DPIC Year End Report for US Death Penalty 2017

 The latest Death Penalty Information Center Year End Report has been published and you can access it here. 


Summary of the 2017 DPIC Year End Report: 

Florida Capital Resource Center Covered in Gerry Spence Trial Lawyers College Magazine

The recent issue of Warrior, the publication of Gerry Spence's Trial Lawyers' College, includes an article written by Terence Lenamon and Melissa Ortiz of Lenamon Law -- and Laurie D. Goodman,
Executive Director of the TLC, has been gracious to allow us to share the article here on the blog.

We Deserve More: The Story of the Florida Capital Resource Center

This article delves into the Florida Capital Resource Center's hows and whys -- issues of importance to anyone following the issues surrounding the death penalty and capital punishment in the United States. 

Here it is:

We Deserve More: The Story of the Florida Capital Resource Center by Terence Lenamon, Esq. and Melissa Orti...

This article was published by the Trial Lawyer's College ("TLC") in its Warrior Summer 2016 edition, and the TLC owns the copyrights to the article.

Death Penalty Book List: Read More About Capital Punishment

Over on Goodreads, there is a list of books on the death penalty, putting together both fiction and non-fiction together in order of popularity.

Death Penalty Book List from Goodreads

For those who like to read about death penalty issues and capital punishment, here are the top ten on this Goodreads list -- how many have you read?

1. The Confession by John Grisham 

2. The Innocent Man: Murder and Injustice in a Small Town by John Grisham
3. Change of Heart by Jodi Picoult 

4. Just Mercy: A Story of Justice and Redemption by Bryan Stevenson

5. Dead Man Walking: The Eyewitness Account of the Death Penalty That Sparked a National Debate by Helen Prejean

6. The Chamber by John Grisham
7.  The Autobiography of an Execution by David R. Dow
8. The Green Mile by Stephen King
9. I'd Know You Anywhere by Laura Lippman
10. Life After Death by Damien Echols 

The Chair: 2016 Death Penalty Documentary on Amazon Prime

There's a new documentary dealing with the death penalty being offered by Amazon.com, and if you have a Prime Membership, then it's free to watch.  Note: It's rated PG-13; lasts 49 minutes.



From Amazon:

In 100 years, the electric chair has killed more than 4,000 prisoners, more than any other means of execution in America. It has become the symbol of America's death penalty. This is the story of the very first electric chair killing.

Five Death Penalty Movies To Watch

Susan Sarandon and Sean Penn do give riveting performances in Dead Man Walking,and maybe that's why most people think of that film first when they think about movies dealing with the death penalty. 

Of course, the life's work of Sister Helen Prejean may have something to do with it, too!

However, there some other really great films out there that deal with capital punishment.  Here are four other great ones, available on Netflix, Amazon Prime, or Hulu:

True Crime

Stars Clint Eastwood as a journalist who discovers that an innocent man may be about to be executed in a few hours, and so he investigates .... TIck tock. 

The Life of David Gale

Kevin Spacey stars as an activist who's now Death Row inmate, innocent but facing execution. It's Kevin Spacey, folks. 


Philip Seymour Hoffman does an amazing job transforming himself into author Truman Capote, who interviews and befriends convicted murderer Perry Smith.  Smith is ultimately executed for the murder of a Kansas farm family.  True crime; this really happened.  Movie includes the execution by hanging and the aftermath. 

The Green Mile

Tom Hanks and Michael Clarke Duncan star in a movie where we learn that a Death Row Inmate is innocent, but how can the execution be stopped – or can it?  Eerie things happen.  Based on the Stephen King novel of the same name.

Lenamon's Nov - Dec 2015 Florida Death Penalty Lawyers Seminar Schedule

As discussed in our prior post, Terry Lenamon and the Florida Capital Resource Center he co-founded years ago work hard to help not only those facing the death penalty, but the lawyers out there who undertake the job of defending a capital case.

This means that the FCRC will provide seminars and training to Death Penalty lawyers at no charge to them. For instance, this past summer the Center offered a two-day training seminar in jury selection by the Honorable Carey Haughwout, Public Defendner for the Fifteenth Judicial Circuit.

Now, Terence Lenamon is announcing another seminar in this ongoing effort to help capital lawyers.


Terence Lenamon is offering a single day training course around Florida to attorneys in the Sunshine State who represent defendants in capital cases. 

Death Penalty Lawyers please note that these are free seminars in defending capital cases offered by Board Certified death penalty defense attorney Terry Lenamon for which you can receive Continuing Legal Education credit. 

Hours are 10 am to 4 pm for each seminar.


Locations and dates:

Miami - 11/18

Public Defender Office

Bushnell 12/01

Public Defender Office

Tampa 12/4

Public Defender Office

Fort Lauderdale 12/7

Public Defender Office

Ocala 12/8

Public Defender Office

Jacksonville 12/9

Florida Coastal School of Law

Pensacola  January 2016 (To Be Announced)

DPIC's 50 Facts About the Death Penalty: Great Series

Great series by the Death Penalty Information Center, "50 Facts About the Death Penalty," is now finished, with all 50 Facts online. 

Each Death Penalty Fact has a great image with a bit of information about the death penalty in America, and there are links to additional information on that particular topic for those who want to know more.  Really good stuff.



New Death Penalty Study Released: "Death Row USA"

The NAACP Legal Defense Fund released its Fall 2014 study of capital punishment in the United States recently.  

Entitled "Death Row USA," it is available to read online here.

In the report, Florida continues to have the second largest Death Row population in the country (only California has more), followed by Texas, Alabama, and Pennsylvania.  

No surprise there, right? 


Great Documentary on the Death Penalty Available on Netflix

Now available on Netflix (streaming) is an amazing documentary on the death penalty that delves into capital punishment through the eyes of the "death house" chaplain -- a man who witnessed nearly 100 executions in his role as chaplain.  

You can watch "At The Death House Door" 24/7 online or via your streaming TV device if you have a Netflix subscription.  

It also discusses the case of Carlos DeLuna (see our post last month on a new book, The Two Carlos, that deals with the travesty of an innocent man being executed in Texas).

Great documentary for anyone interested in death penalty issues:





High School and College Level Educational Materials on the Death Penalty

Did you know that the Death Penalty Information Center has compiled curricula on the death penalty for both the high school and college level?  

From the DPIC website:

Our award-winning high school curriculum, Educational Curriculum on the Death Penalty, includes 10-day lesson plans, interactive maps and exercises, and a presentation of pros and cons on the death penalty for discussion and debate. It is also available as a free iBook for the Apple iPad. The iBook version incorporates the interactivity and user-friendly interface of a tablet, including touch-screen navigation, access to the full curriculum even when offline, and use of standard iBook features, such as definitions and note-taking. For instructions on downloading the iBook, click here.

Our college-level curriculum, Capital Punishment in Context, contains detailed case studies of individuals who were sentenced to death in the U.S. The curriculum provides a complete narrative of each case, along with original resources, such as homicide reports, affidavits, and transcripts of testimony from witnesses. The narratives are followed by a discussion of the issues raised by each case, enabling students to research further into a broad variety of topics. Both curricula have special materials for those who register. They are widely used by educators in the U.S. and around the world in the fields of civics, criminal justice, sociology, and many other areas.


Movie "Dead Man Walking" Now Available on Netflix


The movie "Dead Man Walking" is now available for streaming on your smartphone, tablet, computer, or TV, via Netflix.  If you are interested at all in the death penalty or capital punishment issues, then this is a Must See Film.

Click here for details.  

Florida Supreme Court and the Execution of William Van Poyck: Issue of Effective Capital Representation Spotlighted

Florida Governor Rick Scott has signed the death warrant for Florida Death Row inmate William Van Poyck and right now Mr. Van Poyck’s execution is scheduled for June 12, 2013.

However, whether or not that Execution will happen is an open question.  On May 24, 2013, a formal motion to stay the execution was filed before the Florida Supreme Court.

Read the Motion for the Execution of William Van Poyck to be stayed here.

Reason for all the hoopla over this request for stay?  It's not for the usual reasons.  This argument is causing all sorts of controversy.  Here's why.  

Capital lawyer Mark Olive and two other death penalty defense attorneys have been appointed to represent Mr. Van Poyck - but there wasn't much time for these new lawyers to get up to speed, so they asked the court for more time to do their job.  

They were told no.  No more time.  

The Florida High Court also denied attorney (and former ABA president) Sandy D’Alemberte motion to intervene in the case on behalf of attorney Olive’s behalf.  To argue that as it stood, the appointment and the denial of more time to do the job worked together to force the appointed lawyers into a Catch 22 where they were in the role of lawyer but unable to do their job for their client.

Olive, D'Alemberte, and the other capital lawyers newly appointed to represent a man literally days away from the needle have been quick to act.  

Go here to read the Notice filed by Attorney Olive regarding his eleventh hour appointment to represent the convicted man: 

Notice Inability to Satisfy Schedule filed by Attorney Olive Appointed to Represent William Van Poyck

Death Penalty Information Center Report 2012: Florida Has Most Death Sentences This Year

 The Death Penalty Information Center has compiled its annual report on capital punishment in the United States.

According to the DPIC, the four states of (Florida (21), California (14), Texas (9), and Pennsylvania (7)) accounted for 65% of the country’s death sentences.  Texas, however, led the nation once again in the number of executions, with fifteen people being executed this year in the Lone Star State.  

Click on the image to read the full report:


Terence Lenamon's Online Library on Squibd.com

Every so often, Terry wants to share documents here on the blog that are long - too long in fact, for this platform to accommodate.  We've found a solution to that problem by creating a new place on the web for Terry's documents over at Squibd.com.

It's a collection entitled the Terence Lenamon Online Library.  It's on the Squibd.com website and the documents are available online for free, as a community service. 

It is a place where Terry can share things like the full text of his May 20, 2012 letter to the Executive Director of the Florida Innocence Commission in his role as Chairman of the Board of Directors of the Florida Capital Resource Center.

Right now, there are six documents available for review, and Terry will be adding more as time goes along.

We're not adding cases here, since there are good places to find them already - like Google Scholar.

If you have any requests or suggestions, please let us know. 

Florida Innocence Commission's Final Meeting: Adequate Funding of Defense Attorneys Key Issue in Justice

The Florida Innocence Commission met this week at the Rosen Plaza Hotel in Orlando;  it was the last meeting for the Florida Innocence Commission since Governor Rick Scott vetoed the bill that would fund the FIC and allow it to continue.

Read the details on how and why Governor Rick Scott killed the Florida Innocence Commission here, in an article by Radley Balko in the Huffington Post. 

Or read the editorial written by Fred Grimm in the Miami Herald, where he points out that the 14 men facing the death penalty on Florida's Death Row were cleared as being innocent after DNA testing was done. 

The real irony here?

In its last meeting, as part of its final warnings, the Florida Innocence Commission warns that the failure to adequately pay criminal defense fees in indigent defense cases, particularly those where the defendant is facing the death penalty, is one of the key factors in injustice resulting.

That's right.  As Terry Lenamon has been proclaiming for years (and see our book on this subject), the indigent defense payment issue is a real crisis in the country and injustice after injustice is the result. 

On June 30, the Florida Innocence Commission shuts its doors. No more funding.

Next week, its final report - that will undoubtedly include proposals for funding reforms - will be released.  We'll include a link once it's available. 

Terry Lenamon Shares Fulgham Trial Examples: Selected Transcripts Online

Terry Lenamon is making the following transcripts online from his recent death penalty case, where he and his defense team successfully avoided the death penalty for Joshua Fulgham:

Voir Dire - Defense

Defense Opening - Trial

State Opening - Trial

State and Defense Opening - Penalty

State Closing

Defense Closing and State Rebuttal

Please contact Terry if you have any questions - including participation in one of his upcoming seminars.

New Blog to Check Out: Artists vs. Death Penalty

There's a new blog to check out for those who are interested in the death penalty, published by Athina Ouranidou.  It's entitled "Artists vs. Death Penalty." 

Athina is in her final year as a law student at Birmingham City University in the United Kingdom.  She's opposed to the death penalty, and has started publishing Artists vs. Death Penalty as a vehicle for artists to share their work, in its various forms, in a stand against the death penalty.  And, of course, as a means to inspire others as well.

Already, Athina reports that her blog has achieved a steady top ranking in Google Everything Search for the phrase, ‘artists death penalty’ and she's been interviewed by the Greek magazine “Ανεξartητη Γυναίκα της Θεσσαλονίκης” about the blog site (you can read the interview online - check out page 44).

Check it out!


Guest Post by James Madieros of Criminal Justice Degrees Schools: How State Budget Issues Are Effecting Death Penalty Cases


As part of our invitation to other bloggers to guest here on the Death Penalty Blog, Terry and I are happy to publish the following article sent to us by Charles Sipe of the career-advice website, Criminal Justice Degrees Schools. Here, without edit or change, is James Madieros' article for your consideration. Thanks, Charles and James! -- Reba Kennedy, Esq.


Rising costs, a national recession and a broader global financial crisis are taking its toll on individuals as well as institutions at every level; a ripple effect of fiscal turmoil that is felt in private and public sectors alike. And, state budgets are not immune.

The nation has watched as cash-strapped states have turned to moneymaking schemes that would have once been unthinkable, like flouting federal law to legalize marijuana. So, it should be no surprise that these shifts in moral and political thinking may also extend to death penalty cases.

Of course, death penalty abolitionists are quick to point out the cost of a death penalty case as a reason to reform capital punishment. That it is expensive is not an argument in and of itself, but when the costs potentially puts other state programs at risk by draining taxpayer dollars the numbers gain more force.

Many states are examining the books for ways to cut costs, and death penalty cases are a glaring entry in the margin. According to research conducted by the non-partisan Death Penalty Information Center in 2010, the average death penalty case costs $1 million more than a case that seeks life imprisonment without parole, and it’s safe to assume the cost hasn’t gone down since then.

The reason for this is fairly simple: no stone is left unturned when a person’s life is at stake, and the fallout for executing an innocent person is the stuff of any politician’s nightmares (not to mention the bad dreams of detectives, crime scene investigators, jury members, the prosecuting attorney and the judge).

Strangely, the argument that a person’s life is at stake in some fashion in a life-without-parole case never makes news, and may be a product of the emphasis placed on the death penalty. Nevertheless, the difference in costs make it clear that mistakes at this level are not as much of an issue, and that the outcome is more morally digestible for death penalty opponents.

And, it’s more digestible for state budget auditors as well. Of the 34 states that still practice capital punishment, several are finding it financially unfeasible to continue supporting it. Setting aside the unsettling reality that financial considerations may have the power to influence the moral imperative, states are becoming more vocal about cutting costs in the courtroom.

So, are state budget concerns shaping policy regarding death penalty reform? The answer is a resounding “yes.” In the end, though, a vote for or against capital punishment will decide the fate of a state budget. In financially troubled states like Mississippi, where the cost of each death sentence rendered is estimated to cost $3 million, voters may decide that money talking is more important than a dead man walking.

James Madeiros is a recent law school grad and staff writer at Criminal Justice Degree Schools, a resource site providing information on criminal justice education including paralegal degree programs in each state.



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 www.FloridaCapitalResourceCenter.com.

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. 

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.

Cost of Death Penalty At Appellate Level Gets Some Ohio Media Coverage: The More We Talk Money, The Better

WBNS-TV in Ohio is reporting this week on a topic that we periodically delve into: the reality of the death penalty appeals process, and how expensive this is in both time and money.  Good. The fact that not enough money exists for effective death penalty defense at the trial level, and how this directly correlates to a more expensive appeals process -- well, more discussion on that truth would be welcome.  At least we're seeing a start down that path.

Focusing upon the 26-year appellate journey of one case, the news story first discusses the details of Ohio Death Row's David Stumpf's case.  Stumpf was convicted and sentenced to death for the murder of Mary Jane Norman over a quarter of a century ago, and he's still in the appellate process.  The coverage doesn't end there, however; the investigative report also discusses the federal death row appellate docket of the United States Court of Appeals for the Sixth Circuit

Surprising to no one, their recognition is this:  it costs everyone involve a tremendous amount of time and money not just to try a death penalty case (as it goes through the two phases, guilt and penalty), but also to insure that the State is not seeking to execute an innocent man, or that the State is attempting to kill someone in violation of federal or state law.  That's the reason for these appeals.  It can, and should, be rare that the government kills a citizen -- and the appellate process is a vital protection to us all. 

Richard Dieter of the Death Penalty Information Center has written a paper discussing this subject, and includes the following data regarding costs (emphasis added):

In Texas, a death penalty case costs taxpayers an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years.(3) In Florida, each execution is costing the state $3.2 million.(4) In financially strapped California, one report estimated that the state could save $90 million each year by abolishing capital punishment.(5) The New York Department of Correctional Services estimated that implementing the death penalty would cost the state about $118 million annually.(6)...

The California Supreme Court, for example, spends more than half its time reviewing death cases.(35) The Florida Supreme Court also spends about half its time on death penalty cases.(36) Many governors spend a significant percentage of their time reviewing clemency petitions and more will face this task as executions spread. As John Dixon, Chief Justice (Retired) of the Louisiana Supreme Court, said: "The people have a constitutional right to the death penalty and we'll do our best to make it work rationally. But you can see what it's doing. Capital punishment is destroying the system."(37)

Once again, it may well be that money will be the reason that more and more focus is placed upon capital punishment in this country -- and this is a welcomed perspective.  The reality remains that there is a financial crisis in this land regarding providing competent defense to death penalty defendants at the trial level, and this obviously dominoes into a more expensive appellate process.  The more that everyone starts talking money and the death penalty, the better. 

John Grisham's The Confession: New Grisham Novel Continues His Campaign Against the Death Penalty

The latest John Grisham novel has just been published.  Entitled The Confession, it is Grisham's second work that fights against the death penalty - Grisham already became a vital and vocal opponent of capital punishment with his non-fiction best seller, The Innocent Man: Murder and Injustice in a Small Town.

The Innocent Man came out four years ago as John Grisham's first non-fiction endeavor.  In it, Grisham takes his extensive research and writes about Ron Williamson, a local baseball hero from a small Oklahoma town who was tried, convicted, and sentenced to death for a rape and murder that he did not commit.  The Innocent Man allowed Grisham to tour the country, simultaneously promoting his book while educating people on the realities of capital punishment and life on Death Row today.

It's a good read, not the Truman Capote nonfiction novel type of story, but more of a forthright, almost newspaper-like piece.  And, now it has a companion work - a matching bookend, if you will, in The Confession.

The Confession - Buy It for the Read, and In Support of John Grisham's Dedication

The Confession was officially released today by Doubleday, and hopefully it will garner lots of media coverage and favorable reviews.  Because once again, Grisham takes his considerable talent and parlays it into a legal thriller that provides much-needed education for those members of the public that may not know or understand some of the realities of the American death penalty in the criminal justice system today. 

What is The Confession about?  From Doubleday:

For every innocent man sent to prison, there is a guilty one left on the outside. He doesn’t understand how the police and prosecutors got the wrong man, and he certainly doesn’t care. He just can’t believe his good luck. Time passes and he realizes that the mistake will not be corrected: the authorities believe in their case and are determined to get a conviction. He may even watch the trial of the person wrongly accused of his crime. He is relieved when the verdict is guilty. He laughs when the police and prosecutors congratulate themselves. He is content to allow an innocent person to go to prison, to serve hard time, even to be executed.

Travis Boyette is such a man. In 1998, in the small East Texas city of Sloan, he abducted, raped, and strangled a popular high school cheerleader. He buried her body so that it would never be found, then watched in amazement as police and prosecutors arrested and convicted Donté Drumm, a local football star, and marched him off to death row.

Now nine years have passed. Travis has just been paroled in Kansas for a different crime; Donté is four days away from his execution. Travis suffers from an inoperable brain tumor. For the first time in his miserable life, he decides to do what’s right and confess

But how can a guilty man convince lawyers, judges, and politicians that they’re about to execute an innocent man?


New Florida Innocence Commission Gets Its First Executive Director Today: Lester Garringer Jr. Appointed

Florida Supreme Court Chief Justice Charles Canady, 56, began his two-year term on July 1, 2010, and his first order of business was to create the Florida Innocence Commission, which will "conduct a comprehensive study of the causes of wrongful conviction and of measures to prevent such convictions."  (For the complete enacting language, read the Administrative Order here.)

Today, Lester A. Garringer, Jr. was named to act as the Commission's first Executive Director.  In the Court's news release detailing the appointment, Garringer's credentials are detailed - they include serving as a Monroe County judge (1977 - 1980) and for the past 7 years, serving as staff attorney to the Supreme Court Criminal Court Steering Committee and the Supreme Court Committee on Standard Jury Instructions in Criminal Cases.(read the news release here). Conspicuous by its absence in his resume was an extended amount of time spent in the actual defense of criminal defendants facing conviction. 

What Will the Florida Innocence Commission Accomplish?

With a budget of around $300,000, the FIC is charged not with implementing change so much as studying the reasons behind wrongful convictions in the State of Florida.  One can only hope that part of that money will not be a re-hash of the numerous studies already done regarding the lack of funding for indigent defense in Florida. 

The Cost of Indigent Defense Must Be Evaluated as Part of the Wrongful Conviction Research

Of particular importance is the need to acknowledge the studies already undertaken on the state of indigent defense for capital cases in the State of Florida.  Obviously, there is a logical tie between a lack of funding for indigent defense and the likelihood of a wrongful conviction.  Nowhere is there a more critical risk for wrongful conviction than when the death penalty is at issue. 

Prior Studies on the Underlying Issues - Budget, etc. 

It's not too difficult to look at the current criminal defense system in this country and know that lack of funding for constitutionally-mandated appointed counsel, and budgeting for their corresponding defense expenses, is one of the major factors behind wrongful convictions of innocent men and women.  The American Bar Association, for example, has spent considerable time and expense analyzing these issues on a state by state basis -- and continues to do so.   

Cantero & Schlakman's Fall 2009 Opinion

Just last fall former Florida Supreme Court Justice Raoul Cantero III and Mark Schlakman, former senior program director at the Center for the Advancement of Human Rights at Florida State University, wrote an opinion piece describing how they took an American Bar Association two-year study of Florida's death penalty system in 2006 and compared it to the realities of the system today

Their findings?  The current situation is "abyssmal."

Let us hope that the newly formed Florida Innocence Commission acts in a powerful and purposeful way in proactively instituting positive change in our state's criminal justice system.  We already are too well aware of the ways in which the system is failing ... and how an increased indigent defense budget would help solve so many problems, including the likelihood of wrongful convictions in this state. 


James Alan Fox Visits Florida Death Row This Weekend In Prep For Series of Articles on Capital Punishment

James Alan Fox gave everyone a head's up in his Boston Globe piece today:  he'll be in Florida this weekend, visiting Florida's Death Row

Who the heck is James Alan Fox?

To many, he's known as the "Dean of Death," because of his extensive work in the study of mass murder in this country.  To some, he's known as Professor, since he teaches criminology at Northeastern University in Boston, Massachusetts, where he has also served as dean. 

Professor Fox is also recognized for his extensive writings dealing with crime and criminals, including 15 books, countless op-ed pieces in various national publications, and his current column in the Boston Globe, "Crime and Punishment," which appears a blog on Boston.com.

What's James Alan Fox Doing at Florida's Death Row?

From what he's hinted about in today's post, he's going to be talking to lots and lots of people who are waiting for the State of Florida to kill them.  He's already begun his discussion of the number of individuals setting on Death Row, and how many years they've been there. 

Of course, he's not focusing his efforts solely on Florida.  He's also referenced the status of California's Death Row (if you follow this blog, you know what this means) and he's pointed out that there is a movement to reinstate the death penalty in his home state, Massachusetts.

Let's See What James Alan Fox Has to Report After His Florida Death Row Visit

It's not clear from what Professor Fox wrote today exactly when his series on capital punishment will begin.  Let's keep watch on Boston.com -- because what he will be writing will be worth our time to read. 

Growing Trend for States to Stop Death Penalty as a Budget Cut - Let's Watch California

This week, FoxNews provided detailed coverage on exactly how the current economic crisis is pushing the 35 states that still have the death penalty on their books to consider its repeal.  And yes, it's all about the money.

New Reaction to an Well-Known Fact - Death Penalty Is Very Expensive on the State

Quoting Richard Dieter of the Death Penalty Information Center, it's a new reaction that is being seen.  Apparently, the moral and social issues involved in capital punishment are being placed on the back burner as the number-crunchers are focusing upon a fact we've known for a long time:  it costs more to put someone to death in this country than for the state to simply sentence that individual to life imprisonment.

The article is worth the read.  Not that it's anything that has been discussed here and elsewhere, but for the fact that the Money Factor may really be gaining a foothold in the fight against the death penalty. 

Let's watch California closely now. 

Consider the numbers provided in this article that compare California's economy (the state is broke) with the number of people living on Death Row (California hasn't executed anyone in 30+ years), though it still sentences folk to death periodically.   And the media coverage of Billy Joe Johnson's request to join California's Death Row inmates was not that long ago ...

Must be very tempting for California Powers that Be, in particular, to nix capital punishment as a budget cut. 






Johnny Depp on 48 Hours Today Fighting 4 West Memphis 3, Will He Help the Dubose Brothers?

Johnny Depp will appear this evening on CBS-TV's 48 Hours, bringing attention to the West Memphis 3, fighting against the execution of Damion Echols. 

Please watch - it's a major event for Mr. Depp to bring his celebrity power to this Death Penalty case, especially when everyone would expect Johnny Depp to be on a standard publicity campaign for his new Disney movie, "Alice in Wonderland" by Tim Burton.  I'm sure that all opponents to the death penalty are excited that a major celebrity like Johnny Depp has become involved here -- and are respectful not only of his artistic abilities but his moral commitment, as well. 

The Dubose Brothers of Jacksonville - Similar Situation as the West Memphis 3

Meanwhile, here in Florida, the Dubose Brothers are in a similar situation as the West Memphis 3 with these three African-American brothers all facing the death penalty in the murder of an 8 year old in a drive-by shooting.  It is undisputed that the drive-by was intended for a drug dealer who had robbed the oldest brother.  It is also clear that these three brothers have suffered a lifetime of abuse and neglect. 

The State's zealous prosecutor is aggressively fighting for all three brothers to be put to death.  The penalty phases of their trials will continue through the next two weeks, and is being live-blogged in a joint effort of the Times-Union and Jacksonville.com. 

This case is being tried in Jacksonville, and my non-profit defense support organization, Florida Capital Resource Center, is providing whatever assistance we can to the defense attorneys in this case. (For details on how burdensome it is to represent indigent defendants in death penalty cases here in Florida, please read the assorted posts here on this topic, as well as my ongoing series of articles published at JD Supra and elsewhere.) 

E-mailed Johnny Depp's agent asking for help with the Dubose boys

Last week, Mr. Depp's agent also got an email written by Terry Lenamon, personally, not officially from the FCRC nor from the law firm, asking for his help in the Dubose Brothers case, if he could he see his way clear to do so.  

Sure, sure -- IT IS a lot to ask a celebrity who's already filming a movie (the Tourist) with Angelina Jolie, promoting a major film like Alice in Wonderland, and already taking a stand with the West Memphis 3, but Johnny Depp is known to march to a different drummer, and go his own way.  

Couldn't hurt to ask, you don't ask, you don't get ...and when you're a death-penalty criminal defense attorney, one thing you have to have a whole heck of a lotta HOPE.  Hope in justice, hope in mercy, hope in the compassion of men's souls ... because sometimes, setting in that chair in the courtroom, hanging onto HOPE is all you've got. 

Sincerest thanks to Mr. Depp for his efforts today.  We'll be watching CBS tonight, hope you will be, too.


Annual NCADP Conference Starts Today (Jan 14 - 17)

The National Coalition to Abolish the Death Penalty is the only fully-staffed national organization working to abolish capital punishment in the United States.  Its annual conference starts today and runs through the weekend.   Sister Helen Prejean is the keynote speaker this year, she's always wonderful -- and if I didn't have courtroom commitments, I would love to hear Sister Helen today. 

What's the NCADP?

Formed in 1976 (yes, in conjunction with the reinstatement of the death penalty by the United States Supreme Court), the NCADP has grown to become a tremendous force in the efforts to stop government executions in our country.  (The NCADP also works toward ending capital punishment in other countries around the world.) 

From the hub of its wheel spring the various state Coalitions (New Mexico Coaltion to End the Death Penalty, Kentucky Coalition to End the Death Penalty, etc.), and through NCADP's efforts, a tremendous amount of information regarding capital punishment is corraled and distributed.  Its website alone is a treasure of current news on death row events, legislative and judicial updates, and other important items of interest to those working to end the death penalty in this country. 

What's Happening at the Conference?

This year's conference is being held in Louisville, Kentucky, and will include the following: 

The annual meeting of the NCADP isn't free - it's one of the big moneymakers for the non-profit organization, in fact.  It's definitely a worthy effort, and worth your time and money if you have any chance of getting to Louisiana over the next few days. 

Follow NCADP on Twitter as well as YouTube and its blog, Abolish the Death Penalty.

Charlotte Observer Calls for Abolishing North Carolina Death Penalty

This Sunday, an interesting twist to the recent American Law Institute's divorce from its prior recommendations regarding the death penalty occurred:  The Charlotte Observer published an editorial calling for abolishing capital punishment in North Carolina, based on the ALI's recent determination. 

As added incentive, the Charlotte Observer did point to a Duke University study and its tally of $11,000,000 that could be saved each year by the state of North Carolina if capital punishment were to be abolished.  (The Death Penalty Information Center has a free, advance copy of Dr. Cook's findings stored as a pdf on its website.)

What's the big deal with the ALI about-face?  The American Law Institute's change in position has been heralded by the Huffington Post (among others) as the biggest development regarding capital punishment in 2009.  The New York Times explains the importance of the ALI to the death penalty in this country in a well-written piece, as well. 

One has to wonder, however, as we monitor future developments in North Carolina, which is going to carry more influence in a move to abolish their death penalty:  the ALI reversal, or $11 million in the state's annual budget?  Perhaps Dr. Cook and Duke University will prove to be the bigger powerhouse here.  If money talks, $11 million should screaming loudly in the North Carolina economy. 

DPIC Releases Its Annual Report -- Fewer Executions This Year than Any Year Since 1976

The Death Penalty Information Center has tallied its numbers and released its annual report on the state of Capital Punishment in America this week.  Its eight (8) page report can be downloaded and printed in a pdf format from the DPIC site at no charge. 

There's some good news here.

When you're against the death penalty and both the federal government and a majority of states allow capital punishment, you have to find your encouragement where you can until the goal of abolishing the Death Penalty arrives.  Luckily, almost like a holiday gift and definitely as a shot in the arm after the recent Ohio activity, the research center's release arrives ...

And the DPIC report tells us that once again, there is a decline in the number of executions in this country.

For the past seven (7) years, there has been a downturn in capital punishment.  In 2009, the DPIC reports our country will have the lowest number of executions since 1976, when the United States Supreme Court reinstituted the death penalty with  Gregg v. Georgia, 428 U.S. 153  (1976).    That's great news!  Even more so, when you consider that this year's executions will total one-third of those undertaken in this country in 1994 (where the United States hit its record number of executions, 328). 

Additionally, death sentences have dropped sixty-three percent (63%) over the past decade -- so not only are fewer individuals being executed, fewer juries are sentencing people to die in the first place.  That's very encouraging, right?

Of course, the Death Penalty Information Center delves into the reasons why these numbers exist.  Considerations of the economic costs are believed to be contributing.  An availability for alternative sentences is another contributing factor that the DPIC explores.

For those of us dealing with the cold reality of the government ending the life of a citizen, the DPIC Annual Report is most welcome.  We encourage you to read it, in its entirety.

November 30 is World Day of Cities for Life - is Your City Participating?

On Monday, over 1000 cities around the world will participate in "World Day of Cities for Life," which honors the first time that the death penalty was abolished by a government -- on November 30, 1786, by the Grand Duchy of Tuscany.  Organized by the Catholic Community of Sant'Egidio of Rome, participation is growing steadily: in 2005, only 300 cities worldwide were participants and now, four years later, the total exceeds 1150. 

Cities for Life Day involves each community flooding lights upon a local monument that in some way symbolizes the effort to abolish the death penalty.  For example, in Rome the Colosseum is illuminated; in Barcelona they are lighting up the Cathedral Square. 

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Former District Attorney Sam Milsap Admits "I Made a Mistake" in Death Penalty Prosecution - 16 Years after Execution

People wonder why I am so adamently opposed to the death penalty, and then stories like this appear in the media and I, in turn, wonder how anyone can support capital punishment. 

Sam Milsap's Mea Culpa

Sam Milsap is a seasoned criminal lawyer with over 30 years experience, and for a long while he served as the head District Attorney of Bexar County, Texas (better known to most of us as the location of the city of San Antonio).  Last week, Mr. Milsap was a guest speaker in Topeka, Kansas, where the annual meeting of the Kansas Coalition Against the Death Penalty was being held.  And during his speech to this formidable group, Sam Milsap did a brave thing.  He admitted he was wrong.

Milsap explained from the podium that back in the early 1990s, he was in charge of prosecuting a young man named Ruben Montoya Cantu.  In his zeal to win -- something that every criminal defense attorney recognizes in ambitious, driven DAs -- Sam Milsap charged ahead in his case, and with only the testimony of one single eyewitness, he obtained a guilty verdict and a sentence of death for Mr. Cantu in the murder of Pedro Gomez. 

That's right.  No physical evidence.  None.  No admission of guilt from Cantu.  None.  Only the finger-pointing from one man -- Juan Moreno, who had been shot alongside Gomez as they were being robbed.   (Nevermind that the co-defendant said that 17 year old Ruben Cantu wasn't there at the time.)

Much has been written about the weakness of eyewitness testimony, so it should come as a surprise to no one when years later, Moreno changed his mind.  That's right:  the eyewitness recanted.

Or, as Milsap so eloquently described it, " ' 20 years later, my star witness says, ' I lied.'"

The Danger of Zealous Prosecutors in Death Penalty Cases

Sam Milsap must be given his due for not hanging out a "gone fishing" sign, but instead using his time and energy to do things like appear at the KCADP national conference to tell the story of how his vigorous efforts put a 17 year old to death by lethal execution in Texas.  That is a good thing, and every district attorney in the country should hear what Sam Milsap has to say.

Meanwhile, all of us must be aware of the temptations of prosecutors everywhere -- to win their case.  To acheive a personal victory, to pursue a reputation as an advocate as well as doing the job that is assigned to them.  In our criminal justice system, prosecutors have the role of proving up a case against a criminal defendant -- and if capital punishment is on the table, it's their job to try and prove its applicability in certain cases.

As Sam Milsap's story teaches, the danger here is that when a prosecutor makes a serious mistake, and the death penalty is involved, the consequences are too high.  That teenager in San Antonio is dead today, and no one can fix that -- although, from the sound of Mr. Milsap's speech last weekend, no one would like the opportunity to do so more than he. 

And Now, All Eyes are On the Governor - Will Virginia's Tim Kaine Stop the Execution of John Muhammad, the DC Sniper?

Virginia executes more people in this country than any other state than Texas, so the statistics seem to sway us toward a prediction that Governor Tim Kaine will allow the upcoming execution of John Muhammad, the DC Sniper. 

And Kaine is the only barrier betweeen John Muhammad and death. 

That's because the United States Supreme Court officially declined to hear Mr. Muhammad's appeal yesterday -- and what is unusual about that is they did so long before anyone expected them to do so.  As Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor explained in a joint statement authored by Stevens, under standard operating procedure the high court would have taken this matter under consideration during its November 24th Justices' conference. 

By declining to stay the execution in order to maintain that SOP Justice Stevens wrote, "...we have allowed Virginia to truncate our deliberative process on a matter -- involving a death row inmate -- that demands the most careful attention." 

Importantly, the Justices' statement points out a crucial problem in this case, something of which we all need to be aware:  Virginia scheduled John Muhammad's execution before all of his legal avenues had been exhausted. 

That's right -- Virginia scheduled a man for death before the legal processes had been completed, those legal safeguards that are in place to insure that no legal errors had been made.  To quote the Statement, " '[t]his case highlights once again the perversity of executing inmates before their appeals process has been fully concluded."

Perversity indeed. 

We're watching, Governor Kaine.

New DPIC Study Urges Repeal of Death Penalty On Solely a Budgetary Basis just as California inmate asks for death to get nicer Death Row digs

Today's news includes the story about the Death Penalty Information Center's new study of capital punishment costs.  Released this week, and looking solely at the bottom line, the DPIC analysis demonstrates that significant monies can be saved by eliminating the death penalty.  Since 1976, $2,000,000,000 (that's two billion dollars) has been spent on capital punishment in the United States that would not have been spent if the death penalty were not an option. 

Sure, the DPIC released its study this week in a blatant argument that today's financial times call for the end of the death penalty, regardless of the other huge arguments against capital punishment - morally, ethically, etc.   From the DPIC study:"[t]he promised benefits from the death penalty have not materialized .... If more states choose to end the death penalty, it will hardly be missed, and the economic savings will be significant."

Also in today's news:  an inmate in California is asking to be sentenced to death.  Why?  He's wanting to live on Death Row, because the prison facilities on California's Death Row are so much nicer than his current prison digs.   Billy Joe Johnson is serving 45 years for murder, and is in lockdown almost 24/7 every day.  He's waiting for the jury to return on a second murder charge -- he's been convicted, and he is waiting for his sentence.  Billy Jo is asking for his jury to come back with death, so he can move into a better residence. 

Seems like Billy Joe is helping the budgetary argument that the DPIC is advancing much more than he probably knows.  If any state budget should be looking for ways to cut costs, it's probably California....

Note:  The DPIC has published its new report on its website if you are interesting in reading the entire study.  Alteratively, the DPIC is offering a synopsis on its site if you don't want to go thru all the details.

In Depth Look at the Law: China Death Vans and the Sale of Human Organs Harvested from Death Penalty Executions

Sale of organs "illegal" in China after July 2006

In 2006, the government enacted the provisions on the "Entry and Exit of Cadavers," which officially banned the commercial sale of human organs. [136] However, the 2006 provisions failed to address the harvesting of organs from executed prisoners, leaving the 1984 order intact.[137]

The drafter of the 2006 provisions stated, "The guideline will specifically not mention the use of executed prisoners' organs, even though it's the main source of organs in China . . . . The executed prisoners' organs will not be specifically banned in this guideline or in the coming Human Organ Transplant Rule."[138]

This new legislation became effective July 1, 2006, banning the sale of human organs, requiring donors to provide written permission for the transplantation of their organs, limiting transplant surgery to certain institutions, compelling an ethics committee to review and approve all transplants in advance, and requiring institutions performing transplant surgery to verify that the organs are from legal sources. [139] The provisions attempt to regulate the transportation of cadavers.[140]

However, the provisions still provide the Chinese government with the ultimate authority on all decisions related to export matters. [141] For example, Article 8 of the provisions states, "It is strictly prohibited to trade in cadavers, and to make use of cadavers to engage in commercial activities." [142] However, Article 7 states that if Chinese customs officials are presented with a valid certificate issued by the Chinese government to approve the transport of cadavers, the body is released.[143]

In China, enacting legislation does not mean enforcing it.[144]

In China today, the reality is that the abstract principle of law is often corrupted by the wish for personal gain or the interests of the Communist Party. [145] It has been reported that organs are still being sold following this 2006 legislation.[146]

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New Tool for Those Involved in the Death Penalty Fight: a Searchable Database of Death Row Inmates that can be Edited

The Death Penalty Information Center is providing details on their website regarding a new online tool for those interested in the death penalty.  Created by OpposingViews.com, an entire database of information on Death Row inmates in this country has been provided for our free use. 

What's encouraging about this particular project is that this new database can be edited, so if you have details about any of the inmates, you can add it to the site, correct errors, etc.   You can search the list via name, state, birthdate, and other criteria.  Today, a quick search of all Death Row inmates in the State of Florida turned up 8 pages of results.

Casey Anthony Case: The Defense Requests that the Death Penalty be Taken Off the Table and Here's My Response to Your Questions, as Casey Anthony's Prior Death Penalty Attorney.

Today, the news media is reporting that defense counsel for Casey Anthony (Prof. Andrea Lyon, Jose Baez) have filed a motion with the court challenging the State of Florida's decision to seek the death penalty. 

I am proactiving providing my response to the questions that I have received already and assumedly will continue to receive regarding this issue. 

First, I am not acting as counsel for Ms. Anthony any longer and I'm not privy to the decision-making process of her defense team

Second, the legal focus of the motion is upon "aggravating circumstances" as they are defined here in Florida.  For the legal details on aggravating circumstances as well as mitigating factors under Florida law, please read my earlier articles here on the blog:

1.  Discussion of Aggravating Circumstances

2.  Discussion of Mitigating Factors

3.  Series entitled "Filicide is Different"

For my prior posts on this blog regarding the Casey Anthony case, please review:

1.  When I was on Nancy Grace last week....

2.  Another lesson from the Casey Anthony case....

3.  Five questions to ask yourself about the Casey Anthony case....

4.  Please check out my op-ed piece in the Orlando Sentinel...

Scientists Reveal DNA Evidence Can Be Faked - And It's Not Hard to Do: the implications upon Florida criminal defense

Pretty soon, looks like we're all going to know the name Dan Frumkin. Who's he?

Dan Frumkin is the author of an article in the respected journal Forensic Science International: Genetics where he writes that DNA evidence can be created in a lab - TOTALLY FABRICATED - and he warns that the real possibility of DNA evidence being faked is not being sufficiently recognized in today's world, where everyone has been considering DNA evidence as being rock-solid, dependable proof of guilt or innocence.

Together with his team of forensic scientists, working in laboratories located in Tel Aviv, Israel, Dan Frumkin has backed up his warnings with concrete demonstrations of what can be done: not only can someone's blood and saliva samples be twisted into a replica of someone else's (think anonymous donor samples altered into that of pending criminal defendant), but even more terrifying, a mere review of a DNA file on a computerized database gives these scientists sufficient information to create DNA evidence that replicates that file - without ever touching any human blood or saliva at all.

They went further.  They also demonstrated how this bogus DNA can easily be planted at crime scenes -- either on human tissue or on inanimate, touched surfaces.   They actually did all this --- and then Frumkin wrote this paper to warn the world that DNA evidence isn't nearly as reliable as universally assumed.

How hard is this to do?

Not hard at all. According to Dan Frumnkin, any Average Joe with some basic science know-how under his or her belt and access to some simple lab equipment can cook up "practically unlimited amounts" of phony DNA.

Now, let's add the phrase "prosecutorial misconduct" to the mix.

Long ago, the United States Supreme Court was confronted with overzealous prosecutors monkeying with cases to get a conviction, and warned us all that prosecutors should "prosecute with eagerness and vigor" but may not use "improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78 (1935).

That warning didn't stop things.  There are countless cases of prosecutorial misconduct on file in this country today -- fingerprints mysteriously placed at crime scenes, guns or weapons dropped by bodies, documents gone missing from a file, the list of examples is endless.   In fact, studies on the impact of prosecutorial misconduct reveal that Florida topped the list of states with prosecutorial misconduct: in Florida, 44% of cases appealled with a claim of prosecutorial misconduct were overturned.  That's almost HALF. 

The potential implications of this Israeli study -- and warning --  by Dan Frumkin upon criminal defense in the State of Florida is mindboggling to consider.  What will we do to insure that there hasn't been a frame-up?  Will the Innocence Project arguments be tainted now? 

What's the impact upon people like David Eugene Johnston, setting on Florida's Death Row while the Florida Supreme Court awaits DNA test results from a North Carolina lab?  Johnston was scheduled to be executed in May.  DNA testing may save his life - but will the State use Frumkin to muddy the waters?

The High Cost of the Death Penalty: Capital Punishment is Very Expensive

In these economic times, there has been significant media coverage of various states considering the banning of the death penalty -- not on moral grounds or arguments about its ineffectiveness in crime prevention, but on the simple argument that it costs too much.   That's right:  it is cheaper to keep someone incarcerated for the rest of their lives than it is to kill them, ending their life on a set calendar date. 

How can this be?  How is the death penalty so costly?

First, asAmnestyUSA points out, there are the trial costs.  When a prosecutor decides to seek the death penalty, the cost of litigation skyrockets.  Discovery -- investigation of the crime -- becomes more intensive and therefore, more expensive.  There is a heavier motion practice in a death penalty case.  And, remember, once the death penalty is on the table, attorneys are preparing for not one but two trials -- first, the conviction phase (deciding guilt or innocence) and then the penalty phase (determining the sentence). 

That second trial, the sentencing phase of the case, can be extensive in preparation and presentation.  Aggravating circumstances must be presented to the factfinder with evidence that is authenticated and admissible.  Mitigating factors must likewise be provided to the jury.  Often, expert testimony will be provided by several leaders in their fields (scientific or forensic experts, mental health experts, etc.).  Death cannot be imposed upon someone who has been found guilty of a capital crime without all due process efforts being exhausted.

Second, there are the appeals that must follow any complicated capital punishment case.  Post-conviction proceedings will be filed.  These will take time.  Appellate courts will grade the papers of the trial court to insure that the law has been followed.   One growing concern is insuring that the defendant had effective assistance of counsel during the conviction phase.  Sometimes, appellate courts will be asked to consider the revelation of new evidence or the reconsideration of old evidence based upon new technology (such as new DNA testing procedures).   The appellate process in death penalty cases is time consuming and expensive, as well.

What kind of numbers are we talking about here, in terms of cost?

The Death Penalty Information Center has compiled a list of studies done regarding various states in the country, and how much they might save annually if they banned capital punishment.  According to the DPIC, Florida would save $51,000,000 each year and California would save a whopping $125,500,000 each year.

That's annually.   Which means - using the DPIC numbers -- that over a five year period, Florida would save $255,000,000 -- that's a quarter of a billion dollars -- and California would save an astounding $627,500,000 during the same five years.  

Surely this practical, basic argument merits serious consideration by even the most ardent supporter of capital punishment.   Especially for a state that is currently handing out IOUs ....

In Depth Look at the Law: The Judges' Dilemma: They Have to Meet the Constitutional Mandate of an Indigent Defendant's Right to Effective Assistance of Counsel

At this juncture, we've got lots of criminal defendants needing constitutionally-guaranteed representation, and an overwhelmed public defender's office as well as a beleaguered OCCCRC. So, who's next at bat? The private attorney licensed by the State of Florida.

Let's consider the complex criminal case. Major felonies, multiple defendants. Criminal cases that involve more than two indigent co-defendants (or any case where both the Public Defender and the OCCCRC both have a conflict of interest) are handled by private criminal defense attorneys, who are then paid by the government for their time and expenses. Chapter 2007-62, § 27.40(2)(a), Fla. Stat. (2007).

How Big Was the Loss of Attorneys Willing to Take Appointments after 2007? Huge. HUGE.

Earlier, we discussed how the 2007 revision to the appointment statutes caused many criminal defense attorneys to take their names off the county lists of attorneys voluntarily making themselves available for appointment. It was not because these attorneys didn't want to represent the poor people of Florida - the changes in the statute made it impossible for them to do so. Many defense attorneys simply could not afford to do the work and stay open for business.

One news report has shown that after the Legislature's action in 2007, the appointment list for the Tenth Judicial Circuit dropped sixty percent (60%), leaving just one (yes, 1) lawyer who was legally qualified to defend someone, as lead attorney, in a capital case. (Don't you know that is one busy lawyer?)

Practically speaking, in the criminal courtrooms of Florida, defendants continue to come before the bench and announce themselves as unable to pay for legal counsel on their own. According to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 791 (1963) and its progeny, these folk are still deserving of legal assistance (the proverbial "effective assistance of counsel" under the 6th Amendment) and the government must provide them with an attorney. The judge has a legal duty he must meet.
Faced with Gideon, what are Florida Judges doing? Throwing attorneys under the bus sounds harsh, unless you're the attorney caught in the crossfire. Because that judge has to find an attorney somewhere, and the Legislature isn't giving that judge much of a choice.

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The Catholic Perspective on the Death Penalty

Today, FloridaCatholic.org published on its website a 12-page synopsis of the Catholic position regarding the death penalty, and in doing so provides readers with a solid, easy read on why the Catholic Church is vehemously opposed to Capital Punishment.

I highly recommend that those interested in this issue take the time to read through this article, as well as the links it provides. It's not easy to take such a complicated issue and hone it down into a concise presentation such as this, and my hat's off to writers Laura Dobson and Denise O'Toole Kelly for their efforts.

In Depth Look at the Law: Florida's System of Insuring Legal Representation for the Indigent Must Be Changed

In our new series, we'll be looking at Florida's indigent defense system, particularly as it applies to cases where capital punishment is being sought. How are attorneys chosen and compensated for representing the criminal defendant who is without funds to pay for his own defense, especially those facing the death penalty? How is Florida's current indigent defense system critically flawed?

The Florida Legislature Provides for Compensation of Attorneys Who Represent Poor (Indigent) Criminal Defendants in State Matters

First, let's review the action of the Florida Legislature in the past few years. Before the current system was put in place, Florida provided for indigent criminal defense through Chapter 27 of the Florida Statutes. There, a collection of private criminal defense attorneys offered themselves for appointment by the courts in the defense of impoverished defendants in criminal cases under Judicial Administrative Commission (JAC) contracts. The attorneys worked on behalf of their clients, who were entitled to representation by an attorney under the law. In return, these attorneys were compensated by the government.

The 2007 Changes by the Florida Legislature Made Appointments Financially Not Viable for Most Criminal Defense Attorneys

The Chapter 27 system was changed, however. Under the new statutes, Chapter 2007-62, Florida indigent criminal defense effectively discouraged attorneys from placing their names on the list for court appointments and JAC contracts. This occurred in several ways:

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Orlando Sentinel's Sarah Lundy wrote a great article this week

On Wednesday, an article by journalist Sarah Lundy appeared in the Orlando Sentinel entitled, "Only Florida's Governors can say how they pick execution order."

In it, Lundy explores the reality that Florida governors mysteriously choose to grant clemency only to a select few on Florida's Death Row and no one knows how or why their decisions are made. Great read.

San Francisco Federal Jury Convicts Defendant Dennis Cyrus and Returns Next Week to Decide Death Penalty - Will They Sentence Cyrus to Die and Break a 63 Year Run?

Yesterday, the jury came back in a San Francisco federal courtroom, and found Dennis Cyrus guilty of a number of gang-related acts, including the murders of three men - including Ray Jimmerson, who had informed the cops about the gang's assorted criminal activities.

The Distinction Between State and Federal Prosecutors

It was the first time since 1991 that San Francisco has seen a trial where capital punishment was even on the table - two of its district attorneys had followed an internal determination not to seek the death penalty, even if the law allowed for capital punishment. But they are state officials, and this is a federal proceeding.

Over in the Northern District of California's federal district court, the U.S. Attorney makes the call on whether or not to ask for the death penalty, and this U.S. Attorney has decided to do so in Cyrus' case. It's the first time since 1946 that the federal prosecutors have sought the death penalty in the Northern District. The last time that the U.S. Attorney's Office in this federal district asked for capital punishment in a crime was in the 1946 trial of two men who had escaped from Alcatraz and in the process, had killed two guards and three prisoners.

So why now, 62 years later, is capital punishment being sought? Why now? Why Dennis Cyrus?

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The Checklist for Death Penalty Qualified Criminal Defense Attorneys in Florida

So far, we have three posts (03/27/09; 04/16/09; 04/20/09) that deal with the role of a judge - at both the trial and appellate levels - in a death penalty case. There's a lot more to consider about the impact that judges have in death penalty considerations, but before we delve further into their role, it seems wise to bring the attorneys into the mix.

First, the criminal defense attorneys. (Next, the prosecutors.)

Before a lawyer can represent a client who is facing capital punishment in a Florida case, he must meet many, many requirements. Why? The Florida legislature as well as the Florida courts have recognized that when a defendant's life is at stake, his legal counsel plays a vital role in making sure that due process of law is achieved.

Once again, it's about your right to due process of law

Every aspect of due process must be vigilantly protected when the State is seeking to kill a defendant as punishment for actions that defendant has allegedly done. The ability of the government to take a citizen's life must be scrupulously monitored and restrained - this is one of the key purposes of our due process standards.

Remember, as Justice Rehnquist alluded to in the Brady Opinion (04/20/09 post), the focus is on the state, not the individual defendant. Anything but the strictest of due process standards in death penalty cases risks the horrors of a fatal error.

Today, even with our due process standards in place, there are many innocent people who have been sent to Death Row, as the Innocence Project can readily confirm. Some innocent people have been executed in this country. Due process is not perfect - after all, it's a manmade construct -- but it's the standard that we have set in our judicial system. It's the best we can do, and our jurisprudence is always attempting to hone and better our due process standards.

Death Penalty Criminal Defense Attorneys in Florida

Perhaps the most important role from a due process perspective in a death penalty case is that of defense counsel. The trial judge, of course, vigilantly monitors each step of the legal process, but it is the defendant's own attorneys that must make the objections to possible violations, and fill the record for appeal with the proper procedural foundations when errors are made.

A trial judge cannot rule on an objection that is not made. An appellate judge cannot rule a point of error left unaddressed.

Different states have different requirements for their death penalty defense attorneys, as does federal law for federal capital punishment cases. In Florida, a specific checklist provides the legal requirements that a criminal defense attorney must have before he sets as lead trial counsel, trial co-counsel, or appellate counsel for a defendant facing the penalty of death.

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Update -3: The FACDL Death is Different 15th Annual Death Penalty Seminar

FACDL Death Penalty Seminar, Day 3:

On Day 3 of the FACDL Death Penalty Seminar, it was my turn to speak on "Creative Motion Practice," which more accurately should be described as "Courage Under Fire."

Courage is what we, as death penalty attorneys, must muster in the face of horrible facts, a judge who loathes the client, a prosecutor who is determined to kill the client, the blood-lust of some members of society, and even the media-induced witch hunt against a client.

This is the type of courage that lawyers like Adam Tebrugge and Jose Baez demonstrate on a daily basis: Adam in the face of horrible evidence against his client, and Jose in his fight for his high-profile client.

In the face of all this, we must find the strength to file even those motions that we know will not be granted. We must do this, not only for the sake of due process and justice, but because sometimes, just sometimes, those motions are granted, and we win.

When the odds seems insurmountable and the outlook is bleak, we need to reach down deep inside and find the courage to write and argue one more time.

Update -2: The FACDL Death is Different 15th Annual Death Penalty Seminar

FACDL Death Penalty Seminar, Day 2:

Day 2 of the Death Penalty Seminar was a long day, but well worth the time. One of the highlights of the day was a speaker on False Confessions, Detective James Trainum.

Det. Trainum is the project director for VICAP's Violent Crime Case Review Project. In his session, Detective Trainum shared his own compelling and moving personal experience with a false confession. In his step by step deconstruction, Det. Trainum took us through the entire investigation to the discovery and gave insight on how to spot and fight a false confession.

The day ended with an inspirational session by the pioneering capital defense attorney and professor of law at DePaul University, Andrea Lyon. Prof. Lyon was the first woman to sit first chair in a death penalty case in the United States. After sharing some of her techniques, she brought most of the audience to the verge of (if not to actual) tears with her demonstration of a closing argument.

Congratulations to Gerry Spence - Inducted into Trial Lawyers' Hall of Fame

I want to congratulate Gerry Spence on his induction into the Trial Lawyers Hall of Fame last week by the American Trial Lawyers' Association.  With this accolade, Gerry is joining the likes of Clarence Darrow and John Adams.   

I speak from firsthand knowledge that Gerry Spence is truly deserving of such an honor as I have been been very active in Gerry Spence's Trial Lawyer's College since 2001 and I have also been honored to attend his Death Penalty College


For more information about Gerry Spence, visit www.gerryspence.com and www.triallawyerscollege.com.

Looking at the Current Fight over the Death Penalty in the State of Maryland

Maryland, like many other states, is reviewing its death penalty laws for purely cost-cutting reasons. However, there's something to be considered in the current media coverage of the Maryland debates - which are going on right now.

Why are the Maryland arguments so interesting to consider?

This is a particularly interesting jurisdiction to ponder since Maryland has the second-highest murder rate in the nation - due in large part to the homicide rates for the metropolitan area making up Baltimore, Maryland.

In other words, the argument can be made that these homicide rates suggest that there would be more opportunities for imposing the death penalty in Maryland than in other locations where violent crime rate are much lower (say, Montana).

What's happening this week?

The Maryland lawmakers are hearing testimony and tinkering with language as they consider enacting new Maryland law on capital punishment.

With this background, consider these high profile arguments being made:

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"In Cold Blood" Prosecutor's Arguments to Keep and Expand Kansas Death Penalty - The Argument for the State's Authority to Kill, in a Nutshell

You may not remember Duane West from the Truman Capote nonfiction novel, In Cold Blood, or the movies that were made based upon that book (there have been several) ... but Duane West was the district attorney who won his case to have Richard Hickock and Perry Smith put to death for their killing of the Clutter family in the middle of the night in their Holcomb, Kansas, home.

"In Cold Blood" D.A. Responds to Kansas Legislature's Possible Death Penalty Budget Cut

Today, the Kansas Legislature is facing a possible $650,000,000 deficit for their 2010 budget, and they are seriously considering ending capital punishment as solely a budgetary measure. In response, Duane West has taken to the media to voice his vehement objection to this ever happening - and what he is saying for Kansas is what lots of prosecutors and death penalty advocates say a lot of the time (quoting West in the Kansas City Star):

1. Instead of doing away with the death penalty, more crimes should be made eligible for capital punishment.

2. It is the prosecutor's duty to protect and serve - just like every other member of law enforcement. Part of that duty may be to ask for the death penalty in certain cases, for the protection of the public and in service to the law.

3. There are cases where individuals, from the perspective of the prosecution, should be put to death because otherwise they will kill again.

4. Having a death penalty may be the only deterrent in some situations, with West giving the example of a pending Kansas capital punishment case where the state is seeking the death penalty against three former Hutchinson Correctional Facility inmates who are accused of murdering a fellow prison inmate. West's argument is that for prison inmates already serving significant time, capital punishment may be the only deterrent to killing behind bars.

5. Finally, Duane West doesn't buy the argument that capital punishment costs so much more than life imprisonment, because almost every case with a murder conviction does go up on appeal.

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Capital punishment is expensive and now, the death penalty becomes a part of state budgetary concerns

Last week, the Associated Press reported that Nevada lawmakers were proposing a moratorium on capital punishment in that state (to last until 2011) so they could have time to figure out how costly it was on the state to kill people for crimes they had done.

In Kansas, state senators are pushing a bill through their state legislature, hoping to abolish the death penalty because they say it's too expensive when the economy is so bad.

In Maryland, where they've got a budget deep in the red, Governor Martin O'Malley is promoting the repeal of the Maryland death penalty statute because of the potential savings to the state coffers.

Florida is in a similar situation - more on that next time.

The Death Penalty is Expensive - and by Expensive, I mean Seven-Figures

You'd think that it would cost more to house someone for life, rather than just execute them and be done with it. But you'd be wrong.

Over at the Death Penalty Information Center (link below), they collect lots of financial data for the various state's capital punishment costs (federal as well).

Money talks: as you peruse these studies, you'll find that each death row inmate will cost a state at least a million dollars ($1,000,000) more than if that same inmate were given a life sentence without parole and imprisoned with other lifers. For some states, it's more like $2 million, or even $3 million.

That's a lot of moola for EACH person setting on death row.


Associated Press


Joplin Globe


Baltimore City Paper


Death Penalty Information Center


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