Florida Death Penalty Case Re Low IQ as Mitigating Factor in Death Penalty Case before USSCt: Will Florida Statute Be Found Unconstitutional?

mugshot Freddie Hall, Florida Death Row Inmate

Image: Florida Death Row Inmate Freddie Hall Goes to U.S. Supreme Court

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The United States Supreme Court will be considering an important Death Penalty case coming out of the State of Florida this term, as writ has been granted in Cause No. 12--10882, Hall v. Florida. (You can follow the Supreme Court docket on the case online here.)

There is only a single question presented:  Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

Florida Statute Sets IQ Score Cutoff - Does This Violate Atkins or Does Bies Allow It? 

The Florida Supreme Court’s decision to allow the execution of Freddie Hall will be reviewed by the United States Supreme Court, bringing more guidance (hopefully) on the execution of persons with very low IQ scores and whether or not people who test at levels like Mr. Hall (71, 73, and 80 on three different occasions) should face execution given their limited intellectual capacity.

In Florida, there is a state statute that provides what has been deemed an “ineffectual bright-line cutoff” by Freddie Hall’s lawyers which sets the determination of whether or not intelligence levels bar capital punishment at a score of 70 or below.

Freddie Hall's lawyers are arguing that executing Mr. Hall would be in violation of Atkins because of Mr. Hall's mental challenges.  This mitigating factor should prohibit capital punishment in his case.

Florida is arguing that another Supreme Court case is analogous to Mr. Hall's situation and decides the issue.  

From the Florida Supreme Court’s opinion in Hall v. Florida (read it online here):

After Atkins v. Virginia, 536 U.S. 304 (2002), was decided, Hall filed a motion to declare section 921.137, Florida Statutes (2004),[1] unconstitutional. While the motion was pending, we adopted Florida Rule of Criminal Procedure 3.203 as a mechanism to file Atkins claims. Hall timely filed such a claim on November 30, 2004. No action was taken on the motion until, on March 27, 2008, Hall filed a motion to prohibit relitigation of the mental retardation issue, which was denied. The court then held an evidentiary hearing on Hall's successive motion to vacate his sentence.

At the evidentiary hearing held on December 7 and 8, 2009, Hall presented testimony from Dr. Valerie McClain, who testified that she did not obtain Hall's IQ; Lugene Ellis, Hall's half-brother, who testified about his recollection of Hall as a child; James Hall, Hall's brother, who testified regarding Hall's problems with reading, writing, and caring for himself; Dr. Harry Krop, who testified that Hall's IQ using the Wechsler Adult Intelligence Scale Revises was 73 and that a prior result on the same test given by Marilyn Feldman resulted in a score of 80; and Dr. Gregory Prichard, who testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall sought to introduce a report compiled by then-deceased Dr. Bill Mosman through Dr. Prichard, but the court denied it and only allowed Hall to proffer the report for the record. After reviewing the evidence presented, the court determined that Hall could not meet the first prong of the mental retardation standard to establish his mental retardation—an IQ below 70. The court denied relief in an order issued May 26, 2010, and entered an amended order on June 16, 2010. …

Hall asserts that the statutorily prescribed cutoff is arbitrary because it does not consider the range of scores mentioned in Atkins. We have previously found this argument to be meritless….

Hall next contends that the lower court improperly limited his introduction of evidence of the second two elements to establish mental retardation. We have recognized that all three elements must be established for a defendant to show that he or she is mentally retarded and thus ineligible for execution….

Third, Hall complains that the trial court abused its discretion in refusing to admit the report prepared by Dr. Mosman through the testimony of Dr. Prichard….

Finally, Hall alleges that the lower court should have been precluded from holding an evidentiary hearing on Hall's alleged mental retardation and should have entered a life sentence because the court previously found him to be mentally retarded. We disagree….

Here, Hall argues that the issue should be estopped because of the trial court's finding that Hall was mentally retarded as mitigation. As summarized by the Supreme Court in Bies [ Bobby v. Bies, 129 S. Ct. 2145 (2009)], even if the core requirements for issue preclusion had been met, an exception to the doctrine's application would be warranted due to this Court's intervening decision in Atkins. Mental retardation as a mitigator and mental retardation under Atkins . . . are discrete legal issues. The Atkins decision itself highlights one difference: "[R]eliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury." 536 U.S. at 321. This reality explains why prosecutors, pre-Atkins, had little incentive vigorously to contest evidence of retardation. . . . Because the change in law substantially altered the State's incentive to contest Bies' mental capacity, applying preclusion would not advance the equitable administration of the law.

Bies, 129 S. Ct. at 2153. Accordingly, we deny relief on this claim.

 

We'll be monitoring this case -- especially since Terry Lenamon's forte is representing people facing the death penalty in the penalty phase of criminal trials, where he advances various mitigation arguments.  Stay tuned. 

Ocala Trial of Michael Woods for Murder of Toni Centracco Underway, Terry Lenamon Defending Woods in Death Penalty Case

 Right now, Terry Lenamon is defending Michael Woods in a Marion County, Florida, courtroom, with the process of selecting a jury from a panel of 150 potential jurors beginning on Monday morning.

This is a death penalty case (Woods has been charged with first degree murder) where Terry is bringing his expertise and experience in the penalty phase to the Woods defense team.

For those interested in following Terry in trial, the Ocala Star Banner is reporting on the trial and their coverage can be followed online, including:

From mystery to arrest: How the Centracco murder case unfolded,” by April Warren, published October 14, 2013; and

Jury selection starts in trial of Michael Woods, charged in Centracco murder,” by April Warren, also published October 14, 2013.


Pentobarbital Shortage: Texas Supplier Asks for His Product Back; Florida Will Use New Drug Midazolam Hydrochloride in October 15 Execution

We’ve been monitoring how it’s getting harder and harder to execute people in this country by lethal injection because the lethal drugs for the lethal injection just aren’t available to the states any longer, or at least not much supply is left.

There’s been chatter about returning to earlier forms of execution (like the firing squad or the electric chair), things are getting so bad for the executioners out there.

That’s a big jump for many, though: returning to those old, historic methods when everyone seems to prefer using a syringe and a gurney. So deals have been made for the stuff.

Texas: “Nevermind” Says Pentobarbital Supplier

Recently, over in Texas, a quiet deal was made between a Texas compounding pharmacy and the State of Texas to provide the needed pentobarbital supply for lethal injections; however, as soon as the identity of the supplier was made public, the company wanted to nix the deal and asked the State of Texas to return the pentobarbital it had purchased.

The letter sent by Jasper Lovoi, owner of The Woodlands Compounding Pharmacy, to the Texas Department of Justice can be read in its entirety online, courtesy of Grits for Breakfast.

Here’s the gist of it, quoting from Lovoi’s letter:

… Now that this information has been made public, I find myself in the middle of a firestorm that I was not advised of and did not bargain for. Had I known that this information would be made public, which the State implied it would not, I never would have agreed to provide the drugs to TDCJ…. I must demand that TDCJ immediately return the vials of compounded pentobarbital in exchange for a refund. ... Otherwise I may have to ask the Court in the prisoners' lawsuit to consider my concerns.

Texas’ response? Too bad, so sad, Mr. Lovoi.

The State of Texas has refused his request to return the pentobarbital - and Mr. Lovoi may be stuck here because, as Grits points out, no matter the implications in his phone conversations with agency representatives, the Texas Public Information Act provides for the disclosure of the drug supplier.

Now, Texas has enough pentobarbital to complete its execution schedule for 2013.

Florida: A Whole Different Ballgame

While Texas is satisfied with a compounding pharmacy’s pentobarbital for its lethal injection executions, the State of Florida is opting for another chemical altogether in this Lethal Drug Shortage. This week, the Florida Department of Corrections will be using a brand-new, never before tried execution method in the execution of William Happ, a 27-year resident of Florida’s Death Row.

The Florida alternative is midazolam hydrochloride, sold under the name “Versed.” Versed is a drug used in hospitals as a sedative before someone has surgery; it has never before been used in any execution.

Unless something happens to halt things, which is unlikely since Mr. Happ has waived any additional legal appeals on his behalf to halt the execution, the State of Florida will use this new execution method, midazolam hydrochloride, on Mr. Happ in an execution scheduled for tomorrow (October 15, 2013).

Image:  William Happ is scheduled to die tomorrow through the use of a lethal drug injection using a drug never before used on humans for this purpose.  

 

 

 

 

Sister Helen Prejean on Race and the Death Penalty (DPIC on Pinterest)

 sister helen prejean quote on death penalty race issue

 
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