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

Today, the Kentucky Supreme Court issued a ruling that no one is going to be executed in the State of Kentucky until things are done by the book regarding the lethal injection killing method.  The high court set no deadline on when capital punishment might resume in Kentucky, either.  Its formal opinion is already published online at the court's official web site.

The story starts with Ralph Baze

Ralph Baze sits on Kentucky's Death Row after being convicted and sentenced to death by lethal injection for the murder of Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, Kentucky, back in 1992 while the lawmen were trying to arrest him.  (Baze unsuccessfully urged self-defense.)   After his conviction, Baze joined with fellow Death Row inmate Thomas Clyde Bowling, Jr. in a constitutional fight.

Baze and Bowling both argued by appeal that execution of someone with the three drug "cocktail" established by Kentucky law (and used here in Florida, as described in our earlier series) constitutes cruel and unusual punishment and is therefore unconstitutional under the 8th Amendment. 

Baze v. Rees (Baze's appeal) was heard by the United States Supreme Court, and in April 2008, that court ruled that the three drug cocktail did not violate the constitution.  Ginsburg and Souter dissented.

Baze did not stop there.  He then urged a state appeal (joining with Bowling) challenging state procedure, and the Kentucky Supreme Court has heard him. 

What the Kentucky Supreme Court Ruled Today

In today's opinion, the state high court has found that the legal steps that are taken when Kentucky puts a condemned man (or woman) to death through the use of its three drug cocktail have to be specified -- spelled out -- in a state regulation.  

Writing for the majority, Justice Abramson states, ""[t]his court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes."  The opinion then orders the Kentucky Department of Corrections "...to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute...." 

This will take time.  An adminstrative regulation doesn't just get voted upon by some group -- due process requires much more than that.  What the Kentucky Supreme Court has done is to require the agency to write a regulation and then formally debut it as proposed law.  Then, the public gets a say in the matter as there is a set amount of time for public contributions on the language of the proposed regulation.  Things are discussed, edits may happen.  And only then is the proposal taken to Kentucky's Administrative Regulation Review Subcommittee, an arm of the state legislature that votes to adopt/reject the proposal.

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Representing clients facing the sentence of dying by the government's hand for crimes they have allegedly committed is what I do.  And, while I represent clients in both phases of a death penalty case, I am particularly known for my work in representing defendants during the sentencing phase. 

So, I'm watching Wood v. Allen with particular interest as it winds its way through review by the highest court in the land.

By way of background, a man named Holly Wood was convicted in an Alabama court of killing his girlfriend.   He was sentenced to die for this act.  Mr. Wood was represented by defense counsel, and Mr. Wood is now arguing that he received ineffective assistance of counsel at the trial because one of his trial lawyers failed to introduce key evidence during the sentencing phase of the trial. 

What was that crucial evidence?  It was evidence of a mitigating factor to be considered in Mr. Wood's sentencing -- that he was mentally retarded. 

Holly Wood had three lawyers during the trial, but like many death penalty cases the defense duties were divided, and it's uncontested here that the lawyer responsible for the sentencing phase of the case was a novice.   And here is where things get complicated.

As Mr. Wood's case manuevered through the waters of the state appellate process, his appellate counsel argued that this novice attorney did not provide adequate representation -- and all the state reviewing courts failed to agree.  Instead, they held that Wood's more experienced counsel intentionally withheld the mental retardation evidence as part of their overall trial strategy. 

Entering the federal appellate system under a writ for habeas corpus under the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal district court went Wood's way and the Eleventh Circuit Court of Appeals reversed, opining that that the AEDPA limits review to "...whether there is evidence to support the state courts' findings" and the Alabama court's fact finding was reasonable since Wood failed to show that the defense decision not to present the evidence was not strategic.   Of course, there was a strong dissent which wisely pointed out that the Eleventh Circuit opinion was based upon nothing but "pure speculation" that not presenting key mitigating evidence was a "strategic decision."

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Our system of justice is built on the belief that it's better to let a guilty man go free than to imprison - or kill - an innocent man for a crime he did not commit.  That's why there are all those procedural hurdles from the beginning of an investigation all the way through that last minute request for stay of execution.

This dedication to protecting the innocent threads through the controversy surrounding Texas Chief Justice Sharon Keller and her infamous "the clerk's office closes at 5:00" phone call.   It's why the DNA revelations of Israel's Dan Frumkin are reverberating around the world.   It's why the Innocence Project exists.  

It would seem self-evident that the continued revelations from our scientific community, particularly the new DNA warning by Frumkin, would obviously balance against any continued use of capital punishment, given the fragility of reliablity of prosecution evidence over time. 

Wouldn't it?  This seems obvious from the defense counsel's perspective.   This seems to be what our system of justice and the parameters of due process require. 

Maybe it takes something that hits home, touches people's hearts for this truth to become self-evident.  Sometimes there is the one case that really hits home with a lawyer -- and in The Huffington Post today, Cy Vance (a veteran criminal lawyer currently running for District Attorney of Manhattan) gives us an eloquent piece on the case of Cameron Todd Willingham.

Willingham may well have been another innocent man executed by the State, whose innocence was revealed after his death due to scientific advances that gave more details to the evidence found at the scene of the crime.  Willingham's case is particularly poignant because he was convicted and killed for the death by fire of his own children.  Now, arson experts are saying that this was never an arson case, the fire was not intentionally set. 

I highly recommend you take the time to read what Cy Vance has voiced about the Cameron Todd Willingham case, as well as the death penalty overall.  It's worth your time.  And it really demonstrates, concretely, that continued technological advances is one of the biggest argument against the death penalty.

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This week, the New York Times reports that dissents are increasing in federal cases, based in large part upon judicial frustration with the Antiterrorism and Effective Death Penalty Act of 1996.   According to their investigation and research, this single statute has been the basis of 6 -24 dissents per year in federal death penalty appeals. 

What is the Antiterrorism and Effective Death Penalty Act of 1996?

The Antiterrorism and Effective Death Penalty Act of 1996 is a federal law that was passed by Congress in response to concerns that Death Row inmates were taking advantage of loopholes in the appeals process.  What AEDPA does to correct this concern is to put boundaries on what the federal appellate court justices can take into consideration when called upon to review a death penalty appeal.  The federal appellate courts must limit their review in state court cases where the death penalty has been imposed to certain specific areas. 

Specifically, AEDPA allows federal judges to grant relief in a death penalty case only if  the state court decision is found to be:

1. contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or


2. based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

AEDPA does other things as well.  It bars certain habeas corpus petitions.  It cuts off the power of the U.S. Supreme Court from reviewing lower  federal court decisions denying an inmate permission to file a habeas corpus petition in certain circumstances.  It establishes specific review provisions in death penalty cases arising out of states that have set standards for performance (e.g., "death penalty qualified") on attorneys involved in representations at the penalty phase of a death case (the sentencing trial).   These are a few examples of the powerful impact AEDPA imposes upon capital punishment review nationally.

What's the Impact of All These Judicial Dissents?

Dissenting opinions ("Dissents") from justices of the U.S. Supreme Court are commonplace today -- sometimes short, sometimes long, they're always there to give further explanation as to the reasoning of the particular justice.  We've come to expect them, particularly on the big issues. 

Justice William O. Douglas loved dissenting opinions, for example, and wrote 486 of them (he also dissenting in another 309 cases, but didn't bother to write an opinion for them).  And, of particular import here, Justices Thurgood Marshall and William Brennan, Jr. became famous for their dissenting opinions in death penalty cases.   Both were adamently opposed to capital punishment, and used the opportunity offered by the dissenting opinion to offer eloquent and persuasive arguments against its legality.

And it's true that dissents can be used to persuade others.  Marshall and Brennan saw the power in dissenting, and the New York Times article points to the power of the growing number of federal appellate judges who are opposing the AEDPA via the tool of a dissenting opinion.  

Dissents are power, they give judicial voice to perceive injustice and persuade an alternative viewpoint, sometimes offering a solution or optional outcome. 

Bringing the Case Home -- This is Life or Death For Troy Davis

Earlier, we posted about Troy Davis and how Mr. Davis may well be an innocent man executed by the State of Georgia.  Right now, a second habeaspetition sits before the United States Supreme Court -- with an Eleventh Circuit Opinion denying Mr. Davis's requests and amici curaie supporting him growing by the day as well as a swelling public outcry by the likes of Pope Benedict, Georgia Governor Sonny Perdue, Rev. Al Sharpton, and former U.S. President Jimmy Carter.  

Dissent in Davis's case before the 11th Circuit

The Eleventh Circuit voted against Davis 2-1.  The majority opinion is based upon two AEDPA requirements, which were found not to be met by Davis.  Since Davis failed to meet these "gatekeeping requirements," his petition was rejected, preventing Troy Davis from getting that new trial. 

Rosemary Barkett filed a dissent.  In her opinion, Judge Barkett wrote:

 "[t]he majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA.  But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed.^"

The U.S. Supreme Court Has Davis's Life and the future of the AEDPA in its hands

How the U.S. Supreme Court decides to handle AEDPA in Mr. Davis's situation will determine whether or not Troy Davis dies.    Surely Judge Rosemary Barkett felt the importance of her words as she wrote her dissenting opinion -- but we don't know yet how persuasive Judge Barkett has been. 

The Supreme Court may well choose form over substance and let Troy Davis die rather than upset the apple cart of the AEDPA.  And, no matter how powerful a dissent from a United States Supreme Court Justice may be, it will be of cold comfort to Davis's family and friends if the High Court fails to grant Davis' request in its majority opinion.

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John Marek's attorneys are fighting hard to stop the State of Florida  from killing their client.

Today, they filed an appeal with the highest court in the land, the United States Supreme Court, to try and stop the execution of John Richard Marek.  With the Florida Supreme Court ruling that it will not hear anything further in this case, Marek is left with only the U.S. Supreme Court and the Governor of Florida between him and an otherwise certain execution.  (Read docket notice of Marek's Motion to Stay Execution here -- Justice Thomas is assigned to this request. )

What arguments can Marek possibly make to the U.S. Supreme Court now -- over 25 years after the crime occurred for which he was convicted, and within two weeks of his scheduled execution?  Lots of people don't understand the importance of the appellate process in death penalty matters, but Marek's case gives us some idea of how vital appeals can be.  When the government is about to kill one of its own citizens, then the courts must insure that the government is not violating any legal rights in doing so. 

And it appears that Marek has some valid legal arguments to make, such as:   

Evidence that Marek Was Not the Killer

It is not contested at this point that Marek was present at the scene where Adella Simmons was murdered one night on Dania Beach, back in 1983.  However, there is evidence that Marek did not kill the woman that he and his buddy, Ray Wigley, picked up on the Turnpike where her car had broken down. 

The evidence comes from Wigley himself.  Seems he admitted to killing the woman to several folk while he was incarcerated.  Those inmates have come forward with testimony that Ray Wigley -- who was not sentenced to death, as Marek was -- told people on several occasions that he murdered Ms. Simmons, not his pal Marek.  Wigley himself cannot testify.  Wigley is dead.

Past Appellate Arguments Regarding Recusal of Trial Court Judge 

Part of Marek's earlier arguments have been based upon the issue of when a judge should recuse himself.  (For those interested, the Reply Brief filed by Marek's counsel before the Florida Supreme Court is online for viewing.)  This is an issue recently addressed by the US Supreme Court. 

In a far-reaching decision released this past March,  Caperton v. A.T. Massey Coal Co. [08-22] (5-4 opinion),  the high court recognizes that due process is violated when someone is before a trial court judge has "...had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent...." and that judge does not recuse himself (withdraw from presiding over the matter).  Caperton has been criticized for not giving enough direction on when a trial judge should and should not recuse himself (as the dissents themselves discuss), therefore judicial recusal is a topic in Marek's appeal which may be of interest to the Justices. 

What is Before the US Supreme Court Right Now Regarding John Marek

First things first.  Justice Thomas is overseeing the Motion to Stay Execution.  Of course, halting the killing scheduled in 12 days is the first priority.  Afterwards, the Petition for Writ of Certiorari and Motion for Leave to Proceed In Forma Pauperis will be heard.  The deadline for the State of Florida to respond is September 7, 2009.   As of this posting, briefing was not available for review.

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Here in the United States, it depends upon which state you're considering -- some states have the death penalty, some do not. Some are zealous in executing those on Death Row (think Texas), others have inmates living on Death Row for years and years (think Oregon).

However, in Japan, things are different. Japan has the death penalty for treason and murder (usually, multiple murders with aggravating factors). There's only one method of execution: hanging. And the execution is performed within a prison facility, in an execution-designed room.

The Japanese inmate is told that he is going to die on the date of the execution. No advance notice. He or she does get a last meal of their choosing. No one is invited to watch the hanging, and the inmate's family (as well as his lawyers) are told of the death after the execution has taken place.

The Japanese Death Row is different than the United States, too. All Death Row inmates live in solitary confinement. Two exercise periods per week are given with no exercise allowed in the cells, and they can have only three books. No TV. Visits are not often and all visits are supervised. Death Row inmates cannot talk with each other.

This week, Japan executed Three Men

In a press release yesterday, the locals as well as the world learned that three men had been hung by the Japanese Government as punishment for their crimes. This brings the total number of executions in Japan for this year to 7 (Japan executed 4 men this past January). Last year, Japan carried out 15 death sentences.

The three men? All convicted of murder, ranging in age from 25 to 41. Hiroshi Maeue, 40, was convicted of three murders in 2005. Maeue was found guilty of finding victims through the internet, where they had posted on a type of suicide forum. Yukio Yamaji, 25, was convicted of the sexual assault and murder of two sisters, also in 2005. Chen Detong, 41, was convicted of the robbery and murder of three roommates, back in 1999. Two of the hangings took place in the Osaka facility, the third in Tokyo.

Let's Consider the Differences

Japan doesn't take as long to go from conviction to execution. There's no advance warning to the inmate, and there's no comfort to the inmate or his loved ones by any goodbye, or being present at the time of execution. Of course, the victims' families aren't allowed the opportunity of closure by being present at the execution, either. No lawyers are there. And, the method of execution is considered by many to be cruel and unusual punishment - one wonders why Japan doesn't follow the trend of lethal injection. Capital punishment may not happen as often as it does in the United States, but when it does occur it is a secretive event whose speed and absence of review and witness would not be tolerated here.

If there must be capital punishment in this country -- WHILE there is capital punishment in this country -- at least we can take some small measure of comfort in recognizing all the benefits that our due process protections provide us.

It is a horrific thing, to consider that the government kills its own citizens. But at least we get to be present to take comfort in being there for those last moments, and thank God we have procedures in place (like WITNESSES) to make sure those deaths are not cruel and inhumane.

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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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Around twenty years ago, a cop was gunned down in Savannah and Troy Davis was caught and convicted for the crime. Nineteen years old at the time, he was sentenced to die, and he has watched all this time pass - 1989 to today - from a small, bleak Death Row cell over in Georgia.

Teen Sent to Die Without Any Physical Evidence

Davis has consistently maintained he is innocent of this crime. Over the years, the evidence used against him has slipped away: 7 of the 9 witnesses who testified Davis did it have changed their minds and recanted their testimony. Oh, and there never was any physical evidence linking Troy Davis to the crime. It's all eyewitness testimony.

No gun. No bullets. No blood or bone or anything else to use DNA testing on - like they seem to always have in CSI or NCIS.

One of Two Remaining Un-recanting Witnesses Is Rumored to be the Real Killer

Meanwhile, there has been some witness identification of another man as being the shooter - a man who is still free, and has been free all the while that Troy Davis has lived his life behind bars. And, rumors have it that this shooter just happens to be one of the two remaining witnesses that pointed their fingers at Troy Davis and didn't recant later. Wow.

Why the Troy Davis Case?

We're visiting the Troy Davis case this week, because the U.S. Supreme Court isn't. The high court has just taken off on its summer vacation, and before they hung up their "gone fishing" sign, a clerk took the time to notify Davis's attorney that they'll get around to deciding his case when they come back to work in September.

Which means that Troy Davis, who has been through the wringer more than once already (he was two hours away from being executed in September 2008 when the U.S. Supreme Court stayed the killing), must wait some more.

The U.S. Supreme Court has Waffled

Last September, the U.S. Supreme Court halted Troy's execution. Then - less than two weeks later - the Supremes decided they wouldn't intervene, and released the hounds as it were for Georgia to proceed with the execution. The cavalry appeared in the form of a federal appeals court in Georgia, which granted a temporary stay of execution and let Davis have the chance to continue his appellate fight.

By its decision, the U.S. Supreme Court last fall was telling Georgia that it would not consider the legal issue of whether or not it is unconstitutional to impose the death penalty when new evidence has been brought forth that shows the inmate's innocence. (This doesn't seem like a hard question to answer, but they refused it anyway.)

With Troy Davis back before them, Georgia considered the possibility that there might be evidence that proved Davis to be innocent, and then denied his request for a new trial - but was nice enough to hold off on capital punishment to let Troy Davis return to the U.S. Supreme Court.

Oh. The Georgia Pardons and Parole Board held hearings, too, and even interviewed Davis and the witnesses all over again ...and then denied clemency. Don't know much about this Board, and apparently no one else does either. No records are made; their hearings aren't open to the public.

Davis is black, the cop was white - and Davis is asking for a new trial, not a free pass

Did I fail to mention before this that Davis is black, the cop was white? Well, some folk think this fact is important.

Did I fail to point out that all Troy Davis is asking for is just the chance to have a trial where this exculpatory evidence can be brought before a factfinder? He's not asking for mercy, he's asking for justice.

Troy Davis has some very big supporters in his corner. Like the Pope.

And lots of people think that Troy Davis deserves another trial, to have a chance to bring forth this new evidence. Over 60,000 U.S. citizens have signed a petition asking for just that ... and there's been a lot of public outcry as well, from some people that you may recognize, like:

1. The Pope. Yes, Pope Benedict XVI knows about Troy Davis's case.
2. The European Union. Yes, all 27 countries have cohesively offered their support.
3. Desmond Tutu of South Africa, winner of the Nobel Peace Prize.
4. Former U.S. President Jimmy Carter.

Laura Moye of Amnesty International has been quoted as saying that this "gone fishing" delay of the U.S. Supreme Court is good, because it gives Troy Davis and his supporters more time to get publicity for his plight: to let people know that an innocent man is facing execution over in Georgia if nothing happens to stop it.

So, here's my little bit of publicity for Troy Davis. Please, spread the word.

For more information, please visit: Take Action for Troy

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One attempt at solving the indigent defense problem was the creation of a state agency made up of five offices to be called Offices of Criminal Conflict and Civil Regional Counsel ("OCCCRC") by the Florida Legislature in Chapter 2007-62. The idea was that full-time attorneys on a set salary in these new regional offices would theoretically solve at least part of the judicial appointment problem by taking on public defender cases where there was a conflict of interest (which is common in multi-defendant cases) -- as well as supervising court-appointed attorneys in child dependency cases and assorted civil actions. Sounded good.

Truth is, the OCCCRC lawyers haven't even been given a fair shake, they've been asked to play the game without a full deck of cards. The OCCCRCs aren't even getting the basics to do their job.

For example, the Fourth District OCCCRC has complained that it doesn't even have ordinary supplies and internet access for months at a time. In today's world, how can an attorney represent a client effectively without internet access? Legal research, communication and filing with the courts, e-mail, etc. are all done over the internet. How any lawyer at the OCCCRC can practice law each day is a miracle in action, and my hat is off to them. No wonder there's such a high turnover there.

And, adding insult to injury, these OCCCRCs are being sued. That's right - they have become defendants in their own right. Apparently, several counties throughout Florida have taken the position that OCCCRCs are not "public defender offices" at all under Florida law. Using this legal argument, counties aren't legally responsible to pay for the expenses of their local OCCCRC (pursuant to Article V, section 14 of the Florida Constitution).

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Today, in the final part of our three part series: the record of errors in Florida's use of lethal injection as a method of execution is discussed. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

Lethal Injection is the Most Commonly Botched Method of Execution

The history of execution by lethal injection in the United States is a miserable one. It has been characterized as the most commonly botched method of execution in the United States. Sims v. State, 754 So. 2d 657, 667, n.19 (Fla. 2000) (quoting the expert testimony of Professor Michael Radelet).[6]

Since 1985, there have been at least twenty-one executions by lethal execution that were botched. Marion J. Borg and Michael Radelet, On Botched Executions in Capital Punishment: Strategies for Abolition 143-168 (Peter Hodgkinson and William Schabas eds., 2001). Lethal injection, meant to be the neat and modern execution method, [has been] plagued with problems, or execution glitches, as they are also referred to in the business. Stephen Trombley, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 14 (1992).

Some of The Horrific Examples of Botched Executions Using Lethal Injection

Texas, Oklahoma, Arkansas, Missouri, and Illinois have reported bungled attempts to dispatch prisoners by lethal injection. These mistakes include blow-outs, improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, physicians are not involved in the process), and the improper mixture of the lethal solution. Id. A few notable examples follow. [7]

Stephen Morin, in Texas, lay on the gurney for 45 minutes while technicians punctured him repeatedly in an attempt to find a vein suitable for injection. Denno, supra at 111.

In April, 1998, the needle popped out during Joseph Cannon's execution, also in Texas. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, It's come undone. Officials then pulled a curtain to block the view of witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed. Borg & Radelet, supra at 143-168.

In Louisiana, witnesses to the April, 1997, execution of John Ashley Brown saw Brown go into violent convulsions after he was administered the drugs.

In May 1997, Oklahoma inmate Scott Dawn Carpenter shook uncontrollably, emitted guttural sounds and gasped for breath until his body stopped moving. Borg & Radelet, supra at 143- 168.

An attorney who witnessed the June, 2000, execution of Bert Leroy Hunter reported that Hunter had violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth repeatedly. Id.

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Monday, the Supreme Court heard argument in the Bies case (see 04/27/09 post), and the very next day issued its opinion in Cone v. Bell, 555 U.S. ___ (2009), both capital punishment cases where the defendant argued a diminished capacity of some sort. In today's case, there was an intentional hiding of the ball by the State and a definite due process problem.

Gary Cone was a known drug addict who murdered two people.

It is undisputed that Gary Cone was a Vietnam veteran who returned home to Memphis, Tennessee, and failed to cope well with civilian life. One Saturday morning in 1980, Gary Cone robbed a jewelry store - obviously, not very well - and was promptly pursued by local police in what turned into a high speed chase.

Veering into a residential neighborhood, Cone abandoned his car and shot both a police officer and a Good Samaritan who tried to stop him as Cone fled on foot. On the hunt for another getaway car, Cone tried to carjack someone and when they refused to give them the keys, he tried to shoot them, too, only to find he was out of bullets. By this time, helicopters were flying overhead and the scene was escalating to a frantic pace. (You've seen the reality TV shows like COPS, you can visualize these events.)

Somehow that Saturday afternoon, Cone got away. No one could find him. However, early the next morning, Gary Cone was still in the neighborhood - knocking on the door of an elderly couple, Shipley and Cleopatra Todd. He asked to use their phone; Cleo Todd refused and slammed the door on Cone. Cleo called the cops, and still Cone could not be found.

The tragedy occurred later that same day. Cone returned to the Todd home, forced himself into their house, and beat the two senior citizens to death before tearing their house apart. He shaved there, got himself to the Memphis airport, and was busted while robbing a drug store in Pompano Beach, Florida a couple of days later.

Vietnam Vet Cone Asserted an Insanity Defense - He Didn't Contest His Actions

Vietnam vet Gary Cone was arrested, tried, and convicted of the Todds' murder. He never challenged evidence that showed he committed these horrific acts. What he asserted as his defense was his mental illness: Cone's defense team brought forth evidence to show that Cone suffered from chronic amphetamine psychosis, a mental disorder caused by excessive drug abuse.

Experts testified that the drug use began while Cone was serving in Vietnam, where he was using "horrific" quantities of drugs while dealing with the bodies of dead soldiers. The mental illness caused by this drug use created a level of paranoia and a disorder including hallucinations that would keep Cone from understanding or being able to conform to everyday life and the boundaries imposed by Tennessee law.

In sum, the entirety of Cone's defense was mental illness. He was legally insane when the crimes were committed.

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This morning, at 11:00 EST, oral arguments will begin before the United States Supreme Court on whether or not a federal appeals court (the 6th Circuit) interfered with a state court death penalty case where the defendant was found to be mentally retarded. And while that sounds very procedural and legalistic, whether or not Michael Bies will be executed by the State of Ohio is the real issue here.

The case, Bobby v. Bies (08-598), has the Solicitor General of Ohio, Benjamin C. Mizer, arguing for the warden. Professor John Blume, of Cornell Law School, is advocating for Michael Bies.

It's Already Been Decided that the Death Penalty Cannot Be Imposed Upon Mentally Retarded Individuals

Back in 2002, the Supreme Court already held that the execution of mentally retarded individuals violates the due process provisions of the Eighth Amendment (Atkins v. Virginia). Today, the High Court is looking at double jeopardy protections. Specifically, in the Bies case, the focus will be whether or not double jeopardy protects a defendant at a state (not federal) post-conviction hearing where mental competency is being assessed pursuant to Atkins, when the issue of the defendant's "borderline mental retardation" had already been recognized earlier, by the state supreme court.

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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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Last week, over in a Chicago courtroom, Nathan Fields stood to hear Circuit Judge Vincent Gardenia find him not guilty of murder. Nathan Fields is 55 years old, and he's finally been cleared 23 years after he was sentenced to death by a notoriously corrupt Illinois judge.

What happened in Nathan Fields' case?

The truth has come to light, and it has been shown that the trial court judge in Fields' initial trial accepted a $10,000 bribe in the case. Judge Tom Mahoney actually took the money to find Fields and his codefendant not guilty, but apparently Mahoney got nervous that he was about to be caught. So, he returned the bribe to its source, went ahead and found both men guilty of a double murder, and sentenced them both to death.

Nathan Fields Spent 7 Years on Death Row and Awaited Retrial for 11 Years

Nathan Fields was granted a new trial in 1998, and he was released pending retrial in 2003 when a fellow Death Row inmate put up his bail. That Death Row inmate who put up the money for Fields to walk free pending full exoneration is a man named Aaron Patterson. He's still on Death Row.

Patterson's generosity allowed Fields to be free in Chicago, with his family, after serving seven years on Illinois' Death Row. Still, it was over ten years before Fields' case came before another judge and his name was cleared of the murder charge.

What are his plans now?

Nathan Fields plans on taking a vacation with his family - he's never seen the ocean or the mountains, he's told reporters. He also plans on opening a construction company with his friend Aaron Patterson - although right now, Aaron Patterson remains behind bars.

Judge Tom Mahoney Fixed Murder Trials for Money

These are all facts that have been established. Judge Mahoney was caught for his evildoing, tried, and found guilty of conspiracy, racketeering, extortion, and obstructing justice in April 1993. Thomas Mahoney spent over 12 years behind bars before he died at the age of 83.

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Due process under the law has been constitutionally protected since our nation began, although the phrase gets tossed around quite a bit these days without much concern as to its real importance.

Due process is protected by the 5th (federal) and 14th (state) Amendments to the U.S. Constitution, although it is a principle with origins in the Magna Carta. In that historic document, England's King John promised that "...[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

King John signed the Magna Carta over 790 years ago. You'd think that due process of law would be pretty much settled into a traditional, solid role in our society by now. Particularly so, when it comes to those officials in positions of authority. But if you think that, you'd be wrong.

Due Process of Law is endangered in this country.

Never has our sacred right to due process under the law been more endangered than it is today. And no - I'm not about to delve into the current Florida case concerning a young woman awaiting trial for the murder of her child.

Instead, I'm looking over at our sister state, Texas, and what's been going on over there since the afternoon of September 26, 2007.

Texas Chief Justice Faces Criminal Charges, Civil Trial, and Impeachment Arising From Death Penalty Case

Criminal charges were recently filed against Sharon Keller, the Chief Justice of the Texas Court of Criminal Appeals, by Texans for Public Justice for her actions on the day that Michael Richard was executed by lethal injection. (In Texas, the Court of Criminal Appeals is the highest court for all criminal matters; the state divides its civil and criminal caseloads, and has a separate high court, the Texas Supreme Court, which hears all civil matters as the state court of last resort.)

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