I'm On Nancy Grace Tonight

Tonight, I will once again be questioned by Nancy Grace on recent issues developing in the Casey Anthony case.  For my position on the news of Andrea Lyons joining the Anthony defense team, check out today's Orlando Sentinel: 

Unique Perspective: Former Warden of San Quentin's View on the Death Penalty

This week, a national group fighting against the Death Penalty gave a special award to Jeanne Woodford in recognition of her courage in speaking out against the death penalty. Why is Jeanne Woodford so special?

Prison Guard to Warden of San Quentin to Head of State Corrections Department

Well, Mrs. Woodford began her career as a prison guard at San Quentin, rose to become the warden of California's famous state prison for several years, and then undertook what she herself calls the "top job in the state -- director of the California Department of Corrections and Rehabilitation."

During her stint as warden, Jeanne Woodford oversaw the execution of four prisoners. Retiring from civil service in 2006, she is now active in her efforts against capital punishment, and it serves us all to read her own words in explanation for her position in an editorial she wrote for the Los Angeles Times in October 2008.

Jeanne Woodford's Position Letter

There, Mrs. Woodford explains what led her, with her unique vantage point on capital punishment as warden of San Quentin and head of California's Corrections Department, to challenge the state's ability to impose death as punishment for a crime.

What Joanne Woodford writes is worth your time to read.

Florida's 30th Anniversary for the Death Penalty

There was a time in the mid-twentieth century when this country had essentially suspended the death penalty. It didn't last long.

First, in 1972, the United States Supreme Court issued its opinion in Furman v. Georgia, opening the doors for capital punishment to be an accepted form of punishment should a state seek to impose it upon a defendant. In Furman, the Supreme Court ruled that it was unconstitutional for the death penalty to be imposed at the same time that a defendant was found guilty. Deciding the penalty of death would have to take place only after a guilty verdict was announced.

Second, in the 1976 case of Gregg v. Georgia, the U.S. Supreme Court issued an opinion that capital punishment, in and of itself, was not in violation of the U.S. Constitution. In other words, it was legal to kill citizens as punishment for certain crimes in this country, should the state choose to do so. They just had to follow the two-prong trial phase of guilt/punishment established in Furman.

Many state statutes were unconstitutional under Furman, and if a state wanted to impose capital punishment as allowed by Gregg, a new law would have to be enacted that comported with Furman's requirements. It fell upon the Great State of Florida to be the first state to act in accordance with the Furman decision, and to reinstitute the death penalty with a newly written statute in August 1972.

Florida's 30 Year Anniversary

And while Florida did commute over 90 cases because of the Furman decision, Florida was also the first state to impose the penalty of death since 1964 - a moratorium of 15 years - when in 1979, John Arthur Spenkelink was executed by electric chair ("Old Sparky") in 1979.

There has been some worthwhile media coverage of this thirty year milestone, and of particular interest is:

1. Coverage by the Associated Press' Ron Wood, where interviews of Richard Dugger, the assistant warden of the Florida State Prison at the time of the Spenkelink Execution, as well as David Kendall, Spenkelink's attorney - and eyewitness to the execution, are provided. There is some worthwhile discussion of death by electrocution, including some graphic details of the botched executions involving Florida's electric chair, known as "Old Smokey."

2. Naples Daily News' Jeff Weiner's article focusing upon the ten Florida Death Row inmates pertaining to Southwest Florida (Lee and Collier County). Note the length of time that these individuals have been facing death, and consider once again what daily life on Death Row is like (see 04/04/09 post, "What it's Really Like on Florida's Death Row.").

In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 3)

Today, in the final part of our three part series: the record of errors in Florida's use of lethal injection as a method of execution is discussed. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

Lethal Injection is the Most Commonly Botched Method of Execution

The history of execution by lethal injection in the United States is a miserable one. It has been characterized as the most commonly botched method of execution in the United States. Sims v. State, 754 So. 2d 657, 667, n.19 (Fla. 2000) (quoting the expert testimony of Professor Michael Radelet).[6]

Since 1985, there have been at least twenty-one executions by lethal execution that were botched. Marion J. Borg and Michael Radelet, On Botched Executions in Capital Punishment: Strategies for Abolition 143-168 (Peter Hodgkinson and William Schabas eds., 2001). Lethal injection, meant to be the neat and modern execution method, [has been] plagued with problems, or execution glitches, as they are also referred to in the business. Stephen Trombley, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 14 (1992).

Some of The Horrific Examples of Botched Executions Using Lethal Injection

Texas, Oklahoma, Arkansas, Missouri, and Illinois have reported bungled attempts to dispatch prisoners by lethal injection. These mistakes include blow-outs, improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, physicians are not involved in the process), and the improper mixture of the lethal solution. Id. A few notable examples follow. [7]

Stephen Morin, in Texas, lay on the gurney for 45 minutes while technicians punctured him repeatedly in an attempt to find a vein suitable for injection. Denno, supra at 111.

In April, 1998, the needle popped out during Joseph Cannon's execution, also in Texas. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, It's come undone. Officials then pulled a curtain to block the view of witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed. Borg & Radelet, supra at 143-168.

In Louisiana, witnesses to the April, 1997, execution of John Ashley Brown saw Brown go into violent convulsions after he was administered the drugs.

In May 1997, Oklahoma inmate Scott Dawn Carpenter shook uncontrollably, emitted guttural sounds and gasped for breath until his body stopped moving. Borg & Radelet, supra at 143- 168.

An attorney who witnessed the June, 2000, execution of Bert Leroy Hunter reported that Hunter had violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth repeatedly. Id.

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Orlando Sentinel's Sarah Lundy wrote a great article this week

On Wednesday, an article by journalist Sarah Lundy appeared in the Orlando Sentinel entitled, "Only Florida's Governors can say how they pick execution order."

In it, Lundy explores the reality that Florida governors mysteriously choose to grant clemency only to a select few on Florida's Death Row and no one knows how or why their decisions are made. Great read.

The Problem of Prosecutors Withholding Exculpatory Evidence

A few weeks ago, we posted about the Ohio death row case of Vietnam Vet Gary Cone, where the United States Supreme Court returned the case back to the lower courts for a fresh consideration of his sentencing after finding that 23 years ago, Cone's due process rights had been violated because the prosecution withheld key evidence that was favorable to the defense - exculpatory evidence.

Sad to say, this happens all too often in this country.

Just this past week, in the Washington Post, Maryland attorneys Albert D. Brault and Timothy F. Maloney wrote an excellent article entitled, "A Standard for Fair Trials," where they outlined several examples of prosecutorial misconduct in the form of withholding exculpatory evidence.

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California's Dennis Cyrus Trial and the Role of the Prosecutor in a Death Penalty Case

On Tuesday, our post focused upon the pending Dennis Cyrus case in California, and how this case may be the first time in over half a century that a defendant setting in a San Francisco court actually faces capital punishment for a crime.

Looking at the case from another angle, there are several key examples of how the prosecutor works in a death penalty case. First, there's the consideration of the head prosecutor for that jurisdiction.

Federal Prosecutors

Federal prosecutors pursue matters in federal criminal courts under the auspices of the region's U.S. Attorney, who in turn is an employee of the Department of Justice. U.S. Attorneys are appointed to their positions.

As a part of the executive branch, federal prosecutors have guidelines to follow in capital punishment matters. In the Cyrus case, the example is shown of the Bush Administration's established policy that there be uniformity among all U.S. Attorneys in their decisions to seek the death penalty. While the particular federal prosecutor does have some autonomy to try his or her case, there are boundaries within which that case must be pursued and tried - and those boundaries are marked by the President of the United States.

State Prosecutors

State prosecutors pursue matters in state criminal courts under the direction of the local District Attorney. Usually, these are county officials who have been elected for a specific term. They may have been prosecutors for many years, some may have served time on a criminal bench as judge before running for election.

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In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 2)

Today, in part two of our three part series: the three drugs that make up the Florida execution cocktail are discussed in detail. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

1. Thipental Sodium - the First Drug to be Administered

Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that.

It stops working within minutes.

In an affidavit submitted during litigation in Tennessee, Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, swore under oath that:


the dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject's blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . [Further], under Thiopental Sodium the anesthetic effect is extremely short-lived, and will be effective for surgical restraint and anesthesia for a period of only five to seven minutes.

Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdul Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other grounds, 535 U.S. 1016, cert dismissed as improvidently granted, 537 U.S. 88 (2002), on remand on other grounds, ___F.3d___, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc) (emphasis supplied).

It actually heightens sensitivity to pain.

Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates like thiopental sodium can cause paradoxical excitement and can actually heighten sensitivity to pain. See Physicians Desk Reference, 50th Ed. 1996 at 438-440. Manufacturers warn against administration by intravenous injection (hereinafter AIV) unless a patient is unconscious or otherwise incapacitated. Id. Thus, there are serious problems with the first drug, the anesthetic, actually operating to anesthetize the person being executed sufficiently or for long enough to prevent suffering caused by the subsequent two drugs. Denno, supra, at 95-98.

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I've Been Invited to Be on Issues with Jane Velez-Mitchell Tonight

I've been invited to be on Issues with Jane Velez-Mitchell tonight.

I consider it a privilege to be asked to participate on a show of this quality and I look forward to tonight's discussion. Jane Velez-Mitchell is a formidable talent and it's an honor to be on her program.

San Francisco Federal Jury Convicts Defendant Dennis Cyrus and Returns Next Week to Decide Death Penalty - Will They Sentence Cyrus to Die and Break a 63 Year Run?

Yesterday, the jury came back in a San Francisco federal courtroom, and found Dennis Cyrus guilty of a number of gang-related acts, including the murders of three men - including Ray Jimmerson, who had informed the cops about the gang's assorted criminal activities.

The Distinction Between State and Federal Prosecutors

It was the first time since 1991 that San Francisco has seen a trial where capital punishment was even on the table - two of its district attorneys had followed an internal determination not to seek the death penalty, even if the law allowed for capital punishment. But they are state officials, and this is a federal proceeding.

Over in the Northern District of California's federal district court, the U.S. Attorney makes the call on whether or not to ask for the death penalty, and this U.S. Attorney has decided to do so in Cyrus' case. It's the first time since 1946 that the federal prosecutors have sought the death penalty in the Northern District. The last time that the U.S. Attorney's Office in this federal district asked for capital punishment in a crime was in the 1946 trial of two men who had escaped from Alcatraz and in the process, had killed two guards and three prisoners.

So why now, 62 years later, is capital punishment being sought? Why now? Why Dennis Cyrus?

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Nancy Grace Program Change: Tomorrow, Not Today

Just a brief update: I will appear on Nancy Grace tomorrow night, Tuesday May 12, 2009, not today, as originally scheduled.

In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution?

I have real concerns about the constitutionality of the current means of capital punishment here in Florida - and really, in most of the country today. And it's not just me - many Death Penalty Qualified Defense attorneys here in Florida share the same concern regarding execution by lethal injection.

Why?

There is a strong argument that execution by lethal injection violates both the Florida Constitution and the U.S. Constitution. In the next series of scholarly posts that appear here on the blog every Friday, we'll be looking at this issue.

The State and Federal Constitutions forbid foreseeable and unnecessary pain in the execution of an individual.

Much of the language that you will be seeing here is language that commonly appears in motions filed by counsel representing defendants who have been sentenced to death by the State of Florida. It's a solid and sturdy argument against the use of lethal injection, and there are many attorneys, legal scholars, professors, sociologists, and other professionals, who stand on this position:

Both the Florida and the U.S. Constitutions forbid the infliction of unnecessary pain -- that is, any pain that could reasonably be avoided -- in the execution of a sentence of death. The courts have ruled that the infliction of a severe punishment by the state cannot comport with human dignity when it is unnecessary and nothing more than the pointless infliction of suffering. Furthermore, [p]unishments are held to be cruel when they involve . . . a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890); see also Nelson v. Campbell, 541 U.S. 637, 125 S.Ct. 2117, 2122,158 L.Ed. 2d 924 (2004).

A punishment is particularly constitutionally offensive - and therefore, illegal -- if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973). Such things as (1) the probable length of time the condemned remains conscious of the process; (2) the physical or psychological pain he or she suffers during this period; and (3) the time it takes for death to occur must all be taken into consideration in determining whether a means of execution violates the constitution. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994), aff'd, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).

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I've Been Invited Back to Talk with Nancy Grace

I'm honored to report that I'll be returning to the Nancy Grace Show this Monday, May 11, 2009. It is always a privilege to be asked by Nancy Grace to participate in her cutting-edge dialogue, and I look forward to the opportunity.

Sometimes You Need To Stop and Survey the Territory When You're a Criminal Defense Attorney Representing People Facing Death

I try to avoid personal posting here, because my intent is to provide legal information that deals with capital punishment in this country today, for the use of both laymen and lawyers. In fact, soon I will be adding precedent and statutes and all sorts of reference links. Make things available that I think are helpful, informative, and best of all - free and accessible online 24/7.

But we've just moved into new offices, and I've got a nice view, the kind that only Miami can provide, and there's still the smell of new carpeting. I set at my solid, wooden desk -- the one that started with me when I first started practicing law and like me, it's a little banged up with the passage of time. (My wife wants me to get a new one. I like this old, trusty desk with not enough drawers.)

And as I look out over the expanse outside these windows, I think about where I sit and where I live - in Florida, in the United States, and I'm humbled. I am humbled by the beauty of the horizon; I am humbled by the enormity of our country and all that we stand for; and I'm humbled that I've been allowed to advocate not just for the accused, but for those who are facing a sentence of death if convicted of the crimes for which they have been charged. Can there be any greater duty for an attorney of law?

I'm honored to serve as the advocate for these defendants, and I'm especially dedicated to serving them since they are unknown and indigent (the legal term for poor), facing a justice system all too ready to kill them in name of punishment. To that end, today I want to publish their names here on this blog.

These are the criminal defendants facing a sentence of death for whom I have the honor of defending in a Florida court of law:

Jeremy Sly
077000553F

Kemar Johnston
06CF19906B

Grady Nelson
F-05-000846

Ariel Hernandez
F-04-019972

Demetrius Cooper
F-04-015209

Vivens Delorme
07-20534-CR-UNGARO

Emmanuel Jean
F06-023563-A

Thomas Pennington
F-07-025418

Frantzy Jean Marie
F-07-31111D

Walter Sapp
F-91-000880.

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In Depth Look: Filicide is Different - 4

Other mothers murder their children because the children are not wanted or are resented. One such mother, Susan Smith, strapped her two small boys, a fourteen month old and a three year old, into the backseat of her car, rolled up the windows, and pushed the car into a lake.

She first claimed her two sons were taken in a car jacking by an unidentified black man. Smith concocted elaborate lies in the national media, pleading for the safe return of her two children. Later, Smith told police she intended to kill herself, but changed her mind at the last minute and jumped from the car.

In fact, her father had committed suicide, and Susan had attempted suicide at least once in her life. Her stepfather sexually abused her, with whom she continued to have a sexual relationship once she was an adult. Smith also had an affair with her boss and craved a relationship with him. When he ended the affair because he did not want the complication of children in his life, she became desperate to rid herself of her children.

Susan Smith was convicted of two counts of murder. However, on July 28, 1995, a South Carolina jury rejected the idea of sentencing a young mother to death for drowning her two sons. She was sentenced to life imprisonment instead.

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