Terry Lenamon Interview Re Miami's Nubia Barahona Murder Case

This week, Terry Lenamon was interviewed by Ana M. Valdes of the Palm Beach Post for his expert opinion as a death-qualified criminal defense attorney regarding the Jorge and Carmen Barahona murder trial, now that the prosecution has announced that it will be seeking the death penalty.

In an article entitled, "Barahonas to face death penalty on charges of murdering adopted daughter; trial set for July," Lenamon discussed his views on what the focus of the defense team must be at this juncture, when the case has received such national media coverage and where the investigation has already revealed so much since 10-year-old Nubia's body was discovered, decomposing, in a garbage bag on February 14, 2011. 

The defense will have hard facts to face regarding the guilt phase, since the child's body was found in the back of Jorge Barahona's pickup truck on IH 95 - among other things revealed during these few short weeks of investigation.  As Terry explained to the Palm Beach Post reporter, it is his opinion that the defense focus will be on mitigation:  fighting against the death penalty itself. 

What could those mitigating factors be?  For one thing, mental illness probably will be a mitigating issue.  Jorge Barahona is already being considered as mentally unstable by his jailers, wearing special garb to identify him as being mentally ill when he appeared in court for the arraignment. 

Trial is scheduled to begin in July 2011 before Miami-Dade Circuit Court Judge Sarah Zabel of the Eleventh Judicial Circuit of Florida, who along with Terry graduated from the Nova University School of Law (Judge Zabel is a 1993 graduate).  Judge Zabel has presided as a Florida Circuit Court Judge since 2003. 

Expect the defense to ask for that trial date to be extended.  Death penalty defense argubably will need much more than a couple of months to get ready for this case. 


Troy Davis Turned Down by US Supreme Court

Troy Davis sits on Georgia's Death Row today with less and less hope to escape execution. 

This week, the United States Supreme Court declined Troy Davis' request to review the determination by federal trial judge William T. Moore Jr. that the evidence Mr. Davis has accumulated to prove he is innocent of the crime for which he has been sentenced to die is merely "smoke and mirrors.”

This is a very serious turn of events because this may well thwart the last appellate avenue for Troy Davis (for earlier posts on the Troy Davis case, go here).  The great majority of those who testified against Mr. Davis at trial have recanted their testimony.  Some of these witnesses have even gone so far as to suggest that the prosecution's star witness is the real killer here. 

For many, what Troy Davis has to offer is much more than smoke and mirrors.  Still, the High Court has ruled and now,the question becomes what can be done now to stop what may well be an innocent man from being executed by the State of Georgia.

It may well be that the Governor's mercy is Troy Davis' last and only hope.  It is legally possible that the State of Georgia could schedule Mr. Davis' fourth execution date at any time. 

Mental Illness and the Death Penalty: List of Studies on How The Mentally Ill Should Not Face Capital Punishment

The reality that individuals suffering from severe mental illness set on Death Rows all across the country today should not even be the subject for debate - the reality is too obvious.  Whether they were mentally ill at the time of the crime for which they face a sentence of death is one issue.  Whether they literally lost their minds living 24/7 in Death Row conditions is another.  

The real question becomes, should the severely mentally ill be subject to the death penalty?  Many legal scholars and health professionals have considered this issue and a number of worthwhile studies and reports are now available to us all, courtesy of the internet. 

Five Excellent Studies and Reports Regarding Mental Illness and the Death Penalty

1.  Double Tragedies: Victims Speak Out Against the Death Penalty For People with Severe Mental Illness (available for download; 37 pages) by the National Alliance on Mental Illness (NAMI) and Murder Victims’ Families for Human Rights;

2.  Position Statement of the Mental Health America;

3.  Mental Illness and the Death Penalty in North Carolina: a Diagnostic Approach (available for download; 78 pages) by the Charlotte Law School;

4. Mental Illness and the Death Penalty (available for download, 8 pages) by the American Civil Liberties Union; and

5. Task Force Report on Mental Disability and the Death Penalty (available for download, 13 pages), by multi-disciplined task force and published by the APA.

Invitation to Submit Guest Blog Posts For Terry Lenamon's Death Penalty Blog

More and more, we are receiving email requests from folk that would like to write a guest post here on the Death Penalty Blog.  Right off the bat, please know that we consider it an honor that anyone would be interested in taking the time and effort to write something for publication here. 

To all that have sent requests, thank you.

However, Terry has dedicated this site to capital punishment issues and he feels it's important that we keep to that important topic, in all its nuances.  Therefore, some of the requests must be declined because they delve into issues outside of the death penalty area.  However valid and valuable they may be, we must forego publishing these proposed articles - though again, thank you for your offer.  Sincerely.


Guidelines for Guest Posts

For those who have an interest in writing about capital punishment or death penalty issues, both here or in other parts of the world, please feel free to join our new Guest Blogger roster.  We welcome writers who have something to say about the death penalty today and invite you to contact Reba Kennedy (contact info below) if you are interested in posting here at Terry's death penalty blog. 

Our posts appear twice a week, and are intentionally limited to certain topics.  Accordingly, we ask that any guest posts also follow these guidelines:

  1. You must have your own website, blog site, Facebook page, Twitter account, or other online presence that we can link with, for the convenience of our readers - we cannot accept anonymous guest post writers;
  2. You supply a brief biography (and we welcome a pix of yourself if you have one) to highlight who you are and why the readers can trust your article or opinion;
  3. Your post must be at least 250 words and no more than 1200 words;
  4. We respectfully reserve the right to edit all submissions; and
  5. Your post must be original and must include links to support its factual statements, etc. especially any quotes, as the parameters of the fair use doctrine and copyright law (e.g., plagarism) must be maintained.

Guest Blogger Roster Will Appear in the Sidebar

Those who have, and will, post here as guest writers will be spotlighted in the blog's sidebar as Guest Writers.  Their names within that listing will be linked to their website/blog/Facebook etc. for reader convenience. 

For more information or to discuss a possible guest post here, please feel free to contact Reba Kennedy at reba@rebakennedy.com.

2012 UPDATE:

This invitation is limited to those actively involved in some way with the issues surrounding the death penalty or capital punishment either in the United States or abroad.  The above-referenced website link must be connected to this topic, either pro or con.  



Terry and Reba


Death Penalty Lethal Injection Crisis Continues: New Problems for Georgia

Georgia has halted its execution schedule now that the federal government has swooped in and taken its stash of sodium thiopental.  Seems that the Drug Enforcment Administration (DEA) believes that the State of Georgia violated federal law when it bought sodium thiopental from a British supplier for use in its three-drug lethal injection execution cocktail. 

The DEA, as part of the Department of Justice, is also reportedly looking into other states' purchases of sodium thiopental.  Maybe other states have violated federal law, too.  For one thing, Georgia sold part of its sodium thiopental supply to Kentucky.  Kentucky's gotta be on the DEA's list. 

Of course, this action didn't come in time to stop Georgia from using some of the British-supplied sodium thiopental to execute Emmanuel Hammond back in January.  Importantly, the arguments against using this drug brought by Mr. Hammond's defense counsel didn't carry much weight with the United States Supreme Court. 

As the New York Times points out in its coverage of the DEA's action, the Supreme Court okayed Georgia's execution with the British drug back then. 

Now, is this more of an example of closing the barn door after the horse is out, or the left hand not knowing what the right hand is doing?  Or is it both? 

And before anyone starts arguing that this really isn't a big deal, check out the photograph provided by NPR of the storefront in Great Britain where this stuff originated.  The drug purchased by the State of Georgia came from this dirty, shoddy storefront -- actually, a second rate distributor that did business out of the back of a driving school.

Not a lab.  Not a pharmacy.  Not a drug manufacturing plant.  Nope. 

Look at the photograph.  You have to wonder if someone in Georgia thought it best simply to surf around Craigslist or EBay to buy the drug that the state would use to kill a human being.   

How did this all begin?  One letter from one lawyer. 

According to the Wall Street Journal, seems everyone thought this was just fine over in Georgia.  But things changed when U.S. Attorney General Eric Holder read a letter sent to him byJohn Bentivoglio of Skadden, Arps, Slate, Meagher & Flom LLP, who represents Georgia death row inmate Andrew Grant DeYoung. 

Up there in Washington, D.C., Mr. Bentivoglio wrote to Mr. Holder and explained that his client was facing what defense counsel believed to be an illegal execution by the State of Georgia, since the state had not registered as an importer of a controlled substance when it bought the sodium thiopental from the British supplier.

Interestingly, Mr. Bentivoglio practices in the area of health care regulatory issues, not death qualified criminal defense.  He also has a background with the Justice Department. 

According to his bio, Mr. Bentivoglio served for many years at the U.S. Department of Justice: Associate Deputy Attorney General (1998-2000); Counsel to the Deputy Attorney General & Special Counsel for Health Care Fraud (1997-1998); Trial Attorney, Criminal Division (1996-1997) and he served on the Committee on the Judiciary, U.S. Senate: Professional Staff Member (1988-1992); Legislative Assistant (1986-1988)

Well done, and thank you, Mr. Bentivoglio.

Use of DSM in the Law: the Doctors Need to Recognize this Reality in DSM-V

Mental health professionals and those dealing with mental health issues are well aware of the  Diagnostic and Statistical Manual of Mental Disorders (DSM).   It is used everyday in the law, as well, and you can find a copy on most death qualified criminal defense attorney's shelves - maybe more than one.  In fact, you can buy a copy for yourself, new or used, at Amazon.com for around $60.00.

What is the DSM?

The DSM is a reference work that classifies (by codes) recognized mental disorders in the United States.  According to the American Psychiatric Association, the DSM is"...intended to be applicable in a wide array of contexts and used by clinicians and researchers of many different orientations (e.g., biological, psychodynamic, cognitive, behavioral, interpersonal, family/systems)."  

Right now, the DMS  is in its fourth version ("DSM-IV").  The APA allows that it is been "designed" to be used in clinical settings  and by all sorts of health care providers (including psychiatrists, social workers, counselors, and even rehab techs).  

DSM-V, the Fifth Edition, is due to be published in May 2013.

The DSM in Legal Proceedings

Conspicuous by its absence in the APA definition of the DSM is the regular and routine use of the manual in legal matters.  This is particularly true in death penalty cases, where mitigation during the penalty phase often focuses upon the mental illness suffered by the defendant and where postconviction proceedings fight against execution based upon severe mental illness.

Addressing this issue is a new editorial by Ralph Slovenko, JD, PhD in the Journal of the American Academy of Psychiatry and the Law (J Am Acad Psychiatry Law 39:6–11, 2011), entitled "The DSM in Litigation and Legislation." 

You can download and read Dr. Slovenko's work here.

In the article, it is recognized that while the DSM is purportedly to be used by health care professionals, the DSM in its various versions has been cited in over 5500 judicial opinions and in over 320 pieces of legislation.

Slovenko argues that this reality needs to be addressed in the DSM itself.  And he's right.

The DSM isn't exclusively used by medical professionals, nor should it be.  When its authors are writing the language within the new version of the DSM as well as deciding what all should be covered within the DSM (for example, should narcissistic personality disorder be included? It is being removed in DSM-V), the legal ramifications of their decisions exist and should be included in their decision making. 

Don't Let News of Illinois Abolishing Death Penalty Overshadow News of Ohio Using New Single Drug Execution Method

Today, there is an understandably large amount of news coverage aboutthe state of Illinois abolishing the death penalty - with the Illinois governor waiting until the eleventh hour to make his decision on whether he would stand on the matter.  It's big news and it should be.

However, in Ohio there is also very big news regarding capital punishment in this country.  Ohio has just set precedent by using 5 grams of pentobarbital to execute Johnnie Baston. 

No three drug cocktail here (like they've done in Oklahoma with pentobarbital).  Here, the single drug was injected, and according to Associated Press reporter Andrew Welsh-Huggins, Baston "gasped" and "grimaced" several minutes after the drug was administered. 

This is the same drug that is used to euthenize animals. 

This is the same procedure used to euthenize pets. 

Oklahoma's John Duty may go down in history as being the first man that was executed with pentobarbital used in the lethal injection.  However, Ohio's Johnnie Baston has just earned his own place in the record books as being the first human being in America to be executed in the exact same way that American vets put beloved pets to sleep. 

In Ohio, executing a man and putting down a dog or cat -- no difference.

Surely someone sees something wrong here????

Hank Skinner Victory: US Supreme Court Rules Civil Rights Law Can Be Used in Death Row DNA Testing

Move over, habeas corpus.  The United States Supreme Court has ruled (read the full opinion here) that Texas Death Row inmate Hank Skinner can indeed pursue a civil lawsuit brought under federal civil rights law as he tries to get certain evidence tested for DNA now, long after his criminal trial where he was found guilty and sentenced to death.

For details on Hank Skinner's underlying criminal conviction, please read our prior post giving the details as well as checking out the post where Skinner is on video, discussing his situation. 

The State of Texas as well as many others in the criminal law community, were arguing that Skinner could not advance a claim in civil courts because the law surrounding habeas corpus prevented him from doing so.  In sum, they said, Skinner was seeking his freedom and accordingly, he had to file a petition for writ of habeas corpus.  The civil rights arguments, in a civil courtroom and not a criminal one, were not available to him, or anyone else.

Wrong, the Supreme Court said today.

The opinion today makes it the law of the land that a Death Row inmate who is seeking to test evidence for DNA that "... may prove exculpatory, inculpatory or inconclusive." will be allowed to do so because this is within his civil rights.

Already, the next question is being asked: who else can this opinion help?  Death Row inmates and their lawyers must now consider the possibility that the Skinner decision will help them, as well. 

This is a major victory for those interested in justice, and particularly for those who understand the weaknesses of the indigent defense death penalty trials in this country.  Our sincerest congratulations to attorney Law Professor Robert Owen of the University of Texas' Capital Punishment Center who represented Hank Skinner before the High Court. 

Reverend Carroll Pickett - Retired Texas Death House Chaplain Fights the Death Penalty

The Reverend Carroll Pickett served as the death house chaplain for the State of Texas for many years,  and he holds the international record for witnessing the most government executions (95). 

Today, Reverend Pickett tours the country on a speaking circuit, voicing his oppostion to the death penalty. (For details, go to the Texas Coalition Against the Death Penalty Speakers' Bureau.)  He has also written a book about his experiences and his opinion on capital punishment, available at Amazon, Within These Walls: Memoirs of a Death House Chaplain.  The book has received rave reviews from critics and readers alike.

This week, Reverend Pickett was interviewed by the Texas Tribune, and you can watch part of the interview as a video on their site.  It's an interesting read - not only because it comes from a man who switched his stance from pro-death penalty to being against it, but for the way he brings us all behind the scenes into the realities of Death Row and what occurs as humans work  toward killing another human as part of their job description.  

Of particular interest, his description of his role in "seducing" the inmate's emotions; restorative justice; and what that last day is like for the man sentenced to die.  

Read the interview here.   

Mental Illness and the Death Penalty - 1

Last month, two death row inmates had their sentences changed to life without parole after authorities confirmed each suffers from severe mental illness.  In Oregon, Robert James Acremant had his sentence changed after state experts confirmed his diagnosis of paranoid schizophrenia.  (He still faces a death sentence in California on another charge.) 

In North Carolina, Isaac Stroud no longer faces capital punishment after being held to suffer from a severe mental disability that the court found made him incapable of assisting with his own defense. (No specific psychological diagnosis was provided.)

This is not the same as being mentally challenged ("mentally retarded" is the term used in the Supreme Court precedent) - here, we are considering mental illness.  But what does it mean to be "mentally ill" in regards to the death penalty? And do mentally ill Death Row inmates still get executed in America today?

It is Unconstitutional to Execute Someone Who Is Mentally Ill - Sometimes.

In 1986, the U.S. Supreme Court held in Ford v. Wainwright, 477 U.S. 399 (1986), a case coming out of Florida, that it would be unconstitutional to execute someone who is mentally incompetent - even if they were sane enough at the time the sentence was imposed.  It is considered cruel and unusual punishment. 

However, as recently as 2008, the Florida Supreme Court has held that a convicted inmate, acknowledged to suffer severe mental illness, could be executed.  In Power v. State of Florida, 992 So.2d 218 (Fla. 2008)(read the opinion here), the highest court in the state held that having mental illness doesn't automatically bring with it an Eighth Amendment shield from capital punishment.

Robert Beeler Power failed in his claim to federal constitutional protection from execution before the Florida Supreme Court as they relied upon their previous holding in Diaz v. State, 945 So.2d 1136 (Fla. 2006)(read the opinion here), opining that the United States Supreme Court has not recognized a complete bar to execution based upon mental illness and referencing language from their Diaz opinion where "mental illness" was found to be merely a mitigating factor - as either a mitigating factor under the formal statute or one allowed to be considered by the court when imposing sentence. Power, 992 So.2d at 222.

Robert Beeler Power died on December 10, 2010, while awaiting execution on Florida's Death Row.

The Most Common Types of Mental Illness Involved in Death Penalty Cases

The following are the psychological diagnoses most often seen on Death Rows around the country; however, as science advances it is assumed that others will be added to this list as other disorders or conditions are recognized by the psychiatric and psychological communities.  For details on what these mental illnesses involve, click on the links which will take you to the National Alliance on Mental Illness (NIMI) website: 

  1. Bipolar Disorder
  2. Borderline Personality Disorder
  3. Depression
  4. Post-Traumatic Stress Disorder
  5. Schizophrenia

Next post: Those Who Have Been Executed Despite Being Diagnosed With These Conditions

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