Tenth Rejects Most of Capital Petitioner's Arguments, But Certifies One Issue to State Court

Black v. Workman, 2012 WL 2152828 (6/14/12) (Okl.) (Published) - The 10th for the most part affirms Oklahoma death sentence, with one possible out. It was okay to dismiss two jurors who gave opposite answers ["yes" and 'no"] to the same question as being too unwilling to vote for the death penalty. The 10th says, if voir dire were done by e-mail, the defense might have a point, but when the trial judge sees body language, demeanor, etc. it might have been clear what each prospective juror meant by the answer. The 10th indicates its decision in Mayes v. Gibson, 210 F.3d 1284 (2000), may no longer be valid in light of the S. Ct.'s decision in Cullen v. Pinholster, 131 S. CT. 1388 (2011), which severely limits the circumstances when a federal evidentiary hearing is appropriate for a § 2254 petition. The prosecution's failure to strike a white person from the jury venire, who did not disclose a prior misdemeanor conviction, would not establish by clear and convincing evidence the state was racially motivated when it peremptorily challenged 1 of 2 African-American prospective jurors [out of 400 venirepeople] for not disclosing a 1st-degree burglary charge, [not conviction].
It was reasonable for the state court to find it okay not to tell the jury the absence of heat of passion was an element of first degree murder and that the jury could not consider the voluntary manslaughter lesser until it decided the petitioner was not guilty of the greater charge. No element of 1st-degree murder was presumed. In other words, it was okay that the jury would not reach the heat of passion issue unless it found proof of 1st-degree murder lacking for some other reason. Counsel acted reasonably when they conceded the victims acted properly [because the victims were sympathetic], even though their defense depended on the jury finding the victims acted improperly. "Such a strategy has deep roots in the history of rhetoric," citing Marc Antony's "I come to bury Caeser, not to praise him." "Perhaps counsel were not as persuasive as Marc Antony, but they may have had less to work with." It was "wholly improper" for one prosecutor to counter a defense argument by assuring the jury the other prosecutor was a Christian. In holding the remark was not prejudicial, the 10th says: "in some cultures being a generic 'Christian' is not particularly noteworthy, but generally assumed." The prosecutor also went overboard by indicating all murders are the same during the death penalty closing, but everything else about the case, including the instructions indicated that wasn't true. So no prejudice. And it was wrong for the prosecutor to compare the petitioner's life in prison to the victim's lack of life. But no prejudice. No synergistic effect of the trial errors, so not relief from the cumulation of errors. No actual innocence salvages a procedural bar because the voluntary manslaughter defense and extra mitigators are legal innocence, not actual innocence, claims
The one piece of probably temporary good news. The 10th certifies to the Oklahoma Court of Criminal Appeals the question whether its denial of some of the petitioner's defaulted claims on procedural grounds was based on the assessment of the constitutional merits of the defendant's claims. If "yes," then the procedural bar is excused and the 10th may address those defaulted claims on the merits.