Terry Lenamon on the Death Penalty : Lawyer & Attorney Terry Lenamon on Capital Punishment Defense, Death Penalty Trials & Appeals | Law Firm

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. 

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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. 

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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. 

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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.

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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: 

• Exhibitions by such noteworthy organizations as (a) the Kentucky Coalition Against the Death Penalty: (b) Equal Justice USA; (c) the Justin Wolfe Project; and
• Panels of nationally recognized leaders in their fields, discussing such topics as (a) People Affected by the Criminal Justice System; (b) Conservative Voices Opposing the Death Penalty, Building Bridges to Political and Religious Conservatives; and (c) Innovative and Effective Response to Crime and Violence.   

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.

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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. 

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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.

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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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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. 

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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.

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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.

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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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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.

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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...

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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?

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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 ....

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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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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.

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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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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.

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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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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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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.

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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.

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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. 

Congratulations!

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

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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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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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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.

Sources:

Associated Press

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/03/04/state/n101927S35.DTL&type=politics

Joplin Globe

http://www.joplinglobe.com/statenews/local_story_064225711.html

Baltimore City Paper

http://www.citypaper.com/story.asp?id=17549

Death Penalty Information Center

http://www.deathpenaltyinfo.org/costs-death-penalty

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