Florida Jury Instructions in Capital Cases: SCOTUS Denies Cert in Truehill and Oliver

The Supreme Court of the United States has denied certiorari in two important Florida death penalty appeals, which questioned current jury instructions given in capital cases. 

SCOTUS Dissent in Challenge to Florida Jury Instructions in Death Penalty Cases

From Justice Sotomayer, a dissent joined by Justice Ginsburg and Justice Breyer, stating in part:

“At least twice now, capital defendants in Florida have raised an important Eighth Amendment challenge to their death sentences that the Florida Supreme Court has failed to address. Specifically, those capital defendants, petitioners here, argue that the jury instructions in their cases impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory. “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task,” and we have thus found unconstitutional under the Eighth Amendment comments that “minimize the jury’s sense of responsibility for determining the appropriateness of death.” Caldwell v. Mississippi, 472 U. S. 320, 341 (1985). ….

“Because petitioners here raised a potentially meritorious Eighth Amendment challenge to their death sentences, and because the stakes in capital cases are too high to ignore such constitutional challenges, I dissent from the Court’s refusal to correct that error.”

Read the full dissent in Truehill v. Florida / Oliver v. Florida, placed for future reference in the Terence Lenamon Online Library:

  

 

Bob Chaloupka Seminar 2017: Terence Lenamon Speaker

For capital lawyers, you might be interested in hearing Terence Lenamon speak at this year’s Bob Chaloupka Kick Ass Trial Skills Seminar, proceeds of which are donated to NATA, NCDAA and Trial Lawyers College.   The program begins at noon on Thursday, November 2, 2017, and ends at 12:30 on Friday, Nov. 3rd.

Bob Chaloupka Kick Ass Trial Skills Seminar

From the website:

 The Bob Chaloupka Kick Ass Trial Skills Seminar is designed to teach, motivate and honor brave service to clients in the courtroom – whether in personal injury, criminal, family law, property law or other areas of practice that summon lawyers’ courage in court.  And, in true homage to Bob Chaloupka, the Seminar gives lawyers who care about serving their clients an opportunity for fellowship and togetherness, setting aside differences to learn from one another (and to raise a glass together at the cocktail hour).

Our speakers have come from around Nebraska, Wyoming, Colorado and South Dakota; but also from Alaska to Miami.  Our speakers have included three federal judges as well as an innocent man, exonerated after 24 years in prison on a wrongful conviction.  Both civil defense and civil plaintiffs’ lawyers have presented at the Bob Chaloupka Seminar, alongside some of the bravest criminal lawyers in the United States.  The common theme is what ties speakers to Bob’s legacy:  hope; vision; creativity, bravery even when one is afraid, and service to the client above all else.

Just click here to register online via Paypal.  Approved for CLE credit in Nebraska, Iowa, Wyoming and Colorado.

 

From the Seminar Materials:

Come to Scottsbluff, and hear from a true hero in the world of death penalty defense, Terry Lenamon.

Terry is a death penalty specialist: he handles the most challenging, grisly and emotionally trying death penalty cases throughout the State of Florida.

His work has helped to shape the law and the structure of death penalty litigation in Florida, and he has trained and taught other lawyers how to serve clients on appointment of the court in this uniquely difficult area of practice.

His trials have been featured on Dateline, Snapped and 20/20, in part because the cases are sensational but also, and more importantly, because of how Terry has developed and innovated new ways to discovery and tell the story of his clients’ own trauma.

It is not to pretend his clients (who are by and large guilty) should “get off” – it is to make the case for Mercy, which is the topic of Terry’s presentation at our program.

Terry’s commitment to the ideals of loving the least of our brothers is his calling, and a challenge to those of us who are moved by his work.

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William Wells Verdict: No Death Penalty

Many in Florida have been following the capital case of William Wells. He's been known in the media as "the Monster of Mayport" for years now. 

No Death Penalty: "A Vote for Humanity and Mercy" - Terry Lenamon

Terence Lenamon and co-counsel Tania Alavi of Ocala represented William Wells in his 2017 capital trial before the Honorable William Davis in Starke, Florida.  Lenamon Law associate Melissa Ortiz and mitigation specialist Kate O'Shea played pivotal roles in the defense team's victory against death in this case. 

Result:  The jury did NOT vote for the death penalty.  In what Terry's views as "... a vote for humanity and mercy," the jurors found that the balance between aggravators and mitigating factors did not warrant capital punishment.

Background from the Trial:

The State of Florida sought the death penalty for William Wells based upon the death of an inmate at the hands of William Wells and Wayne Doty.  Wells confessed to the killing.

Wells was incarcerated at the Florida State Prison at the time of this killing because of his prior conviction for five counts of 1st degree murder back in 2003. 

Wells pled guilty to killing his wife, his wife's lover, her father, her brother, and a drug dealer over a time period covering 11 days.  All the bodies were kept in Wells' trailer with him and his small son.  

With this background, how could Lenamon and his team convince the jury not to decide on death for this man? 

What swayed them?  Read the arguments for yourself.

Opening and Closing in the William Well's Death Penalty Trial

First, there is the Opening Statement by Terry's co-counsel Tania Z. Alavi in Terry's Digital Library. 

Then, there were Terry's Closing Arguments.  That part of the trial will be uploaded into the Digital Library once they've been transcribed and forwarded.

 

William Wells Penalty Phase Opening Statement by Lenamon co-counsel Tania Z. Alavi 

Death Penalty Defense Lawyers

This week, the Marshall Project published an op-ed by Susannah Sheffer entitled "After Executions, Defense Attorneys Have Their Own Grief: a therapist on the emotional price lawyers pay to defend individuals sentenced to death."

 
As she points out so well, things are different for lawyers like Terry Lenamon who have dedicated their legal careers to defending men and women accused of capital crimes and for whom the prosecutor seeks the death penalty.  
 
Emotional Toll
 
There is the emotional toll that must be respected and cannot be underestimated when the death penalty defense attorney and his team does all that they can do, and still their client enters the execution chamber.  
 
From the article:
 
"Defense attorneys are not at the center of the death penalty story, but the penalty’s impact on these unique stakeholders is significant. It demands that we take seriously the wide-ranging implications of each execution."
 
Pressures of the Practicalities of the Practice
 
Another factor that adds more stress to the death penalty defense lawyer's daily life which is not mentioned in her article is how these lawyers have to be savvy and smart in how they do their job, because they are dealing (for the most part) with indigent clients.  There's not much money in the budget and there's a life on the line.  
 
Defending against death in any scenario is emotionally harsh, but consider how difficult it is for the cases where you have to monitor how every single dime is spent and still maintain a standard of excellence?
 
Think about it.  
 
Indigent Defense in Capital Cases: Florida's JAC
 
For more on this issue, see "Who is the JAC? What is JAC vs. Lenamon? Should You Care?" and read Terry's amicus brief in Fletcher v. JAC for additional discussion. 

 

Another Great Documentary on the Death Penalty: Into the Abyss (2011)

 Every so often, we recommend a book or movie or film that informs and educates about the complexity of issues involved in capital cases and the death penalty in America today.  

Today, we're sharing a documentary that is available on Netflix right now.  

 It's Into the Abyss (2011) directed by Werner Herzog 

 

 

Critics at Rotten Tomatoes rank this film 92% on the Tomatometer and 76% of the reporting audience at Rotten Tomatoes liked it.

What's it about?  

From Rotten Tomatoes (quoting from the synopsis on the film's site):

"In his fascinating exploration of a triple homicide case in Conroe, Texas, master filmmaker Werner Herzog probes the human psyche to explore why people kill-and why a state kills. In intimate conversations with those involved, including 28-year-old death row inmate Michael Perry (scheduled to die within eight days of appearing on-screen),

Herzog achieves what he describes as "a gaze into the abyss of the human soul." Herzog's inquiries also extend to the families of the victims and perpetrators as well as a state executioner and pastor who've been with death row prisoners as they've taken their final breaths. As he's so often done before, Herzog's investigation unveils layers of humanity, making an enlightening trip out of ominous territory. -- (C) Official Site"

DPIC Podcast: Does Capital Punishment Deter Murder?

This month, the Death Penalty Information Center shares a new podcast with its PowerPoint presentation, entitled "Does Capital Punishment Deter Murder?."

View the PowerPoint presentation here. 

Listen to the podcast here. 

In it, DPIC Fellow Seth Rose and Executive Director Robert Dunham detail research studies that reveal Death Penalty does not deter murders from being committed nor does it work to keep police officers safer than in states where capital punishment is not condoned.

 

 

Dunham explains:  "There's no evidence that the death penalty deters murder and there's no evidence that it protects the police. Murder rates may be affected by many things, but the death penalty doesn't appear to be one of them."

 

Dennis Prager Explains The Position FOR the Death Penalty

Terence Lenamon fights against the death penalty as his life's calling. This week, he is involved the jury selection for the William Wells case over in Starke.  (Wells is the man whom the media has dubbed the "Mayport Monster.")

And if you listen to the arguments of Dennis Prager in this video (which had over 887,000 videos at the time this post was published), then you get the idea just how hard Terry's job can be.

Because there are people out there who think the death penalty is acceptable. And that today's technology makes it almost impossible to convict and execute an innocent person.  

Just watch the other side's position here.

Then, take comfort that people like Terence Lenamon and the folks at the Innocence Project are out there, hard at work.  

And maybe someone can point Mr. Prager to recent exposes that DNA isn't all that reliable, crime labs and prosecutors do bad things, and that (as one example), Cameron Todd Willingham died an innocent man, executed for the arson death of his daughters. 

 

Terence Lenamon on Faculty of Gerry Spence Trial Lawyer's College

 Did you know that Terence Lenamon was on the faculty of the Trial Lawyer's College founded by renowned trial lawyer Gerry Spence

The faculty list is here.  

What is the Trial Lawyer's College?  

Here's the mission statement from the site:

The Trial Lawyer's College is dedicated to training and educating lawyers and judges who are committed to the jury system and to representing and obtaining justice for individuals; the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression.

In all of its activities, the Trial Lawyer's College will foster and nourish an open atmosphere of caring for people regardless of their race, age, creed, religion, national origin, physical abilities, gender or sexual orientation. 

TLC Kudos to Terry for Recent Result in Joshua Fulgham case

And here is the TLC post announcing Terry's victory against the death penalty earlier this summer in the Fulgham case, written by Maren Chaloupka – TLC Faculty & ’99 Grad

Terry Lenamon (TLC ’11 7-Step Grad), death penalty warrior in Florida, saved the life of his client Josh this week – – after a lengthy, graphic and heartwrenching trial on both guilt and sentencing, Terry’s jury returned a verdict of LIFE for the damaged, despised man whom Terry placed into the jury’s hands.

The prosecutor used some prosecutorial version of TLC methods in his final argument of the sentencing phase of trial, reenacting parts of the kidnapping and murder for which Josh stood trial.  That Terry overcame that dramatic reenactment is a true testament to the power of love.

Folks, it doesn’t get any more real than this.  This man would be damned to the needle if not for Terry.  I am amazed and so proud to have him in our group.

Here is a link to a news write up about this case:  Jury: Life for Fulgham

Here is a link to a TV story on this case: Joshua Fulgham Gets Life

 

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Florida Death Penalty: Two Major Events This Week

This week in Florida, there were two major events involving capital punishment in the Sunshine State.

1.  Asay Execution With Etomidate

First, the execution of Florida Death Row inmate Mark James Asay was carried out on August 24, 2017.

This was the first execution by the State of Florida in over 19 months.  Executions have been on hold in Florida after the SCOTUS decision in Hurst ruled the Florida capital punishment statute unconstitutional.

It was also the first execution to use a new three-drug lethal injection protocol, as the Asay execution involved the use of the drug etomidate.

2.  Lack of Unanimity Denies State the Death Penalty in Kendrick Silver Trial

This week, the capital murder trial of Kendrick Silver when to a jury in Miami.  And because one single juror could not agree that Silver should be executed for his crimes, there can be no death penalty in his case.

This is the first death penalty case that has been tried to completion in Miami since the new Florida death penalty law was passed by the Florida Legislature  earlier this year.  

The new statute had to be passed into law because of the SCOTUS decision in Hurst.  

Under the new law, which requires all the jurors agree on the death penalty as the appropriate sentence, the power of a single juror is great.  As is shown in this case, where the hold-out juror found that there were sufficient mitigating circumstances to shield the defendant from death.

Foe more on mitigation in a death penalty case, read:

 

Florida Supreme Court Ruling in Asay v. Florida

Of course, the biggest result of the Florida Supreme Court's decision this week in Asay v. Florida is its failure to block the impeding execution of Mark James Asay.  

Read the full opinion here: Asay v. State, No. SC17-1400 (Fla. Aug. 14, 2017).

Asay Execution Remains Scheduled for August 24, 2017

The State of Florida has scheduled this execution for August 24, 2017.  This week's Florida Supreme Court opinion will not block that from happening.

It will be the first execution in the State of Florida in many months (over a year and a half), since executions were halted here after SCOTUS ruled that the Florida death penalty statute was unconstitutional.

Impact on Florida Death Row Inmates' Review of Death Sentences 

After SCOTUS's ruling in Hurst v. Florida, the Florida Legislature revised the state capital punishment laws twice.  This year, a new statute became effective that mandates juries be unanimous in their recommendation of a sentence of death.

As we have discussed earlier, one result of the SCOTUS ruling meant that Florida Death Row inmates might have legal arguments for re-sentencing and life sentences on constitutional grounds.

The Asay opinion by the Florida Supreme Court did not agree with Asay's constitutional arguments -- although the sole dissenter, Justice Barbara Pariente, did find merit in them.  Specifically, that the cut-off date for determining which Florida Death Row inmates should be allowed re-sentencing hearings is unconstitutional.  

Justice Pariente dissents, agreeing with Petitioner Asay that all Florida Death Row inmates who were sentenced to death in jury trials without unanimous recommendations for death should get a new sentencing hearing.  

Lethal Injection Protocol for State of Florida

This new opinion in Asay is also important for the Florida Supreme Court's declination to consider Asay's arguments about:

(1) the State of Florida's decision to use a new drug in its lethal injection method of execution (etomidateand

(2) its use of a three drug cocktail and not a single drug in the execution process.

 

Motion to Exclude Death Penalty for William Wells Denied

Next month, the death penalty trial of William Wells is set to begin in Bradford County, Florida, on September 4, 2017.  

You may recognize this case as the "Mayport Monster" case.  Terence Lenamon is defense counsel for William Wells.  

Of interest here to many:  this is another defendant facing the death penalty who suffers from mental disability.  

How Does the Defense Get Death Penalty Excluded From Possible Sentence?

It's the job of the defense team to fight for these defendants after the prosecutor has notified everyone that the government is seeking the death penalty.

So, how does this get argued in a capital case?  A Motion is filed by the defense, and heard by the judge.  The motion is the official request to have the death penalty taken on the table by the judge.

The judge then makes a decision and rules, in an Order signed by the judge that either grants or denies the relief.

In the Wells' case, Terence Lenamon's motion to exclude the death penalty has been denied.  It has been placed into the Terence Lenamon Online Library.  

Here is that motion as it was filed in the court record, for those of you interested in this issue and those who may be interested in how the actual motion reads: 

 

Update on Bannister Trial: Continuance to October 2017

 In our last post, we discussed the upcoming August 2017 trial of James Bannister and gave some background information for the continuance motion filed and argued by Terence Lenamon as defense counsel for Mr. Bannister.  

It looked pretty solid then that the trial would begin this month.  

Things have changed.  

Continuance Motion Granted: Bannister Trial Rescheduled

Terry Lenamon filed another motion for continuance, and it has been granted.  Now the trial is scheduled to begin in October.  

For details, read today's coverage in the Ocala Star Banner in an article written by Katie Pohlman entitled "Quadruple murder trial pushes to October."

Just one more lesson in how complex these capital cases are -- not only factually, but procedurally.

What's happened?  

As you will discover if you read the Ocala article, the Judge announced that there are two reasons for the trial delay.

1.  The Medical Examiner's Schedule; and 

2.  The 11 Motions to Suppress Evidence filed by Lenamon.

Judge Pope, as quoted in the news piece, stated from the bench that both sides have "put forth a valiant effort" to get the case to trial.  

An Alibi Defense

One other factor here:  the defense's need for additional time to investigate an alibi defense.  That's right: an ALIBI.  

 

Update 08/10/2017

 

The Fourth Motion for Continuance (and the earlier motions as well) have been added to the Terence Lenamon Online Library.

For those of you interested in reading the actual filed motion (or to learn what a continuance motion looks like in Florida death penalty cases), here it is:

 

Bannister Trial Goes Forward After Lenamon's Continuance Motion Denied

The capital murder trial of James Bannister is set to go forward in a little over two weeks.

Bannister Jury Selection Set for August 14 

Terence Lenamon's motion for a continuance of the August 2017 trial date was denied by the judge after a hearing earlier this month.  It was not his first continuance motion.  The judge appears firm on the Bannister trial beginning with jury selection on August 14th.

Lenamon Comments

For details on that July 2017 hearing read the coverage by Katie Pohlman, "Attorney denied more time for quadruple murder case," published in the Ocala Star Banner.  

Now, here's the thing.  Terry Lenamon isn't going to comment here in this blog post about this situation, you can read what he has to say in the Ocala news coverage of the case (quoting his arguments to the bench).  

Why not?  For one thing, it's a pending case.  For another, he's busy doing the work of getting ready for this trial as well as juggling his other cases and running a busy law practice.  (That's why he has a co-author.)

Things to Consider

But there are things to share about this situation.  Answers to some questions that might be asked about what's going on here.

Here are some things I can share, from my perspective as a lawyer setting over in Texas:

Time and Money

All trials, civil or criminal, boil down to time and money.  It takes time to prepare a case for trial before a jury, no matter what's in controversy.  And it takes money to do the job.

Nowhere are these two things more critical than in a death penalty case.  Capital cases are by definition going to involve the (1) guilt phase and (2) sentencing phase.  

Two Phases of a Capital Case

If the accused in a death penalty case is found guilty, there's not a delay before sentencing is considered (which is the case in other jurisdictions).  In Florida, the jury trial will enter the sentencing phase if a guilty verdict is rendered.  Same jury, same courtroom, same trial.  

So the capital defense team has to get ready for both phases in its trial preparation.  Gathering and assembling authenticated, admissible evidence that deals with (1) the facts of the crimes themselves (here, multiple homicides and arson) as well as with (2) the mitigating circumstances that impact upon whether or not capital punishment should be considered for this defendant.  This may include psychological expert testimony, evidence of childhood trauma, etc.  

The evidence in the guilt phase and the evidence in the sentencing phase do not overlap.  So, preparation for the death penalty trial is complex.  It's a huge undertaking.  And it takes time and money to get it ready to go (along with preparation of opening statements, cross-examination questions, closing arguments, etc.).

Death penalty cases, therefore, will take longer to get to trial than smaller, simpler criminal matters. That's the nature of this kind of case.  

Indigent Defense

In capital cases, the defendants usually do not have the financial wherewithal to pay for their defense lawyer and his team.  The federal constitution's right to counsel comes into play.  They have court-appointed lawyers, like Terence Lenamon, that are appointed to defend them.

Court-appointed attorneys don't get paid the same hourly rate that private practice lawyers demand (and get).  They get paid by a set government schedule.  And they don't have the client retainers to cover expenses for things like investigators, research costs, etc.  They have to cover those litigation costs from state funds, too.  

Indigent defense in a death penalty case is a cost balancing act.  The representation has to be effective and zealous, but every penny has to be carefully spent.  

Death On the Table

Add to all this the sobering reality that someone's life is on the line here.  The capital defense lawyer must always have in focus that if there is a guilty verdict, then his (or her) job will be to try and stop an execution from being part of the sentencing.  That's a huge factor in these cases that simply does not exist in other trials, civil or criminal.

For More Information

Hopefully this provides some background information for our readers on what's happening here in this particular Florida death penalty trial that's beginning next month. 

For more details, check out

 

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Florida Execution Scheduled for August 2017

The Florida Execution Schedule is up and running again.  Governor Rick Scott has signed the Death Warrant for an August execution, the first execution for Florida in 18 months.

Mark James Asay is scheduled to be executed by the State of Florida on August 24, 2017, at six o'clock in the afternoon.  

Death Warrant Signed by Florida Governor Rick Scott

You can review the actual Death Warrant below, and it has been stored in the Terence Lenamon Online Library as well.  

Notice that it includes:

  1. the Governor's letter;
  2. correspondence from Florida Attorney General Pam Bondi;
  3. the Death Warrant; and 
  4. the Judgment and the Sentence of the Duval County trial court. 

Asay Previously Scheduled for Execution in March 2016

This is not the first time that Mark James Asay has sat on Death Row with an execution date looming before him.  He was previously scheduled for death back in March 2016.  

However, the SCOTUS ruling in Hurst v. Florida intervened and the Florida Supreme Court delayed that 2016 execution.  Last December, the Florida Supreme Court lifted its execution stay for Asay. 

Here is a copy of the Death Warrant itself, signed by Governor Rick Scott and published online by the Florida Supreme Court: 

 

 

Great New Florida Death Penalty Resource from DPIC

The Death Penalty Information Center website is a great resource for anyone interested in learning more about capital punishment in the United States.  And the site just keeps getting better.  

They've got site-specific pages for each state, for one thing.

DPIC State-Specific Page: Florida

There's a great deal of Florida Death Penalty information collected on the DPIC Florida page, great info like:

  • Death Sentences List
  • Exonerations List
  • Time Line for Capital Punishment in Florida
  • and links to other resources -- among them, the Florida Capital Resource Center (which Terence Lenamon founded several years ago). 

And there's a specific page dedicated to the impact of Hurst on Florida's Death Row that is especially informative. 

DPIC Impact of Hurst Page 

The page dedicated to the impact of Hurst provides a complete list of the Florida Death Row Inmates who may be impacted by the SCOTUS ruling in Hurst.  

And at the top, it gives the date of its last update and the status of these prisoners' cases.

For instance, on July 13, 2017:

  • Total number of prisoners whose cases have been reviewed in light of Hurst:  119 
  • Number of prisoners who have obtained relief under Hurst:  99 (83.19%)
  • Number of prisoners who have been denied relief under Hurst:  20 (16.81%)

Go check it out.  Just more great work by the DPIC.  

 

 
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