Capital Punishment in 2009: the Death Penalty Across this Country Today

Once again, using the information collected by the Death Penalty Information Center (what a great organization) and our own work here on this blog since March 2009, we know the following:

1.  The following states still allow the penalty of death for certain crimes, although New Mexico removed itself from this list in 2009, as it became the 15th state to abolish the death penalty:

Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Georgia, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and Wyoming.

2.  During 2009, some significant steps were taken in ten  (10) of the above listed states to end capital punishment: notably, in Connecticut, the state legislature actually passed a law that would have ended the death penalty but the state governor vetoed the bill. 

3.  Both the federal government and the United States Military still allow the penalty of death for certain crimes. 

4.  Executions are on hold in California, Maryland, Kentucky, and in the federal justice system because of pending judicial review related to the lethal injection method of executing a human being.

5.  This year, nine innocent men were freed after serving years on Death Row

  1. Yancy Douglas (OK) (conviction overturned and charges dismissed without re-trial)
  2. Nathson Fields (IL)(conviction overturned and acquitted after re-trial)
  3. Paul House (TN) (conviction overturned and charges dismissed without re-trial)
  4. Herman Lindsey (FL) (conviction overturned and acquitted after re-trial)
  5. Ronald Kitchen (IL) (conviction overturned and charges dismissed without re-trial)
  6. Daniel Moore (AL) (conviction overturned and acquitted after re-trial)
  7. Peris Powell (OK) (conviction overturned and charges dismissed without re-trial)
  8. Robert Springsteen (TX) (conviction overturned and charges dismissed without re-trial)
  9. Michael Toney (TX) (conviction overturned and charges dismissed without re-trial).

Over 3300 men and women set on Death Row today, awaiting execution.  Among them sits Troy Davis, whom many, many, many people believe to be innocent.  (We've discussed Mr. Davis' case earlier this year, and we're monitoring his case.)  The number of executions annually continues to decline.  Media outcry surrounding the executed of an innocent man in 2004 (Cameron Todd Willingham) and the fiscal realities of the expense of  pursuing the death penalty in these recessionary times seem to be the two biggest weapons in abolishing the death penalty that we've seen this year.

Progress is being made, thank God.  May He have mercy on us all.

Happy to See Richard Wolfferts a Free Man, the Stone Crabs Just Icing on the Cake

As is being reported in the Miami Herald, my client Richard Wolfferts does have a past.  Twenty years ago, back in 1989, a bomb was placed in a car driven by Miami divorce lawyer Gino Negretti  - and Dick Wolfferts admitted to planting that bomb.  He served five years in prison, and he offered state's evidence against the man that he testified paid him to do the job. 

Now 67 years old and living in Key Largo, Richard Wolfferts has paid his debt to society and like many other senior citizens in our area, loves the sun and likes to fish. 

When Mr. Wolfferts was indicted this fall as part of "Operation Melon Smasher" (a DEA operation tracking down those individuals who were allegedly hollowing out melons to store cocaine in melon shipments from Panama to the US), I was happy to represent him.   And sure enough, despite what the grand jury may have believed, the two co-defendants in the Melon Smasher case told federal law enforcement authorities that Dick Wolfferts knew nothing of the cocaine enterprise.  Dick Wolfferts was in Panama getting money to fund a new commercial fishing operation.

On December 9th, fisherman Wolfferts was released.  Now, he could resume his plans for a new fishing boat, aptly named "the Resurrection." 

Seeing Richard Wolfferts a free man, instead of continuing to face charges for being partly responsible for sneaking cocaine into this country via hollowed out melons, was a great thing.  That's a good day in this job. 

When everyone in my office started bouncing around in excitement to see 20 fresh stone crabs being delivered, a gift from Richard Wolfferts, that was just icing on the cake. 

A happy client enjoying his freedom out on the streets, especially in time for Christmas, is a great thing.  20 stone crabs admist the usual poinsettias, fruitcakes, and chocolates?  Priceless.  (And tasty.)

Thanks for the gift, Richard Wolfferts -- and Happy New Year to everyone!!!!


The Need for Uniform Standards in Death Penalty Cases 1 - Tinkering with the Machinery of Death

Currently, not only the federal government but a majority of states provide for capital punishment (the death penalty) in certain crimes. There are those that argue that true fairness in this country would be an all-or-nothing approach: either every state in the union should impose capital punishment or no state should. Otherwise, two individuals convicted for the same crime may not face the same punishment - death -- depending upon which side of a state boundary they sit. From this perspective, imposition of a true uniform standard in death penalty cases would be to abolish capital punishment in this country.

However valid one may find this argument to be, federalism and the United States Supreme Court allow for this incongruity today.

Given this reality, perhaps the more critical question we can ask right now is what standards are being imposed within those jurisdictions that allow the government to kill people as punishment for crimes. Are there uniform standards in the imposition of the death penalty?

Arbitrary and Unguided Imposition of Death Forbidden by Furman v. Georgia

In 1972, the United States Supreme Court found both the capital punishment laws of Texas and Georgia (and indirectly, every other death penalty statute in the country) unconstitutional because they were allowing arbitrary, unguided imposition of death sentences. Furman v. Georgia, 408 U.S. 238 (1972) was a per curiam opinion with all nine justices writing either concurrences (Douglas, Brennan, Stewart, White, Marshall) or dissents (Burger, Blackmun, Powell, Rehnquist) --- and the case effectively halted capital punishment in this country for a significant period of time. Over thirty state legislatures were forced to enact new death penalty statutes -which then had to undergo judicial scrutiny (e.g., Gregg v. Georgia, 428 U.S. 153 (1976)).

What was the power of Furman? According to this decision, a death sentence in this country cannot be imposed unless the sentencing authority finds at least one statutory aggravating factor and then weighs that aggravating factor against mitigating factors provided by the defense. Before death can be the punishment, the penalty must be based upon a consideration of both the circumstances of the case and the character of the defendant - all shown in a "specific and detailed" way to those responsible for sentencing the individual.

Post-Furman Death Penalty Statutes

In Gregg, the High Court found the newly enacted Georgia death penalty statute constitutional. There, either a Georgia judge or a Georgia jury may act as the sentencing authority. There must be a bifurcated trial. In the sentencing portion of the trial, ten aggravating factors are listed in the statute and one of these must be found to exist beyond a reasonable doubt before death can be imposed. The sentencing authority must also consider mitigating factors presented by the defense, and the sentence (which is subject to automatic judicial review) must identify its basis in the statutorily defined aggravating factors.

That same year, both Texas' statute ( Jurek v. Texas, 428 U.S. 262 (1976)) and Florida's death penalty law (Proffitt v. Florida, 428 U.S. 242 (1976)) were also found compliant with federal constitutional provisions. In Texas, death was limited to five specific situations of capital homicides where the murders were intentional and knowing with a jury as the sentencing authority in a two-phase trial being required to answer three statutorily defined questions "yes," in order to impose death.

In Florida, as in Texas and Georgia, a bifurcated trial was set by the new law. However, sentencing authority involved an advisory jury verdict with a sentencing judge to consider both aggravating factors and mitigating ones, with the findings upon which the death sentence is based to be provided in writing with expedited judicial review.

The Problem of Individualized Sentencing

In Lockett v. Ohio, 438 U.S. 586 (1978), the Ohio death penalty statute was reviewed by the US Supreme Court post-Furman and found lacking. The Ohio death penalty statute provided that upon finding a defendant guilty of "aggravated murder" together with one of the seven (7) statutorily-specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determined that at least one of the three (3) statutorily defined mitigating circumstances was established by a preponderance of the evidence.

According to the High Court (in a plurality opinion), a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S. at 605.

And here lies the crux of the problem - how is the state to effectively balance the "uniqueness of the individual" against the consistent, uniform imposition of the death penalty in the various states as well as by the federal government? How can a systemic formula truly impose fairness in any particular circumstance, particularly when death is in the offing?

The Impossible Situation

As Justice Blackmun foresaw so well (dissenting in Callins v. Collins, 510 U.S. 1141 (1994)): "....[t]he basic question -- does the system accurately and consistently determine which defendants "deserve" to die?-- cannot be answered in the affirmative....The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution." Justice Blackmun drew his own line in the sand in that historic dissent, announcing that "...[f]rom this day forward, I no longer shall tinker with the machinery of death," having considered the High Court's "experiment" with the death penalty to be a failure. Id.

Nevertheless, the courts still continue to "tinker with the machinery of death," using Blackmun's terms - and still, that attempt to balance the needs of the system for uniformity and the needs of the individual for unique consideration is sought unsuccessfully.

Do we need uniform standards in the imposition of the death penalty? Yes. Can they be achieved? Many respected legal minds aside from Justice Blackmun suggest not.

For example, Professor Linda Greenhouse recently opined in the New York Times that the U.S. Supreme Court applied "selective empathy" in its consideration of two death penalty cases this fall, where the two defendants shared histories of "similarly horrific" childhoods. The result? One man escaped the death penalty (Porter); the other did not (VanHorn).

Just last month, in considering the "guided discretion approach" originating in the Model Penal Code template, Kentucky Coalition to Abolish the Death Penalty President Don Vish eloquently pointed out in the Louisville Courier Journal that "... competing constitutional values get in the way of one another and, like Virgil's army, crowd the field so totally that none has room to do its work ... [and] justice in death penalty cases is becoming to the Constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach."

Perhaps the best interests of both our system of justice and the interests of the individual would be best served by what many continue to avoid as this legal tinkering continues: abolishing the death penalty in its totality - not only would this be the most uniform of standards to be implemented, as we all are aware, it would definitely be the cheapest.

As We Enter Into Christmas 2009, Let Us Pause to Consider Those Killed by the State in 2009

With thanks to the Death Penalty Information Center's excellent recordkeeping, here is a list of those who were executed so far this year, in alphabetical order by state.   While it is a blessing that capital punishment appears to be on the decline in this country, it will be truly a joyous occasion when this list for a future year will be blank. 

Of note: all these executions were by the standard multi-drug lethal injection except for Ohio's Ken Biros, which involved a single drug lethal injection and Virginia's Larry Bill Elliot, who was executed by electrocution (electric chair).  The oldest executed was Georgia's 65 year old Robert Newland, and the youngest was Texas' Derrick Johnson, who died at age 28.


Danny Joe Bradley, 49 , by Lethal Injection
James Callahan, 62, by Lethal Injection
Jimmy Lee Dill, 49, by Lethal Injection
Willie McNair, 44, by Lethal Injection
Max Payne, 38, by Lethal Injection
Jack Trawick, 62, by Lethal Injection

John Richard Marek, 45, by Lethal Injection
Wayne Tompkins, 51, by Lethal Injection

Mark McClain, 42, by Lethal Injection
William Mark Mize, 52, by Lethal Injection
Robert Newland, 65, by Lethal Injection

Matthew Eric Wrinkles, 49, by Lethal Injection

Dennis Skillicorn, 49, by Lethal Injection

Kenneth Biros, 51, by Lethal Injection - SINGLE DRUG
John Fautenberry, 46, by Lethal Injection
Jason Getsy, 33, by Lethal Injection
Marvallous Keene, 36, by Lethal Injection
Daniel Wilson, 39, by Lethal Injection

Darwin Brown, 32, by Lethal Injection
Michael DeLozier, 32, by Lethal Injection
Donald Gilson, 48, by Lethal Injection

Thomas Ivey, 34, by Lethal Injection
Luke Williams, 56 , by Lethal Injection

Steve Henley, 55, by Lethal Injection
Cecil Johnson, Jr., 53, by Lethal Injection

Reginald Blanton, 28, by Lethal Injection
Christopher Coleman, 37, by Lethal Injection
Terry Hankins, 34, by Lethal Injection
Derrick Johnson, 28, by Lethal Injection
Johnny Johnson, 51, by Lethal Injection
David Martinez, 36, by Lethal Injection
James Edward Martinez, 34, by Lethal Injection
Virgil Martinez, 41, by Lethal Injection
Stephen Moody, 52, by Lethal Injection
Curtis Moore, 40, byLethal Injection
Frank Moore, 49, by Lethal Injection
Kenneth Morris, 38, by Lethal Injection
Khristian Oliver, 32, by Lethal Injection
Ricardo Ortiz, 46, by Lethal Injection
Reginald Perkins, 53, by Lethal Injection
Willie Pondexter, 34, by Lethal Injection
Michael Lynn Riley, 51, by Lethal Injection
Michael Rosales, 35, by Lethal Injection
Luis Salazar, 38, by Lethal Injection
Dale Scheanette, 35, by Lethal Injection
Danielle Simpson, 30, by Lethal Injection

Robert Thompson, 34, by Lethal Injection
Yosvanis Valle , 34, by Lethal Injection
Bobby Wayne Woods, 44, by Lethal Injection

Edward Bell, 44, by Lethal Injection
Larry Bill Elliot, 60, by Electric Chair
John Allen Muhammad, 48, by Lethal Injection

House Bill 3986 - The Proposed Death Penalty Appeals Act and the Need to Include Adequate Funding for Indigent Defense Counsel

Recently, Representative Henry Johnson (D- Ga.) introduced House Bill 3986, the Effective Death Penalty Appeals Act.  This proposed law would make sure that defendants who have been sentenced to death at trial have the chance to have those death sentences reviewed as federal habeas corpus relief when they are able to provide evidence that they are not guilty of the crime -- especially when that evidence was not presented at their trial. 

The summary written by the Congressional Research Service (a nonpartisan part of the Library of Congress) provides:


Effective Death Penalty Appeals Act - Amends the federal judicial code to make federal habeas corpus relief available to a person sentenced to death if adjudication on the merits in state court proceedings of the claim cited in the writ application resulted in, or left in force, a death sentence imposed without consideration of newly discovered evidence which, in combination with the evidence presented at trial, demonstrates that the applicant is probably not guilty of the underlying offense. Allows presentation of such a claim in a second or successive habeas corpus application. Allows a second or successive court motion to vacate, set aside, or correct a death sentence based on such a claim.

Many may assume that this type of federal judicial review already exists for those individuals facing a sentence of death. After all, isn't the cost of appellate review one of the big chunks of Capital Punishment expense that is being used as an monetary argument to abolish the death penalty?

Right now, federal courts are limited in their ability to review state court decisions in Death Cases --  Troy Davis is one big example

While death penalty appeals are expensive in both time and money, the fact is that the innocent men and women on Death Row -- and they're there, don't think they're not -- may not have as easy of a time taking evidence proving their innocence before a tribunal in order to gain their freedom as the public might assume.

Continue Reading...

Life v. Property: Do We Value the Taking of Property More Than Human Life In This Country?

Earlier this month, the United States Supreme Court heard argument in the case of Beach Renourishment v. Florida (08-1141), a controversy surrounding the application of the Fifth Amendment's prohibition that "...private property [shall not] be taken for public use, without just compensation," otherwise known as the "takings clause." It's an interesting situation because the real issue before the highest court in our land is whether or not the highest court in our state can essentially impose a judicial taking of some beautiful beach property.

It seems that the beautiful beach property was created when the State of Florida literally pumped tons of sand onto existing beaches in an effort to stop erosion and to protect the pretty beachfront vacation homes that dotted the shoreline. The big brouhaha started when that land - the newly created beach formed by the pumped-in sand - was claimed by the State of Florida as Florida land. Voila! A takings clause argument argued by the landowners that's gone all the way to the Supreme Court.

And that's good.

Having the Florida Supreme Court's papers graded by the United States Supreme Court on whether or not federal constitutional provisions are being respected is how our system is supposed to work. Eminent domain cases are expensive to litigate, and they're expensive to appeal - and that makes sense, because usually there is a significant amount in controversy. That strip of Florida beach being fought over in Beach Renourishment isn't cheap, and its impact on neighboring property values isn't cheap, either.

Bottom line, our nation is governed by laws originating from only four different sources: the Constitution; statutes enacted by either the U.S. Congress or the state legislatures; administrative decisions established by agencies within the executive branch; and finally, case law precedent arising out of federal and state courts. It's extremely important to have a hierarchy within this system of laws, as well as within this system of governing - and having the U.S. Supreme Court decide whether or not the Florida Supreme Court is correct regarding the taking of this pumped-in sandy beach under the takings clause of the federal Constitution is right and just and proper.

Which brings us to the question for today: does our nation value the taking of property more than the taking of human life?

In 1972, the United States Supreme Court halted all executions in this country with the case of Furman v. Georgia, 408 U.S. 238 (1972). The High Court ruled that the death penalty was "arbitrary and capricious," violating the Eighth and Fourteenth Amendments to the Constitution because of a variation between state laws and the application of the punishment itself. Four years later, Gregg v. Georgia, 428 U.S. 153 (1976) changed all that; the Supreme Court once again allowed United States citizens (as well as foreign nationals) to be killed by the government as punishment for the commission of certain crimes. The death of the death penalty was short lived.

The Cost of the Death Penalty

On its website, the Florida Bar provides the following as public information:

Florida state courts are in crisis. Two years of budget cuts have undermined adequate and equitable funding of the court system, forcing layoffs and hiring freezes. In addition, by legislative formula, filing fees paid by court users do not directly go to fund the courts. On top of budget cuts and restricted revenue, caseloads have ballooned as the economy faltered.

A lot of additional information is provided at the Florida Bar's site, and it's periodically updated. However, the Florida Bar website appears to be primarily concerned with civil disputes, and the delays that civil litigants are experiencing in getting into a courtroom and achieving resolution of their lawsuits. Still, the financial crisis in Florida's state courts is not in dispute, nor is the tremendous expense that each state undertakes when it chooses to punish a citizen with death. Indigent defense of those accused of capital crimes is in particular crisis in this state.

This week, the Death Penalty Information Center published an opinion piece that initially appeared in the Virginian-Pilot. There, the argument is made that it makes economic sense to end capital punishment in this country, as the authors explain (quoting from the DPIC site):

"Doing away with the option of a death sentence makes sense on several levels....It would save the state from having to pay fees associated with lengthy trials and years of appeals. It would end the agony of repeated court hearings for the families of victims. It would eliminate the four perpetually understaffed capital defender's offices, whose attorneys handle appeals automatically generated when people are sentenced to death row.... Is the cost of an execution really worth it when, for less than half the price, we could put a killer in a prison cell, locked away from society for life?"

Elephant in the Room and on the Beach: Lack of Funding for Indigent Capital Defense Counsel in this Country

Still, within thirty days before the United States Supreme Court heard oral argument in the Florida eminent domain case, it had issued its opinion in Bobby v. VanHook, (09-144, November 9, 2009), finding that there was no legal grounds for stopping the execution of Mr. VanHook although they did stop the execution of an elderly Florida man, 77 year old veteran George Porter in Porter v. McCollum (08-10537, November 30, 2009). While Professor Linda Greenhouse opined in the New York Times, questioning the "selective empathy" of the High Court in the reading of VanHook and Porter side by side, it is clear that the opinions were founded upon the summary conclusion that one man had effective assistance of counsel and the other did not.

When Will the Reality of Money Be Considered in Capital Punishment Cases?

All of which leads us to this: men (and women) die in this country at the hands of state and federal government because the death penalty is recognized as a valid form of punishment. Floridian George Porter can attest that this ultimate punishment in all likelihood depends upon the abilities and efforts of defense counsel at trial. Even the most avid supporter of capital punishment has to acknowledge the financial expense of the death penalty in this country. It is extremely expensive to execute someone in this country, as the Virginian-Pilot estimates $2,000,000/inmate for Virginia. DPIC studies show that this country has spent two billion dollars ($2,000,000,000.00) executing people since 1976.  The Palm Beach Post has estimated that Florida has paid $51 million since 1976 for the luxury of having the death penalty.

Still, the crisis in criminal defense of the indigent accused of capital crimes escalates each year. The American Bar Association has an online collection on studies done by the various states on the extent of this crisis going back 15 years.

There is not enough money to properly finance capital defense cases for indigent defense counsel. Yet millions of dollars are spent each year in the prosecution of capital punishment cases - nationally, the total is in the billions. And while the United States Supreme Court sends its message that because of the effectiveness of defense counsel or lack thereof, Porter lives and VanHorn dies, with the Court moving on to decide who gets paid what for some sandy oceanfront beaches, we have to ask -- do we value the taking of property more than human life in this country?

Sadly, it appears that we do.

DPIC Releases Its Annual Report -- Fewer Executions This Year than Any Year Since 1976

The Death Penalty Information Center has tallied its numbers and released its annual report on the state of Capital Punishment in America this week.  Its eight (8) page report can be downloaded and printed in a pdf format from the DPIC site at no charge. 

There's some good news here.

When you're against the death penalty and both the federal government and a majority of states allow capital punishment, you have to find your encouragement where you can until the goal of abolishing the Death Penalty arrives.  Luckily, almost like a holiday gift and definitely as a shot in the arm after the recent Ohio activity, the research center's release arrives ...

And the DPIC report tells us that once again, there is a decline in the number of executions in this country.

For the past seven (7) years, there has been a downturn in capital punishment.  In 2009, the DPIC reports our country will have the lowest number of executions since 1976, when the United States Supreme Court reinstituted the death penalty with  Gregg v. Georgia, 428 U.S. 153  (1976).    That's great news!  Even more so, when you consider that this year's executions will total one-third of those undertaken in this country in 1994 (where the United States hit its record number of executions, 328). 

Additionally, death sentences have dropped sixty-three percent (63%) over the past decade -- so not only are fewer individuals being executed, fewer juries are sentencing people to die in the first place.  That's very encouraging, right?

Of course, the Death Penalty Information Center delves into the reasons why these numbers exist.  Considerations of the economic costs are believed to be contributing.  An availability for alternative sentences is another contributing factor that the DPIC explores.

For those of us dealing with the cold reality of the government ending the life of a citizen, the DPIC Annual Report is most welcome.  We encourage you to read it, in its entirety.

This New York Times Editorial - "There is No Humane Execution" Should Be Required Reading For Everyone. Yes, Everyone.

This past Sunday, the New York Times responded to the horrific execution of Ken Biros by the State of Ohio last week.  Yes, where Biros was killed in the same way that your vet euthanizes dogs and cats.  Yes, where Ohio ran ahead and used a new method of execution that hasn't been vetted, allowing Biros to be a human guinea pig.

In a succinct, well-written opinion piece, the New York Times shares in the horror of what Ohio has done.  From its offices in Manhattan, the Times states it plainly:  "There is no Humane Execution." 

Of course, the editorial has its critics.  At Sentencing Law & Policy, for example, the New York Times piece is challenged -- most interestingly, for its suggestion that the Texas case of Cameron Todd Williamham is a fluke:  

"Finally, as serious students of the death penalty know, the Willingham case is the closest we've gotten to a clear showing an innocent person may have been executed; to suggest that a large number of innocent people have quite likely been put to death is especially misguided."

Really?  Currently on Death Row, a number of men set waiting to be executed, and the Innocence Project is monitoring this list.  Surely we're not to wait until they are killed before we have enough justification to stop capital punishment in this country. 

From our post dated 09/11/09, here are the names of the innocent setting on Death Row per the Innocence Project as of that day - visit our earlier post for links to each man's individual story, as told by the IP:

Kirk Bloodsworth

Rolando Cruz

Alejandro Hernandez

Verneal Jimerson

Dennis Williams

Robert Miller

Ron Williamson

Ronald Jones

Earl Washington

Frank Lee Smith

Charles Irvin Fain

Ray Krone

Nicholas Yarris

Ryan Matthews

Curtis McCarty

Kennedy Brewer

Michael Blair

Revisiting the Past: Capital Representation Pre-Gideon

Most Florida criminal defense attorneys who undertake the tremendous responsibility of representing defendants facing the death penalty probably cannot remember what life was like in this country in 1963. Few were practicing law back then. Many were yet to be born.

Nevertheless, the year 1963 is a critical milestone for the Florida capital defense bar because it was in 1963 that the United States Supreme Court brought us Gideon v. Wainwright, 372 U.S. 335 (1963) - and with Gideon, everything changed.

Before we consider the necessary changes that must be made in the representation of indigent defendants facing capital punishment in Florida - and we will -- it is important to look back to the status quo as it existed pre-Gideon.

Gideon did not create the indigent's right to counsel in death penalty cases. Their right to legal representation was created much earlier by the U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932). It was only a few years later that the High Court expanded this right to legal counsel for indigents facing felony charges in federal courts. Johnson v. Zerbst, 304 U.S. 458 (1938).

What makes Gideon so powerful and worthy of our consideration today is that this single Supreme Court opinion recognized an indigent defendant's legal right to counsel when accused of state felonies. Gideon, 372 U.S. at 342. Suddenly, the Sixth Amendment right to the assistance of counsel was found to be essential to a fair trial; consequently, there was to be no distinction between the duty to provide indigents with legal representation in either state or federal courts. If you were poor and facing a felony charge in this country under either state or federal law, you were legally entitled to a lawyer provided to you by the government since you could not afford to hire your own counsel.

Curious by its absence was any instruction in Gideon on the means or methods by which the individual states were to accomplish this task. Each state was left to its own devices in how Gideon's mandate was to be accomplished, and many looked to Florida - since Gideon v. Wainwright originated in our state.

Background of Gideon v. Wainwright

In 1961, Clarence Earl Gideon was convicted for breaking and entering a Panama City, Florida pool hall (with the intent to commit petty larceny) by a Florida jury and sentenced to five years incarceration in the Florida State Prison. Although Mr. Gideon asked the trial judge to provide him with an attorney, the judge declined, explaining that under Florida law only defendants facing capital offenses were entitled to appointed counsel. Mr. Gideon, therefore, represented himself.

He continued to do so after his conviction. Taking advantage of the prison library, Mr. Gideon handwrote in pencil his petition to the United States Supreme Court, as he sued Louie Wainwright as the Secretary to the Florida Department of Corrections. Gideon argued that his Sixth Amendment right to counsel applied to his situation through the Fourteenth Amendment. His constitutional rights had been violated.

Once his pleas reached the High Court, Mr. Gideon was no longer without counsel. The renowned advocate Abe Fortas, later to take his own place as a United States Supreme Court Justice, undertook the representation of the convicted pool hall burglar.

The Gideon Opinion

After hearing oral argument, an opinion was issued in mid-1963 written by Justice Hugo Black who was joined by Chief Justice Earl Warren as well as Justices Brennan, Stewart, White, and Goldberg. Douglas, Clark, and Harlan concurred. No one dissented.

In Gideon, not only did the Court strengthen its support of the Powell decision, but it overruled Betts v. Brady, a prior decision that found the selective application of the right to counsel was legally acceptable in certain situations. Clark pointed out that there is no Constitutional distinction between capital and non-capital charges. Harlan wrote to point out that merely the charge of a serious crime created the special circumstances that call for legal representation at trial.

Now, the law of the land was that the right to have legal representation was to be considered a fundamental constitutional right and therefore, worthy of the necessary procedural safeguards imposed for due process of law.

The Aftermath for Clarence Gideon

After his case was returned to the Florida Supreme Court, the State of Florida tried Mr. Gideon a second time. In his second trial he was represented by appointed counsel, and summarily acquitted.

The Aftermath for the State of Florida, the Criminal Defense Bar, and Indigents Today

No one in this country was considered to have the legal right to an attorney until the early 1930s, when defendants in federal court facing the death penalty were granted that right by the U.S. Supreme Court. For the next thirty-odd years, no one charged with a serious crime by any state this country was considered to have a right to an attorney provided to him by that state - even if he was facing life imprisonment. Gideon v. Wainwright changed all that.

Today, almost a half century later, the result of Gideon has been a consistent neglect of the needed infrastructure for indigent criminal defense in Florida, and across the country. Efforts to have effective legislation passed or broadly based executive policies instituted have been frustratingly unsuccessful.

Since the 1980s, it has become increasing clear that there is simply an incongruity between the needs of appointed counsel to mount a thorough and satisfactory defense and the limited budgetary revenues of state and local governments. Bottom line, Gideon (and its progeny) has proven to be more expensive directive than the state governments have been willing to accept.

Ohio's Second Execution of Romell Broom Stayed for 30 Days by Federal Judge - How Do You Think He'll Rule?

Death Row inmate Romell Broom was setting in the courtroom this week as his attorneys stood ready for an evidentiary hearing that would take a couple of days in front of Federal District Judge Gregory Frost.  Romell Broom sat there, ready to testify. Think of it -- Broom left his small Death Row cell to set in that public courtroom, look out at all those faces and tell about the pain and suffering he experienced on that gurney as his executioners spent over two hours trying to find a vein in which a needle could be inserted.  We've posted about this earlier - including the media reports that Broom was "sobbing in pain" that day.  The hearing was based upon Broom's motion.  Romell Broom is seeking to stop his scheduled execution by Ohio by arguing that it is unconstitutional for the State of Ohio to try and kill him a second time after its horrific failure to execute him earlier this year by lethal injection.  Judge Frost doesn't hold a evidentiary hearing  Surprising some, Judge Frost took the bench and soon thereafter advised everyone that he wouldn't be hearing testimony in the Broom matter.  Nope.  According to Judge Frost, he's really able to decide only a narrow question of the law.  No fact-finding is needed, so no testimony would be taken.  Attorneys were asked to file their arguments addressing the issue, and the Judge would rule based upon the paper.  Judge Frost did give everyone a big hint -- he's stated that he doesn't see how Broom can circumvent the decision made by the Sixth Circuit Court of Appeals and denied review by the United States Supreme Court earlier this week in the Biros case.  Ken Biros died as a guinea pig to the new Ohio single-drug injection method.  What is Judge Frost Going to Decide? All that Judge Frost is going to answer is the limited question of whether or not the State of Ohio, after it has failed to execute an inmate, has the right under law to try again.  And while it is critical to consider the pain and suffering that Romell Broom experienced on that gurney that day, Frost is saying that he's not hearing anything on pain because of the federal appellate court ruling Monday in Kenneth Biros's case. On Monday, Biros unsuccessfully argued that the method of execution Ohio would be using hadn't been vetted and Ohio couldn't show that the execution method couldn't cause severe pain.  Severe pain during an execution violates the prohibition of cruel and unusual punishment of the U.S. Constitution.  The appellate court specifically stated that Biros had provided no evidence on pain.  Arguing about the pain that might occur during an untested method of execution seems easily distinguishable from an argument concerning the two bites at the apple situation facing Broom.  Yet Judge Frost is moving forward without any evidence on pain -- there was no evidence on pain in the Biros appellate record and he's prohibiting having Romell Broom take the stand in the present case.  Given this factual vacuum and the precedent of Louisiana v. Resweber, 329 US 459 (1946), where the failure of an electric chair during an initial execution did not prevent the second execution from proceeding, what Judge Frost is going to rule probably isn't that hard to predict regardless of whether your perspective is based upon double jeopardy, due process, or cruel and unusual punishment.

As These Words Are Being Typed, Ohio Is Killing Ken Biros in an Unvetted Execution Method, Unless You Count Euthanasia of Dogs as Vetting

All this morning, there have been almost minute by minute updates on the web regarding whether or not the appellate attorneys feverishly fighting to stop this morning's execution of Kenneth Biros by the State of Ohio will be successful. 

Biros' attorneys are literally banging on the doors of the United States Supreme Court, asking that the highest court in the land act immediately to stay the execution of Ken Biros -- who is set to die this morning  (the execution is scheduled for 11 am) unless something BIG happens. 

And this needs to be stopped.  We've already written here about all the reasons why.

The State of Ohio is about to execute a man in the same way that the vet down the street "executes" pets everyday - by a single, massive injection of a drug.  As we've posted about before, no one knows how a human being will react to this procedure.  It hasn't been scrunitized in the standard legal way -- Ohio is allowing Biros to be a guinea pig.  Will this be cruel and unusual?  We don't know.

The New York Times legal blog has periodic updates.  A local TV station in Ohio has a reporter at the prison.  The Tribune Chronicle in Lucasville is posting almost minute by minute events as they transpire.   

At 9:20 am, prison officials announced that the execution might be delayed - Ohio would wait until the United States Supreme Court ruled on the defense attorneys' last minute request. 

At 10:00 am, it was announced that the United States Supreme Court will not stop the killing of Kenneth Biros by an unvetted execution method. 

Ken Biros will die today. 

And the horror exists -- if this single injection method is later shown to be legally unacceptable as a method of executing humans, there will be no way to help Mr. Biros.  

May God have mercy on us all.

What the U.S. Supreme Court is Telling Attorneys Representing Defendants in Death Penalty Cases - Considering Porter and VanHook

In yesterday's New York Times, Professor Linda Greenhouse gives us a thought-provoking analysis of the "selective empathy" of the current U.S. Supreme Court as she compares the recent decisions in Porter v. McCollum (Porter lives) and Bobby v. Van Hook (VanHook dies).  After discussing in detail both opinions, Greenhouse concludes:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men's childhoods were -- indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don't make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won't be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

Those who represent defendants facing prosecutors arguing in courtrooms that the accused should die at the hands of the state undoubtedly understand Professor Greenhouse's acknowledgement that most folk setting on Death Row in this country have horrific personal histories.

The tragedy of Death Row goes far beyond the underlying crime and the suffering of the victim and the victim's loved ones - there's also the path woven through the past by the defendant to that fateful day when a crime was committed, a path with its own pain and shocking trauma. Porter's case typifies this, as does Van Hook's - and each of the Supreme Court opinions provide the details.

Comparing Porter and VanHook From a Criminal Defense Practitioner's Perspective

However, both these unanimous, per curiam decisions have more to tell us, the legal practitioners who have devoted our lives to the defense of individuals charged with capital crimes and facing the death penalty. In both opinions, the quality of the underlying representation of Van Hook and Porter were at issue. Both alleged ineffective assistance of counsel -- and it was upon this appellate point that the two cases reached the high court.

From this perspective, we must read Porter and Van Horn side by side without a focus upon the underlying facts of the crimes and instead ask ourselves if the minimally acceptable standard of representation was provided in each case. Without emotion. Lawyer to lawyer.

When this is done, and the examples provided by the Justices are considered (and they do give examples), then a disparity can be seen. A disparity that explains the different results in Porter and Van Horn in a way that a comparison of the crimes and the two condemned men cannot.  And it also explains how both opinions could have unanimous, per curiam results. 

Viewed in this way, Porter and Van Horn remind the criminal defense bar that each and every time a defense attorney undertakes the representation of a defendant in a case where the prosecutor is zealous to pursue the death penalty, there is nothing more important than what that defense lawyer does.

We, the attorneys defending against death, stand in the gap between life and death by our own level of care and attention to detail in the work that we do. Our focus cannot be upon the horror of our client's background (though we sympathize) nor with any public repulsion of the crime at issue and their sometimes disgust with us, as counsel, for defending our clientele.

Our focus must always be upon doing the absolute best job that we can in the defense of each and every case. It is our duty to review our own efforts to insure we are providing "effective assistance of counsel" long before any appellate court begins its review of any ineffectiveness.

US Supreme Court Recognizes Florida Combat Veteran's Post Traumatic Stress as Mitigating Factor Barring Death Penalty in Porter v. McCollum

Perhaps discussion of the November 30, 2009, opinion by the United States Supreme Court in Porter v. McCollum (08-10537) is best begun by reading the first paragraph of the opinion itself

Petititioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man.  His commanding officer's moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

Of note, the opinion is short by Supreme Court standards (only 15 pages), it is also unsigned and per curiam

1.  It's a per curiam decision for the United States Supreme Court.  What's that telling us?

That this opinion is per curiam alone is worth some pondering.  Usually, the High Court has lots of paper with its results -- various justices writing their own explanations for the position they have taken on a case.  Here, there is just fifteen pages whose words speak for the entirety.  Consider Bush v. Gore, 531 U.S. 98  (2000), another per curiam opinion of the U.S. Supreme Court in a Florida case: it still had dissenting opinions. 

That Porter is per curiam is telling.  It's powerful.  PTSD in combat veterans is a mitigating factor that must be considered and respected by the states in death penalty cases. 

2.  Is Porter limited to its four corners?  The opinion doesn't read that way.

There are those that will argue that the Porter case is limited to the facts surrounding the crime for which George Porter, Jr. was convicted and it should not be considered as having a bigger impact.  Prosecutors will undoubtedly argue that the Porter case turned mainly on the specific facts involved in the trying of the defendant for the murder of his ex-girlfriend and her current boyfriend, and the actions (or lack thereof) by both the prosecution and the defense in that trial.  And it is true that the appellate arguments advanced by Porter are hinged upon ineffective assistance of counsel.

However, reading the opinion in its entirety, the Supreme Court appears to nip that challenge in the bud by its discussion of post traumatic stress disorder arising from combat.  Not only does the opinion point out that a medical expert testified that Porter's symptoms "...would 'easily' warrant a diagnosis ..." of PTSD, the opinion also references testimony given by Veterans Affairs Secretary Eric  Shinseki, where Mr. Shinseki testified that nearly 25% of Iraq and Afghanistan veterans seeking V.A. medical treatment were diagnosed with post-traumatic stress disorder (PTSD).  Consider these words from the opinion:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  ... The relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

The opinion doesn't limit itself to discussion of the circumstances of Porter's defense representation at trial, nor to Porter's own Korean combat trauma.  Its application simply cannot be wedged into a narrow application to George Porter's particular circumstance. 

3.  What happens now?

 First: George Porter, Jr. receives a new sentencing hearing, based upon an unanimous United States Supreme Court decision and while his conviction stands, the sentence of death does not.  Mr. Porter will not be executed by the State of Florida now. 

Second: Across the country criminal defense attorneys representing clients facing the death penalty must take heed that PTSD (at least for combat veterans) is a valid mitigating factor for which evidence must be investigated and fully presented as a legally recognized defense to the state's desire for capital punishment. 

The real debate is whether (or when) the Porter PTSD defense can be applied not only to combat veterans but to all those who suffer from severe, disabling post traumatic stress disorder arising from life-threatening events (e.g. victims of kidnapping, torture, rape, etc.).

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