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. 

 

Terence Lenamon on Faculty of Gerry Spence Trial Lawyer's College

 Did you know that Terence Lenamon was on the faculty of the Trial Lawyer's College founded by renowned trial lawyer Gerry Spence

The faculty list is here.  

What is the Trial Lawyer's College?  

Here's the mission statement from the site:

The Trial Lawyer's College is dedicated to training and educating lawyers and judges who are committed to the jury system and to representing and obtaining justice for individuals; the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression.

In all of its activities, the Trial Lawyer's College will foster and nourish an open atmosphere of caring for people regardless of their race, age, creed, religion, national origin, physical abilities, gender or sexual orientation. 

TLC Kudos to Terry for Recent Result in Joshua Fulgham case

And here is the TLC post announcing Terry's victory against the death penalty earlier this summer in the Fulgham case, written by Maren Chaloupka – TLC Faculty & ’99 Grad

Terry Lenamon (TLC ’11 7-Step Grad), death penalty warrior in Florida, saved the life of his client Josh this week – – after a lengthy, graphic and heartwrenching trial on both guilt and sentencing, Terry’s jury returned a verdict of LIFE for the damaged, despised man whom Terry placed into the jury’s hands.

The prosecutor used some prosecutorial version of TLC methods in his final argument of the sentencing phase of trial, reenacting parts of the kidnapping and murder for which Josh stood trial.  That Terry overcame that dramatic reenactment is a true testament to the power of love.

Folks, it doesn’t get any more real than this.  This man would be damned to the needle if not for Terry.  I am amazed and so proud to have him in our group.

Here is a link to a news write up about this case:  Jury: Life for Fulgham

Here is a link to a TV story on this case: Joshua Fulgham Gets Life

 

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Florida Death Penalty: Two Major Events This Week

This week in Florida, there were two major events involving capital punishment in the Sunshine State.

1.  Asay Execution With Etomidate

First, the execution of Florida Death Row inmate Mark James Asay was carried out on August 24, 2017.

This was the first execution by the State of Florida in over 19 months.  Executions have been on hold in Florida after the SCOTUS decision in Hurst ruled the Florida capital punishment statute unconstitutional.

It was also the first execution to use a new three-drug lethal injection protocol, as the Asay execution involved the use of the drug etomidate.

2.  Lack of Unanimity Denies State the Death Penalty in Kendrick Silver Trial

This week, the capital murder trial of Kendrick Silver when to a jury in Miami.  And because one single juror could not agree that Silver should be executed for his crimes, there can be no death penalty in his case.

This is the first death penalty case that has been tried to completion in Miami since the new Florida death penalty law was passed by the Florida Legislature  earlier this year.  

The new statute had to be passed into law because of the SCOTUS decision in Hurst.  

Under the new law, which requires all the jurors agree on the death penalty as the appropriate sentence, the power of a single juror is great.  As is shown in this case, where the hold-out juror found that there were sufficient mitigating circumstances to shield the defendant from death.

Foe more on mitigation in a death penalty case, read:

 

Florida Supreme Court Ruling in Asay v. Florida

Of course, the biggest result of the Florida Supreme Court's decision this week in Asay v. Florida is its failure to block the impeding execution of Mark James Asay.  

Read the full opinion here: Asay v. State, No. SC17-1400 (Fla. Aug. 14, 2017).

Asay Execution Remains Scheduled for August 24, 2017

The State of Florida has scheduled this execution for August 24, 2017.  This week's Florida Supreme Court opinion will not block that from happening.

It will be the first execution in the State of Florida in many months (over a year and a half), since executions were halted here after SCOTUS ruled that the Florida death penalty statute was unconstitutional.

Impact on Florida Death Row Inmates' Review of Death Sentences 

After SCOTUS's ruling in Hurst v. Florida, the Florida Legislature revised the state capital punishment laws twice.  This year, a new statute became effective that mandates juries be unanimous in their recommendation of a sentence of death.

As we have discussed earlier, one result of the SCOTUS ruling meant that Florida Death Row inmates might have legal arguments for re-sentencing and life sentences on constitutional grounds.

The Asay opinion by the Florida Supreme Court did not agree with Asay's constitutional arguments -- although the sole dissenter, Justice Barbara Pariente, did find merit in them.  Specifically, that the cut-off date for determining which Florida Death Row inmates should be allowed re-sentencing hearings is unconstitutional.  

Justice Pariente dissents, agreeing with Petitioner Asay that all Florida Death Row inmates who were sentenced to death in jury trials without unanimous recommendations for death should get a new sentencing hearing.  

Lethal Injection Protocol for State of Florida

This new opinion in Asay is also important for the Florida Supreme Court's declination to consider Asay's arguments about:

(1) the State of Florida's decision to use a new drug in its lethal injection method of execution (etomidateand

(2) its use of a three drug cocktail and not a single drug in the execution process.

 

Motion to Exclude Death Penalty for William Wells Denied

Next month, the death penalty trial of William Wells is set to begin in Bradford County, Florida, on September 4, 2017.  

You may recognize this case as the "Mayport Monster" case.  Terence Lenamon is defense counsel for William Wells.  

Of interest here to many:  this is another defendant facing the death penalty who suffers from mental disability.  

How Does the Defense Get Death Penalty Excluded From Possible Sentence?

It's the job of the defense team to fight for these defendants after the prosecutor has notified everyone that the government is seeking the death penalty.

So, how does this get argued in a capital case?  A Motion is filed by the defense, and heard by the judge.  The motion is the official request to have the death penalty taken on the table by the judge.

The judge then makes a decision and rules, in an Order signed by the judge that either grants or denies the relief.

In the Wells' case, Terence Lenamon's motion to exclude the death penalty has been denied.  It has been placed into the Terence Lenamon Online Library.  

Here is that motion as it was filed in the court record, for those of you interested in this issue and those who may be interested in how the actual motion reads: 

 

Update on Bannister Trial: Continuance to October 2017

 In our last post, we discussed the upcoming August 2017 trial of James Bannister and gave some background information for the continuance motion filed and argued by Terence Lenamon as defense counsel for Mr. Bannister.  

It looked pretty solid then that the trial would begin this month.  

Things have changed.  

Continuance Motion Granted: Bannister Trial Rescheduled

Terry Lenamon filed another motion for continuance, and it has been granted.  Now the trial is scheduled to begin in October.  

For details, read today's coverage in the Ocala Star Banner in an article written by Katie Pohlman entitled "Quadruple murder trial pushes to October."

Just one more lesson in how complex these capital cases are -- not only factually, but procedurally.

What's happened?  

As you will discover if you read the Ocala article, the Judge announced that there are two reasons for the trial delay.

1.  The Medical Examiner's Schedule; and 

2.  The 11 Motions to Suppress Evidence filed by Lenamon.

Judge Pope, as quoted in the news piece, stated from the bench that both sides have "put forth a valiant effort" to get the case to trial.  

An Alibi Defense

One other factor here:  the defense's need for additional time to investigate an alibi defense.  That's right: an ALIBI.  

 

Update 08/10/2017

 

The Fourth Motion for Continuance (and the earlier motions as well) have been added to the Terence Lenamon Online Library.

For those of you interested in reading the actual filed motion (or to learn what a continuance motion looks like in Florida death penalty cases), here it is:

 

Bannister Trial Goes Forward After Lenamon's Continuance Motion Denied

The capital murder trial of James Bannister is set to go forward in a little over two weeks.

Bannister Jury Selection Set for August 14 

Terence Lenamon's motion for a continuance of the August 2017 trial date was denied by the judge after a hearing earlier this month.  It was not his first continuance motion.  The judge appears firm on the Bannister trial beginning with jury selection on August 14th.

Lenamon Comments

For details on that July 2017 hearing read the coverage by Katie Pohlman, "Attorney denied more time for quadruple murder case," published in the Ocala Star Banner.  

Now, here's the thing.  Terry Lenamon isn't going to comment here in this blog post about this situation, you can read what he has to say in the Ocala news coverage of the case (quoting his arguments to the bench).  

Why not?  For one thing, it's a pending case.  For another, he's busy doing the work of getting ready for this trial as well as juggling his other cases and running a busy law practice.  (That's why he has a co-author.)

Things to Consider

But there are things to share about this situation.  Answers to some questions that might be asked about what's going on here.

Here are some things I can share, from my perspective as a lawyer setting over in Texas:

Time and Money

All trials, civil or criminal, boil down to time and money.  It takes time to prepare a case for trial before a jury, no matter what's in controversy.  And it takes money to do the job.

Nowhere are these two things more critical than in a death penalty case.  Capital cases are by definition going to involve the (1) guilt phase and (2) sentencing phase.  

Two Phases of a Capital Case

If the accused in a death penalty case is found guilty, there's not a delay before sentencing is considered (which is the case in other jurisdictions).  In Florida, the jury trial will enter the sentencing phase if a guilty verdict is rendered.  Same jury, same courtroom, same trial.  

So the capital defense team has to get ready for both phases in its trial preparation.  Gathering and assembling authenticated, admissible evidence that deals with (1) the facts of the crimes themselves (here, multiple homicides and arson) as well as with (2) the mitigating circumstances that impact upon whether or not capital punishment should be considered for this defendant.  This may include psychological expert testimony, evidence of childhood trauma, etc.  

The evidence in the guilt phase and the evidence in the sentencing phase do not overlap.  So, preparation for the death penalty trial is complex.  It's a huge undertaking.  And it takes time and money to get it ready to go (along with preparation of opening statements, cross-examination questions, closing arguments, etc.).

Death penalty cases, therefore, will take longer to get to trial than smaller, simpler criminal matters. That's the nature of this kind of case.  

Indigent Defense

In capital cases, the defendants usually do not have the financial wherewithal to pay for their defense lawyer and his team.  The federal constitution's right to counsel comes into play.  They have court-appointed lawyers, like Terence Lenamon, that are appointed to defend them.

Court-appointed attorneys don't get paid the same hourly rate that private practice lawyers demand (and get).  They get paid by a set government schedule.  And they don't have the client retainers to cover expenses for things like investigators, research costs, etc.  They have to cover those litigation costs from state funds, too.  

Indigent defense in a death penalty case is a cost balancing act.  The representation has to be effective and zealous, but every penny has to be carefully spent.  

Death On the Table

Add to all this the sobering reality that someone's life is on the line here.  The capital defense lawyer must always have in focus that if there is a guilty verdict, then his (or her) job will be to try and stop an execution from being part of the sentencing.  That's a huge factor in these cases that simply does not exist in other trials, civil or criminal.

For More Information

Hopefully this provides some background information for our readers on what's happening here in this particular Florida death penalty trial that's beginning next month. 

For more details, check out

 

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Florida Execution Scheduled for August 2017

The Florida Execution Schedule is up and running again.  Governor Rick Scott has signed the Death Warrant for an August execution, the first execution for Florida in 18 months.

Mark James Asay is scheduled to be executed by the State of Florida on August 24, 2017, at six o'clock in the afternoon.  

Death Warrant Signed by Florida Governor Rick Scott

You can review the actual Death Warrant below, and it has been stored in the Terence Lenamon Online Library as well.  

Notice that it includes:

  1. the Governor's letter;
  2. correspondence from Florida Attorney General Pam Bondi;
  3. the Death Warrant; and 
  4. the Judgment and the Sentence of the Duval County trial court. 

Asay Previously Scheduled for Execution in March 2016

This is not the first time that Mark James Asay has sat on Death Row with an execution date looming before him.  He was previously scheduled for death back in March 2016.  

However, the SCOTUS ruling in Hurst v. Florida intervened and the Florida Supreme Court delayed that 2016 execution.  Last December, the Florida Supreme Court lifted its execution stay for Asay. 

Here is a copy of the Death Warrant itself, signed by Governor Rick Scott and published online by the Florida Supreme Court: 

 

 

Great New Florida Death Penalty Resource from DPIC

The Death Penalty Information Center website is a great resource for anyone interested in learning more about capital punishment in the United States.  And the site just keeps getting better.  

They've got site-specific pages for each state, for one thing.

DPIC State-Specific Page: Florida

There's a great deal of Florida Death Penalty information collected on the DPIC Florida page, great info like:

  • Death Sentences List
  • Exonerations List
  • Time Line for Capital Punishment in Florida
  • and links to other resources -- among them, the Florida Capital Resource Center (which Terence Lenamon founded several years ago). 

And there's a specific page dedicated to the impact of Hurst on Florida's Death Row that is especially informative. 

DPIC Impact of Hurst Page 

The page dedicated to the impact of Hurst provides a complete list of the Florida Death Row Inmates who may be impacted by the SCOTUS ruling in Hurst.  

And at the top, it gives the date of its last update and the status of these prisoners' cases.

For instance, on July 13, 2017:

  • Total number of prisoners whose cases have been reviewed in light of Hurst:  119 
  • Number of prisoners who have obtained relief under Hurst:  99 (83.19%)
  • Number of prisoners who have been denied relief under Hurst:  20 (16.81%)

Go check it out.  Just more great work by the DPIC.  

 

Morva Execution Reminds Us of the Importance of Each Capital Jury Trial

Last night, Virginia Death Row inmate William Morva was executed by lethal injection.  Morva was sentenced to death for the 2006 killing of a sheriff's deputy and a hospital security guard while Morva was unsuccessfully trying to escape from a hospital.  

Morva Suffered Severe Mental Impairment

Earlier on the day of the Morva execution, Virginia governor Terry McAuliffe considered and denied a petition for clemency.  The basis of the petition was Morva's mental state.

William Morva had been evaluated by psychiatric and psychological experts.  It was their opinion that William Morva suffered serious mental illness and that he was mentally ill at the time of the killings for which he was convicted.  That Morva was delusional at the time, and could not comprehend what he was doing at the time.

In his statement released after the denial, Governor McAuliffe gave two reasons for denying clemency:

(1) the opinions of three mental health experts during the capital trial that Morva could understand right from wrong at the time of the killings; and

(2) the files of those monitoring Morva during his nine years of confinement, where "...mental health staff have monitored him weekly and assessed him quarterly for the past nine years and have never reported any evidence of delusional disorder or severe mental illness."

ABA Letter Asking for Clemency 

Many were fighting against this execution.  Among them, the American Bar Association which sent a letter to the governor of Virginia in a last ditch effort to get clemency and stop the execution. 

Read the ABA Letter here. 

Governor's Letter Affirms The Importance of Defense in Capital Trial

From the Governor's letter comes the following explanation - which only serves to affirm how very important the work of capital defense lawyers like Terence Lenamon is when it comes to a capital case.  

Terry focuses upon the sentencing phase of these death penalty trials, where the jury is given arguments from both sides on whether or not to sentence the defendant to death.  

The decision of that capital jury is strong -- and while it may be overturned upon appeal, the Morva case reminds us all that the jury's verdict may also remain ... and death can be the result.

From the Governor's statement:

“At the conclusion of that review, I have determined that Mr. Morva was given a fair trial and that the jury heard substantial evidence about his mental health as they prepared to sentence him in accordance with the law of our Commonwealth. In short, the record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully empaneled jury following a properly conducted trial.

“I personally oppose the death penalty; however, I took an oath to uphold the laws of this Commonwealth regardless of my personal views of those laws, as long as they are being fairly and justly applied. Thus, after extensive review and deliberation consistent with the process I have applied to previous requests for commutation, I have declined Mr. Morva’s petition. I have and will continue to pray for the families of the victims of these terrible crimes and for all of the people whose lives have been impacted.”

 

Florida Death Row Inmates Getting Review After Hurst

As we have discussed earlier, the SCOTUS ruling in Hurst means that almost 400 Florida Death Row inmates may need new sentencing hearings ... and that's happening now.  

Hurst Impact on Current Florida Death Row Inmates -- Manatee Example

For details, read the coverage of the recent developments for three Florida Death Row inmates, all from Manatee County, in "Challenges to Florida’s death penalty impact three Manatee death row inmates," written by Jessica DeLeon and published in the Bradenton Herald on July 1, 2017.  

SCOTUS Death Penalty Review

Now that summer is here for the Supreme Court of the United States, we can look back over their actions in the past session to get an idea of where they may rule in future death penalty cases.  As Hurst demonstrates, SCOTUS has great power here -- but will it ultimately use that power to outlaw capital punishment in this country?

For a good overview of what happened this year with SCOTUS and some predictions on where the High Court is headed, read the op-ed by Professor Stephen McAllister and published in SCOTUSBlog, "Death-penalty symposium: A court increasingly uncomfortable with the death penalty."

For more, read our past discussion in:

Court Rules on Post-Hurst Sentencing Hearings

How Many Florida Death Row Inmates Will Get Resentencing Hearings?

What Does the New Hurst Decision Mean for Florida Death Penalty?

 

 

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.

 

 
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