Importance of the Underlying Record: SCOTUS Denies Cert in Hidalgo v Arizona

It's Monday morning, and the Supreme Court of the United States (SCOTUS) has issued its orders of the day.  Included among them, denial of the Petition for Writ of Certiorari in Hidalgo v. Arizona.  

For background, read our earlier posts:

The Reverberating Importance of Trial in a Capital Case

Key here:  the importance of the underlying record in a capital case is once again in the spotlight.  The things that happen in the courtroom reverberate for years, not just in the particular circumstances of the defendant on trial for his (her) life, but for others on Death Row; those facing the possibility of the death penalty, and in reality, all of us and the country as a whole.  

What happens in the courtroom, where for instance Terry Lenamon works to defend one of the Terrorist Boyz from the death penalty this month, has far-reaching implications. And we can expect Arizona's death penalty lawyers to take note of Justice Breyer today.  

Justice Breyer Explains Need for Evidence in Hidalgo

From Justice Breyer today:

Although, in my view, the Arizona Supreme Court misapplied our precedent, I agree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty.

That evidence is unrebutted. It points to a possible constitutional problem.

And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation.

However, in this case, the opportunity to develop the record through an evidentiary hearing was denied.

As a result, the record as it has come to us is limited and largely unexamined by experts and the courts below in the first instance.

We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors).

Nor has it been fully explained whether and to what extent an empirical study would be relevant to resolving the constitutional question presented.

Capital defendants may have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here.

And the issue presented in this petition will be better suited for certiorari with such a record.

Florida Seeks Death Penalty for Nikolas Cruz: 7 Aggravating Factors Are Pled

The State of Florida wants the death penalty for 19-year-old Nikolas Cruz, who has already confessed to being the shooter in the Valentine's Day tragedy at Marjory Stoneman Douglas High School.

For those that follow the blog, you know Terry Lenamon's son is a student at Marjory Stoneman Douglas, present on the day of the shooting but thankfully unharmed. 

Read, "Terence Lenamon's Son At Marjory Stoneman Douglas High School Shooting."

While many of the victim's families did not want capital punishment in this case, it appears that the Broward County prosecutors have made their own decision here. 

See, "Prosecutors to seek death penalty for Parkland school shooter Nikolas Cruz," written by Paula McMahon and Rafael Olmeda and published by the Sun Sentinel on March 13, 2018. 

Notice of Intent to Seek the Death Penalty for Nikolas Cruz

The State of Florida filed its Notice of Intent today.  You can read the complete Notice of Intent here. 

Aggravating Factors Asserted by State Attorney

The State of Florida intends to prove the following aggravating factors beyond a reasonable doubt in support of its desire for capital punishment of Nikolas Cruz:

  1. Florida Statute 921.141(6)(b);
  2. Florida Statute 921.141(6)(c);
  3. Florida Statute 921.141(6)(d);
  4. Florida Statute 921.141(6)(g);
  5. Florida Statute 921.141(6)(h);
  6. Florida Statute 921.141(6)(i); and
  7. Florida Statute 921.141(6)(k).

See, Notice of Intent pages 2 -3. 

And so the sentencing phase of the case begins.  The defense will bring forth its allegations of mitigating factors that go against the imposition of the death penalty. 

Next Step:  the Mitigating Factors

And there will be a trial where a jury will hear arguments from both sides -- a process we have discussed so many times before here on the blog, as the Sentencing (Penalty) Phase of a Death Penalty case is where Terry focuses so much of his efforts.  

Rick Kammen and Terence Lenamon: FACDL Death Penalty Seminar Presentation

 Tomorrow morning in Orlando, Terry Lenamon will be joined by his friend Rick Kammen at the Florida Association of Criminal Defense Lawyers' 24th annual "Death is Different" seminar.

Lenamon and Kammen Speaking at "Death is Different" Seminar

Their presentation, entitled "Psycho Drama," begins at 10:30 a.m and concludes at noon.

Both Terence Lenamon and Rick Kammen are experienced death penalty defense attorneys with national reputations for fighting against capital punishment in this country.  For those unable to attend, FACDL offers recorded seminars for purchase. 

Terrorist Boyz Trial 

Those following this blog are aware that Terry Lenamon is currently involved in jury selection for the Terrorist Boyz capital murder trial of Frantzy Jean-Marie. 

Gitmo USS Cole

Many may also recognize Rick Kammen as a death penalty defense attorney based in Indianapolis who resigned from USS Cole representation due to bugs compromising the criminal defense. 

See today's Miami Herald article by Carol Rosenberg for details, entitled "Pentagon: Microphone? What microphone?"

Here are their bios as provided in the seminar materials:

Richard Kammen, Esq.

Richard Kammen is a criminal defense lawyer with his office in Indianapolis, Indiana. He concentrates his practice in serious felonies, white-collar defense, complex crimes and death penalty defense. He is a member of the law firm of Kammen and Moudy. 

He graduated from Ripon College cum laude in 1968 and New York University School of Law in 1971.  Admitted to the Bar in 1971, he began his practice after service in the United States Army.

During his professional career, Mr. Kammen has served as a public defender in the Marion County Courts on two occasions, 1972-1974 and 1978-1979.  Mr. Kammen has defended over three hundred homicide cases including approximately forty death penalty cases in both State and Federal courts. No client that Mr. Kammen has represented at trial has been sentenced to death.  

Terence Lenamon, Esq.

Terence M. Lenamon is capital defense attorney in Miami and a Resource Lawyer and Co-Founder of Florida Capital Resource Center, an organization dedicated to training Florida capital attorneys.

Mr. Lenamon is a graduate of Gerry Spence’s Trial Lawyer’s College and has taught numerous training sessions throughout the state on techniques in mitigation investigation, jury selection, the art of the closing argument, and creative brief writing in capital cases. He frequently writes about death penalty issues on his blog at

Pentobarbital Supply and Demand for Execution Drugs

 This week, the Supreme Court of the United States declined to consider the case coming out of Texas, where Death Row inmates petitioned SCOTUS to review their claims that Texas’ use of pentobarbital in lethal injection executions is cruel and unusual punishment.

Seems Texas has a stash of pentobarbital that it got from a compounding pharmacy and Texas isn’t sharing the identity of its drug supplier.  One key factor here:  how old is this stuff, and how far beyond its expiration date.  

Given that the High Court’s action this week, it appears the Lone Star State is free to proceed with lethal injections using its secret drug stash.  Ditto other states with similar Death Row drug pantries.  (At least for now.)

See: Texas Has A Top-Secret Execution Method

Executioner’s Drug Supply

What’s happening here?  For states that approve of capital punishment, there's a growing crisis because they are finding it harder and harder to get the drugs needed for their execution protocols. The inmate is scheduled to die by lethal injection, but that’s only going to happen if they’ve got the drugs.

Either the big drug companies are refusing to supply executioners with the drugs, or Big Pharma simply stopped manufacturing them.  

See Pfizer Bans Use of Its Products in U.S. Executions

States have tried to find solutions to their supply problem.  Some looked to foreign markets.  Attempts to shop overseas have been thwarted by the Department of Justice. 

See DEA is Grabbing Up All the Sodium Thiopental? No Wonder Pentobarbital Is Popular in Executions

Others tried to change the lethal drug cocktail recipe.  In order to continue executing under the lethal injection method, there were some who altered the drugs contained in the traditional lethal three-drug cocktail.  Others tossed out the idea of a cocktail and went forward with a single drug protocol as an execution device. 

So, when states can find lethal execution drugs, it’s a big deal.  They place big orders so they have a secure supply for the future.  And they keep their suppliers secret, worried that others will pressure the supplier to stop providing execution drugs or that these suppliers will be snapped up by competing states in need of lethal drugs themselves. 

Consider Missouri. 

Back in 2014, Missouri grabbed a bunch of phenobarbital and held it as its lethal execution inventory.  The supplier’s name was given a code to be used in official documents to keep the identity of the pharmacy secret.

Of course, lawsuits were filed to try and reveal the supplier’s identity.  Many of these suits were filed by Death Row inmates seeking to know who the source of their chemical executioner. 

Recently, BuzzFeed revealed that Missouri’s drug supplier is a pharmacy named Foundation Care.  Seems Foundation Care has a reputation for “hazardous pharmaceutical procedures” – but whether or not it’s still available as a supplier of execution drugs is in doubt. 

The compounding pharmacy was purchased by Centene Corporation, and in the BuzzFeed report Centene insists that “Foundation Care has never supplied, and will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

Nevermind that BuzzFeed has 2 sources confirming Foundation Care supplied the lethal drugs for 17 Missouri executions.

So, has the source dried up?  Dunno. How much does Missouri have in its execution pantry?  Dunno.

Read the complete BuzzFeed expose, written by Chris McDaniel, entitled "The Secretive Company Behind Missouri's Lethal Injections." 

What Happens Next?

Something else to consider here:  if the states cannot find lethal drugs, or they cannot use the drugs they have, then will this stop the executions? 

Or will it push states to consider older execution methods, which are still legally available to them like the electric chair, gas chamber, firing squad, or hanging?





Terence Lenamon's Son At Marjory Stoneman Douglas High School Shooting

There are times when you are tested, when circumstances reveal your integrity or the lack thereof. 

That came last week for noted Death Penalty Defense Attorney Terence Lenamon, as his son Jude Lenamon was among the students attending Marjory Stoneman Douglas High School in Parkland, Florida, on the Valentine's Day Shooting.

Death Penalty Defense When Your Son Is Threatened in Active Shooter Tragedy

When your sons -- not only Jude, but his brothers Gabriel and Jonah -- are under an active shooter threat, does your stance concerning the death penalty change?

When your son Jude, a freshman at Marjory Stoneman Douglas High School, deals with the aftermath alongside the rest of his family and friends, do you question your life's work involved in defending those accused of the most heinous acts where capital punishment is sought?

Jude Lenamon's Eyewitness Account 

For details on Jude Lenamon's story, read his uncle's article in the Palm Beach Post entitled, "Suburban safety shattered: What my nephews learned in the face of evil," written by Nick Moschella and published on February 16, 2018. 

Terry's take on things is included in this story -- no surprise for those who know him.  


Mental Illness and the Death Penalty

 Defending those facing the death penalty brings Terry Lenamon into the heart of the issue of mental illness in this country and how that does (as opposed to should) impact the imposing of capital punishment on those convicted of serious crimes.

Mental Illness is an Issue in All Death Penalty Cases

We discuss aspects of mental illness and the death penalty regularly on this blog, because it is key to both the determination of guilt as well as the sentencing phase of any death penalty case and goes to mitigation issues. 



U.S. Supreme Court Deciding Major Death Penalty Case Regarding Intellectual Ability and Capital Punishment: the Case of Freddie L. Hall

Schizophrenia Doesn't Stop Execution of Mentally Ill Florida Death Row Inmate John Errol Ferguson This Week

SCOTUS on Mentally Ill and Death Penalty 

The Supreme Court of the United States has considered the issue of execution for those convicted of capital crimes but who are mentally ill either at the time the crime was committed or at the time of the scheduled execution. 


Ford v. Wainwright 

SCOTUS ruled it is unconstitutional to execute someone who suffers from a mental illness and cannot understand that they are facing death or the reasons why the government seeks to execute them.

Atkins v. Virginia 

SCOTUS held the government cannot execute someone with severe mental disability.


For legal analysis, see Schaaf, Rosalind. "The Death Penalty and Wrongful Convictions of the Mentally Disabled in America.Legal Studies Master’s Degree: Criminal Law.(2017). 


Resources for Study of Mental Illness and Capital Punishment

However, for those wanting to educate themselves with an overview of how mental illness does and does not impact the ability of the prosecutor to seek the death penalty as well as the power of the state to execute those who are clearly mentally ill, we offer the following for study:

1 Death Penalty Information Center on Mental Illness and the US Death Penalty

Collection of resources discussing various aspects of this issue, including case examples of the mentally ill who faced execution in this country.  

2.  Amnesty International Article "Death Penalty and Mental Illness"

Discussion of how mentally ill are executed in the United States with a link to Amnesty International's full report.  

3.  Mental Health America's Position Paper on Mental Illness and the Death Penalty

Position given on why capital punishment is not appropriate for those suffering from mental illness. 

4.  National Alliance on Mental Illness Position Policy on Death Penalty for Mentally Ill

Policy paper on why the death penalty is not appropriate for those who are mentally ill. 


ABA 2018 Resolution: Ban Death Penalty for Defendants Under Age of 21

 The American Bar Association has adopted a formal resolution regarding the Death Penalty as well as publishing its report in support of the resolution.

You can read the full report here.  

The 2018 ABA Resolution on Death Penalty

Here is the full text of the resolution here, drafted by the ABA's Civil Rights and Social Justice Section:

RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or execution of any individual who was 21 years old or younger at the time of the offense.

Notice that the ABA does NOT go so far as to oppose capital punishment.  They are not moving to abolish the death penalty here.

Adolescence and Death Penalty 

The ABA is urging that young people should be dealt a different hand when it comes to capital punishment, because of their adolescence.  From the report:

It is now both appropriate and necessary to address the issue of late adolescence and the death penalty because of the overwhelming legal, scientific, and societal changes of the last three decades. The newly-understood similarities between juvenile and late adolescent brains, as well as the evolution of death penalty law and relevant standards under the Eighth Amendment lead to the clear conclusion that individuals in late adolescence should be exempted from capital punishment.18 Capital defense attorneys are increasingly making this constitutional claim in death penalty litigation and this topic has become part of ongoing juvenile and criminal justice policy reform conversations around the country. As the ABA is a leader in protecting the rights of the vulnerable and ensuring that our justice system is fair, it is therefore incumbent upon this organization to recognize the need for heightened protections for an additional group of individuals: offenders whose crimes occurred while they were 21 years old or younger.

- ABA Report page 3.


Lenamon Begins Terrorist Boyz Frantzy Jean-Marie Death Penalty Trial

Beginning February 5, 2018, Terence Lenamon will be in a Miami Dade courtroom in another fight against the death penalty, this time in a notorious capital case involving a member of the Terrorist Boyz named Frantzy Jean-Marie.

Capital Case Trying Charges From Over a Decade Ago

It’s a complicated defense for many reasons, not the least of which is that Frantzy Jean-Marie was among several men charged with nine different murders in Miami-Dade County over a decade ago. The others, collectively known as “the Terrorist Boyz” in the news coverage, are Benson Cadet, Johnny Charles, Max Daniel, and Robert St. Germaine.

Of note: the Terrorist Boyz’ collective capital defense has gained the reputation as being “Florida’s most expensive death penalty case” as discussed in an article by David Ovalle and Nicholas Nehamas entitled, “The Death-Penalty Cases Rack Up Big Dollars In Miami-Dade,” published by the Miami Herald on October 2, 2016.

Indigent Defense Costs in Death Penalty Cases

In that article, Terry explains: “In many places in Florida, there is very little spent on the death penalty and there is a rush to complete the cases. I have the responsibility to make sure no stone is left unturned. It’s a very expensive proposition, but there is a simple solution: End the death penalty.”

He goes into even more detail about his motivation to represent defendants facing death in capital cases here, specifically referencing Mr. Jean-Marie among others in the post Sometimes You Need To Stop and Survey the Territory When You're a Criminal Defense Attorney Representing People Facing Death.

It’s an important read when considering next week’s capital case, as well as any death penalty defense matter in Florida (or elsewhere).

For more on indigent defense matters, check out:

1.  our e-book to learn more about the money aspects of capital cases in The Death Penalty Indigent Defense Crisis: Representing the Poor when the State wants to Kill Them and It's Paying Your Bill and 

2. Terry's memoir to learn more about Terry's personal experience in defending those accused of capital crimes and the life of a death penalty defense lawyer in Heinous, Atrocious & Cruel: The Casebook of a Death Penalty Attorney.



Florida Supreme Court Denies New Sentencing Hearings for Death Row Inmates

 Two years ago, in January 2016, SCOTUS issued its decision in Hurst v. Florida and now, in January 2018, the Florida Supreme Court has issued its rulings in over two dozen requests by Florida Death Row inmates for new sentencing hearings based upon Hurst's concerns regarding non-unanimous sentencing recommendations under the old Florida death penalty statute. 

These decisions have been released all this week (Jan 22 -24). More are expected. 

For details on Hurst, read our prior discussions here.

In short, the Florida Supreme Court is denying these Death Row inmates new sentencing hearings. 

The Court is using June 24, 2002, as its bright line. 

That's the date that  SCOTUS came down with Ring v. Arizona, opining that the constitutional right to a jury trial  includes defendants facing the death penalty to have their jury find all facts that are necessary for a death sentence to be imposed.

The FSC holds Ring created new law and would not be retroactively applied to cases where direct appeals had been completed before Ring came down.

For details, read the coverage by Orlando Sentinel on January 22, 2018, entitled, "Florida Supreme Court rejects 10 Death Row appeals at same time." and the article by Stephanie Brown for WOKV-TV entitled, "FLORIDA SUPREME COURT LETS STAND DOZENS OF DEATH SENTENCES, INCLUDING 11 FROM THE FIRST COAST," which was published today. 

To read the entire SCOTUS opinion in Hurst v. Florida, go here


Trial Lawyer's College Podcast: Terence Lenamon on the Death Penalty

Recently, Scott Glovsky interviewed Terry Lenamon for Trial Lawyer Talk.

Interview of Death Penalty Defense Lawyer Terence Lenamon

Included in the interview is a discussion of Terry's recent representation of Byron Burch.

Terry's client faced prosecutors seeking his death based upon a guilty verdict in the particularly violent murder of Brooksville schoolteacher Sarah Davis. 

As described in the Trial Lawyer Talk coverage, you'll hear Terry discuss things like: 

  • What it feels like to have a mans life in your own hands
  • The synopsis of Terry’s clients’ story (Byron Burch)
  • Childhood, Addictions, & Psychic Problems
  • How Capital Cases are distinctly different from other trial cases
  • Using integrated case approach
  • Florida litigation requirements have changed in the past couple years and will change again
  • Aggregating factors surrounding Terry’s client
  • How Terry uses TLC methods in his cases
  • How the public sees “The Death Penalty”


Listen to the Terence Lenamon Interview for more.  It's thirty minutes long and gives an excellent glimpse into Terry's calling of representing those whom the government has decided are worthy of execution: 



Death Penalty: Four Things to Watch in 2018

 The Marshall Project has published its analysis of the state of the Death Penalty as we enter into 2018.  See, "What to Know About the Death Penalty in 2018," by Maurice Chammah of the Marshall Project and published in the ABA Journal.

It's a good read. Taking everything that has happened - and which we know will be happening this year (like the pending SCOTUS decisions), the Marshall Project has collected them into four specific areas:

1. The Supreme Court of the United States

There's a great discussion on what might happen if Justice Kennedy retires.  And while Florida is still dealing with Hurst v. Florida, and now we've got Hidalgo v. Arizona pending before the High Court.  

See:  "Will SCOTUS Hear Hidalgo v Arizona and End the Death Penalty?"

2. The Attorney General for the United States

Attorney General Jeff Sessions is all for the death penalty. That's not news.  But the article has some interesting discussion on his dropping of the death penalty back in Alabama.  And how there is a way Sessions could "speed up executions in the states."

3. The States (Florida and Texas playing a big part here)

Big issue here, really, is getting those lethal injection drugs in order to carry out executions.  The Marshall Project points to fentanyl being used, and how the FDA blocked importing drugs from India.


 4. The Counties in those States 

There are certain counties in Florida and Texas that are hot beds for death penalty issues.  Among them, the state attorneys prosecuting cases in Tampa and Orlando.  Can they implement their own ban on capital punishment simply by failing to file a notice of intent to seek the death penalty?  

Another interesting thing to ponder in the Marshall Project synopsis:  what about life without parole? How merciful is it, or it is just as cruel as death, or even more so?  

Happy New Year



Terence Lenamon Closing Argument Transcript in Bannister Death Penalty Phase

 Here is the transcript of the closing argument made by Terence Lenamon in the death penalty case of James Edward Bannister.  

Lenamon Closing Argument in Death Penalty Phase:  

The jury did note vote for death after hearing this argument.  Why not?  Read it for yourself.

For more on the James Bannister case, read:

Opening Statements and Closing Arguments in James Bannister Death Penalty Trial (guilt phase)

James Bannister Victory and Florida Death Penalty in 2018


Death Penalty Closing Arguments in the Penalty Phase of James Bannister 

Merry Christmas from Lenamon Law



DPIC Year End Report for US Death Penalty 2017

 The latest Death Penalty Information Center Year End Report has been published and you can access it here. 


Summary of the 2017 DPIC Year End Report: 

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