As readers know, Terry Lenamon is a nationally known expert in mitigation trial work on death penalty cases. For those watching the media coverage of the Arias' case, the work to which Terry has dedicated his life is exemplified in the stage that this trial entered when the jury verdict returned with a guilty verdict.
Here are some reference materials that those following the Jodi Arias' trial as it enters the sentencing phase may find helpful.
For those following along with the media coverage next week:
The Arizona Legislature has passed legislation (A.R.S. § 13-751) that requires two things to be found by the jury before a person can be sentenced to death in that state:
1. proof beyond a reasonable doubt of at least one aggravating circumstance as set forth in Arizona law (A.R.S. § 13-751(F): read that law here) and
2. finding that there are "no mitigating circumstances sufficiently substantial to call for leniency.” Mitigation is defined as evidence relevant to “any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense." (A.R.S. § 13-751(E): read that law here.).
The Arizona Supreme Court has published its Capital Sentencing Guide online and further information is provided there, including a discussion of case law pertaining to mitigating circumstances in death penalty sentencing trials.
Both the statute and the court opinions discussing and ruling upon mitigation will be applicable to the mitigation case presented by the defense team.
Last week, the Governor of the State of Maryland signed a bill presented to him by the Maryland legislature and with his signature, the death penalty was abolished in Maryland.
In doing so, Gov. Martin O'Malley brought Maryland into the history books as the sixth state in as many years to do away with capital punishment. If you're keeping score, these six states are shown below in dark purple (thanks to the National Coalition to Abolish the Death Penalty for this great infographic).
Now, Maryland becomes the 18th state to abolish the death penalty. As for the five people who set on Maryland's Death Row, unfortunately the new law does not automatically alter their sentencing - but Governor O'Malley has stated on the record that he will be reviewing their cases, one by one, as he considers using his power to commute their death sentences.
Meanwhile, as we posted earlier and as FoxNews points out this week, at the same time that Maryland abolished capital punishment, the Florida legislature has decided to speed up executions in the Sunshine State.
Florida Timely Justice Bill Goes To Governor's Desk: Bad News for Florida to Put Executions on a Fast Track
The Senate has passed the Timely Justice Bill and now all that it needs to become Florida law is the approval of Florida Governor Rick Scott.
Today, there is an excellent piece in the Sun Sentinel on what this means to justice in the Sunshine State: it's written by Gary Stein and it's worth your time to read.
Go here to read "Florida's fast track death penalty bill is blood-thirsty form of justice."
If that doesn't sway you that this fast tracking executions might not be the best thing to do, then consider the arguments made by former Florida Death Row resident Seth Penalver this week, a man acquitted last December after serving a good part of his life under the penalty of death for a crime he did not commit.
Embedded from CA Innocence Project
Out of the three the proposed "Timely Justice Act" seems to be moving forward with some strength, as Senate Bill 1750 has been scheduled on the Appropriations' Committee agenda tomorrow morning (04/18/13, 9:00 am, 412 Knott Building, Tallahassee, Florida in case you're interested).
Will the Timely Justice Act become Florida law?
It's still too soon to tell, but there are lots of people out there that are in favor of speeding up the execution process -- for more, check out this Miami Herald coverage of the pending legislation.
Fletcher v. JAC: April 2013 Attorneys Fee Opinion from the First District Court of Appeals in Florida
The continuing battle over indigent defense attorneys fees in death penalty cases continues in the State of Florida as a new opinion has come out of the 1st District Court of Appeals, Fletcher v. Justice Administrative Commission (read the opinion here).
The Petition for Writ of Certiorari was granted and the case remanded to the trial court for reconsideration of the attorneys' fees award with specific instructions given that "...If the trial court determines that an award greater than the statutory cap is justified, it should make the appropriate findings to support the award."
From the court:
While we are sensitive to the court’s budgetary concerns and the need to keep the courthouse doors open and thus preserve access to courts, these concerns must be balanced with the defendant’s Sixth Amendment right to appointed, conflict-free counsel. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. State, 78 So. 3d 1305 (Fla. 2012). .....
Rick A. Sichta and Susanne K. Sichta of Jacksonville appeared on behalf of the Petitioner in the case while Stuart L. Hartstone and Terence M. Lenamon of The Florida Capital Resource Center filed as friends of the court (Amicus Curiae).
We've placed Terry's amicus brief together with its Appendix into the Terry Lenamon Online Library. Just click on the Library image in the left sidebar or click below to read those documents.
Gideon v Wainwright Decision Has Anniversary Today: Right to Counsel for Indigent in Felony Cases Ruling 50 Years Ago
On March 18, 1963, the United States Supreme Court opinion in Gideon v. Wainwright came down, and with it the right to counsel for those who cannot afford their own lawyer began to be respected and protected in this country.
In celebration of this historic precedent coming out of the State of Florida, and given the reality that there will be lots of discussion on the ramifications of Gideon v. Wainwright (pro and con) in other media, here is the majority opinion from the case itself, written by Justice Hugo Black all those years ago:
Gideon v. Wainwright, 372 U.S. 335 (1983)
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under 337*337 Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:
"The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
"The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel."
Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State's witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument "emphasizing his innocence to the charge contained in the Information filed in this case." The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court's refusal to appoint counsel for him denied him rights "guaranteed by the Constitution and the Bill of Rights by the United States Government."
Treating the petition for habeas corpus as properly before it, the State Supreme Court, "upon consideration thereof" but without an opinion, denied all relief. Since 1942, when Betts v. Brady, 316 U. S. 455, was decided by a divided 338*338 Court, the problem of a defendant's federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. To give this problem another review here, we granted certiorari. 370 U. S. 908. Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: "Should this Court's holding in Betts v. Brady, 316 U. S. 455, be reconsidered?"
The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. Betts was indicated for robbery in a Maryland state court. On arraignment, he told the trial judge of his lack of funds to hire a lawyer and asked the court to appoint one for him. Betts was advised that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded not guilty, had witnesses summoned, cross-examined the State's witnesses, examined his own, and chose not to testify himself. He was found guilty by the judge, sitting without a jury, and sentenced to eight years in prison. 339*339 Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth Amendment. Betts was denied any relief, and on review this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision. The Court said:
"Asserted denial [of due process] is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial." 316 U. S., at 462.
Treating due process as "a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights," the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so "offensive to the common and fundamental ideas of fairness" as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding if left standing would require us to reject Gideon's claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration we conclude that Betts v. Brady should be overruled.
The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." We have construed 340*340 this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down "no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment." 316 U. S., at 465. In order to decide whether the Sixth Amendment's guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered "[r]elevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date." 316 U. S., at 465. On the basis of this historical data the Court concluded that "appointment of counsel is not a fundamental right, essential to a fair trial." 316 U. S., at 471. It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment's guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, "made obligatory upon the States by the Fourteenth Amendment." Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was "a fundamental right, essential to a fair trial." it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court.
341*341 We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama, 287 U. S. 45 (1932), a case upholding the right of counsel, where the Court held that despite sweeping language to the contrary in Hurtado v. California, 110 U. S. 516 (1884), the Fourteenth Amendment "embraced" those " `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' " even though they had been "specifically dealt with in another part of the federal Constitution." 287 U. S., at 67. In many cases other than Powell and Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that 342*342 private property shall not be taken for public use without just compensation, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment. On the other hand, this Court in Palko v. Connecticut, 302 U. S. 319 (1937), refused to hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that "immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states" and that guarantees "in their origin . . . effective against the federal government alone" had by prior cases "been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption." 302 U. S., at 324-325, 326.
We accept Betts v. Brady's assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is "fundamental and essential to a fair trial" is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that "the right to the aid of 343*343 counsel is of this fundamental character." Powell v. Alabama, 287 U. S. 45, 68 (1932). While the Court at the close of its Powell opinion did by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language:
"We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution." Grosjean v. American Press Co., 297 U. S. 233, 243-244 (1936).
Will Florida Juries Need Unanimous Vote for Death Penalty? Senate Bill Gains Speed in Tallahassee to Change Florida Law
Right now, in Florida, it's shocking but true that not everyone on the jury has to agree on execution of the defendant as punishment for the crime before that recommendation can come forward from the jury room.
Florida and Alabama juries don't need unanimous votes to recommend the death penalty. That may change.
Florida Senate Bill 148 (SB148) looks to be gaining steam up in Tallahassee -- and if SB 148 is passed, then Florida's death penalty process will change.
If SB 148 becomes law, then Florida death penalty cases will have to have every single juror voting in favor of the death penalty before the defendant can face a sentence of death. Right now, Florida requires all jurors to agree on the verdict of guilty (unanimous verdict) but in sentencing, not all jurors have to agree on the death penalty in order for the jury to recommend capital punishment to the judge.
CBS-Miami is reporting that this bill almost came up for vote in the Florida Senate's Criminal Justice Committee last week, but the clock ran out - so look for a vote within the next week or so.
The Florida Legislature opened for business this week, and the 2013 budget session will continue for the next 9 weeks as lawmakers up in Tallahassee bicker and fight and vote on new laws for the State of Florida, many of which will go into effect this summer.
Among them are these bills dealing with capital punishment in the State of Florida:
Postconviction Capital Case Proceedings; Citing this act as the "Timely Justice Act;" providing that the capital collateral regional counsel and the attorneys appointed pursuant to law shall file only those postconviction or collateral actions authorized by statute; removing a request to the Supreme Court to adopt by rule the provisions that limit the time for postconviction proceedings in capital cases; providing procedures that apply if an inmate seeks both to dismiss a pending postconviction proceeding and to discharge collateral counsel, etc.
Senate Committee References: Judiciary (JU) , Appropriations Subcommittee on Criminal and Civil Justice (ACJ) , Appropriations (AP)
Last Action: 03/07/2013 Introduced -SJ 185
Effective Date: Except as otherwise provided herein, this act shall take effect July 1, 2015, contingent upon voter approval of SJR 1740 in the General Election of 2014.
Death Penalty; Deleting provisions providing for the death penalty for capital felonies; repealing provisions relating to prohibiting the imposition of the death sentence upon a defendant with mental retardation; repealing provisions relating to determination of whether to impose a sentence of death or life imprisonment for a capital drug trafficking felony; deleting provisions relating to preservation of DNA evidence in death penalty cases, etc.
Senate Committee References: Judiciary (JU) , Criminal Justice (CJ) , Appropriations (AP) , Rules (RC)
Last Action: 03/05/2013 Introduced -SJ 73
Effective Date: July 1, 2013
Criminal Proceedings: Repeals provisions relating to capital postconviction proceedings, order in which closing arguments are given, grounds for death warrant, sentencing orders in capital cases; postconviction review in capital cases; repeals provisions relating to commencement of capital postconviction actions, capital postconviction claims, & sanctions in postconviction proceedings; deletes provisions relating to legislative intent concerning adoption of rules concerning acceptance of guilty pleas & effect of certain postponements for speedy trial purposes; deletes provisions relating to development of uniform order of supervision form, providing for imposition of sanction following revocation of probation or parole, allowing for offenders under supervision to be charged for urinalysis testing in certain circumstances, & providing for payment plans & establishment of priority orders for payments.
Effective Date: upon becoming a law
Last Event: 1st Reading on Tuesday, March 05, 2013 11:59 PM
To follow these bills as they proceed through the session, click on the above links to the tracking sites found on the Florida House and Florida Senate web pages.
Florida Governor Rick Scott has signed the death warrant for Larry Eugene Mann, who sets on Florida's Death Row after being convicted of kidnapping and first degree murder of Elisa Nelson, 10 years old, in November 1980.
The Execution of Larry Eugene Mann is currently scheduled by the Florida Department of Corrections for 6 pm on April 10, 2013.
With thanks to Amnesty.org for keeping track of the national execution schedule (correct as of February 6, 2013), let's consider what is going on in the United States right now. In all the states that allow for capital punishment, consider this:
- There are 27 executions scheduled from March 1, 2013 to December 31, 2015 right now in the United States.
- One is in Arizona (Edward Schad on 3/6) and one is set in Oklahoma (Robert Thacker on 3/12).
- The rest are all in Texas and Ohio.
That's right: due in no small part to the efforts of Terence Lenamon (as discussed here in prior posts), there are no death penalty executions scheduled this year, or in 2014, or in 2015, in the State of Florida.
Here are the Executions Scheduled in Texas and Ohio:
3/6/2013 Frederick Treesh
5/1/2013 Steven Smith
8/7/2013 Billy Slagle
9/25/2013 Harry Mitts, Jr.
11/14/2013 Ronald Phillips
1/16/2014 Dennis McGuire
3/19/2014 Gregory Lott
5/28/2014 Arthur Tyler
8/6/2014 William Montgomery
10/15/2014 Raymond Tibbetts
1/7/2015 Warren Henness
05/14/15 Jeffrey Wogenstahl
4/3/2013 Kimberly McCarthy
4/09/2013 Ricky Lewis
4/10/2013 Rigoberto Avila
4/16/2013 Ronnie Threadgill
4/24/2013 Elroy Chester
4/25/2013 Richard Cobb
5/7/2013 Caroll Joe Parr
5/15/2013 Jeffrey Williams
5/21/13 Robert Pruett
7/16/13 John Quintanilla
07/18/13 Vaughn Ross
7/31/2013 Douglas Feldman
03/12/15 Robert Van Hook
As reported earlier here on the blog, Terence Lenamon was successful in his arguments to keep Vernon Stevens off of Florida's Death Row as Mr. Stevens was sentenced to life imprisonment earlier this month.
Meanwhile, news coverage of the James E. Bannister murder case out of Ocala earlier this month had Terry Lenamon's co-counsel reporting to the trial judge that Terence Lenamon could not be actively participating in the Bannister proceeding because he was busy in the Stevens case.
Added to that, explained Tania Alavi, she and Terence Lenamon were also co-defense counsel in the pending Florida death penalty murder case against Michael Woods, set for trial later in 2013 - and it's assumed that the Woods trial may be delayed in order for the Bannister case to proceed.
Here is Terry Lenamon's Opening Statement in the penalty phase of the Stevens trial:
No Death Penalty for Vernon Dwayne Stevens: Defense Lawyer Terence Lenamon Victorious Over Capital Punishment Sought by State of Florida
Terry Lenamon just finished a six week trial in Florida, where state prosecutors were seeking the death penalty for Vernon Dwayne Stevens. Mr. Stevens, however, will not face capital punishment: Terence Lenamon's arguments for mitigation were successful and a life sentence was reached.
For details, check out the following documents in the Terry Lenamon Online Library, from Cause No. 07-00068CF, State of Florida v. Vernon Dwayne Stevens in the Circuit Court of the 20th Judicial District in and for Hendry County, Florida:
Congratulations to Terry Lenamon on a job well done - and another victory against the Death Penalty!