried and convicted as adults in the state of Tennessee. She is excited to be back in federal practice and working with defense teams in Seattle and Tacoma.
Chris Sanders is a Seattle University law graduate, who began his public defender career with DAC in Pierce County and has been working for King County DPD doing misdemeanors and felonies for over three years. His background includes a stint as a law clerk with the Public Defender Service in DC, and as a professional staff member for a US House Committee, and a legislative assistant for Congressman Edolphus Towns. Chris was the immediate past president of the Loren Miller Bar Association, and participated in the working group set up by the Washington Supreme Court, which overhauled the voir dire rule on jury selection to incorporate concepts of implicit bias in determining Batson challenges to the use peremptory challenges.
CJA counsel Carl Gunn, a former Los Angeles and Tacoma AFD, had a big month in the Ninth Circuit. In USA v. Sellers, 2018 WL 4956959, the Ninth Circuit held as a matter of first impression in the 9th that requests for discovery on claims of selective enforcement in stash house reverse-sting operations are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 116 S.Ct. 1480. The Court followed decisions in the 3rd and 7th circuits which distinguished selective enforcement from the more rigorous and difficult to meet standard for selective prosecution.
In US v. Moreno Ornelas, No. 15-10510 (10-25-18) Carl obtained a partial victory. The appeal arises from an apprehension in the Arizona desert. A US Forest Service Officer encountered the defendant and a fight ensued, with shots fired. Each claimed that he was in a fight for his life. The officer said the defendant stole his weapon and assaulted him; the defendant said he was the victim of an assault and acted in self-defense. The jury hung on an assault with attempt to murder charge, but convicted on various others. The sentence imposed was 43 years. The 9th affirmed the convictions for assault on a federal officer, use of a firearm, felon in possession, and possession of a firearm by an illegal alien. It reversed for jury instruction errors on the attempted robbery of the gun and truck.
The reversals resulted from the failure to instruct the jury that the defendant must have formed specific intent when he tried to take the gun and truck. The error was obvious and affected the fairness and integrity of the proceedings. The opinion discusses at length the common law of robbery and its adoption by Congress.
Ninth Circuit Permitted Troy Kelley to Remain on Conditions of Release, Pending Appeal
After two trial, the first one of which resulted in an acquittal on one count and a hung jury on others, former Washington State Auditor Troy Kelley was convicted of possession of stolen property and other offenses related to his operation of a real estate service business prior to his time as a public official. He was acquitted of money laundering charges at the second trial.
The conviction following the second trial occurred after the jury thrice indicated it was hung on the primary count but was told to keep deliberating.
The primary charge of possession of stolen property arose out of the prosecutor's contention that Mr. Kelley was obligated to refund a portion of a fee that escrow customers paid his company in closing real estate transactions. Mr. Kelley's contention was that the escrow customers consented in writing in escrow closing instructions to pay Mr. Kelley for services that Mr. Kelley in fact provided, and thus, Mr. Kelley could not possibly have stolen the money that was paid to him. The government conceded that escrow customers were not aware of any refund obligation arising from the transactions. According to the defense, any obligation to refund was a contractual one that resulted from an agreement between Mr. Kelley and the title companies that hired him to perform the services for the customers. Thus, any failure to refund (if one existed as prosecutors argued) was merely a breach of contract, at best.
Based on the defense arguments of jury coercion and insufficiency of evidence on the stolen property charge, the Ninth Circuit agreed that Mr. Kelley's appeal raised a substantial issue and ordered him released pending appeal. Mr. Kelley is represented by CJA counsel Angelo Calfo and Pamela Eakes. You can read the news story on the Ninth Circuit's decision.
The Ninth Circuit reversed CJA Appellate panel member Jay Nelson's client's trial convictions for possession and distribution of contraband pornography based on the District Court's structural error in seating an openly biased jury foreperson, which deprived the client of his Sixth Amendment right to an impartial jury.