James Biela: The Fight of MItigating Evidence against Death Penalty Online Today

Today, streaming video will be provided online as the death penalty defense team continues presenting its mitigating evidence in the penalty phase of Jame Biela's trial in a Reno, Nevada, courtroom. 

They're fighting to have James Biela sentenced to life without parole.  The State is seeking the death penalty in what many refer to as the Brianna Denison murder trial. 

For those that miss it today, RGJ.COM appears to be keeping an archives of the entire case - including video of the sentencing trial.

Mitigating Evidence - The Forensics

First up today, a forensic psychiatrist will be taking the stand to relate Biela's childhood history of abuse and neglect, as well as his father's mental illness and its impact upon the defendant.  There will be testimony that as a little boy, James Biela heard his father beat his mother on a nightly basis, that the family was so poor they went without heat and food, and other events that has been described as"things no child should have to witness."  Both his mother and his brother will testify. 

Obviously, evidence of that abuse is important -- because it will work to explain the background of experience that Biela used (and uses) to understand and deal with the world around him.  Working together, all this evidence will be used to substantiate the applicability of the mitigating factors of Nevada law in the case to the jurors. 

Aggravating Factors in this High Profile Case

The State is arguing that Biela is a serial rapist and deserving of capital punishment under Nevada law.  Rape, of course, was outlawed as a basis for the death penalty long ago by the United States Supreme Court. 

Perhaps more than the aggravating factors found in the Nevada statute, the underlying basis for prosecutors pushing for the death penalty in this case is the media coverage the death of Brianna Denison garnered -- it became an ongoing mystery for more than one crime-coverage television show. 

Biela Found Guilty by Jury Who Will Also Decide His Fate

In Nevada, the jury decides guilty or innocence and it also decides life or death.  Yesterday, the Nevada jury found James Biela guilty of three crimes: (1) raping and killing Brianna Denison in 2008; (2) kidnapping and sexually assault of a student in 2007; and (3) raping a woman at gunpoint earlier that same year.

Family and friends of James Biela have stood by him in the courtroom, and his ex-girlfriend was present to hear the jury verdict of guilty.  Let us join them all in prayerful hope that mercy will triumph over judgment.

Hank Skinner's Civil Rights Case for DNA Testing Will Be Heard By U.S. Supreme Court - How Important is This?

Hank Skinner won a victory on Monday, when the U.S. Supreme Court announced it will hear his arguments for additional DNA testing of evidence that was not tested at trial.  How big of a big deal is the Skinner case?

Civil Rights Case - Not Habeas Corpus

Skinner has brought before the High Court an issue upon which the various federal courts of appeal have split in their decisions:  whether or not a civil rights lawsuit can be pursued on the grounds that evidence which was not tested at trial for DNA should be tested after guilt and sentencing has been imposed.  This is NOT a habeas corpus case. 

Preventing the Execution of an Innocent Man

Hank Skinner has steadfastly asserted his innocence and we've all pondered this before - back in March, when his execution by the State of Texas loomed near.  In March 2010, the highest Texas criminal court denied his last appeal, and Skinner was faced with only two possibilities between life and death:  clemency by the Governor, or action by the U.S. Supreme Court.   In March, the Court granted a stay - only hours before Skinner was scheduled to be executed. 

Today, the Supreme Court has insured a significant period of time within which that execution is delayed.  However, there's a twist to the Skinner case - something that may be far-reaching.... (Read the Supreme Court Order summarily granting his petition for writ of certiorari here.)

What Hank Skinner is Asking the Court to Do

What Skinner is asking the Supreme Court to do is to allow a civil suit, based upon civil rights violations, to be a valid avenue for defendants who have already been found guilty by a jury in a criminal trial. 

Skinner isn't arguing legal error in the criminal case.  Skinner is arguing that he has a constitutional right to prove his innocence independently of the criminal trial.  Specifically, that the State of Texas violated his constitutional rights when they denied him the opportunity to test evidence for his DNA. 

The Fifth Circuit Court of Appeals said that Skinner couldn't pursue his civil rights case because its goal was to get his sentence reversed, turning it from guilt to innocence, and therefore it had to be pursued as a habeas corpus action.  (Read the Fifth Circuit opinion here.)

If Skinner wins, he's not winning as big a win as one might think: if Skinner prevails before the High Court, what he gets is the opportunity to pursue a civil rights claim in the lower courts.  His civil rights action essentially begins if, and only if, the Supreme Court gives him the green light to go forward. 

Will There Be a Civil Rights Alternative to Habeas Corpus for DNA Innocence Testing?

Let's see if the United States Supreme Court disagrees with the FIfth Circuit.  And let's hope that everyone remembers in all this procedural headiness that an innocent man may well be setting on Death Row, and the goal of our judicial system - civil or criminal - is justice being done. 

Today, State Prosecutors Took Death Penalty Off the Table in Orlando's Jason Rodriguez Case

The decision made by the State of Florida attorneys today is making national news:  prosecutors have decided that they will not seek the death penalty in their prosecution of Jason Rodriguez. 

Mr.Rodriguez is accused of shooting several people in an Orlando office building last November, killing one person and wounding five others.  Jason Rodriguez is said to have returned to a place where he used to work, a Florida engineering firm, and to have opened fire on his former colleagues.

Why did the State of Florida decide not to seek the death penalty?  They are only required to file a short notice and today's case is no exception: a one page notice was placed in the public record. 

However, within that one page notice was key language:  "Due to the consideration of the facts and law applicable to this case, it is not in the best interest of the people of the state of Florida to pursue the death penalty." 

So, what's the real story? 

Looks like the mitigators were so obvious that under Florida law capital punishment would not be a viable alternative.  They weren't going to get it anyway, so they'll take it off the table now.  Notice filed. 

History of Mental Illness

Right now, Mr. Rodriguez is being held not in a jail, but in a mental hospital.  Several months ago, he was already adjudicated incompetent to stand trial.  Police investigations have revealed that he was deteriorating mentally for over two years before the incident. 

After he was found incompetent, the mental health experts were left to their task of trying to work with their patient, in an effort to treat his mental conditions (whatever they are) so that Mr. Rodriguez could be found competent to be tried.

The experts' report on the mental health status of Jason Rodriguez was completed and filed earlier this week.  While it's not online yet, looks pretty clear that whatever in that report was serious enough for the prosecution to take capital punishment off the table.

Mental illness is a mitigating factor in Florida.  The United States Supreme Court has clearly held that those who suffer mental illness cannot be put to death as punishment for their crimes, because this constitutes cruel and unusual punishment.  Ford v. Wainwright, 477 U.S. 399 (US 1986).

 For a Death Penalty attorney, this is good news.  The State isn't going to try and kill someone who's damaged - and we may all learn more about the "why" behind this tragedy, eventually. 

Of course, there will be a lot of media coverage because lots of people will be upset that the Orlando Office Shooting Spree didn't end up in a death penalty trial.  Perhaps if they were to dig into the background information, they would be more understanding and compassionate. 

Mercy Shown by the U.S. Supreme Court to Juvies This Week

Mercy is the bottom line in a death penalty defense case, from the perspective of the sentencing phase of a case. 

Mercy -- that elusive concept. 

So elusive, in fact, that the law has seen fit to have legislatures basically define what mercy will be in death penalty cases, as various mitigation factors ("mitigators") are defined as lists given in various statutes.  Find one or more of these factors in a case, then you've found where the mercy lies.  Simple as that.

This week, the United States Supreme Court issued a 6-3 opinion in Graham v. Florida.  No, it was not a death penalty case per se.  Unless you consider - as many people do - that sentencing a youth under the age of legal adulthood to life in prison without the possiblity of parole to be tantamount to a death sentence.

Graham v. Florida -- The Background of the Case

Several years ago, a 16 year old boy named Terrance Jamar Graham, the offspring of two crack addicts and diagnosed early on with Attention Deficit Disorder, tried to rob a Jacksonville barbeque joint with three of his buddies and got caught.   

Under Florida law, the state's attorney had the power to decide whether this boy would be tried as a juvenile or as an adult.  Choice: adult.

A plea deal was made.  Graham pled guilty to two felonies.  He wrote a letter to the trial judge, which the opinion (page 2, slip opinion) recites in part: 

"this is my first and last time getting in trouble...I've decided to turn my life around....I made a promise to God and myself that if I get a second chance, I'm going to do whatever it takes to get into the NFL."

Terrance Graham was released as the trial court accepted the plea agreement and withheld adjudication, allowing the teenager credit for 12 months he'd already sat in jail awaiting trial.  He was out on probation.

Less than two months later, Terrence was arrested again - this time, for a home invasion robbery.  He and two pals robbed one home, and attempted to rob another, with one of the buddies getting shot somewhere along the way.  Terrence drove the boy to the hospital and drove off, tried to flee from a cop, and crashed his dad's car into a phone pole. 

He was 34 days short of his 18th birthday.

Around a year later, Graham was sentenced - and that deferred adjudication from his first arrest came back to the table.  In spite of the recommendations of the Florida Department of Corrections and the arguments of the defense counsel, Graham was sentenced to life imprisonment. 

Because of Florida's lack of a parole system (abolished earlier), this meant that the 18 year old would be spending the rest of his life behind bars unless the Governor granted clemency. 

Cruel and Unusual Punishment

This week, the High Court ruled that it is unconstitutional to sentence young men and women to life imprisonment unless they are guilty of killing someone else (murder). 

This will have a major impact upon the State of Florida, since the majority of those who will be impacted by ths ruling are incarcerated here. 

 How this will be implemented from a practical perspective remains to be seen.  (Justice Thomas, in his dissent, is particularly concerned with the logistics here.)  Even the High Court majority points out that this is not a Get Out of Jail Free card, but instead an invitation for an individual to demonstrate "maturity and rehabilitation" that warrants a return to freedom.

Mercy is Shown

However, from a mitigation point of view, this result is one of mercy.  And, in the law - filled with sentencing guidelines, aggravating circumstances, and confining economic concerns - clear cut examples of what mercy is and how it is being shown need to be gathered and studied and remembered.

Mercy means going through the histories of individuals - and usually learning horrors they've experienced in the past.  It means giving a chance with the risk that things may go wrong down the road. 

Mercy is the heart's blood of our criminal justice system.  Bottom line, this week's ruling was a victory for us all - and perhaps, a chance for a new and productive life for Mr. Graham after the bad choices of his teenage years. 

Mitigating Factors - List of State Statutes (Full Text)

After being unable to find a list that provided the full text of each state's statutes defining that state's mitigating circumstances in a death penalty case, there was an obvious need out there.  

You can read the complete list of state statutes' mitigating factors (mitigators) on JDSupra (it's too long to list here). And, it's an honor to report that the Death Penalty Information Center has found this listing worthy of placement in their online resources

It goes without saying that without a cooperative spirit and a sharing of information and resources, indigent defense in death penalty cases would be practically impossible.  Thanks to DPIC!

Electric Chair Executions - Consider This Historical Alternative to Lethal Injection

Over at Criminal Justice University, there's an excellent post discussing the history of the electric chair as a method of execution in this country. 

As Utah faces an execution by firing squad next month, and the media fills with the five recent hangings in Iran as capital punishment, there's more of a focus upon alternative means to state executions other than the standard toxic injection most commonly used these days.

Entitled, "20 Criminals Executed in the Chair," the article not only provides images that bring back the horrors of this method of execution, it also rings the bell of history.  Many famous - or infamous - individuals met their death by electric chair in this country, among them:

Ted Bundy

Sacco & Vanzetti

Bruno Hauptmann (convicted of the Lindberg baby kidnapping)

Julius & Ethel Rosenberg.

If you have time today, check out the Criminal Justice University article.  Of course, maybe it's best not to do so over lunch. 


Linda Carty Will Be the First British Woman to be Executed Since 1955 - Set to Die Not in England, but in Texas

This Monday, the United States Supreme Court declined review of Linda Carty's case -- which means that the State of Texas will be placing her name on its Death Row Execution List sometime this summer.  The High Court's decision not to hear Ms. Carty's arguments is getting worldwide attention because Linda Carty is not an American citizen. 

British Twist to the Ineffective Assistance of Counsel Claim Goes Unheard by the High Court

Linda Carty is British, born on the Caribbean island of St. Kitt's -- and that foreign connection is part of her argument.  The British government was urging review of her case because England was denied the opportunity to provide Linda Carty assistance at the trial stage.  Apparently, Ms. Carty was never told of her right to call the British Consulate when she was first facing charges and she was not aware that her home country - the United Kingdom - would be able to help her.

According to the British Consul General (based in Houston), if the British Government had been notified, they would have come to Linda Carty's aid and among other things, she would have had better legal representation at trial than her indigent defense counsel (and, of course, presumably more funds to expend on a defense). 

What Happens Now to Linda Carty?

The 5th Circuit Court of Appeals already heard, and denied, her appeal based upon ineffective assistance of counsel (this was the decision that was being taken up to the U.S. Supreme Court for review).   Unless the Governor of the State of Texas intervenes, Linda Carty will be executed by the State of Texas -- and as melodramatic as it sounds, this may means something akin to the Queen of England  telephoning Governor Perry in a bid for mercy upon this foreign national. 

Casey Anthony Case Continues to Teach Public on Indigent Death Penalty Defense Costs - Public Hearing on May 6

There's a new judge in the Casey Anthony case -- Judge Belvin Perry -- and he looks to be running a tight ship.  Despite defense counsel requests that hearings on defense costs be private, Judge Perry has ordered that an upcoming hearing on how Casey Anthony's defense will be funded is to be a public hearing.

May 6, 2010, Hearing on Indigent Defense Costs for Casey Anthony Will Be Public

That's right:  anyone interested in hearing the details on how the defense of Casey Anthony in the trial of whether or not she murdered her daughter, and whether or not the State of Florida should execute her for that crime (if found guilty) will be PUBLIC

Which, given the media coverage of the Casey Anthony case, means there will be countless news reports giving the financial details of this death penalty defense.

What Is Expected to Happen at the Casey Anthony Budget Hearing

At Thursday's budget hearing, Judge Perry expects to hear an estimate from the defense team on the number of hours their experts will need.  The Judge has also stated that he will want to know if the experts are willing to work under the fee schedule set by Florida's Justice Administrative Commission.  (Read the Scheduling Order here.)

The public will soon glimpse into the practicalities of defending someone who's facing the death penalty in Florida.  Experts -- and their hourly rates -- will be revealed, and discussed from a budgetary standpoint. 

The JAC Fee Schedule Will Be Discussed - Hopefully, Part of the Indigent Defense Crisis Will Be Seen

The JAC fee schedule will be a subject of discussion, too.  Perhaps Judge Perry should review JAC v. Lenamon before the hearing on Thursday -- because the JAC has proven itself all too willing to appeal the decisions of trial judges that seek to be fair and reasonable in this area. 

The experts needed for both the guilt phase and the penalty phase of any death penalty defense case are varied in their special knowledge and expertise and far from inexpensive due to their education and experience.  Their standard hourly rates will not jive with the JAC schedule. 

With the hearing on May 6th, hopefully more people will become aware of the practical realities of indigent defense representation Florida and elsewhere.  Will the experts work for less than their standard rate?  How low does the State of Florida (through the JAC) expect doctors, psychiatrists, forensic specialists, etc., to charge?   Hopefully, the public will see some of these questions answered this week. 

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