Hidalgo v Arizona SCOTUS Update: Is No News Good News?

Updating our prior post on the case of Hidalgo v Arizona, where a petition to the Supreme Court of the United States has been filed on behalf of Arizona Death Row inmate Abel Hidalgo. 

This is the case that some argue could result in a SCOTUS finding that capital punishment is unconstitutional. For details read our earlier post, "Will SCOTUS Hear Hidalgo v Arizona and End the Death Penalty?"

Supreme Court On Holiday 

SCOTUS has adjourned for its holiday break.  The next time that the Justices will meet to consider things ("scheduling conference") is on January 5, 2018.

SCOTUS did have Hidalgo v Arizona on the table this month.  It was part of the December 1st conference. 

But they didn't go either way on the petition (request).  Didn't deny writ, didn't grant it. 

Arizona Court Record Sent to SCOTUS on December 11, 2017

They did do something:  

On December 6th, SCOTUS sent for the lower court record. The record was received by the High Court yesterday (12/11/17).  

So what does it mean that the Arizona record was requested two days before the formal scheduling conference?  

As SCOTUS blog has explained in its coverage, this gives a hint of sorts.  Some think it means that there will be a denial of Hidalgo's request but that a justice (SCOTUS thinks it's probably Justice Breyer) is writing an explanation of his or her position on why writ should be granted. 

But we don't know this is accurate. So, maybe no news is good news, right? 

 

 

Opening Statements and Closing Arguments in James Bannister Death Penalty Trial

What do the prosecutors and the defense attorneys say to the jury in a death penalty case, when those 12 people are going to decide whether or not the defendant should be sentenced to death?

Real life isn't like those short speeches we see on the TV shows like Law and Order.  For those interested in the process and how death penalty trials work -- and specifically, what Terence Lenamon said to the jury in the Bannister case where the jury came back for Life, not Death, we have added the following into Terry's Online Libary:

 

Death Penalty Trial Opening Statements: Trial Transcripts

 

 

Closing Arguments by State and Defense in Death Penalty Trial of James Bannister

James Bannister Victory and Florida Death Penalty in 2018

With the execution of Patrick Hannon earlier this month, the State of Florida has completed its execution schedule for 2017.  

Lenamon Victory in James Bannister Trial

Terence Lenamon has just successfully defeated attempts by prosecutors to get the death penalty in two capital cases this fall.  In both the James Bannister and William Wells prosecutions, the juries came back with verdicts imposing life without parole. 

Not death. 

What swayed the jury in the Bannister case?  We'll share Terry's closing argument here on the blog and in his online library in a future post.  (Read his argument in Wells here.) 

2018 Florida Capital Punishment Prosecutions 

Right now, there are no executions scheduled by the State of Florida for 2018 (most executions already on the calendar are in Ohio, some in Texas).  

And there's a lot of people watching what will happen if SCOTUS decides to hear Hidalgo v. Arizona, because it might bring all death penalty prosecutions to a halt in this country in a similar manner to Furman years ago.  

Doesn't change things for capital defense today.  Prosecutors are going to seek death in capital cases and death warrants will be issued next year.

Consider this:  a man has been arrested and accused of being a serial killer over in Tampa today.  Prosecutors are telling the press this afternoon they will seek the death penalty in this case.  

Hopefully Terry gets a much needed respite over the holidays -- because he's going to be very busy again next year, fighting to keep people from being killed by the state. 

 

Happy Thanksgiving 2017!

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

Right now, there is a petition before the Supreme Court of the United States coming out of the State of Arizona.  If SCOTUS agrees to hear this case, then it's a big deal.  It may be the 21st Century's Furman v. Georgia.

Hidalgo v Arizona Petition Before SCOTUS

The case is Hidalgo v. Arizona.  Follow it here.

Why is it a big deal?  Key to the petition is the issue of "aggravating factors" and how they work.  Each state has its own list.  (See Terry's list of state aggravating factors and mitigating circumstances here.)

In Arizona, they've added so many factors to the list that anyone convicted of murder can face death in that state.  There's also a budget argument, some Arizona counties are more likely to seek death because they can afford it. 

Tribe's Op-Ed Argues Hidalgo to Strike Down the Death Penalty

Lots of illustrious folk are voicing their concerns over capital punishment and their interest in the High Court rendering its opinion in Hidalgo.  But if you just want to read one, check out Laurence Tribe's op-ed in the Washington Post, "The Supreme Court Should Strike Down the Death Penalty."

Amicus Briefs Filed in Hidalgo

Also check out the amicus briefs:

  1. Brief filed by Amnesty International
  2. Brief filed by Fair Punishment Project
  3. Brief filed by The Promise of Justice Initiative
  4. Brief filed by Former and Current Arizona Judges, Prosecutors, Defenders, Legislators and Others.

 

James Bannister Trial: Penalty Phase Begins Monday

Today, the jury came back with a guilty verdict in the capital murder trial of James Bannister. 

Terence Lenamon is defending in the case with co-counsel Tania Alavi. Of course, this is only the beginning for Terry and Tania: starting on Monday, there will be the fight against the death penalty that is being requested by the State of Florida.

Penalty Phase Starts on Monday

Beginning next week, the focus will be upon arguing to the jury that mitigating circumstances outweigh the aggravating factors urged by the prosecution, and that the sentencing should forego death for LWOP (life sentence without the possibility of parole).

What will Terry argue?  Each case is different. 

However, for those interested in these matters, there is the recent closing that he gave in the Wells case where the jury nixed death after considering Terry's arguments for mercy.

Read that closing here: 

Penalty Phase Closing Argument in William Wells adv Florida 

Closing Argument in Death Penalty Trial of William Wells

 Terence Lenamon argued against the imposition of the death penalty in the William Wells case last month, and the result was a jury finding that Wells should not receive death but instead life without parole.

The jurors' determination was based upon consideration of the aggravating factors argued by the State as they balanced against the mitigating circumstances urged by Terry.  Mercy won:

 

So, what did Terry argue to these twelve jurors that resulted in four of them deciding against capital punishment?  

Read his Closing Argument here, stored for future reference in the Terence Lenamon Online Library:

Penalty Phase Closing Argument in William Wells adv Florida 

Death Penalty Defense Lawyer Details Defending Against Death in Scott Glovsky Interview

Over in California, lawyer Scott Glovsky creates podcasts of his talks with fellow trial attorneys, those he considers to be the great trial lawyers in the United States today, published on his site as "Trial Lawyer Talk." 

Terry Lenamon Interview: "Trial Lawyer Talk"

This month, he spoke with Terence Lenamon.  It's a lawyer to lawyer chat.  And it provides fascinating details of how these capital cases are investigated as well as tried. 

It's a death penalty lawyer going into detail about a specific capital case. 

The interview covers 36 minutes and can be heard here, as episode 38, where Terry discusses (1) facts of the case as well as (2) his experience in defending Byron Burch, who was accused of killing his elderly aunt in a horrific manner.  What about DNA?  What about mental illness?

Burch was convicted of the crime, but Terry successfully blocked the state's desire for capital punishment in the case.  Instead, Burch was sentenced to life in prison without parole.  

This was a hard-fought victory for Terry, where Florida law at the time allowed a jury to vote 7 to 5 in favor of death for the state to win its desire for capital punishment.  Things have changed since then, of course. 

Opening Statement in Terry Lenamon's Online Library

What more details?  You can read his opening statement in the Burch case as well as the state's opening to learn what the jury heard in that case. 

Watch the Burch Penalty Hearing

There is also a YouTube video of the actual penalty hearing if you want to watch how these things progress, and see Terry in action. Watch it here: 

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. 

 

 
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