Terry Lenamon on the Death Penalty : Criminal Defense Lawyer & Attorney : Terry Lenamon Law Firm : Death Penalty, Capital Punishment Appeals

You have to read this book. 

That's all I really need to write here, but it's impossible to stop typing about how David Dow's memoir is so important for anyone connected with capital punishment to read -- and why this is so.

First, he provides a clear and unique perspective.  David Dow is not only a professor at the University of Houston Law Center, he's also the head of litigation at the Texas Defender Service.   Professor Dow has been in the trenches of death penalty defense for years, and knows of what he speaks. 

Second, he's writing a memoir this time.  Professor Dow has been published before, but his previous works were more analytical in nature.  Works like Machinery of Death: The Reality of America's Death Penalty Regime (Taylor & Francis 2002), and Executed on a Technicality (Beacon 2005).  This book gives an inside view of what it's like to represent clients who are facing death by execution.  Intersecting in these pages are Dow's dealings with his young son and how appellate demands (particularly in death penalty cases) collide with family time and parenting needs.  It's something that all capital litigators can truly understand, and it's rare that someone reveals the razor's edge we sometimes walk.

Third, Professor Dow gives us reality that is perhaps easier revealed via this personal perspective.  In Anatomy of an Execution, David Dow doesn't pull any punches.  He's showing you the underbelly of capital punishment in this country today, from the standpoint of an expert defense counsel.  From the book, you find out things such as:

1. There was a time that he was in favor of capital punishment.  He understands the arguments of death penalty proponents. 
2. Sometimes, he's hasn't liked his client -- and it's brave of him to admit this.  Of course, that hasn't stopped his calling to stand against a client's execution. 
3. Money -- and budgeting -- are just as much a concern of the defense as it is for the prosecution.  David Dow's story, covering a select number of representations as they dovetailed with his personal life, actually brings home the financial realities of capital punishment defense in this country:  Administrative matters and an analysis of cost vs benefit do happen in death penalty cases, and hat's off to Professor Dow for shedding some light on the elephant in the room. 

 For more, check out a post written by David Dow, discussing how he came to write this book, over at the Huffington Post. 

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As you'll recall, the Chief Justice for the highest criminal court in the State of Texas was on trial in August 2009 for her alleged bad acts on the day that Michael Richard was executed. 

The same day that the United States Supreme Court issued a ruling that Richard's attorneys argued should have stayed that execution, but whose motion to stay never made it to the court for consideration because of some logistical problems that afternoon.  Logistics that revolved around Justice Keller, who was at home meeting with repairmen that fateful day. 

You'll remember -- when the attorneys got to the high court, the doors were locked.   It was 20 minutes after 5.  When they called the lackey inside, who then called Chief Justice Keller at home for guidance, she said the clerk's office always closes at 5 pm.  Nevermind that Justices were on stand-by for this motion.  Everyone knew it was coming, including Justice Cheryl Johnson, the justice on call that day for emergency motions.

Michael Richard was executed by lethal injection within hours of Chief Justice Keller's dismissive phone response. 

So, a trial was had and a state district judge, David Berchelmann, was assigned to act as fact-finder in the trial of Justice Keller,  His findings then go to the state's Judicial Commission for final disposition (removal, etc.). 

The fact-finding judge issued his report last week.  And he's apparently so sympathetic with the "public humiliation" that the Chief Justice has already experienced that he thinks she's suffered enough.  However, if you actually READ his opinion, it's very curious.

Substantively, he's arguing that the Chief Justice didn't violate any rule, and then he explains (on page seven) that the "tradition" or "rule" of having a justice on duty to answer queries like the ones made by Richard's attorneys may have been ignored.  Like maybe ignoring having Justice Johnson take the call, having Justice Johnson run with the ball, instead of shutting things down with "the clerk's office closes at five"?

Experienced jurists and experienced criminal defense appellate attorneys know that there are occasions when filings are placed before the court after the standard close of business.  Especially on days when the United States Supreme Court makes rulings that impact the possibility of stay in death penalty cases. 

This fact finding report is shocking.  One can only wonder what the State of Texas will do next. 

For other responses to Judge Berchelmann's report:

Gamso for the Defense

Grits for Breakfast

Dallas Morning News

Houston Chronicle (great headline here, "Keller is lucky judge wasn't just like her.")

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Faced with the problem of how to provide legal counsel to those who cannot afford to hire their own attorney after Gideon v. Wainwright, states have found three different approaches to meeting this constitutional mandate: (1) public defender programs (nonprofit organizations with staff attorneys assigned to the indigent); (2) contract counsel (the contracting firm or entity agrees to take all indigent representations for a set time period); and (3) assigned, court-appointed private practice lawyers. 

They are not mutually exclusive models; for example, a state can have a public defender system as well as having court appointments of attorneys in private practice. Sometimes, things are so varied within a state that the method of providing lawyers to the indigent will depend upon the county.  No one single answer to the problem of providing legal counsel to the poor has proven efficient or cost-effective since Gideon came down. 

Indigent Defense in Florida

In Florida, every county with a population of 35,000 or more must have a public defender program. However, as the 2009 Justice Denied report by the Constitution Project revealed, county budgets across Florida have been slashed steadily over the years, and public defender programs have lost millions of dollars in these budget cuts. Some Florida counties today actually charge indigent convicts fees to cover litigation costs. Others are refusing to take on new indigent defense cases, telling the courts that to do so will be unethical (and unconstitutional) as they simply cannot provide effective counsel given their limited resources. 

The financial challenges of providing indigent defense have been serious for over a decade. They have only been exacerbated by continuing judicial expansion of the constitutional right to counsel for the indigent defendant, e.g., to include juveniles (In re Gault, 387 U.S. 1, 1967); those charged with misdemeanor crimes that carry jail sentences (Argersinger v. Hamlin, 407 U.S. 25 (1972)); and indigent defendants in misdemeanor cases resulting in suspended or probated sentences ( Alabama v. Shelton,  535 U.S. 654 (2002)).

Combine the expansion of the right with the fact that the right to counsel begins the minute that an individual invokes that right, Edwards v. Arizona, 451 U.S. 477 (1981) (which most criminal defendants know is the wise thing to do before answering any questions from the police), and you have a lot of demand for effective legal counsel without enough supply. 

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I'm not the first one to notice the potential analogies between the current Cheshire murder case and the long ago Kansas multiple homicide made famous by Truman Capote in his masterwork, In Cold Blood. 

In fact, one author has gone so far as to capitalize on the comparisons being made, inserting Capote's title into his own book on the Connecticut case, "In the Middle of the Night: The Shocking True Story of a Family Killed In Cold Blood."  Needless to say, his choice in titles is controversial and criticized. 

That there's already a book on this case -- published and promoted last fall, long before the trial setting -- isn't surprising.  This case has become the focus of many people across the country, looking at the case from many different perspectives.  However, given our current media culture it's also true that once again, the danger of a trial by media rears its ugly head. 

Trial by Media?

The New York Times is giving detailed coverage of this case, as are many different media outlets.  There is no denying it is an event that bodes well for ratings. 

A quaint town in Connecticut.  Middle of the night.  A family -- handsome dad (a doctor), pretty mom, two cute teenaged daughters -- sleeps, unaware that two men are breaking into their New England cottage.  The father is beaten and tied up.  The mother and one of the girls are raped.   A fire is started.  The mother is strangled.  Both teen daughters die, tied to their beds, from smoke inhalation.  Only the dad survives.

This is a horrific event and no one can help but be shocked at what happened here.  Of course, the trial of the two parolees charged with these crimes will be covered by the press.  As it should be -- criminal defense attorneys do not want to deny media coverage of criminal cases.  Those journalistic eyes on the process, the investigation, the procedure, etc. all aid in insuring that justice is done and we don't have Kangeroo Courts in this country. 

However, due to the well known nature of this case, jury selection will take a long time.  It has to -- to find those who can serve as jurors without bias or prejudice cannot be easy here. 

Not two days into jury selection, one potential juror already broke into tears during voir dire, just listening to the charges being read and many in the panel are being excused after telling the judge they know all about the case, "it's all over the papers." 

Added to this media complication is the fact that this is a death penalty trial and under Connecticut law, selection of jurors is much more detailed since a man's life is being considered as part of the sentence, should guilt be found.  Aggravating factors involving the crimes as well as mitigating circumstances involving the defendant will all come into play. 

One more complication here:  after the Connecticut legislature finalized a bill repealing the death penalty in their state, the governor vetoed the bill, giving as her sole reason for doing so -- the Cheshire killings. 

Media Has Already Influenced Jury Pool - Has There Already Been a Trial by Media?

The media's impact has already impacted jury selection - it could take months to seat a jury in the Cheshire case.  Whether or not this becomes another example of trial by media is still somewhat debatable.  Detailed national coverage of this case goes back two years. 

It's not hard to predict that the media scrutiny will only increase once the trial actually begins.  And lots of defense folk and death penalty opponents will be watching the Cheshire proceedings as they unfold.  Because -- as I written before for the Orlando Sentinel --- trial by the media is wrong, and no matter how horrific the Cheshire murders were, our system cannot condone the media suplanting the jury in this, or any other, case.  Unfortunately, it may well be the case in the Cheshire proceedings that a trial by media is already a fait accompli. 

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Robert Lee McConnell was set to die on February 1st at the hand of executioners for the state of Nevada, until yesterday when a federal court intervened, granting his motion to stay.  It's the second time that Mr. McConnell has faced that last walk -- he was previously set to be executed back in 2005.  Then, the execution was less than half-hour away when a stay was granted.  In 2005, McConnell had announced to everyone that he was ready to die. 

One wonders what that's like -- sitting on Death Row, being moved to the Carson City prison where Nevada kills its prisoners, setting your affairs in order and spending what you think are your last days on earth, only to find that they're not your last days.  Especially when it's happened to you twice.

Robert Lee McConnell took responsibility for a terrible mistake that he made when he murdered his ex-girlfriend's fiance back in 2002.  He pled guilty to the crime. 

Robert Lee McConnell also represented himself, both at trial and in this latest motion for stay.  In a request that exceeded 160 pages, McConnell asked Federal District Court Judge Robert Jones to halt the execution arguing in part that the death sentence was fundementally unfair.  (McConnell seems to be somewhat a jailhouse lawyer, having had his appeals to the Nevada Supreme Court heard - and rejected - last July, where he challenged the constitutionality of the lethal injection method of execution. )

Judge Jones has granted the stay, and ordered that McConnell have one month to file the appropriate petitions as well as having legal counsel appointed to assist him in that task. 

Of some note, the American Civil Liberties Union (ACLU) was litigating the constitutionality of Nevada's lethal injection method of execution in 2007, and Nevada took the challenge seriously enough to stay the execution of William Castillo, a man who had asked for the death penalty. Nevada was planning on upping the drug cocktail to double the standard amount, as well as giving Castillo a mandatory sedative.  It was only when the ACLU dropped its suit that Nevada started back with capital punishment.  Castillo's case remains on appeal. (By the way, they call these folk "volunteers" when they want to die rather than live any longer in state imprisonment.  Chilling, isn't it?)

What McConnell will argue on his latest appeal will be interesting to follow. 

Not only does he (and his newly appointed counsel) have the recent ACLU challenge to reference, as well as whatever additional appellate points they will address, they also proceed in an environment where more and more people are recognizing that powerful, powerful reality: it is simply cheaper to allow prisoners like Mr. McConnell to remain behind bars than it is to continue with capital punishment.  

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The National Coalition to Abolish the Death Penalty is the only fully-staffed national organization working to abolish capital punishment in the United States.  Its annual conference starts today and runs through the weekend.   Sister Helen Prejean is the keynote speaker this year, she's always wonderful -- and if I didn't have courtroom commitments, I would love to hear Sister Helen today. 

What's the NCADP?

Formed in 1976 (yes, in conjunction with the reinstatement of the death penalty by the United States Supreme Court), the NCADP has grown to become a tremendous force in the efforts to stop government executions in our country.  (The NCADP also works toward ending capital punishment in other countries around the world.) 

From the hub of its wheel spring the various state Coalitions (New Mexico Coaltion to End the Death Penalty, Kentucky Coalition to End the Death Penalty, etc.), and through NCADP's efforts, a tremendous amount of information regarding capital punishment is corraled and distributed.  Its website alone is a treasure of current news on death row events, legislative and judicial updates, and other important items of interest to those working to end the death penalty in this country. 

What's Happening at the Conference?

This year's conference is being held in Louisville, Kentucky, and will include the following: 

• Exhibitions by such noteworthy organizations as (a) the Kentucky Coalition Against the Death Penalty: (b) Equal Justice USA; (c) the Justin Wolfe Project; and
• Panels of nationally recognized leaders in their fields, discussing such topics as (a) People Affected by the Criminal Justice System; (b) Conservative Voices Opposing the Death Penalty, Building Bridges to Political and Religious Conservatives; and (c) Innovative and Effective Response to Crime and Violence.   

The annual meeting of the NCADP isn't free - it's one of the big moneymakers for the non-profit organization, in fact.  It's definitely a worthy effort, and worth your time and money if you have any chance of getting to Louisiana over the next few days. 

Follow NCADP on Twitter as well as YouTube and its blog, Abolish the Death Penalty.

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This Sunday, an interesting twist to the recent American Law Institute's divorce from its prior recommendations regarding the death penalty occurred:  The Charlotte Observer published an editorial calling for abolishing capital punishment in North Carolina, based on the ALI's recent determination. 

As added incentive, the Charlotte Observer did point to a Duke University study and its tally of $11,000,000 that could be saved each year by the state of North Carolina if capital punishment were to be abolished.  (The Death Penalty Information Center has a free, advance copy of Dr. Cook's findings stored as a pdf on its website.)

What's the big deal with the ALI about-face?  The American Law Institute's change in position has been heralded by the Huffington Post (among others) as the biggest development regarding capital punishment in 2009.  The New York Times explains the importance of the ALI to the death penalty in this country in a well-written piece, as well. 

One has to wonder, however, as we monitor future developments in North Carolina, which is going to carry more influence in a move to abolish their death penalty:  the ALI reversal, or $11 million in the state's annual budget?  Perhaps Dr. Cook and Duke University will prove to be the bigger powerhouse here.  If money talks, $11 million should screaming loudly in the North Carolina economy. 

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There are some pretty tough death penalty defense lawyers over in Ohio and they are really showing there stuff right now, charging out of the gate here at the beginning of the new year with strong challenges to Ohio's practice of capital punishment.

Recap - Death Penalty in Ohio for the Past Six Months

As you'll recall from our earlier discussion, Ohio patted itself on the back last month when it became the first state in the union to execute a man using the single drug lethal injection method.  On December 8, 2009, Kenneth Biros died after state executioners essentially injected a large amount of anesthesia into his veins.  And, if that reminds you of the procedure they use to "put down" beloved pets at the vet's office, it should.  It's the same thing - massive anesthesia has been used for years to euthenize dogs and cats. 

Ohio opted for a single drug injection method instead of halting executions in the state after its notoriously horrific attempt at executing Romell Broom in September 2009.  Broom lay strapped to the Death Gurney for over two hours, sobbing (witnesses testified to this), as Ohio executioners tried to kill him with injection needles that were incapable of insertion.  Somehow, these trained personnel were not able to insert a needle into Mr. Broom in order to inject the toxins so he would die.  Finally, the execution was aborted and Mr. Broom returned to his cell. 

Of course, cries of unconstitutionality in the Broom execution immediately rang out, a temporary stay was granted, and his case taken to the courts.  However, that's not all that is happening in Ohio today.

Attorneys representing several Death Row inmates have filed arguments with the courts, challenging the procedures that the State of Ohio uses in its manner of execution.  This is a next-door challenge to the actual lethal injection of drugs itself, and it's a powerful challenge given the facts that are coming to light.

For example, just last Friday lawyers for Romell Broom (Timothy Sweeney and Adele Shank) filed arguments in federal court against the constitutionality of Broom's death sentence, based in part on the inadequate training of his executors. 

Crux of Broom's Argument: Team Member 21

One of the men that tried to find Broom's veins that day had a past employment history in the medical field as a licensed EMT (emergency medical technician), but he hadn't worked in that capacity for years.  Who knows how long it had been since he'd last tried to insert a needle into a human arm.  The Death Chamber wasn't the place for him to practice his atrophied nursing skills.  Add to that fact this one: he wasn't given any training by the Prison before trying to kill Broom on September 15th. 

Furthermore, this guy didn't bother to attend the rehearsals (yes, they rehearse the execution).  Labelled "Team Member 21" in the court filings, he was one of two men responsible for carrying out the capital punishment that day on Romell Broom. 

Even dogs and cats get a trained professional to assist them when they're euthanised.  How Ohio is not hanging its head in shame over this entire situation is amazing.... 

We send wishes for good luck as well as our prayers to our capital defense bretheren in Ohio for victory in this long, hard fight.  

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