September 23: Fifth Circuit Hears Oral Argument In Scott Panetti Death Penalty Case

We’ve posted about the case of the man who has been diagnosed as schizophrenic and who sits on Texas’ Death Row awaiting execution. Read the details about the case here (you may recall Scott Panetti as the man who defended himself at his criminal trial, and tried to call as witnesses — among others — the Pope and John F. Kennedy).

Tomorrow at two o'clock in the afternoon, the U.S. Court of Appeals for the Fifth Circuit, in an oral argument set in Dallas and not New Orleans (the “home” of the Fifth Circuit), will consider the motion filed on behalf of Death Row inmate Scott Panetti which seeks to overturn the decision of a federal district court judge regarding adequacy of the legal representation that Panetti had.

The federal appeals court will consider whether or not allow the case to be reconsidered at the trial court level with appointed counsel as well as:

  1. funds for investigative and expert assistance for the appointed defense counsel; and
  2. time allowed for the preparation of a Petition for Writ of Habeas Corpus as a vehicle to challenge the constitutionality of the pending execution of Scott Panetti given his mental illness diagnoses which have spanned a 40 year time period.

For those interested in the mental illness issues of those sitting on Death Row in the United States, the following briefs may be of interest:

Note: As those who follow this blog know, the psychological issues that face many defendants who are either on Death Row or in trial with the state seeking the death penalty are areas in which  Terence Lenamon has extensive knowledge and experience.  Terry often deals with mitigation fights that involve severe mental illness of the person charged with a capital crime.

Book Recommendation: To Love and To Kill by M. William Phelps (Josh Fulgham Case)

Investigative journalist M William Phelps just released a book about the Josh Fulgham case -- a capital case that Terence Lenamon tried as Fulgham's criminal defense lawyer in the death penalty case. (We've been posting about Terry's defense in the Fulgham case here.)

Result?  Another victory for Terry over the state's seeking of capital punishment.  There was no death penalty; Fulgham got a life sentence (two consecutive terms). 

What led the jury to this decision?  Read Terry's Opening Statement in the Josh Fulgham case here.

New True Crime Book on Florida Capital Murder Case: Check it Out


Here's more about Phelp's book, “To Love and To Kill:

The missing-persons case of Heather Strong, a young, beautiful suburban mother, baffled Florida detectives. When the file was handed to a veteran investigator, he knew Heather was dead. The challenge was to find her body—and whoever killed her. Soon, a sordid triangle of sex, jealousy, and rage came to light. The killers were cunning, manipulative, depraved—and they were as close to Heather as a man and a woman could possibly be. Vividly recreated by master investigative journalist M. William Phelps, this riveting account of seething small-town passions is a classic tale of crime and justice.

You should take a look at it.  (Terry's mentioned in there, it's a good read.)

More about the author, M. William Phelps, from his author website:

Crime, murder and serial killer expert, creator/producer/writer and former host of the Investigation Discovery series DARK MINDS, acclaimed, award-winning investigative journalist M. William Phelps is the New York Times best-selling author of 30 books and winner of the 2013 Excellence in (Investigative) Journalism Award and the 2008 New England Book Festival Award. A highly sought-after pundit, Phelps has made over 100 media-related television appearances: Early Show, The Today Show, The View, Fox & Friends, truTV, Discovery Channel, Fox News Channel, Good Morning America, TLC, BIO, History, Oxygen, OWN, on top of over 100 additional media appearances: USA Radio Network, Catholic Radio, Mancow, Wall Street Journal Radio, Zac Daniel, Ave Maria Radio, Catholic Channel, EWTN Radio, ABC News Radio, and many more.

Phelps is one of the regular and recurring experts frequently appearing on two long-running series, Deadly Women and Snapped. Radio America calls Phelps “the nation’s leading authority on the mind of the female murderer,” and TV Rage says, “M. William Phelps dares to tread where few others will: into the mind of a killer.” A respected journalist, beyond his book writing Phelps has written for numerous publications—including the Providence Journal, Connecticut Magazine and Hartford Courant—and consulted on the first season of the hit Showtime cable television series Dexter.

Phelps grew up in East Hartford, CT, moved to Vernon, CT, at age 12, where he lived for 25 years. He now lives in a reclusive Connecticut farming community north of Hartford.

Beyond crime, Phelps has also written several history books, including the acclaimed, New York Times bestselling NATHAN HALE: The Life and Death of America’s First Spy, THE DEVIL’S ROOMING HOUSE, THE DEVIL’S RIGHT HAND, MURDER, NEW ENGLAND, and more.

Will Tainted FBI Crime Lab Evidence Get Death Row Inmate Oscar Bolin a New Trial?

It’s only on television that the Federal Bureau of Investigation is always honorable and crime lab evidence is beyond reproach. 

In reality, FBI agents and especially the FBI Crime Lab, and evidence coming out of that FBI lab, have been brought into question — and even more, discredited by experts. 

That’s right:  FBI evidence has been wrong.  Even more scary, FBI evidence has been used to put people behind bars that prosecutors should have known better than to trust and to use.

FBI Evidence Not to Be Trusted 

For more on this scandal, check out:

“FBI admits flaws in hair analysis over decades,” published in the Washington Post on April 18, 2015

“CSI Is a Lie: America's forensic-investigation system is overdue for sweeping reform," published in The Atlantic on April 20, 2015.

Pseudoscience in the Witness Box: the FBI faked an entire field of forensic science,” published in Slate on April 22, 2015.

Attorneys Move for New Trial for Florida Death Row Inmate Oscar Bolin

Those who have lived in Florida for awhile may well recognize the name of Oscar Ray Bolin and the horrendous murders of three women (Natalie Holly, Terri Lynn Mathews and Stephanie Collins) that he has been convicted of committing, and for which he has been sentenced to death. 

Others may recognize his name because of the media coverage that has been given to his marriage to Rosalie Bolin, a noted mitigation specialist in death penalty cases. 

Note:  Rosalie Bolin is a friend and colleague of Terence Lenamon.  If you want to learn more about her love story with Oscar Bolin, check out the piece done by ABC’s 20/20 earlier this month, “How a Florida Woman and Convicted Serial Killer on Death Row Met and Fell in Love.”

Here’s the thing.  

Over in Hillsborough County, Oscar Bolin’s lawyers have brought forward a request for a new trial based upon an investigation done by the Office of the Inspector General. 

The basis of that request?  

The Inspector General’s report reveals thirteen (13) FBI agents working in the crime lab not only falsified evidence in the lab but they also took the witness stand and lied about it under oath.  One of those bad apples is an agent named Michael Malone.

This same FBI agent, Michael Malone, was the federal agent in charge of the evidence in Oscar Bolin’s case.  It was this agent, Michael Malone, who asserted that black fiber evidence connected Oscar Bolin to the murders of the three women for which he now sets on Death Row. 

At the Hillsborough County hearing, a whistleblower from the FBI, agent Fred Whitehurst, took the stand on Bolin’s behalf and not only described a “culture of corruption” at the FBI, but that the evidence provided by Michael Malone and his accompanying testimony about that evidence should not be considered in any trial because it is “unreliable.”

For more, watch the video here. 

Terry's friend Rosalie Bolin and her husband, Oscar.


Guest Post: Death Penalty in Nevada

Death Penalty in Nevada

Few issues raise the passion of people as much as a discussion of capital punishment. The pro-death penalty crowd starts its argument from a moral base, often quoting the Bible as their source.

The anti-death penalty crowd has always attempted to counter the arguments with – wait for it – quotes from the Bible.

Now, a recently released study may be the pivot on which all future discussions turn – the economics of capital punishment. 


The criminal justice system in Nevada has found that it is almost twice as expensive to handle death penalty cases when compared with murder cases where the ultimate penalty isn't sought.

A mandated state study that reviewed data from over 25 agencies gives added ammunition to anti-death penalty groups who have found arguing a moral point to be ineffective. 

From a suspect's arrest through their final days in prison, state officials spend over $1.2 million on murder trials where criminals are condemned to death, but not executed. That's roughly $530,000 more when compared to murder cases with capital punishment wasn't sought. 

It may be counter-intuitive that death penalty cases are more expensive, but litigation costs, including the trial and appeals averaged about three times higher for death penalty cases than it did in non-death penalty cases. 

Among all Nevada prison inmates, convicted of murder, the costs are higher for people on death row. 

There are 83 people sentenced to die in Nevada. Prosecutors could have saved an estimated $43 million by not pursuing capital punishment in the first place. 

"The question is whether having that system is worth that kind of money," said Nichols Wooldridge, a criminal defense attorney in Las Vegas.


Death Penalty Rate


Nevada's death penalty rate, per capita, ranks fourth in the nation and beats Texas and California. But the state's death chamber is hardly used, and only twelve people have been executed since the US Supreme Court reinstated the death penalty in 1976. 

Of those, only one person died against his will. 

The last execution in the state occurred over eight years ago. 

Opponents Hopeful

Death penalty opponents in the state are hoping the findings will mean fewer death penalty cases in the state. 

The study's findings are in line with previous research which examined the economic burden of capital murder cases. That research, released by the Kansas Judicial Council found that defending a death penalty cases costs as much as four times than other murder cases. 

Death penalty opponents hope that Nevada's study will boost efforts to minimize support for capital punishment. 

"Many people who favor the death penalty believe it is cheaper," said Wooldridge. "Once people understand and they informed, maybe things will change." 

New Death Chamber

Even though Nevada doesn't have any executions in the immediate future, it still pushed to complete a new death room at Ely State Prison in TK. 

Less than a week after Governor Brian Sandoval signed a capital improvement bill the Public Works Board published an announcement seeking preliminary qualifications statements from potential contractors. 

State lawmakers who had rejected funding for a new execution chamber in 2013 approved the cost this year despite significant reservations about the cost and lingering uncertainty over the death penalty. 

Contained in the bill Sandoval signed is $850,000 to remodel a prison admin building. 

Once executions are scheduled, state officials with the Nevada Department of Corrections plan to use midazolam, the same drug used in Oklahoma executions. 

Death penalty opponents in the state spoke out and said that usage of the potion will generate claims after extremely publicized cases of executions that were botched. 

Three death row inmates in Oklahoma sued after the state initially adopted midazolam last year when executing Clayton Lockett.

Witnesses to Lockett's death reported that the inmate contorted, heaved and groaned. Prison administrators were horrified and tried to stop the execution procedure.  Lockett died 43 minutes later. 

Midazolam is an anti-anxiety drug meant to place prisoners in a coma before hydromorphone, which will cause death, is administered. 

The drug's critics argue that it does not guarantee unconsciousness to evade pain from the follow-up drugs. 

Supreme Court Ruling

In a 5-4 decision, the US Supreme Court said using midazolam does not violate constitutional protections against cruel and unusual punishment. The court also noted that midazolam had previously been used in twelve cases without complications.

 Last Execution

 The last killing in Nevada was in 2006 at the since closed Nevada State Prison in Carson City.

 Daryl Mack's execution was completed with a combination of pentobarbital, pancuronium bromide, and potassium chloride.

Nevada and additional jurisdictions have been scrambling to find options after death penalty antagonists convinced producers not to sell the drugs for executions. 

About 80 individuals are on Nevada's death row. 

By the Numbers 

·         Number defendants sentenced to die: 131

·         Inmates permanently removed from death row because of legal action: 25

·         Death row inmates died from natural causes: 11

·         Death row inmates died from suicide: 2

About Face

Donald Heller, who wrote California's death penalty law, is now advocating for replacing the death penalty with a sentence of life without parole. Heller says now that the law did not have the intended result. 

"At the time, I was under the impression that it would do swift justice, that it would get the murderers through the system quickly and apply the death penalty," Heller said. 

Now Heller says," The cost of our system of capital punishment is so enormous that any benefit that could be obtained is so dollar wasteful that it serves no effective purpose."

Truscott’s conviction was overturned in 2007.

This article was contributed by New York-based criminal attorney Arkady Bukh, a frequent media contributor and published author.  Mr. Bukh served as defense counsel for Azamat Tazhayakov of Boston Bomber Marathon case. 

It has been published here without edit or change as provided by Arkady Bukh, 14 Wall St, New York NY 10005, (212) 729-1632.

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