Firing Squad For Utah's Ronnie Lee Gardner: Emergency Appeal Focus Is Lack of Funding for Death Penalty Defense

As predicted, coverage is increasing on the impeding June 2010 firing squad execution of Utah's condemned man, Ronnie Lee Gardner.  The idea that a man will die by bullets instead of injected poison is shocking many - and there's already chatter about a firing squad being unconstitutionally cruel.

Appeal Points to the Elephant in the Room: Insufficient Funding for Proper Death Row Defense 

Ronnie Lee Gardner's appeal is of great interest to death penalty defense lawyers all across this country.  Why? 

Because Gardner's appellate attorneys are arguing error exists because Gardner was not provided adequate money by the State of Utah so he could get the necessary experts and investigators he needed to prove up mitigating factors during the punishment phase of his trial.

In other words, if Utah had provided sufficient defense funding to allow Gardner's defense counsel to hire psychologists, private investigators, etc. to establish circumtances that countered against the imposition of the death penalty, then Gardner wouldn't be in a position to choose death by firing squad now. 

Motion for Stay of June 18, 2010 Firing Squad Execution Awaits Ruling

Gardner's counsel has filed a motion to stay the Order of District Judge Robin Reese, who ordered that 49 year old Ronnie Lee Gardner will be executed by firing squad on June 18, 2010.  This request is in tandem with the emergency appeal filed with the Utah Supreme Court on the indigent defense bases. 

Will the Firing Squad Coverage Bring Attention to the Indigent Defense Funding Crisis?

The lack of adequate funding for indigent defense - especially in capital punishment cases - is a growing crisis in Florida and across the country.  Since it deals with budget concerns and financial analysis, the topic doesn't get the kind of coverage that other issues do -- but maybe Gardner's case will change things. 

Maybe the firing squad aspect of his story will allow the indigent defense funding issue to dovetail itself into the next few weeks of coverage (assumed to be escalating as June 18th nears).  Let's watch and see....

ABA Will Study Missouri's Death Penalty Process

The American Bar Association has announced it will be studying how the state of Missouri implements capital punishment - and the study should be pretty thorough.  It's expected that the ABA Committee will delve into DNA evidence issues, indigent defense services, and the like. 

The ABA Death Penalty Moratorium Implementation Project

In past years, the ABA has studied how the death penalty is administered in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee.   It has done so through its Death Penalty Moratorium Implementation  - Assessment of Capital Jurisdictions Project (read through the Project's FAQs for details). 

The ABA is far from neutral in the death penalty controversy.  The American Bar Association is opposed to capital punishment -- and its walked the talk with its Death Penalty Moratorium Implementation Project, "working to obtain a national moratorium on executions."

The ABA's Second Round of State Death Penalty Assessments: Kentucky and Missouri

After completing assessments of the first round of states (listed above), the ABA has determined that its work was so successful, they're gonna go for round two.  Missouri is part of this second round.  So is Kentucky.

To read a summary of their findings in the first round, you can read the ABA Summary online, where it's provided for free in a .pdf format.  Key language from an indigent defense perspective:

Effective capital case representation requires substantial specialized training and experience in the complex laws and procedures that govern a capital case, as well as full and fair compensation to the lawyers who undertake capital cases and resources for investigators and experts. States must address counsel representation issues in a way that will ensure that all capital defendants receive effective representation at all stages of their cases. After examining eight states, the themes that emerged include:

• Many states are failing to provide a statewide indigent capital defense system, providing services instead on a county-by-county basis;


• The judiciary remains primarily responsible for appointing defense counsel;


• Some states are failing to provide for the appointment of counsel in post-conviction proceedings and all states are failing to provide for the appointment of counsel in clemency proceedings;


• Capital indigent defense systems, whether statewide or county-by-county, generally are significantly underfunded;


• Many states are failing to provide for the appointment of two lawyers at all stages of a capital case, nor are they guaranteeing access to investigators and mitigation specialists;


• Many states are requiring only minimal training and experience for attorneys handling death penalty cases; and


• The compensation paid to appointed capital defense attorneys is often woefully inadequate, dipping to well under $50 per hour in some cases.



Death Row Appeal Based on Love Affair Between Judge and DA Rejected by U.S. Supreme Court

The sordid saga of Texas trial judge Verna Sue Holland and state prosecutor Thomas S. O'Connell, Jr. carrying on a sexual affair during the capital murder trial of Charles Dean Hood continues, and the latest chapter doesn't tell a happy tale.

This week, without comment, the United States Supreme Court declined to hear Mr. Hood's appeal based upon the judge and the district attorney's secret love affair -- which was going on during both the guilt and penalty phases of Hood's trial.  That's just not in dispute here: the judge and the state attorney have both signed affidavits admitting to it. 

Charles Dean Hood's Conviction While the Judge and DA Were Having a Love Affair is a Big Deal.

1.  This case has received national attention.  It continues to do so. 

2.  This case had an amicus brief signed by 20+ of the country's legal elite -- federal judges at the trial and appellate level, a former governor of the State of Texas, a former director of the Federal Bureau of Investigation among them.  They all argued to the High Court on behalf of Charles Dean Hood.  Something about the appearance of impropriety and the need to protect respect for the judiciary ....

Right now, it appears that lots of people are reeling at the High Court slamming the door in Mr. Hood's face.  That's no surprise.  It's shocking, isn't it?

What Happens Now?

In a somewhat bizarre twist, Charles Dean Hood has had help from the Texas Court of Criminal Appeals - the highest criminal court in the State of Texas.  A court where both Verna Sue Holland and the infamous Sharon Keller have both sat as justices (Keller's still there, for now, as Chief Justice; for more on Keller, search for her name here on the blog.  It's quite a story in its own right.)

How did this court help?  Mr. Hood has been granted another sentencing trial - where it is hoped he will escape his current death penalty sentence.  However, it is questionable whether or not Mr. Hood will have a trial on guilt or innocence in front of a judge that isn't ... well... "involved" with the prosecutor.

Why not?  We don't know.  The US Supreme Court didn't tell us. 

A Tale of Two Attorneys: How Kemar Johnston's Life Was Saved

When the court appointed attorney David Brenner on a murder case, he knew it was going to be the fight of a lifetime. Just how bad the case was quickly became apparent as details emerged.  

The client, Kemar Johnston, allegedly masterminded the premeditated torture and murder of two young men at Kemar’s birthday party. One of the victims was a 14 year old boy. 

Numerous partygoers witnessed the crime. Nine other codefendants participated, supposedly under Kemar’s direction. Veteran state prosecutors asked for the death penalty, but the local press and public had already tried and executed his client.

From Fort Myers, David Brenner Reaches Out to Miami's Terry Lenamon

David Brenner, a successful and highly skilled criminal attorney, quickly realized that he needed to find a second co-counsel, a death penalty qualified attorney, for Kemar. In Florida, two attorneys are required for a death penalty case because there are essentially two trials if the defendant is found guilty.   

The first trial determines guilt, and the second proceeding determines the punishment – life imprisonment or death. One attorney handles the guilt portion, and if they lose, the second phase attorney must step in and take over the critical task of saving the client’s life. David Brenner was not only well-connected locally in Fort Myers, but also across the state.  

He quickly located and reached out to a prominent death penalty lawyer in Miami, Terry Lenamon. David convinced Terry Lenamon to come on board, and they set to work on the case – a case that would last for over a year and would not only test their legal skills, but their nascent friendship as well.

Cohesion in the Kemar Johnston Trial - Guilt Phase and Penalty Phase

Dave and Terry had never worked together before, but both attorneys knew it was critical that the first phase defense and the penalty phase defense be cohesive and not contradictory. David had already been working closely with Kemar and knew him the better. As a result, David and Terry decided that Terry should handle the guilt phase, and that David would handle the critical sentencing phase, if it should come to that.

The Hotel Indigo

David’s and Terry’s work began in earnest. David’s Fort Myers office became the base of operations. Terry spent weeks away from his home at the Hotel Indigo, located next to David’s office.  As the case progressed, the office and the hotel room became piled with pictures, boxes, and walls plastered with sticky sheets of paper. 

The White Board

As a constant reminder of the case, David mounted a large 8 foot whiteboard on the wall directly facing his desk.   On that board, he placed pictures of all the suspects, codefendants, and Kemar.  As each of these people went to trial, took a plea, or were not charged, he stamped their sentence or the words “Not Charged” across their picture. 

Two Attorneys and Tons of Work

The two attorneys spent long hours and longer weeks poring over the discovery. They hired experts and investigators. They read thousands of pages of police reports, autopsy reports, crime scene reports, and witness statements.   Photographs were enlarged and examined with magnifying glasses. Case law was reviewed and re-reviewed. Motions were drafted and re-drafted. 

They formulated trial strategies, critiqued them to shreds, and reformulated them again. In the weeks immediately before the trial, both men put their families and personal lives on hold to devote themselves to Kemar’s defense.

Two Lawyers with Unbending Wills and an Insatiable Drive to Win

Good criminal defense requires a strong unbending will and an insatiable drive to win. Both David and Terry possessed these traits in abundance.  Neither fully appreciated how different their work styles were or how different their approaches might be. So as the weeks stretched on, so did the tempers of the two men stretch as well. 

The long exhausting hours exacerbated their style differences. The two attorneys knew their relative strengths, but often found themselves in heated discussions over strategy as well as tactics. When the exchanges became too heated, they both were wise enough to cool off  before tackling the issue again. Kemar’s picture and the faces on the white board constantly reminded them of the high stakes.

Out of the Crucible, a Defense was Forged.

Out of the crucible of those professional differences, David and Terry forged a defense and a penalty phase that saved Kemar Johnston’s life.  All the local townspeople and media were sure that Kemar would be sentenced to die. The trial would be a mere formality. When the jury’s sentencing recommendation came back, a surprised media reported that the jury voted life, not death, for Kemar.

A Life was Saved

It took two attorneys to put aside their differences and come together when it mattered most - two attorneys whose professionalism transcended their personal styles - to save a client’s life and see that justice was done. 

California Could Save $1 Billion By Abolishing the Death Penalty. How Bad Will It Get B4 They Do?

The ACLU of Northern California released a study that got lots of attention last year, in no small part due to the practicalities it addresses. (The study is entitled Death in Decline'09, and is available for download.) 

For example, the study opines that California could save itself One Billion Dollars ($1,000,000,000.00) over a five year period, just by taking capital punishment off the table in pending prosecutions and commuting existing death sentences to life without parole.

2010:  Los Angeles Isn't Investigating Homicide Cases Because Police Department Is Broke

This week, the Death Penalty Info Center discussed the recent HOLD placed on homicide investigations in Los Angeles - because of budget constraints.  That's right: the cops were told to stop work on murder cases because of a lack of money.  They're even sending homicide detectives off on vacation, to cut back on overtime. 

DPIC quotes sources as stating that in March 2010, these budget cutbacks were equivalent to cutting 290 cops from the LA police force.  

Sounds like a movie, doesn't it?  Like some futurist action film where the criminals run free?  Except this isn't fantasy, and it's all about the bottom line.  California is cutting services all over the place.

How Bad Must It Get Before California Abolishes Capital Punishment as a Budget Cut?

So, here's the question:  why is California letting homicides go without investigation, as well as selling public lands and doing other shocking budget cuts (as if the homicide holds weren't shocking enough), and still not addressing capital punishment?  

The New York Times is reporting that California devotes around 11% of its annual budget -- which tallies to approximately $8 billion/year, to the state penal system.  Looking at that cost outlay, California is implementing a program to release a whole lotta folk -- around 6500 "low-level offenders" will be freed and not required to have much contact with parole officials.  

They're reported to be drug offenders and the like - those that aren't as threatening to the citizenry as the more violent inmates might be.  To give you an idea of how many people are going to be released, it's akin to the ENTIRE prison population of some states (e.g., Utah, New Mexico, etc.) 

One wonders what Governor Schwarzenegger is thinking

  1. California is letting its drug addicts out of prison, without supervision. 
  2. Calfiornia has put a halt to cops investigating murders in Los Angeles, of all places. 
  3. But California hasn't put a stop the the death penalty -- when that single action would cut be like saving almost of one entire year's outlay for the state penal system.... 

With an exploding budget deficit, our watch of California's treatment of the death penalty continues....

James Alan Fox Visits Florida Death Row This Weekend In Prep For Series of Articles on Capital Punishment

James Alan Fox gave everyone a head's up in his Boston Globe piece today:  he'll be in Florida this weekend, visiting Florida's Death Row

Who the heck is James Alan Fox?

To many, he's known as the "Dean of Death," because of his extensive work in the study of mass murder in this country.  To some, he's known as Professor, since he teaches criminology at Northeastern University in Boston, Massachusetts, where he has also served as dean. 

Professor Fox is also recognized for his extensive writings dealing with crime and criminals, including 15 books, countless op-ed pieces in various national publications, and his current column in the Boston Globe, "Crime and Punishment," which appears a blog on

What's James Alan Fox Doing at Florida's Death Row?

From what he's hinted about in today's post, he's going to be talking to lots and lots of people who are waiting for the State of Florida to kill them.  He's already begun his discussion of the number of individuals setting on Death Row, and how many years they've been there. 

Of course, he's not focusing his efforts solely on Florida.  He's also referenced the status of California's Death Row (if you follow this blog, you know what this means) and he's pointed out that there is a movement to reinstate the death penalty in his home state, Massachusetts.

Let's See What James Alan Fox Has to Report After His Florida Death Row Visit

It's not clear from what Professor Fox wrote today exactly when his series on capital punishment will begin.  Let's keep watch on -- because what he will be writing will be worth our time to read. 

John Paul Stevens Retires from the U.S. Supreme Court: How Does This Impact the Death Penalty?

John Paul Stevens is retiring.  It's understandable: the man is turning 90 years old, and has served his country well. 

As a revered member of the United States Supreme Court, Justice Stevens will be remembered in American History for many things, not the least of which is his 2008 concurring opinion in Baze v. Rees where he wrote:

...The thoughtful opinions written by The Chief Justice and by Justice Ginsburg have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty....

...Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and legislatures to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: “Is it time to Kill the Death Penalty?” See Salinas, 34Am. J. Crim. L. 39 (2006). The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.

... In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring). 

At the time that the Baze v Rees decision came down, Justice Stevens was recognized as the first Supreme Court Justice setting on the bench at that time to come out and announce that he believed the death penalty to be unconstitutional.  That capital punishment violates the Eighth Amendment because it is, by definition, cruel and unusual punishment. 

Where will his replacement stand on the death penalty?  Can Justice Stevens' replacement be this brave, this courageous? 

Who is the JAC? What is JAC vs. Lenamon? Should You Care?

(For details on this issue, please read the longer article at our JDSupra repository.)

 JAC gets national recognition in the Casey Anthony case

Florida’s Justice Administrative Commission received a significant amount of media coverage recently when it became involved in the Casey Anthony case, providing the trial court judge with the official JAC position on whether or not Casey Anthony should be confirmed as “indigent” under the law.

The JAC was leery of Anthony's claims that she was unable to pay for legal counsel, and hearings were held as well as in-camera considerations by the judge.  Casey Anthony was declared indigent by Judge Stan Strickland on March 19, 2010.

What is the JAC?

In 1965, the Judicial Administrative Commission was formed by the Florida Legislature with representatives from the state judicial branch acting as commissioners, i.e., offices of the state attorney and the public defender; the district, circuit, and appellate courts; and of course, the Florida Supreme Court, acting through its Chief Justice (or his designee). Over the years, the commission evolved. There has been a name change: it is now the Justice Administrative Commission. Today, it is comprised of four members, none of whom are judges: two state attorneys and two public defenders. 

And, it’s got lots and lots of power over when and how attorneys are paid for defending the indigent in this state. 

Lenamon and the Justice Adminstrative Commission - the Background of JAC v. Lenamon

In a double homicide, death penalty case involving nine (9) defendants, seven defendants were left with the circuit court judge needing appointed, private criminal defense lawyers as their attorneys due to conflicts with the available public defenders. 

 There were not enough death-penalty qualified defense attorneys within the 20th District, so the judge was forced to look elsewhere, finding the name “Terence Lenamon” on the death-penalty qualified list for the Eleventh Judicial District.   Lenamon was appointed. 

The JAC Contracts

The JAC enters into representation agreements on a district-by-district basis. Here, the JAC had no option but to enter into a new contract -- specific to this single representation – with any and all out of district defense attorneys appointed by the trial judge to advocate for clients facing the death penalty in his Lee County courtroom.  So, the JAC and Lenamon entered into a brand new deal.

JAC v. Lenamon – JAC fights the Defense Lawyer

When Lenamon’s first invoice was submitted to the trial court judge, it was approved. When the JAC asked the judge to reconsider, he did. And he didn’t change his mind. When the JAC appealed his ruling to the appellate court, here was that court's telling language (Opinion, p. 5, fn. 3) (emphasis added):

Mr. Lenamon also argues that the $125 per hour rate was fair and reasonable in light of the exceptional circumstances present in this case. We do not doubt that the $125 per hour rate approved in the circuit court's order is fair and reasonable. However, the question before us is whether payment at a rate exceeding $100 per hour is authorized by law, not whether it is fair and reasonable.

What’s the Lesson of JAC v. Lenamon?

One lesson: Experienced criminal defense attorneys may not be very welcoming of appointments in other judicial districts after reading Justice Administrative Commission v. Lenamon. This is particularly true when these criminal defense attorneys already know they'll be paid a much lower hourly rate than any Florida legal market rate as a court-appointed counsel.   Mercenary hearts don't take court appointed death penalty cases. 

Another: While the JAC is trying to pinch every penny in its budget, the JAC is not recognizing the burdensomeness of forcing an out-of-district attorney to travel to outside his or her practice area to meet a county’s need for a lawyer at their level of expertise. 

In a time when defense attorneys are desperately needed to fill the need imposed by the constitutional right to counsel for the indigent, especially those who are death-penalty qualified, the JAC seems blind to the fact that it is alienating the very resource that is in scant supply. 

Third: The system needs work, when the reality is that a JAC fee fight like this one places the defense attorney in the position of fighting the State of Florida in one courtroom on behalf of his client, and then fighting the State of Florida down the hall, just to try and keep them from cutting his fees for doing his job in the first courtroom.  

There’s a lot wrong here that needs to be fixed. 

Firing Squad May Execute Utah's Ronnie Lee Gardner in June 2010

Lethal injection is so commonplace in the United States as the preferred method of imposing capital punishment that many assume it's the only option out there.  That's not true.

In Utah, it was only recently that their state legislature nixed the option of a death penalty by firing squad - and when it acted, four men sat on Death Row for whom the new law did not apply.  These four men were "grandfathered" into the prior law, the execution methods that were options when they were sentenced are legally still available to them today.

Ronnie Lee Gardner is one of these men - and he is choosing bullets over a needle

This week, Utah Attorney General Thomas Brunker announced that the State will not contest Gardner's motion to the court that he be killed by a firing squad instead of the standard lethal injection procedure.  Assuming that Mr. Gardner files his motion promptly, the judge could rule and his June 2010 execution may well be the first execution by firing squad that this country has seen in years. 

Utah's Methods of Execution and The Options Still Available Today in the U.S.

As horrific as the image of a firing squad may be in the 21st Century, lethal injection has only been an option for execution in Utah since the 1980s .  Up until around 25 years ago, Utah used firing squads as its preferred execution method. 

Utah law originally had beheading on the books as a means of capital punishment, but it was never used.  Hanging was also a means of imposing the death penalty, used until the late 1950s. (For other execution methods used by the various states, read our prior post discussing the forms of capital punishment.) 

Firing Squad Executions in Utah

Assuming that Mr. Gardner gets his wish, his name will be added to 1996's firing squad execution by the State of Utah  of John Taylor, and the infamous Gary Gilmore's death by Utah firing squad in 1977

We can only assume as the procedure continues, and the execution date draws near, that Ronnie Gardner's execution will receive extended media coverage.  For better or worse, it's a good guess that a lot of people will want to rubber-neck the firing squad execution, and lots of media outlets will be only to happy to serve them.


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