U.S. Supreme Court nixes hearing Thompson v. McNeil (08-7369) - but does 32 years in a Death Row cell amount to cruel and unusual punishment?

This month, the United States Supreme Court declined to hear a well-watched Florida case, Thompson v. McNeil (08-7369), where William Lee Thompson, sentenced to death in a Florida court back in 1976, requested their consideration of the question: does extended delay of the sentence of death amount to cruel (if not unusual) punishment and therefore violate the 8th Amendment?

Well, the High Court did fail to grant writ (opinion), but that doesn't mean we don't have a lot to consider from the opinion that did spring forth. Let's ponder the following:

Justice John Paul Stevens' Statement

First, I've read that Justice John Paul Stevens issued a dissent in this case; however, technically it was not a dissent but a statement. And, a statement that conforms to his longstanding position that the the death penalty is wrong. (Stevens already called for an end to the death penalty.)

In it, Stevens wrote, "[o]ur experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel," to which Justice Stephen Breyer gave his support in a formal dissent from the denial of certiorari.

Justice Stephen Breyer's Dissent

In his dissent, Breyer went into the appellate pathways that the Williamson case has taken over the past 30+ years, including such considerations as the fact that Williamson's spent over half his life on Death Row while the appeals have taken a life all their own, and the reality that Williamson's accomplice - who might have been more culpable than Williamson in the underlying crime - was not sentenced to death. Interesting point.

Justice Clarence Thomas' Concurrence

Justice Clarence Thomas, meanwhile, wrote his own concurrence to the Court's denial of certiorari. In it, Thomas opined ""[i]t is the crime and not the punishment imposed by the jury or the delay in execution that was 'unacceptably cruel, ..." and thereafter provided extensive details on the underlying crime for which Thompson was convicted to support his position. (It is not disputed that the crime for which Thompson was convicted was shocking.)

Why Isn't This Cruel - If Not Unusual? Oh, and What About the Budget?

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Update -3: The FACDL Death is Different 15th Annual Death Penalty Seminar

FACDL Death Penalty Seminar, Day 3:

On Day 3 of the FACDL Death Penalty Seminar, it was my turn to speak on "Creative Motion Practice," which more accurately should be described as "Courage Under Fire."

Courage is what we, as death penalty attorneys, must muster in the face of horrible facts, a judge who loathes the client, a prosecutor who is determined to kill the client, the blood-lust of some members of society, and even the media-induced witch hunt against a client.

This is the type of courage that lawyers like Adam Tebrugge and Jose Baez demonstrate on a daily basis: Adam in the face of horrible evidence against his client, and Jose in his fight for his high-profile client.

In the face of all this, we must find the strength to file even those motions that we know will not be granted. We must do this, not only for the sake of due process and justice, but because sometimes, just sometimes, those motions are granted, and we win.

When the odds seems insurmountable and the outlook is bleak, we need to reach down deep inside and find the courage to write and argue one more time.

Update -2: The FACDL Death is Different 15th Annual Death Penalty Seminar

FACDL Death Penalty Seminar, Day 2:

Day 2 of the Death Penalty Seminar was a long day, but well worth the time. One of the highlights of the day was a speaker on False Confessions, Detective James Trainum.

Det. Trainum is the project director for VICAP's Violent Crime Case Review Project. In his session, Detective Trainum shared his own compelling and moving personal experience with a false confession. In his step by step deconstruction, Det. Trainum took us through the entire investigation to the discovery and gave insight on how to spot and fight a false confession.

The day ended with an inspirational session by the pioneering capital defense attorney and professor of law at DePaul University, Andrea Lyon. Prof. Lyon was the first woman to sit first chair in a death penalty case in the United States. After sharing some of her techniques, she brought most of the audience to the verge of (if not to actual) tears with her demonstration of a closing argument.

Update - 1: the FACDL (Florida Association of Criminal Defense Lawyers) Death Is Different 15th Annual Death Penalty Seminar

FACDL Death Penalty Seminar, Day 1:

This weekend, I am attending the Florida Association of Criminal Defense Lawyer's 15th Annual Death Penalty Seminar. This is an annual event that I have often attended since its inception. It is an opportunity for death penalty lawyers to share tactics, techniques, and review the latest developments in the law.

Steve Potolsky, a renowned criminal defense lawyer who was on the team in the first Federal death penalty case tried in Florida, started the seminar with a discussion of national attitudes toward the death penalty Steve asserted that we are entering a period of national reconsideration for the death penalty and cited several reasons for the decline in death sentences nationally. Among these are increased publilcity surrounding exoneration by DNA evidence and the fact that many states have done away with the possibility of parole or early release in such cases. He noted that New Hampshire repealed the death penalty.

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In Depth Look: Death in Florida - 3

As stated earlier, a separate multi-step process exists between conviction and the imposition of the death penalty. After a defendant is found guilty of a capital offense subject to the death penalty, the first step is a second trial to determine whether death will be imposed. At this trial, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, which weigh in favor of mercy. The trial judge performs the next step by actually determining the sentence. Although the trial judge gives great weight to the jury recommendation, the trial judge is not bound by the jury's recommendation.

A trial judge has more experience in both the criminal process and facts of crimes themselves. What the average person, inexperienced in crimes, thinks is incredibly significant or especially heinous, may not in balance be so significant or heinous. The cool reasoning of a judge also serves to counterbalance any overly inflammatory prosecution.

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Congratulations to Gerry Spence - Inducted into Trial Lawyers' Hall of Fame

I want to congratulate Gerry Spence on his induction into the Trial Lawyers Hall of Fame last week by the American Trial Lawyers' Association.  With this accolade, Gerry is joining the likes of Clarence Darrow and John Adams.   

I speak from firsthand knowledge that Gerry Spence is truly deserving of such an honor as I have been been very active in Gerry Spence's Trial Lawyer's College since 2001 and I have also been honored to attend his Death Penalty College


For more information about Gerry Spence, visit www.gerryspence.com and www.triallawyerscollege.com.

New Mexico Repeals Death Penalty

Effective July 1, 2009, there will be no death penalty in New Mexico. Capital punishment will still apply to any capital crimes committed between now and midnight on June 30th. - and there has been no change in the punishment of death for the two men currently residing on New Mexico's Death Row.

Albuquerque's Sheriff Darren White Leading an Effort to Put It to a State-Wide Vote

Not everyone in New Mexico is pleased with this development. Sheriff Darren White is reportedly investigating the possibility of putting capital punishment to a full state-wide vote, which would enact an amendment to the New Mexico constitution approving of the death penalty for certain types of crimes.

According to Sheriff White, he's undertaking this action because of the large number of phone calls he's received from the citizenry, who are upset about the change. White says that state polls show a majority of New Mexicans are in favor of capital punishment.

Undoubtedly, Sheriff White will be assisted and supported by prosecutors across the state, as well as the New Mexico Sheriffs' and Police Association, as well as other law enforcement organizations that were against the New Mexico repeal efforts.

What About the Two Men on New Mexico's Death Row?

Since 1933, New Mexico has executed nine (9) individuals - all men - using three different methods : one by gas, one by lethal injection, the rest by electric chair. That's not a high death rate.

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In Depth Look: Death in Florida - 2

The mitigating circumstances that can apply in any given first degree murder case are those set forth in Florida Statute § 921.141(6):

1. § 921.141(6)(a): The defendant has no significant history of prior criminal history.

2. § 921.141(6)(b): The capital felony was committed while the defendant was under influence of extreme mental or emotional disturbance.

3. § 921.141(6)(c): The victim was a participant in the defendant's conduct or consented to the act.

4. § 921.141(6)(d): The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

5. § 921.141(6)(e): The defendant acted under extreme duress or under- the substantial domination of another person.

6. § 921.141(6)(f): The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.

7. § 921.141(6)(g): The age of the defendant at the time of the crime.

8. § 921.141(6)(h): The existence of any other factors in the defendant's background that would mitigate against imposition of a death sentence.

Looking at the Current Fight over the Death Penalty in the State of Maryland

Maryland, like many other states, is reviewing its death penalty laws for purely cost-cutting reasons. However, there's something to be considered in the current media coverage of the Maryland debates - which are going on right now.

Why are the Maryland arguments so interesting to consider?

This is a particularly interesting jurisdiction to ponder since Maryland has the second-highest murder rate in the nation - due in large part to the homicide rates for the metropolitan area making up Baltimore, Maryland.

In other words, the argument can be made that these homicide rates suggest that there would be more opportunities for imposing the death penalty in Maryland than in other locations where violent crime rate are much lower (say, Montana).

What's happening this week?

The Maryland lawmakers are hearing testimony and tinkering with language as they consider enacting new Maryland law on capital punishment.

With this background, consider these high profile arguments being made:

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Forms of Capital Punishment: the Legal Methods of Executing a Death Penalty Sentence in the U.S. Today

Historically, the variety of methods for imposing capital punishment seems almost endless. In the United States, our federal constitution forbids any form of execution that is cruel and unusual punishment, however, and this has led us to careful consideration about the practicalities the state must address when it kills someone in punishment for a crime that has been committed.

Currently, only five methods of execution have passed constitutional muster:

Firing Squad

Today, Utah still gives the prisoner the option of choosing the firing squad over lethal injection - if they made their choice before Utah law abolished the firing squad as an alternative method of execution. Idaho and Oklahoma also approve of the firing squad as a method of execution.


Nine states execute(d) by electrocution (electric chair). These are Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia.

Gas Chamber

Five states allow(ed) execution by gas chamber. These are Arizona, California, Maryland, Missouri, and Wyoming.


Two states still approve(d) of execution by hanging. These are New Hampshire and Washington.

Lethal Injection

For thirty-five (35) states, plus the U.S. Military and the federal government, lethal injection is the approved method of execution. For those states listed above that approve different methods of execution, they all allow for lethal injection as an alternative.

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"In Cold Blood" Prosecutor's Arguments to Keep and Expand Kansas Death Penalty - The Argument for the State's Authority to Kill, in a Nutshell

You may not remember Duane West from the Truman Capote nonfiction novel, In Cold Blood, or the movies that were made based upon that book (there have been several) ... but Duane West was the district attorney who won his case to have Richard Hickock and Perry Smith put to death for their killing of the Clutter family in the middle of the night in their Holcomb, Kansas, home.

"In Cold Blood" D.A. Responds to Kansas Legislature's Possible Death Penalty Budget Cut

Today, the Kansas Legislature is facing a possible $650,000,000 deficit for their 2010 budget, and they are seriously considering ending capital punishment as solely a budgetary measure. In response, Duane West has taken to the media to voice his vehement objection to this ever happening - and what he is saying for Kansas is what lots of prosecutors and death penalty advocates say a lot of the time (quoting West in the Kansas City Star):

1. Instead of doing away with the death penalty, more crimes should be made eligible for capital punishment.

2. It is the prosecutor's duty to protect and serve - just like every other member of law enforcement. Part of that duty may be to ask for the death penalty in certain cases, for the protection of the public and in service to the law.

3. There are cases where individuals, from the perspective of the prosecution, should be put to death because otherwise they will kill again.

4. Having a death penalty may be the only deterrent in some situations, with West giving the example of a pending Kansas capital punishment case where the state is seeking the death penalty against three former Hutchinson Correctional Facility inmates who are accused of murdering a fellow prison inmate. West's argument is that for prison inmates already serving significant time, capital punishment may be the only deterrent to killing behind bars.

5. Finally, Duane West doesn't buy the argument that capital punishment costs so much more than life imprisonment, because almost every case with a murder conviction does go up on appeal.

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Another lesson from the Casey Anthony case ....

Last week, I wrote about mercy as being a lesson in the Casey Anthony case coverage. Here's another one that I'm pondering. Filicide. It's been around for centuries, it happens with alarming frequency in the United States today, and yet it is still one of those elephants in the room that no one wants to talk about.

Filicide? What's that?

Filicide is Susan Smith and Andrea Yates and Ellen Feinberg and Diane Downs. Filicide - maternal filicide -- is the name given to the particular kind of homicide where mothers kill their children. (Paternal filicide happens too, and more on that, later.)

You know about maternal filicide.

1. Meryl Streep won an Oscar for Sophie's Choice. What was that choice? Filicide.
2. Oprah Winfrey produced and starred in Beloved, based upon the novel by Toni Morrison, where the character Sethe killed her daughter Beloved to keep her from being a slave.
3. Medea (remember, Euripides?) killed her children all because Jason left her.
4. Lois (with Peter) killed son Stevie on an episode of TV's Family Guy.

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In Depth Look: Death in Florida

At the outset, death is different.

In State v. Dixon, 283 So. 2d 1 (Fla. 1973), the Supreme Court of Florida upheld the constitutionality of the death penalty statute. The court found that "death is unique punishment in its finality and in its total rejection of the possibility of rehabilitation." As such, the court confirmed that it was the intent of the legislature to reserve application of the death penalty "only to the most aggravated and least mitigated of the most serious crime." Accordingly, the Florida Legislature put into place a special process with safeguards so that the death penalty is applied properly after conviction of a capital crime.

Multi-Step Process Between Conviction and Imposition of the Death Penalty

A separate multi-step process exists between conviction and the imposition of the death penalty. After a defendant is found guilty of a capital offense subject to the death penalty, the first step is a second trial to determine whether death will be imposed. At this trial, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, which weigh in favor of mercy.

The defense and prosecution can present new evidence supporting these circumstances. The jury then makes a sentencing recommendation based on these aggravators and mitigators. Florida, unlike many other states, does not require that the death recommendation be unanimous. A simple majority, a single person, is all it takes for a recommendation of death.

The Fifteen Aggravating Circumstances As Defined by Florida Statute

The aggravating circumstances that can apply in any given first degree murder case are limited to those set forth in Florida Statute § 921.141(5). These circumstances are limited to fifteen possible aggravators:

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I'm Setting Up Rules for Published Comments to the Blog

When I checked my blog this morning, I was surprised to find a large number of responses to my posts. I was also pleased to find that the majority of the posts were thoughtful, measured, and reasoned responses.

Predictably, a number of responses were in regard to the Casey Anthony case. Although this case has touched deep emotions in those who follow it, this blog is not, and cannot be, about any Anthony family members. There are many good forums out there for that topic. This is not one of them.

This blog will talk about recent events and cases in the context of the death penalty. Hopefully, this blog will be a resource for you on capital punishment. This topic has ramifications at many levels in our lives: legal, moral, religious, social, and psychological. We can learn from each other as well as recent cases. There is more than enough to explore in these areas.

That said, here are the rules for getting your comments posted in the blog.

1. First, no responses that proclaim the innocence or guilt of an accused party will be published. That is not our job. It is ultimately the job of twelve good citizens who are willing to undertake that task.

2. Second, no comments speculating about evidence is likely to be published. Evidence is not the latest news report. It is not our job to determine what is evidence. That task is at the discretion of the trial judge, subject to codes such as the Florida Rules of Evidence or the Federal Rules of Evidence.

3. Third, off topic posts will not be published. Assuredly, there are blogs out there in the blog-o-sphere on those topics. Please post to them.

4. Finally, critical comments will be published but no responses containing pejorative comments about other posters, lawyers, judges, public figures, etc. are likely to be posted. This topic deserves critical thinking. Please give it the dignity and depth of thought that it deserves.

Responding to the Comments

I will make every effort to respond to comments promptly. However, I am an active trial lawyer with a family deserving of my time, as well. I hope to turnaround responses to comments within 24 to 48 hours - with the caveat that if I am traveling or in trial, that time frame will have to bend.

Lastly, thank you for reading and participating in this blog.

Capital punishment is expensive and now, the death penalty becomes a part of state budgetary concerns

Last week, the Associated Press reported that Nevada lawmakers were proposing a moratorium on capital punishment in that state (to last until 2011) so they could have time to figure out how costly it was on the state to kill people for crimes they had done.

In Kansas, state senators are pushing a bill through their state legislature, hoping to abolish the death penalty because they say it's too expensive when the economy is so bad.

In Maryland, where they've got a budget deep in the red, Governor Martin O'Malley is promoting the repeal of the Maryland death penalty statute because of the potential savings to the state coffers.

Florida is in a similar situation - more on that next time.

The Death Penalty is Expensive - and by Expensive, I mean Seven-Figures

You'd think that it would cost more to house someone for life, rather than just execute them and be done with it. But you'd be wrong.

Over at the Death Penalty Information Center (link below), they collect lots of financial data for the various state's capital punishment costs (federal as well).

Money talks: as you peruse these studies, you'll find that each death row inmate will cost a state at least a million dollars ($1,000,000) more than if that same inmate were given a life sentence without parole and imprisoned with other lifers. For some states, it's more like $2 million, or even $3 million.

That's a lot of moola for EACH person setting on death row.


Associated Press


Joplin Globe


Baltimore City Paper


Death Penalty Information Center


When I was on Nancy Grace last week, talking about the Casey Anthony case....

First of all, let me just take this opportunity to say that I'm always honored to be invited to appear on the Nancy Grace show. Nancy Grace is a true star of the airwaves today, and a heroine to many. It's very humbling to be appearing before millions in one of those little rectangular talking-head cameo boxes on screen, along with Sue Moss and the rest of the lawyers. I was proud to have been invited once and I'm always thrilled to be asked back again.

And, no - Nancy and I don't agree on many things. Respecting your colleagues doesn't mean you necessarily see eye to eye with them. This is especially true among attorneys, and exceedingly true among the criminal bar. Prosecutors and defense attorneys may fight viciously in the courtroom, but we'll shake hands in the hallway. You know a good lawyer when you see one, even if they're on the other side.

Now, back to the Casey Anthony case ....
Last week, I was on the Nancy Grace show for a couple of nights, because Nancy was talking about the death penalty as it applies in the Casey Anthony matter. Specifically, the fact that the prosecution had taken the death penalty off the table in the Casey Anthony case and Nancy Grace's arguments that the "tot mom" should have a jury decide whether or not the death penalty should apply to her.
Now, before this goes any further let me reiterate: I will not discuss the Casey Anthony case, itself, in any detail or particular. As the attorney who represented Casey Anthony in the death penalty discussions with the Florida state attorney's office, I cannot do that - it violates my work product privilege, attorney-client privilege ... well, you get the idea.
That doesn't mean that I can't discuss generalities, and the law regarding the death penalty today. And with that caveat, there are lots of lessons popping up in the Casey Anthony matter.

The Casey Anthony case - it's revealing many things. Here's one.
One lesson that I'm learning from all this media coverage of the Casey Anthony case is this: the need to know WHY -- why did a beautiful baby, Caylee Anthony, die? Why ... why...why? A hundred questions come to mind.
Well, in all this questioning and need to understand, there's a great many people that are looking at judgment. And that's good. Our society, as with all successful societies, must have rules and judgments that are assessed against those who break those rules. Without this basic structure, we'd live in chaos.
But along with judgment, there must come mercy. At least, in America, we believe in the consideration of mercy before the imposition of judgment.
That is why we have things like probation and parole and personal recognizance. Mercy.
Mercy is my job.
That's my focus, it's the raison d'être of my practice. Death penalty considerations come in the sentencing phase of a defendant's case. Whether or not to impose the death penalty is a decision made only after the defendant has been found guilty of the specific charges that bring with them the possibility of capital punishment.
Judgment and Mercy

In the Casey Anthony case, there's a tremendous amount of airtime and forum group time (think Websleuths) with energies being placed upon judgment.
I'm not seeing much on mercy. Are there considerations that may explain and mitigate this woman IF (and that's right: IF) she did the crime of which she has been accused?
Journalists are taught that to get the whole story, you must ask "who, what, where, when, why, and how."

In the Casey Anthony case, I'm not hearing many people asking that question WHY.
And, to me, that's the most important question. Why. Why did this death happen? Because that's the real answer we all want to know, I think, in any crime. And, because that's where mercy is found.

Terry Lenamon: Why I decided to have a blog

Welcome to my new blog.
I've been practicing criminal law for a long time, and my schedule has been so busy that it's been a while since I took time to think about why I do what I do. Launching this blog is an opportunity for such reflection.
Why DO I defend what some call "the worst of the worst"?
Just why is it that I defend those people that have been described on more than one occasion (and by more than one prosecutor) as the worst of the worst?
First, a word about what I do. I'm a criminal defense attorney who focuses upon death penalty cases. In Florida, where I live and do most of my work, death penalty cases have two lawyers, known as first chair and second chair. As first chair in a death penalty case, my job is concerned with the guilt finding of the defendant. As second chair, my job is to convince the jury to spare the life of the person if they are convicted. This job is known as "mitigation," a specialized area that I will talk more about in a later post. I have further specialized in mental health aspects. More on that later, too.
"How can you represent those people?"
There are all the usual stock answers. "I am defending the Constitution." "The death penalty is not a cost effective solution." "There is no deterrent value." "As for retribution, is a life in a cage worse than death?" "The system is not perfect, and innocent people have been sentenced to death." "Death row is overwhelmingly populated by the poor and disadvantaged."
And all of these answers are true, but they don't tell you the whole story.
Fundamentally, I do this because I want to understand. Why did this happen? How did this person arrive at my figurative doorstep, accused of a horrendous crime? What are the factors, the background, the events that led this person here?
Every person has a story. There is always some underlying common humanity in even those convicted of the most brutal crimes. It is my job to bring these mitigating factors to the jury, to shed light on the darkest heart and most disturbed mind.
And I'm publishing this blog, devoted to the topic of capital punishment, i.e., the death penalty, because I think that you may share the same core need that I have: the need to know WHY.

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