Johnny Depp on 48 Hours Today Fighting 4 West Memphis 3, Will He Help the Dubose Brothers?

Johnny Depp will appear this evening on CBS-TV's 48 Hours, bringing attention to the West Memphis 3, fighting against the execution of Damion Echols. 

Please watch - it's a major event for Mr. Depp to bring his celebrity power to this Death Penalty case, especially when everyone would expect Johnny Depp to be on a standard publicity campaign for his new Disney movie, "Alice in Wonderland" by Tim Burton.  I'm sure that all opponents to the death penalty are excited that a major celebrity like Johnny Depp has become involved here -- and are respectful not only of his artistic abilities but his moral commitment, as well. 

The Dubose Brothers of Jacksonville - Similar Situation as the West Memphis 3

Meanwhile, here in Florida, the Dubose Brothers are in a similar situation as the West Memphis 3 with these three African-American brothers all facing the death penalty in the murder of an 8 year old in a drive-by shooting.  It is undisputed that the drive-by was intended for a drug dealer who had robbed the oldest brother.  It is also clear that these three brothers have suffered a lifetime of abuse and neglect. 

The State's zealous prosecutor is aggressively fighting for all three brothers to be put to death.  The penalty phases of their trials will continue through the next two weeks, and is being live-blogged in a joint effort of the Times-Union and 

This case is being tried in Jacksonville, and my non-profit defense support organization, Florida Capital Resource Center, is providing whatever assistance we can to the defense attorneys in this case. (For details on how burdensome it is to represent indigent defendants in death penalty cases here in Florida, please read the assorted posts here on this topic, as well as my ongoing series of articles published at JD Supra and elsewhere.) 

E-mailed Johnny Depp's agent asking for help with the Dubose boys

Last week, Mr. Depp's agent also got an email written by Terry Lenamon, personally, not officially from the FCRC nor from the law firm, asking for his help in the Dubose Brothers case, if he could he see his way clear to do so.  

Sure, sure -- IT IS a lot to ask a celebrity who's already filming a movie (the Tourist) with Angelina Jolie, promoting a major film like Alice in Wonderland, and already taking a stand with the West Memphis 3, but Johnny Depp is known to march to a different drummer, and go his own way.  

Couldn't hurt to ask, you don't ask, you don't get ...and when you're a death-penalty criminal defense attorney, one thing you have to have a whole heck of a lotta HOPE.  Hope in justice, hope in mercy, hope in the compassion of men's souls ... because sometimes, setting in that chair in the courtroom, hanging onto HOPE is all you've got. 

Sincerest thanks to Mr. Depp for his efforts today.  We'll be watching CBS tonight, hope you will be, too.


New York Times Exposing Love Affair Between Texas Judge and State Attorney During Death Penalty Trial

This week, Adam LIptak of the New York Times has taken the great light that is the New York Times, using it to shine into dark corners of corruption, and revealed as story that's been talked about in defense circles are awhile.  And his efforts can't be noticed without also pointing out the efforts of Texas Monthly's editor Michael Hall, who started receiving letters from a Death Row inmate named Hood and took notice of them. 

However, it's the New York Times that's really helping spread this shocking story, better late than never.  We all need to know about this evildoing. 

Seems that over in Texas (yes, Texas), during a trial where a man was facing the sentence of death, the judge (Verna Sue Holland) was having an affair with the prosecutor (Thomas S. O'Connell, Jr.).  This love affair apparently went on for years, and was the subject of much courthouse gossip.

Imagine the stress this placed upon defense counsel for Charles Dean Hood, who was being tried in Judge Holland's court for a capital offense.  Imagine their feelings now, since the United States Supreme Court has his petition for writ of cert  before it, with the amicus brief of "former judges, state officials and prosecutors" numbering 21 in all, filing their support of his petition as friends of the court. 

Charles Dean Hood sits today on Texas' Death Row, having facing more than one last minute stay of execution already.  Judge Holland has retired.  The U.S. Supreme Court has yet to rule. 

Here's a curious fact:  Judge Verna Sue Holland served for 16 years as a justice on the highest criminal court in Texas, their Court of Criminal Appeals.  You know the one.  That's the same court that Sharon Keller presides over as Chief Justice today (at least for now). 

Mad Hatter Johnny Depp Interrupts Promotion of Alice to Fight Against Execution and Free the West Memphis 3

Johnny Depp is getting lots of media play due to his upcoming debut as the beloved Mad Hatter in Tim Burton's version of "Alice in Wonderland" next month. 

However, Johnny Depp won't be talking movies this Saturday when he appears on CBS-TV's "48 Hours. "  Instead, he'll be adding the power of his fame to the fight to stop the execution of Damien Echols and to free the West Memphis 3

Good for Johnny Depp. 

There are those, like Depp, who believe the three boys (now men - it's been 17 years) are innocent of the crimes.  There are others that argue it's not a matter of guilt, it's a matter of the system failing to follow proper protocols, and the need to correct improprieties that cannot be ignored. 

The "West Memphis 3" are Damion Echols, Jessie Misskelley, Jr., and Jason Baldwin, who were convicted of murdering three 8-year-old boys in West Memphis, Arkansas, back in 1993.  Only Echols was sentenced to death; Baldwin got life imprisonment and Misskelley was sentenced to life in prison plus 40 years. 

Other celebrities lending their support to the West Memphis 3 campaign include Wynona Ryder and Demi Lovato. 

Can celebrities really impact executions in this country?  Of course they can.

We can all look to the case of Georgia's Troy Davis as an example.   Famous names lending their clout to the Free Troy Davis campaign include The Pope, Desmond Tutu of South Africa, and former President Jimmy Carter. 

Right now, a federal hearing is pending in the Troy Davis case, and there's a big fight between the attorneys on why all the witnesses have recanted.  The state is implying witness tampering, and the defense lawyers have taken to the media, incensed at the implication.  Meanwhile, Davis's execution by the State of Georgia remains stayed by federal order. 

Kemar Johnston - Excellent Article by Fort Myers' Sam Cook

Columnist Sam Cook wrote an excellent article that appears at Fort Myer's News-Press web site. 

It provides a perspective that isn't seen enough in death penalty coverage, and I'm hopeful that you'll find the time to read it. 

Kemar Johnston Jury Verdict - No to the Death Penalty

Yesterday, the jury came back in the Kemar Johnston case.  They had already found Mr. Johnston guilty of murder, now they were deliberating whether or not Kemar Johnston should die as punishment for the crime. 

The jury recommended life in prison for Kemar Johnston.  In doing so, the jury voted AGAINST the death penalty in this case.

Mercy over judgment.  Mercy -- it's one of the clear themes of this blog, as is bringing attention to the variety of mitigating factors that come into play in every case where the sentence of death is at issue. 

We argued that there were mitigating factors in Kemar Johnston's situation where it would be unjust to impose the death penalty.  Among the evidence presented, clinical psychologist Hyman Eisenstein testified that he found Kemar to suffer from brain damage.  Specifically, permanent damage to the frontal lobe had occurred which compromised Kemar's ability to make decisions as well as his ability to grasp the consequences of what he might choose to do, or not do. 

Mitigating Factors and Aggravating Circumstances.  We've discussed the process of capital punishment imposition before, generally describing the prosecutor's advancing of circumstances and the defense's propounding of mitigation issues.  The sentencing phase of any capital trial follows set protocols established by statute.

The trial of Kemar Johnston brings this home as a prime example of how the sentencing phase works.  State attorneys argued four aggravating circumstances.  We argued 100 mitigating factors that should form a barrier between Kemar Johnston and execution by the State of Florida for the crimes of which he had been found guilty.

There are those that are all too ready to say that when one citizen takes a life, he should give his own in return.  However, an eye for an eye is not what our society considers as justice.

This was a 20 year old boy whose birthday celebration - fueled with drugs and alcohol -- went horribly wrong and now, he will spend the rest of his life behind bars.   Judgment was had: the jury found him guilty of murder.

Mercy was then imposed.  A mentally challenged young man who is loved by many --so loved, that his sister, sobbing on the stand during the sentencing phase brought the entire courtroom to a halt as Kemar broke down, too -- was spared from the penalty of death. 

A victory in this case, yes - but it's also a victory in the fight against Capital Punishment. 

This is a victory for us all, not just for LenamonLaw (though we are celebrating this weekend).  Until the death penalty is removed as a legal alternative, the fight to keep the government from killing its citizens must be fought a case at a time, in courtrooms across the country, just like we did this month for Kemar Johnston.

We can only hope that our spouses, and our children, understand the contributions that they make to this fight in their sacrifices -- and now, we'll be taking a bit of time to focus upon them, sharing our appreciation for their efforts as part of this team. 

Texas Chief Justice Keller - Finally, Clear Charges On Violation of Execution Day Protocols

We've been following the melodrama surrounding Sharon Keller, Chief Justice of Texas' highest criminal court since allegations that her acts caused the execution of Michael Richard to go forward back in 2007. For background, here are some of our posts giving the details on this horrifiic story:

Sept 2009 - Texas' Chief Justice Keller's Trial - Shocking Report from FactFinder

August 2009 - In Texas Justice Keller's Trial, What if the US Supreme Court had ruled the other way?

April 2009 - Texas Chief Justice Sharon Keller's Lesson to Us All About Due Process

Well, yesterday was the deadline for the Examiner (read that, "prosecutor") to file objections to the fact findings that a state district judge (Judge David Berchelmann of San Antonio) issued recently after a week long trial in August.  That judge simply didn't find that she did anything that bad - that the public ridicule of Justice Keller was more than enough punishment. 

Lots of folk (including us) were SHOCKED at this response.  Now, thankfully, a clear and solid voice has come forth in the public record, as the Examiner files its case before the Texas Commission on Judicial Conduct (which has the power to remove her from the bench). The entire filing is important reading, and we're hopeful that you'll take the time to go through the 38 pages that explains everything so well. 

And to be fair, Justice Keller has filed her formal response to this filing, and you might want to read that, too.  It's the right thing to do, something that you'll recall wasn't allowed to Michael Richard on that fateful day he died at the hands of the State of Texas. 

China Death Penalty - New Guidelines But What About Human Organ Harvesting?

The death vans that cruise around China, killing people for all sorts of crimes and then harvesting their organs for sale on the human organ black market, was so shocking to us when intern Sin-Ting Mary Liu described the efforts, that we posted a long series here, excerpts from her excellent work - complete with the footnotes -- giving all the details on what was going on over there.

Here are the links:

In Depth Look at the Law: China's Death Penalty - 1: The Death Vans and Black Market Organ Trade

In Depth Look at the Law: China's Death Penalty -2: Truly Inhumane Killings Are Happening in China Under the Guise of Capital Punishment

In Depth Look at the Law: China's Death Penalty - 3: Who are the Falun Gong? Why are they targeted for execution and organ harvesting?

Found: One Recent In-depth Article on the China Death Vans. Who's Covering the Story? Tibet. And They've Researched Death Vans Back to the Nazis.

In Depth Look at the Law: China Death Vans and Harvesting Prisoner Organs for Profit

In Depth Look at the Law: China Death Vans and China's Widespread Corruption - There is No Fairness in China's Criminal Justice System

In Depth Look at the Law: Secrecy in China - Successfully Hiding the Truth About Executions for Profit from the World

Suddenly, News that China's High Court is Setting Death Penalty Guidelines

Now, there's news that China's high court has called for mercy in death penalty cases -- in fact, the Supreme People's Court has issued guidelines for lower courts to follow.  They include instructions that the death penalty should be reserved for cases with "valid and ample evidence" of the particular crime committed. And only crimes that are "extremely serious" should warrant the penalty of death. Minors and elders should not be executed. 

Here's Our Question: What's Been Done About the Human Organ Harvesting?

We welcome the news that China's highest judicial body is implementing guidelines for capital punishment and that MERCY is being recognized. However, the hidden agenda in all the Chinese executions didn't appear to be the legal boundaries set by Chinese law so much as the tremendous amount of PROFIT that was available in the sale of human organs for transplant in the black market.

What's being done about that horror?  And, without cutting the head off that snake, aren't the sinister death vans just going to impose whatever crimes are within the guidelines to get the product that they've found so lucrative to sell worldwide?


Read Our Closing Arguments in the Kemar Johnston Trial

Since this is a case where the State of Florida is seeking the Death Penalty, a second trial will began next month.  Jurors will return to the courtroom of Judge Tom Reese in this sentencing phase of the proceedings to decide whether or not Johnston should receive life imprisonment or the penalty of death. 
For those interested in the actual proceedings of a death penalty case, I am attaching here, from the public record, a transcript (.pdf) of the closing arguments in this case, given just before the jury began its deliberations. 
State of Florida v. Kemar Manley Johnston, Case No. 06-019906 B in the Circuit Court of the 20th Judicial Circuit in and for Lee County, Florida
Arguing for the State
Marie E. Doerr, Ass't State Attorney
Robert Lee, Ass't State Attorney (rebuttal)
Arguing for the Defendant
Terry Lenamon, Esq.



The IQ of Florida's D'Andre Bannister - Death Penalty Now After 7 Years W/O Trial?

For over seven (7) years, D'Andre Bannister has sat behind the bars of a Florida jail cell, awaiting trial on the charges that he murdered his stepson.  That's right.  He's never been tried. 

This week, an evidentiary courtroom battle began on whether or not the State of Florida can now -- today -- seek the death penalty against D'Andre Bannister.  And whether or not Florida can seek capital punishment in this or any other case hinges upon one fact:  the score that the defendant achieves on a standardized IQ test. 

An IQ test score of 70 or less, and capital punishment is not an option.

The United States Supreme Court ruled in 2002 (Atkins v. Virginia) that those deemed "mentally retarded" cannot be executed, because this would be cruel and unusual punishment and therefore, unconstitutional.  Florida statutes have defined that circumstance to exist when IQ scores hit a maximum of 70.

Mr. Bannister's fight this week, however, is not whether or not he's had a speedy trial, but whether or not he's eligible under the Atkins protection from a death penalty sentence.  Because what score D'Andre Bannister receives depends not only upon which test he's taken, but also the year in which it was administered.

Experts are testifying regarding intelligence fluctuations over time, the accuracy of one test over another, and how the rigid structure and educational efforts of Mr. Bannister may have impacted his intelligence level over the past seven years.

Media reports are that D'Andre Bannister does not want to be considered "mentally retarded" (a label given in the language of the Atkins decision).  Whether or not he understands that his life is on the line based upon a test score is not so clear. 

The judge has spoken from the bench, however, and whatever the outcome of this fight -- the case will be set for trial sometime this summer.  It's already made the record books as being the longest delayed death penalty trial in Florida's history.


Will Kansas be the Next State to Kill the Death Penalty?

Before he was governor of the Great State of Kansas, Mark Parkinson worked in the state senate as a legislator, helping to draft the current law approving of capital punishment in that state.  Kansas' death penalty statute was passed into law back in 1994.

However, it's a new day and last Friday, another piece of legislation started making its way through the Kansas legislature -- a law that would repeal the death penalty, and replace it with a crime of capital murder with aggravation, punishable by life without parole. 

Right now, this fledging has jumped its first hurdle.  The Kansas Senate's Judiciary Committee endorsed the bill, and now it faces a vote by the entirety of the Kansas Senate.  Once that is achieved, it goes before the Kansas House -- and assuming that it meets approval there, too, it goes over to the Governor's desk.

That's right:  Mark Parkinson, who helped write the death penalty law that is currently in effect, will have the final say on this recall of capital punishment. 

What are its chances?  Well, there's some chatter that this proposal won't make it through the House this year, because the Kansas House is dealing with a budget crisis where they're short $400 million - and their new fiscal year starts July 1st.

Here's a question for Kansas:  if you're interested in budgeting, then why aren't you connecting the COSTS of the death penalty with your budgetary crisis? 

According to the Death Penalty Information Center, a study was done in the early 2000s regarding the cost of the death penalty in Kansas.  While it might need to be updated, it's important to note that it's a definite budget issue here -- and since Kansas has not executed anyone since the 1994 re-enactment of its death penalty law, all those appellate costs are ongoing.  (Ten men currently sit on Kansas' Death Row.)  

According to the DPIC, summarizing the Kansas budgetary report:

... the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases. The study counted death penalty case costs through to execution and found that the median death penalty case costs $1.26 million. Non-death penalty cases were counted through to the end of incarceration and were found to have a median cost of $740,000. For death penalty cases, the pre-trial and trial level expenses were the most expensive part, 49% of the total cost. The costs of appeals were 29% of the total expense, and the incarceration and execution costs accounted for the remaining 22%. In comparison to non-death penalty cases. 

 In fact, costs is one of the main concerns of the state senator that drafted this bill and introduced it to the Kansas Judiciary Committee.  State Senator Carolyn McGinn used dollars and cents as one of her major arguments in repeal of the Kansas Death Penalty.

Let's hope the Kansas House isn't too busy panicing over a $400 million budget crisis that they don't stop to consider Senator McGinn's wisdom -- and let's hope that the Governor isn't too set in his ways. 

The Expansion of Constitutional Right to Counsel by the US Supreme Court - Who Pays?

According to the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."  What isn’t provided in this constitutional mandate is how the defense lawyer’s fees and expenses are to be paid.  The result of this financial myopia is a deepening financial crisis in Florida and across the country today.

 Applying the Constitutional Right to Counsel  

Over time, the constitutional right to counsel provision has been reviewed and applied by both legislatures and courts – always with a resulting expansion of its application.  For instance, a citizen’s right to legal representation in federal proceedings was initially set by statute and then approved by the U.S. Supreme Court in Johnson v. Zerbst, 304 U.S. 658 (1938), when our country was still suffering through the Great Depression.   State courts were a different story, however. 

Until the early twentieth century, those who could not afford to pay for their own criminal defense attorneys in state matters were dependent upon the local bar’s pro bono efforts.  Individual attorneys made their own personal decisions on their commitments of time and expense in representing the poor.  Legal Aid? Public Defender?  These terms were not known in this country before World War II (unless you looked at a select few metropolises like New York City, where a legal aid organization had been in operation since the late 1800s).   

Of course, historically this dovetails with an attitude that the practice of law was a “profession” not a “business,” where it was part of the profession’s honor and duty to undertake pro bono cases in their local area.  Today, we no longer turn a blind eye to the realities of a law practice operating as a business concern.  What was at one time a stigma – that lawyers work for a profit -- is an attitude that has not stood the test of time.   

Expansion of the Right to Counsel into State Courts – first, the felonies 

As the highest court in the land, the U.S. Supreme Court slowly began to hear cases coming before it that dealt with these state court situations, where state statutes did not require the particular state to provide a criminal defense counsel for the defendant.   While the nation was still reeling in the Great Depression, the High Court heard Powell v. Alabama, 287 U.S. 45 (1932) and held that states had to provide legal counsel to indigents in all state cases where capital punishment was at issue.  

 It took almost 30 years for the 6th Amendment to be applied to state felonies that did not involve the death penalty.  With Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court found that an indigent defendant, accused of a serious crime, was constitutionally protected and entitled to a lawyer, who would be appointed and paid for by the state.  With Gideon, the High Court had spread the shade of the 6th Amendment umbrella to cover all accused of felonies in either federal or state courts, regardless of whether or not the death penalty was at issue. 

 Horizontal Expansion of Right to Counsel – Particular Types of Indigent Defendants

 Within a short amount of time, the U.S. Supreme Court would take review of a number of other right to counsel situations, and continue widening its application to (1) children in juvenile delinquency proceedings (In re Gault, 387 U.S. 1 (1967))and (2) indigent defendants facing misdemeanor charges in state courts that involved possible loss of freedom (jail time) (Argersinger v. Hamlin, 402 U.S. 25, (1972)).

 Vertical Expansion of Right to Counsel – Stages of the Criminal Justice Process 

Having defined who would be covered by the right to counsel, the High Court also considered cases that delved into the issue of when the right to counsel would start to apply in a particular case.  Seeing justice as a poor person having the right to a lawyer long before he came before a judge, the U.S. Supreme Court issued a series of opinions in the mid-twentieth century that covered the indigent citizen almost from the moment that he or she first came into contact with law enforcement authorities, all the way to the point that he or she might theoretically be setting before the U.S. Supreme Court itself.   .   

Continue Reading...

Anatomy of an Execution -- a Must Read Memoir for all Death Penalty Opponents

You have to read this book. 

That's all I really need to write here, but it's impossible to stop typing about how David Dow's memoir is so important for anyone connected with capital punishment to read -- and why this is so.

First, he provides a clear and unique perspective.  David Dow is not only a professor at the University of Houston Law Center, he's also the head of litigation at the Texas Defender Service.   Professor Dow has been in the trenches of death penalty defense for years, and knows of what he speaks. 

Second, he's writing a memoir this time.  Professor Dow has been published before, but his previous works were more analytical in nature.  Works like Machinery of Death: The Reality of America's Death Penalty Regime (Taylor & Francis 2002), and Executed on a Technicality (Beacon 2005).  This book gives an inside view of what it's like to represent clients who are facing death by execution.  Intersecting in these pages are Dow's dealings with his young son and how appellate demands (particularly in death penalty cases) collide with family time and parenting needs.  It's something that all capital litigators can truly understand, and it's rare that someone reveals the razor's edge we sometimes walk.

Third, Professor Dow gives us reality that is perhaps easier revealed via this personal perspective.  In Anatomy of an Execution, David Dow doesn't pull any punches.  He's showing you the underbelly of capital punishment in this country today, from the standpoint of an expert defense counsel.  From the book, you find out things such as:

  1. There was a time that he was in favor of capital punishment.  He understands the arguments of death penalty proponents. 
  2. Sometimes, he's hasn't liked his client -- and it's brave of him to admit this.  Of course, that hasn't stopped his calling to stand against a client's execution. 
  3. Money -- and budgeting -- are just as much a concern of the defense as it is for the prosecution.  David Dow's story, covering a select number of representations as they dovetailed with his personal life, actually brings home the financial realities of capital punishment defense in this country:  Administrative matters and an analysis of cost vs benefit do happen in death penalty cases, and hat's off to Professor Dow for shedding some light on the elephant in the room. 

 For more, check out a post written by David Dow, discussing how he came to write this book, over at the Huffington Post. 





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