SCOTUS Rules Independent Mental Health Expert for Capital Defense

 Last week, the Supreme Court of the United States (SCOTUS) published its decision in McWilliams v. Dunn, a capital case coming out of Alabama where Death Row Inmate James McWilliams argued  and won that his sentencing was unconstitutional.  He did not challenge his conviction.

Independent Mental Health Expert for Death Penalty Defendants in Capital Cases

He asserted that he had a right to an independent mental health expert in his defense against the death penalty.  By not having his own psychiatrist or psychologist to investigate his history of neurological issues (including a traumatic brain injury), the defendant could not fully assert mitigating factors going against a death sentence.  

In the majority opinion (written by Justice Breyer, SCOTUS explains:

1.  If the defendant is indigent, then the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense," citing Ake v. Oklahoma.

2.  Ake requires more than just an examination. It requires that the State provide the defense with “access to a competent psychiatrist  who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.”

3. The court is not deciding whether Ake requires a State to provide an indigent defendant with a qualified mental health expert retained specifically for the defense team.

Read the opinion here. 

For more on mitigation in a death penalty case's sentencing phase, read our earlier posts including discussions on the issues of indigent defense funding; QEEG brain mapping; and the importance of mitigation specialists.

Death Penalty in the United States: Time Line

 Here's a great resource for a quick overview of the death penalty in the United States, state by state, including clemency granted and denied and various issues with execution methods.  

Compiled by CNN, you can read it here as their Death Penalty Fast Facts.

Among the details found there: 

1.  Since 1973, there have been 157 death row exonerations and 26 of those executions have been in Florida.  That's 17%. 

2.  There are 62 people sitting on the Federal Death Row -- no, not any state.  The federal government can execute, too. 

3.  A Florida governor has suspended the death penalty,  Governor Jeb Bush did so after the horrific execution of Angel Diaz back in 2006.

4.  A drug called sodium thiopental was popular in lethal execution methods in several states until the DEA began questioning where the states were getting their supply and seized all of Georgia's supply of thiopental.  

That led to the only US manufacturer to stop making it, and overseas manufacturers to refuse to sell it to American buyers.  Result?  States began looking for a substitutefor sodium thiopental.  Georgia chose pentobarbital to replace sodium thiopental in its 3-drug cocktail. 

5.  Pentobarbital hasn't been so easy to find for executions either.  Ohio couldn't find any pentobarbital to buy, so it substituted midazolam along with hydromorphone in its lethal injection procedure.  This was used on Alan Johnson, who reportedly gasped for air for as long as 13 minutes before passing away 24 minutes after the execution began.

 

Lethal Injection Drugs: SCOTUS Dissent Questions Midazolam

 The thing about lethal injection is that it's an execution method usually built around a combination of drugs.  And those drugs might not be the same.

Indiana 3-Drug Combo Voided by Indiana Court

For example, in Indiana the drug combination protocol established by the Indiana Department of Corrections was: (1) methoexital; (2) pancuronium bromide; and (3) potassium chloride.  The Indiana Court of Appeals nixed the use of this drug cocktail this month.  

For details, read their decision in Ward v. Carter, and the discussion at DeathPenaltyInfo.org

SCOTUS Dissent By Sotomayor Questions Use of Midazolam

This month, Justice Sotomayor voiced her concerns over using midazolam in a lethal injection in her dissenting opinion in Arthur v. Dunn, writing:

"I continue to doubt whether midazolam is capable of rendering prisoners insensate to the excruciating pain of lethal injection and thus whether midazolam may be constitutionally used in lethal injection protocols."

Read the full dissent here. 

So, is this a hint that midazolam's days are numbered as a method of execution?  And if it's ruled out, then will states simply find another drug to use in its stead?

For more on this issue, check out:

New Jury Instructions for Florida Death Penalty

 Last week, the Supreme Court of the United States opted not to review a case dealing with the Florida Supreme Court's determination that there must be an unanimous jury for the death penalty. 

Which means that it's clear going forward that in Florida capital cases, the prosecution must convince all twelve jurors that capital punishment is warranted before the death penalty can be imposed.

Jury Instructions in Florida Death Penalty Cases

This changes how the prosecutor and the defense lawyer do things, of course.  Judges, too.  For instance, as Terence Lenamon has discussed in an interview by the Ocala Star Banner, there will be necessary changes to the Jury Instructions that must be given in a capital case.

May 29th Ended Comment Period for Florida Supreme Court

Right now, the Florida Supreme Court is working on amending the Standard Jury Instructions that are to be given in a capital case, in light of the SCOTUS precedent.  

The time period for public commentary on these new instructions ended this week.  

SC17-583 Opinion: Jury Instructions Under Review 

Pursuant to the Florida Supreme Court's Opinion SC17-583, here are the specific Standard Jury Instructions that are involved:

Two Standard Jury Instructions in Criminal Cases are in the process of being amended:

7.11 (Preliminary Instructions in Penalty Proceedings—Capital Cases) 

7.12 (Dialogue for Polling the Jury (Death Penalty Case).

Two new jury instructions are being proposed:

3.12(e) (Jury Verdict Form— Death Penalty)

7.11(a) (Final Instructions in Penalty Proceedings—Capital Cases).

THE APPENDIX TO SC17-583 CONTAINS THE FULL TEXT OF ALL THE PROPOSED CHANGES. (IT BEGINS ON PAGE 9.)

 

 

 

Death Penalty in 2016: USA Not In the Top Five

 Amnesty International has released its annual report on capital punishment around the world.  How does the United States fare in comparison to countries like China, Iran, or Saudi Arabia?  

Death Penalty in the USA Compared to Other Nations

From their report:

For the first time since 2006, and only the second time since 1991, the USA is not among the world's five biggest executioners.

The number of executions (20) in 2016 reached the lowest level recorded in any year since 1991, half what it was in 1996, and almost five times lower than in 1999. The number of executions has fallen every year since 2009, except 2012 when it stayed the same).

For more detailed information, read the full report as a downloadable pdf here.

 

 

DOJ New Brief on Death Penalty: Florida is Number Two

More on Florida Death Row Than Any Other State Except California

According to new research compilations by the Department of Justice's Bureau of Justice Statistics, we know that Florida remains number two in the country for the number of people setting on its Death Row.  

Only California has more Death Row residents.  Source: Bureau of Justice Statistics May 2017.

 

 We also learn the following, as of December 31, 2015:

  • 33 states and the BOP held 2,881 inmates under sentence of death, 61 fewer than at year-end 2014. This was the fifteenth consecutive year in which the number of inmates under sentence of death decreased. 
  • Fourteen states and BOP received 49 inmates under sentence of death.
  • Six states executed 28 inmates.
  • Twenty-one states removed 82 inmates from under sentence of death by means other than execution.
  • Overall, 20 states held fewer inmates under sentence of death than a year earlier, 5 states and BOP held more inmates, and 9 held the same number.
  • The largest decline in inmates under sentence of death occurred in Texas (down 17), followed by Georgia (down 8), and Missouri (down 7).

 

Did Prosecutorial Misconduct in Texas Lead to Execution of Innocent Man?

Over in Texas, the worst nightmare for any death penalty defense attorney is being played out in real life:  the allegations that a prosecutor committed serious misconduct during the capital trial, which resulted not only in the conviction of an innocent man, but his execution.

Cameron Todd Willingham was executed in 2004 for the arson deaths of his three young daughters.  He maintained his innocence always.

The Innocence Project began investigating claims of prosecutorial misconduct several years ago.  That led to a grievance being filed before the State Bar of Texas which included supporting evidence to allegations that the prosecutor that include:

1.  he made a deal with a jailhouse snitch to testify against Mr. Willingham in exchange for favorable treatment of the snitch; and 

2.  used various kinds of junk science to argue that the father had set fire to the home, killing his children.

Read the details in the Washington Post piece, " A Texas prosecutor is on trial for alleged misconduct," by Radley Balko published on May 3, 2017.  

Today, shocking many, the jury returned without any punishment for the prosecutor.  

Which makes the efforts of capital defense lawyers like Terence Lenamon all that more important and vital....

New DPIC Fact Sheet Released

 The Death Penalty Info Center just updated its Death Penalty Fact Sheet.  You can download the pdf by clicking on the image:

 

Lots of information here regarding capital punishment in the United States today. From the DPIC statistics, consider the following:

  • Since 1973, more than 155 people have been released from death row with evidence of their innocence.
  • Florida had the second highest death row population in the country, exceeded only by California, in October 2016.
  • Enforcing the death penalty costs Florida $51,000,000 MORE each year than if these 1st degree murder convictions had been given a sentence of with life without parole.
  • The South has the highest murder rate and over 80% of executions are performed in the South.
  • As of January 1, 2015, there were 56 women on death row in the United States.  No juveniles are on death row because capital crimes committed by juveniles cannot be given the death penalty according to a 2005 SCOTUS decision.

 

Bannister Trial to start August 2017 with Terence Lenamon Defending

Terence Lenamon and Florida Assistant State Attorney Robin Arnold have announced to the court that things are on schedule for the murder trial of James Bannister to begin on August 14, 2017.

For details, see the Ocala Star Banner coverage written by Katie Pohlman and published April 26, 2017 in "Quadruple-murder trial set to start in August."

 

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Markeith Loyd News Coverage: Terence Lenamon Profile

There's still talk that Terence Lenamon may participate in the defense of Markeith Loyd even after the judge declined the defendant's request that Terry Lenamon be appointed as his defense counsel. 

Terence Lenamon Profile

Once again, Terence Lenamon is not issuing any news release here, but is sharing the following media profile and interview from the Orlando Sentinel published earlier this week regarding the Markeith Loyd case, written by Rene Stutzman:

"Terry Lenamon, Markeith Loyd's hand-picked attorney: A staunch opponent of the death penalty."

Terence Lenamon Memoir

For those interested in learning more about Terence Lenamon's attitude toward representing death penalty defendants as well as his past case experience, they can always check out the short memoir he published a few years back.  It's also available in paperback at Amazon.com.

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Amnesty International Death Penalty Report: China Secrecy Still a Problem

Amnesty International has released its latest study of the death penalty worldwide. A particular concern: China and its continued secret executions.

China's Death Penalty

We discussed the China Death Penalty (with the Death Penalty Vans) in a series of earlier posts written by Sin-Ting Mary Liu. 

See, e.g., "In Depth Look at the Law: China Death Vans and Harvesting Prisoner Organs for Profit.

Here, a video synopsis of their latest findings from Amnesty International:

 

Markieth Lloyd Requests Terence Lenamon as Appointed Lawyer in Death Penalty Trial

 Markieth Lloyd wants Terence Lenamon as his defense counsel - and only Terry Lenamon. 

Terence Lenamon is not discussing this issue with the media and he's not issuing any kind of news release here. 

This post shares this current development with the blog's readers and refers them to the following news stories for details:

"Markeith Loyd asks Miami capital punishment lawyer to represent him," by Emilee Speck, published April 3, 2017, on ClickOrlando.com. (Also published by Local10.com); and

" Markeith Loyd Told A Judge He Wants A Specific Lawyer," published April 3, 2017, at NewsTalkFlorida.com. .

The court will rule on this matter on April 12, 2017.

 

SCOTUS rules on Intellectual Disability Test for Death Penalty

The Supreme Court of the United States (SCOTUS) has ruled in the case of Bobby Moore v. State of Texas, and it's a victory for opponents of the death penalty.

This case is one more step in the treatment of those with mental health issues or intellectual disability issues in capital punishment.  Another recent and important case here:  2014's Hall v. Florida.

Moore v. Texas Does Two Things

In an opinion written by Justice Ruth Bader Ginsburg, two things have happened:

1.  Texas Death Row Inmate Bobby Moore will get the opportunity to argue that he should not be executed because his intellectual disability bars him from capital punishment as cruel and unusual punishment under the U.S. Constitution; and

2.  The State of Texas has been told its method of determining who can be executed when their intellectual abilities are in question is wrong.  Its procedure does not meet constitutional muster according to SCOTUS.

Full Text of Moore v. Texas

Read the opinion here as we've stored it in the Terence Lenamon Online Library: 

 

Arkansas Plans 8 Executions in 10 Days: Two at a Time

As shocking as this may be, news reports are that the State of Arkansas will execute eight Death Row inmates next month, over the course of ten days. 

8 Executions Over 10 Days; Two at at Time

That's almost one execution a day, right? Well, yes.  Except reports are that the executions are planned to occur two at a time.  That's right: Arkansas will execute these men in pairs, two executions on the same day.

Lethal Injection Protocols In Question: What About The Drugs?

All these executions will be by lethal injection. 

Reports are that the state does not have all the proper drugs for the lethal injections.  This has not prevented the executions from being scheduled.

Will they be carried out? Will a federal court stop them?

And why now?  Arkansas has not executed anyone for TWELVE YEARS.

ACADP Tracking Efforts to Stop April Executions

For more information, including the fight to stop this mass execution next month, visit the web site of the Arkansas Coalition to Abolish the Death Penalty (ACADP).

Florida Has New Death Penalty Law in March 2017

Governor Rick Scott signed into law SB280 earlier this week.

The bill had been unanimously approved by the Florida Senate and only three lawmakers in the Florida House of Representatives voted against it.

New Florida Death Penalty Law

What does the law provide? Now, in the State of Florida, juries in capital cases will all have to agree on the death penalty. Florida now requires unanimous juries in capital cases.

For more information, check out our earlier post that includes the full text of SB280 and its legislative progress:

Florida Legislature Moves to Pass New Laws for Death Penalty Procedure.

 
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