Death Penalty Will Be in the National Spotlight in 2011 As Capital Punishment Becomes Major News Story On Several Fronts

As the new year approaches, it appears that in 2011 there will be even more focus upon capital punishment in courtrooms, press rooms, and legislatures. 

The death penalty is being considered by several states.  Whether or not capital punishment should be available under a state's penal code for sentencing in any case is being reviewed, albeit for very different reasons and in very different forums:

Individual defendants with high media notoriety may well have trials of their capital cases in 2011, where the prosecution and many members of the public will be urging a death sentence:

While capital punishment has always had its share of media coverage - murder trials always guarantee some level of public awareness, after all - it appears that 2011 may be a year where the death penalty becomes a focal point for our country, for a variety of reasons. 

What this will mean for the future of death as a viable punishment option for our government?  Too soon to tell but right now, it's looking like fiscal concerns may well be very, very key to the future of capital punishment in many states. 

Will Texas Trial Judge Get Chance to Rule Death Penalty Unconstitutional in Pending Murder Case?

In Houston, Texas, a man named John Edward Green is on trial for the murder of  a Houston woman and her sister during the commission of a robbery, and the State of Texas is seeking the death penalty.  Presiding over this trial is state district judge Kevin Fine, and Judge Fine has become somewhat of a national celebrity in some circles as someone trying to rule on the constitutionality of the death penalty (which most think is an issue pretty well settled by the U.S. Supreme Court), opening the doors to appellate review, and reconsideration, by doing so.

Judge Fine did make a ruling on the issue back in March (he declared the death penalty unconstitutional then) but he took that back (rescinded) and opted to schedule an evidentiary hearing on the matter.  That hearing was scheduled to begin December 7, 2010. 

Of course, he's been stopped.  The Texas Court of Criminal Appeals shot him down under the standard been-there, done-that argument you would expect. (Officially, they heard the Harris County District Attorney's Office motion to stop the hearing, and two days into it, the appellate court halted the proceedings before Judge Fine until further notice.)

Then, the CCA reconsidered things, and on December 7, 2010 ordered (read the Order here) that they have decided to reconsider relator's motion for leave to file a petition for writ of prohibition and a petition for writ of mandamus and "... the Honorable Kevin Fine, Judge of the 177th District Court, and John Edward Green, Jr., the real party in interest, may wish to respond. Therefore, within 15 days of the date of this order, Judge Fine and Mr. Green, or his representative, shall file their respective responses in this Court. Proceedings in the trial court shall be stayed pending further order by this Court."

Now, an amicus curaie has been filed -- signed by over 60 friends of the highest criminal court in the state -- asking that it reconsider its ruling.  A former Texas governor has signed this brief (Mark White). So have the former governors of Maryland (Parris Glendening) and Indiana (Joe Kernan), as well as lots of other impressive signatories that include former judges, district attorneys, and other prominent folk.

The eyes of the nation are on this Austin court now - as well as the world.  The New York Times, the Wall Street Journal, BBC News, and others are all watching to see what the Texas Court of Criminal Appeals will do now. 

What's at Stake Here?

Judge Fine has told the media that he is not personally vested in the issue of capital punishment, and that the hearing is focused only upon Mr. Green's case and is not to be considered as a method to bring the entirety issue of capital punishment up for appellate review.  The evidentiary hearing was set to allow defense counsel the ability to present evidence dealing with how the State of Texas implements capital punishment, using forensic evidence and witness testimony to demonstrate constitutional error that would impact upon their client's case. 

Be that as it may, here in Florida and elsewhere,we can recall how Furman dealt with state implementation of the death penalty, and resulted in a four year national moratorium

Avalaches can and do start from a single, small rock.

Death Sentences Are Given Less, Fewer Executions in 2010: DPIC Report

The Death Penalty Information Center has issued its annual report on the state of capital punishment in this country.  According to the DPIC, the forty-six (46) executions that were  conducted this year constitute a twelve percent (12%) decrease in the death penalty.  (In 2009, there were 52 executions in the United States; in 2000, there were 85.)

Captial punishment therefore declined in the first decade of the 21st Century.  However, there are 3261 people still living on American Death Rows today and each of them still faces a sentence of death. 

While the decrease in the executions may be good news, it's got to be considered in tandem with the marketplace. 

The reality is that due to the scarcity of sodium thiopental many states simply reset execution dates to 2011, since Hospira (the only manufacturer of the drug) promises that supplies will be available for the lethal injection drug early next year.  After all, rather than find artful ways of circumventing the standard three-drug lethal injection cocktail (which includes sodium thiopental) like Ohio, Arizona, and Oklahoma (see Tuesday's post), some states just rescheduled their calendars (e.g., Arkansas, California, Kentucky, Tennessee).

Bottom line: if Hospira starts meeting demand for the execution drug, then 2011 may see a rise in the number of executions.

 For more on the DPIC annual report, go to the DPIC site where it is available for download.


Oklahoma Executes Man Just Like Vet Euthanizes Dog: Where Is the Outcry?

Last week, John David Duty was executed by the State of Oklahoma and in doing so, Mr. Duty made the history books - we may all remember his name for many years in the future as the first man to be executed in the same way that vets put down beloved pets.  

Because, while other states are putting their execution schedules on hold due to a lack of drugs needed for the lethal execution method, some states are moving forward with innovative execution procedures.  Which should give us all great concern.  Here's why:

First, there was the switch to a single-drug execution method led by Ohio.

It's been over a year since Ohio changed its method of capital punishment to a single-dose lethal injection method.  Ohio argued that it did so to be merciful after the botched execution of Romell Broom, where witnesses saw Mr. Broom's agony during an attempted three-drug cocktail form of lethal injection.

Some debate was had over this change -- it's easier to kill with one injection rather than three.  Was this constitutional?  Wasn't this getting pretty close to the same methods used to euthanize dogs and cats?

Next, Arizona buys sodium thiopental overseas to circumvent a domestic shortage.

Then came the shortage of chemicals used in these lethal injection procedures.  Arizona opted to buy the drug that was traditionally used but no longer available domestically via an overseas supplier.  Not vetted by the FDA, opting for the British product has been made subject to constitutional scrunity and the U.S. Supreme Court allowed the Arizona execution of Jeffrey Landrigan with foreign-made sodium thiopental. 

Now, Oklahoma takes it one step further: using readily available toxic drug used by vets to execute a human being.

Oklahoma's answer to the shortage of sodium thiopental?  Try pentobarbital as a substitute.  Pentobarbital: the exact same drug that veteriarians all over the country use to put down pets.  After all, they could buy it domestically right?

So, earlier this month, Oklahoma executed John David Duty with a three-drug cocktail that included pentobarbital in lieu of sodium thiopental.  The only difference between Mr. Duty's manner of death and the manner of death implemented by vets all over the country that same day was that Mr. Duty had two additional injections given to him. 

One wonders if Ohio would even grant him that mercy.

And, where is the public outcry to this slippery slope we're sliding down in how executions are being done in this country?

The Huffington Post wrote about the Duty Execution and as of this post, has received almost 800 comments to the story. 

Richard Dieter of the Death Penalty Information Center has been quoted in the news media as predicting other states may follow Oklahoma's lead since it's an easy answer to the drug shortage.

Over at New Scientist, there is a short discussion on the event - with a warning that if not properly administered, pentobarbital will only paralyze and not kill.  Meaning, the man lays on the gurney unable to move but not dead.  Sounds cruel, doesn't it?  Of interest, the single comment to the New Scientist article:

Speaking as a veterinary surgeon, I should point out that pentobarbital is an anaesthetic and causes unconsciousness before anything else - certainly not paralysis!. It kills in overdose, which is how we use it, by depressing respiration and then stopping the heart. If an underdose is given it can cause temporary excitement at the worst.

So, if we as a nation continue to blur the lines between executing men and euthanizing dogs, then let's hope at least that we get the dosage right. 

I Am Honored to Accept Invitation to Speak at Vanderbilt Law School by Professor Owen Jones

More great news to share with you all:  I'm honored to have been invited to speak by Professor Owen D. Jones, who teaches a class at Vanderbilt Law School on Law and the Brain and is working with several of his colleagues at Vanderbilt in preparing a law school coursebook on the subject.

This April, I will be the guest speaker (and afterward, lead a discussion) to this group of Vanderbilt law students, sharing my experiences not only as a capital trial lawyer but also as a death-qualified advocate considered to be, in the words of Professor Jones, " the front line of law and neuroscience." 

Of course, one of the big issues on the table will be our recent victory against the death penalty in the Grady Nelson trial and our precedent-setting introduction of QEEG brain mapping technology into mitigation efforts during its penalty phase

To have anyone consider my life's work and label me as a leader on the front lines of law and neuroscience would be wonderful, but to have Professor Owen D. Jones of Vanderbilt University do so is rather humbling. 

Professor Jones is, after all, not only a full Professor of Biological Sciences at this prestigious university, he is also their New York Alumni Chancellor's Chair in Law as well as Director of the MacArthur Foundation Law and Neuroscience Project.

I am truly, truly honored to have received this invitation from a man of this stature, for whom I have such respect, and I am both excited and dedicated to sharing what I know about the intertwining of brain science and mitigating factors in death penalty trials with these students at Vanderbilt University.


Focus On Florida Capital Resource Center After Victory in Grady Nelson Trial

Below, information that I have sent to friends and colleagues throughout the State of Florida which I want to share with my blog readers as well:

I am ecstatic to share the victory of Grady Nelson for death penalty litigation. (See "Novel Defense Helps Spare Perpetrator of Grisly Murder," by David Ovalle in the Miami Herald, December 11, 2010)

I am hopeful that Mr. Nelson's case is significant and symbolic of our important duty to leave no stone unturned no matter the cost or time involved.

With that in mind, Cynthia Oshea and I will be traveling throughout the State -- in the upcoming weeks to Sarasota, Fort Myers, Orlando, Bartow, Jacksonville, Tallahassee and Pensacola -- visiting with colleagues and whoever else will have us with the hope of embracing others to join Florida Capital Resource Center

As you know, the Florida Capital Resource Center is a non-profit organization I founded with a goal of insuring just and unwavering representation of death-eligible defendants.  For details, please visit the organization's official website at

Additionally, this month the Florida Capital Resource Center welcomed its new Regional Directors (highlighted), who join the current Regional Directors in working toward its worthwhile goals:

  •  Bruce Fleisher
  • Jeff Weinkle
  • Jason Blank
  • Robert Brock
  • Stuart Adelstein
  • Rosalie Bolin
  • David S. Markus
  • Kate Oshea
  • Paula Black 
  • Rick Sichta

 Stay tuned for more information regarding the Florida Capital Resource Center as Florida capital defense attorneys join together in the effort to combat the current crisis in indigent defense facing this nation today. 

Bruce Carneil Webster: Will Mentally Retarded Man on Federal Death Row Be Executed?

This Monday, without comment, the United States Supreme Court denied the petition for writ of certiorari filed by Bruce Carneil Webster, who sets on the federal Death Row.  (See the docket sheet here.)

Mr. Webster had sought the High Court's relief, arguing that courts should be able to consider evidence that one federal judge sitting on the 5th Circuit Court of Appeals opined " virtually guaranteed..." to prove that Bruce Carneil Webster is mentally retarded, which would make his 14-year-old death sentence unconstitutional.  

What is this evidence of his mental state? 

Three federal physicians from the Social Security Administration found Webster to be mentally retarded when he applied for disability benefits in 1993.  This was a year before the crime for which he was sentence to death was committed, e.g., the kidnapping and murder of 16-year-old Lisa Rene.  

It is not disputed that this was a horrific crime: Lisa Rene was kidnapped, raped, beaten, and then buried alive -- and her abduction by Webster and his cohorts was recorded during a call to 911.  It is also not disputed that Webster is not seeking to revisit his conviction: he is only contesting the applicability of capital punishment under the constitutional precedents established by same High Court that has now denied him relief.

What's going on here? 

Form over substance.  There is a law on the books, it's been there since 1996, that limits a federal appellate court at this juncture in the process from considering anything but evidence which points to a defendant's innocence.  (Read 28 USC 2255 here.

So, even though the U.S. Supreme Court ruled in 2002 (Atkins v. Virginia) that individuals who are mentally retarded should not be subject to execution by the state, the 1996 statute appears to be a bar for that constitutional argument to ever reach a judicial bench for consideration.

Webster's attorneys aren't done, though.  They've told the press that they will continue their fight, filing more argument in more courts - perhaps in Indiana - as they attempt to find an American court that will finally give the federal constitution some application in this case. 

QEEG Brain Mapping Evidence and Mitigation in South Florida's Grady Nelson Trial

Last week, the jury returned its recommendation in the Grady Nelson trial, after spending only one hour deliberating whether or not they would vote for the death penalty.  They did not.

A Horrific Tragedy in 2005

Grady Nelson, 53, did not get a death sentence, instead he will serve life behind bars without parole.  This, even though at first glance some would have argued the death penalty was a slam-dunk: after all, Grady Nelson was found guilty of stabbing his wife, Angelina Martinez, 61 times along with stabbing her two young children -- aged 11 and 9. 

It was also acknowledged that Grady Nelson previously sexually assaulted these two kids, and that the killing happened on the morning that he was released from jail for having sexual relations with his wife’s 11-year-old mentally disabled daughter.  Nelson was discovered by police at their home, still holding a knife, while his wife laywith a knife in her head and her two children also stabbed but thankfully, still alive.

Clearly, the mitigation case during the penalty phase would have to be very, very powerful in order to suggest that the jury should return something other than the death penalty -- because the prosecution was fighting hard for capital punishment. 

One big difference in this case:  the admission of QEEG brain mapping evidence. 

This may be the first time in any United States criminal courtroom where QEEG analysis has been ruled admissible and respected for its ability to provide vital information on brain injury and impairment. 

During the four week trial, it was argued in mitigation that not only was Nelson sexually abused as a child and abandoned by his mother, he also became addicted to cocaine and was brain damaged. 

Over the prosecution's “junk science” objections, and despite the testimony of their expert witness against allowing QQEG brain mapping to be admitted into evidence for the jury's consideration,Florida 11th Circuit Court Judge Jacqueline Hogan-Scola granted the defense request to allow the jury to consider the results of Nelson’s quantitative EEG (“QEEG”) brain map, revealing Nelson’s involuntarily predisposition to impulsiveness and violence.  

“QEEG brain mapping is the future,” Lenamon explained after Judge Hogan-Scola sentenced Nelson to life without parole. “QEEG technology will have a huge impact around the country in a wide variety of legal cases – civil and criminal – as well as in all kinds of medical issues.''

Florida’s Grady Nelson trial is a turning point for capital murder cases across the country and may provide support for QEEG admissibility in a wide variety of lawsuits where brain function is an issue. In the past, some judges have found QEEG testing to be insufficiently reliable to be admitted as scientific evidence, and the prosecution fought hard against its use in the Nelson considerations. 

However, after hearing Lenamon’s arguments and the testimony of Dr. Robert W. Thatcher, a nationally known pioneer in QEEG analysis who is Board Certified by the American Board of Certification of Quantitative Electroencephalography and a principal in Applied Neuroscience, Incorporated, Judge Hogan-Scola found QEEG meets the legal prerequisites for reliability under Frye and Daubert standards.

“[E]verything I have heard, the methodologies are sound, the techniques are sound, the science is sound,” ruled Judge Hogan-Scola in the October 6, 2010, hearing on the admissibility of QEEG evidence in Cause No. F05-00846 in the Circuit Court of the 11th Judicial Circuit, in and for Miami-Dade County, Florida, styled State of Florida v.Grady Nelson.

“We are understandably encouraged by the fierce dedication to justice exhibited by Judge Hogan-Scola in her ruling on QEEG,” continues Mr. Lenamon. “Having a judge with her combination of legal expertise and scientific knowledge was crucial here, and the time to recognize QEEG analysis by experts such as Dr. Thatcher as sound science is long overdue.”

As explained by Dr. Thatcher in his October 2010 testimony, QEEG brain mapping is a computer analysis of around 20 channels of simultaneous EEG recording under controlled conditions including 3-dimensional source imaging. Today, there are over 50 companies selling QEEG products in the marketplace, including Applied Neuroscience, Incorporated, whose NeuroGuide Deluxe™ has been tested as reliable.

Victory in Grady Nelson Trial: After 1 Hour, Jury Votes for Life Not Death - The QEEG Evidence Case

There will be a longer post regarding the Grady Nelson trial that just finished yesterday, when the jury came back to tell us that they were recommending life and not death for Grady Nelson.  Shortly thereafter, Judge Hogan-Scola sentenced Nelson to life without parole.

For news coverage, see the Miami Herald and the Associated Press.

For prior posts regarding Grady Nelson, read our posts dealing with QEEG Brain Mapping Evidence and the importance of Judge Hogan-Scola's ruling along QEEG evidence to be considered during the penalty phase of Grady Nelson's trial.


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