Paul Hildwin resides on Florida’s Death Row, having been sentenced to death for the 1985 killing of Vronzettie Cox who had been raped before she was strangled to death and her body left to be found in the trunk of a car.
Forensic evidence gets lots of respect from juries -- some call it "the CSI effect" after the popular TV show (in all its spin-offs). However, this month we have even more news that justifies a less trusting view of evidence coming from a lab and being used to put someone behind bars -- or on Death Row.
Big mistakes. Twenty-seven Death Row sentences.
Apparently, these FBI lab experts may have tied defendant to crimes that they did not commit using puffed-up scientific testimony.
We'll know more later this summer when the FBI is going to release its tally with all the details of what cases, what experts, what testimony. Meanwhile, these Death Penalty cases are part of a larger group of 120 convictions that may be wrongful convictions based upon bad FBI forensic evidence.
What's this review all about? It's a review being done of FBI Lab files by the Department of Justice and the FBI with the National Association fo Criminal Defense Lawyers (NACDL) and the Innocence Project watching what's happening.
The review sprang out of earlier Washington Post investigations, where it was reported that the federal government had known for a very, very long time that its hair experts may have provided bad forensic evidence that had led to wrongful convictions - and that no one had done much to investigate these hair experts or to stop bad convictions from happening.
If you think this is just a FBI Lab glitch, think again.
Over in Texas, one single Houston Crime Lab technician named Jonathan Salvador has become infamous in some circles because his work has put literally THOUSANDS of criminal convictions in the State of Texas in question - read the final report on how bad this is from the Texas Forensic Science Commission.
This week, the Miami Herald ran an article discussing the current state of QEEG technology as a means to study the human brain and understand how the brain works and how it can be permanently damaged.
However, the article was more than a dry discussion of scientific methodology. Reporter David Ovalle wrote about how QEEG brain mapping was successfully presented by Terry Lenamon in the Grady Nelson death penalty trial, having been approved for use by the jury by the Honorable Jacqueline Hogan-Scola.
You can read the article, "Use of controversial ‘brain-mapping’ technology stymied in Florida courts," online for free at the Miami Herald web site.
Here's the thing: QEEG brain mapping is still controversial and prosecutors are still fighting hard against its admission by death penalty defense attorneys who are wanting to use the brain mapping technique in mitigation evidence.
While Terry Lenamon was successful in getting the brain mapping of Grady Nelson as a factor for consideration in his trial, other defendants have not been able to use QEEG in their trials.
Meanwhile, QEEG brain mapping continues to garner respect in the medical community. Consider this video (it's long, almost an hour - be forwarned here!) where Retired Brigadier General Dr. Stephen Xenakis discusses uses of QEEG brain mapping in the treatment of several conditions suffered by post-combat servicepersons.
Joshua Fulgham Defense - Jury Says No to Death Penalty: Congrats to Terry Lenamon and the Defense Team
Under Florida law, the judge will still have the final decision here.
What will the Judge do? We'll know soon.
Meanwhile, congrats to Terry Lenamon for a great job of defending against the death penalty in the Joshua Fulgham trial!!
Terry Lenamon fought long and hard to get QEEG Brain Mapping introduced as evidence in the death penalty trial of Grady Nelson last fall. The QEEG evidence was introduced. The judge sentenced Grady Nelson not to a sentence of death, but instead to life imprisonment.
That was almost a year ago, and now QEEG evidence is being fought for by another death penalty defendant, Huberto Delgado, here in Florida.
Over in Tampa, Florida Public Defender Julie Holt is pushing for the introduction of QEEG brain-mapping tests as part of her defense of Humberto Delgado, who is facing the death penalty for the alleged shooting death of Tampa Police Officer Mike Roberts.
The prosecution is fighting hard against the introduction of the QEEG evidence and expert testimony has been presented by both sides as to whether or not the QEEG testing and analysis should become evidence at trial. Trial is set to begin October 31, 2011. The judge has not yet ruled on the QEEG evidence in the Delgado trial.
What is QEEG?
QEEG is different than other brain imaging tools. Past scientific attempts to understand the brain were done via things like x-rays, CAT scans (Computerized Axial Tomography scans) or MRIs (Magnetic Resonance Imaging) -- each dealing more with the structure of the brain than how it was operating at any given juncture.
Enter QEEG. With QEEG (Quantitative Electroencephalography), experts can study how a particular subject's brain is functioning -- in real time -- through this painless evaluation of the brain's electrical activity.
Sensors are being placed upon the scalp which read electrical neuron activity under certain conditions (eyes closed, open, etc.). Result? QEEG, with expert analysis, gives information on exactly how well, or how lacking, a particular person's brain is capable of functioning.
Univ of Miami Law Prof. Winick's 2009 Predictions on U.S. Supreme Court and Mentally Ill Death Penalty Cases
In 2002, the United States Supreme Court handed down Atkins v. Virginia - that's less than ten years ago. Hard to believe, in many ways.
In 2009, Bruce Winick, Professor of Law and Professor of Psychiatry & Behavioral Sciences, and Director, Therapeutic Jurisprudence Center, University of Miami, Coral Gables, Florida, published an article in the Boston College Law Review entitled, "The Supreme Court's Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier."
You can read the full article online here in a downloadable format.. Citation for the article: Bruce J. Winick, The Supreme Court's Evolving Death Penalty Jurisprudence: Severe Mental Illness as the
Next Frontier, 50 B.C.L. Rev. 785 (2009), http://lawdigitalcommons.bc.edu/bclr/vol50/iss3/4.
What does Professor Winick suggest?
First, Professor Winick opines that the decision on whether or not the Eighth Amendment should apply in a case of mental illness should be done on an individual case bases, because not all mental illnesses can impact responsibility to the degree necessary for the Cruel and Unusual standards to come into play. He gives personality disorders and voluntary intoxication as examples.
He believes that the decision is one to be made pretrial, through a combination of factual evidence and expert opinion by the trial judge. It's really not something for a jury.
Lastly, he delves into what will be happening -- and what is happening now, really, with things like QEEG - when scientific understanding of the brain and human behavior moves forward to a point where we can concretely understand more of the "why" of things.
Add to this the technological impact of DNA testing and the increasing number of exonerations based upon DNA evidence.
Will the High Court be moved by the scientific realities or will it be swayed more by society's norms of the time?
In June 2009, Bobby v. Bies reversed the 6th Circuit and returned the defendant to the Ohio state courts for evidentiary hearings on his mental incapacity.
Professor Winick's article is a good read if you like to ponder and predict. And, hats off to the Boston Law Review for releasing the article on the web with access to all.
Mental health professionals and those dealing with mental health issues are well aware of the Diagnostic and Statistical Manual of Mental Disorders (DSM). It is used everyday in the law, as well, and you can find a copy on most death qualified criminal defense attorney's shelves - maybe more than one. In fact, you can buy a copy for yourself, new or used, at Amazon.com for around $60.00.
What is the DSM?
The DSM is a reference work that classifies (by codes) recognized mental disorders in the United States. According to the American Psychiatric Association, the DSM is"...intended to be applicable in a wide array of contexts and used by clinicians and researchers of many different orientations (e.g., biological, psychodynamic, cognitive, behavioral, interpersonal, family/systems)."
Right now, the DMS is in its fourth version ("DSM-IV"). The APA allows that it is been "designed" to be used in clinical settings and by all sorts of health care providers (including psychiatrists, social workers, counselors, and even rehab techs).
The DSM in Legal Proceedings
Conspicuous by its absence in the APA definition of the DSM is the regular and routine use of the manual in legal matters. This is particularly true in death penalty cases, where mitigation during the penalty phase often focuses upon the mental illness suffered by the defendant and where postconviction proceedings fight against execution based upon severe mental illness.
Addressing this issue is a new editorial by Ralph Slovenko, JD, PhD in the Journal of the American Academy of Psychiatry and the Law (J Am Acad Psychiatry Law 39:6–11, 2011), entitled "The DSM in Litigation and Legislation."
In the article, it is recognized that while the DSM is purportedly to be used by health care professionals, the DSM in its various versions has been cited in over 5500 judicial opinions and in over 320 pieces of legislation.
Slovenko argues that this reality needs to be addressed in the DSM itself. And he's right.
The DSM isn't exclusively used by medical professionals, nor should it be. When its authors are writing the language within the new version of the DSM as well as deciding what all should be covered within the DSM (for example, should narcissistic personality disorder be included? It is being removed in DSM-V), the legal ramifications of their decisions exist and should be included in their decision making.
Deldelp Medina wrote a personal piece about the death penalty for the San Jose Mercury News -- a poignant piece that provides a perspective that serves us all well. Sure, it's focusing upon the California death penalty, which has become a California election issue. However, it also tells the tale of a Miami murder case, a Florida death penalty situation.
Victim's son kills during psychotic break, State seeks death penalty anyway
Ms. Medina's aunt was murdered by her cousin, the victim's son, while he was suffering a psychotic break. This poor young man had suffered through a life of trauma upon trauma, it was well known that he was mentally ill. Still, the Miami prosecutors sought the death penalty against him -- and he had only his indigent defense appointed counsel, overworked and underfunded, standing with him. That and his loyal family.
Deldelp and her family members won their fight. I'll leave it to you to read Deldelp's story, after all - it's hers.
Why bother? What's important about this piece is the access it provides not only into the defendant's family, here by a twist of fate also the victim's family, but into how it often takes a team of advocates, paid and unpaid, to win in any indigent defense death penalty case.
The fight for mitigators begins early in a case.
Part of the fight for mercy -- the application of mitigators -- occurs long, long before a jury is selected. Often, it starts soon after the arrest because the prosecution usually sets its sights on a capital murder win very early on.
That fever can escalate in the face of very real psychological issues self-evident in the defendant - things that will never allow any ultimate execution, should it come to that. The United States Supreme Court has held it to be unconstitutally cruel and unusual punishment to execute someone who is found legally insane.
Deldelp's cousin will spend the rest of his life in a mental health facility: he was ruled legally incompetent to stand trial. As you can learn from reading Deldelp's work, Mercy triumphed over Judgment that day - and this, in the world of death penalty advocacy, is victory we seek to achieve.
Casey Anthony isn't facing a jury yet, but major decisions regarding her jury trial for the murder of her daughter, Caylee Marie Anthony, are being made now as Belvin Perry, Chief Judge of the Ninth Judicial District Court of Florida issues his rulings on important motions presented to him by the prosecution and the defense.
Shortly after he took over the Casey Anthony case this Spring, Judge Perry made budget rulings, for example. Now, Judge Perry is making the call on evidence boundaries: making decisions that will impact the scope and the length of the trial proceeding.
Judge Perry's Recent Rulings Impact Whether There Will Be the Death for Casey Anthony
Florida law establishes both the aggravating factors and the mitigating circumstances that can be applied in any capital case. These are lists that can be used by prosecutors and defendants - not all will apply in every case. Not all apply in Casey Anthony's case. (See the list of aggravators with a brief summary here.)
Long before trial, evidence must be collected by each side that substantiates the aggravating factors or mitigating circumstances that will be used in a particular matter. So, there must be a ruling on what the Judge is going to allow from the lists. Neither side wants to waste time and money gathering evidence for a factor that the judge is going to say isn't applicable in the case.
Some of those motions were filed in the Casey Anthony matter. Judge Perry ruled against the defense's motions to limit the aggravating factors available to the prosecution. Perry has okayed the State of Florida presenting evidence in any penalty phase of the trial on several aggravating factors. This will only come up if Casey Anthony is found guilty of murdering her daughter, Caylee Marie Anthony.
My Take on Things -- as I Told the Orlando Sentinel
Since I shared this with the Orlando media, I feel it's important to share this with my faithful readers, as well: I do not believe that the Casey Anthony case is going to reach death. Yes, I know that this is a high-profile case. Yes, I know that there are a lot of people that want the death penalty sentence for this defendant. Yes, I know that I was asked this earlier and refrained -- but that was when there was still an argument that this would not be a capital case. That decision has been made: the defense fight to prevent the State of Florida from seeking the death penalty failed.
All this being considered, from my perspective as a Death Qualified Criminal Defense attorney with years of experience in this area, I do not believe that there will be capital punishment in the Casey Anthony case.
Why No Death Penalty for Casey Anthony?
Why? From my perspective, and admittedly this is the viewpoint of a defense advocate speaking from years of death-qualified experience and education on mitigating factors involving mental health issues and the like, when the aggravators are balanced against the mitigators, I do not believe that the death penalty can result. Legally, the scales don't fall that way.
That, of course, is my opinion. And, it's just my opinion. The jury may not agree with me -- but as the Orlando Sentinel article points out -- in Florida, the jury doesn't make the ultimate call in a death case.
So the real question at trial will be if the Ninth Judicial District's Chief Judge Belvin Perry agrees with me.
The decision made by the State of Florida attorneys today is making national news: prosecutors have decided that they will not seek the death penalty in their prosecution of Jason Rodriguez.
Mr.Rodriguez is accused of shooting several people in an Orlando office building last November, killing one person and wounding five others. Jason Rodriguez is said to have returned to a place where he used to work, a Florida engineering firm, and to have opened fire on his former colleagues.
Why did the State of Florida decide not to seek the death penalty? They are only required to file a short notice and today's case is no exception: a one page notice was placed in the public record.
However, within that one page notice was key language: "Due to the consideration of the facts and law applicable to this case, it is not in the best interest of the people of the state of Florida to pursue the death penalty."
So, what's the real story?
Looks like the mitigators were so obvious that under Florida law capital punishment would not be a viable alternative. They weren't going to get it anyway, so they'll take it off the table now. Notice filed.
History of Mental Illness
Right now, Mr. Rodriguez is being held not in a jail, but in a mental hospital. Several months ago, he was already adjudicated incompetent to stand trial. Police investigations have revealed that he was deteriorating mentally for over two years before the incident.
After he was found incompetent, the mental health experts were left to their task of trying to work with their patient, in an effort to treat his mental conditions (whatever they are) so that Mr. Rodriguez could be found competent to be tried.
The experts' report on the mental health status of Jason Rodriguez was completed and filed earlier this week. While it's not online yet, looks pretty clear that whatever in that report was serious enough for the prosecution to take capital punishment off the table.
Mental illness is a mitigating factor in Florida. The United States Supreme Court has clearly held that those who suffer mental illness cannot be put to death as punishment for their crimes, because this constitutes cruel and unusual punishment. Ford v. Wainwright, 477 U.S. 399 (US 1986).
For a Death Penalty attorney, this is good news. The State isn't going to try and kill someone who's damaged - and we may all learn more about the "why" behind this tragedy, eventually.
Of course, there will be a lot of media coverage because lots of people will be upset that the Orlando Office Shooting Spree didn't end up in a death penalty trial. Perhaps if they were to dig into the background information, they would be more understanding and compassionate.
Mercy is the bottom line in a death penalty defense case, from the perspective of the sentencing phase of a case.
Mercy -- that elusive concept.
So elusive, in fact, that the law has seen fit to have legislatures basically define what mercy will be in death penalty cases, as various mitigation factors ("mitigators") are defined as lists given in various statutes. Find one or more of these factors in a case, then you've found where the mercy lies. Simple as that.
This week, the United States Supreme Court issued a 6-3 opinion in Graham v. Florida. No, it was not a death penalty case per se. Unless you consider - as many people do - that sentencing a youth under the age of legal adulthood to life in prison without the possiblity of parole to be tantamount to a death sentence.
Graham v. Florida -- The Background of the Case
Several years ago, a 16 year old boy named Terrance Jamar Graham, the offspring of two crack addicts and diagnosed early on with Attention Deficit Disorder, tried to rob a Jacksonville barbeque joint with three of his buddies and got caught.
Under Florida law, the state's attorney had the power to decide whether this boy would be tried as a juvenile or as an adult. Choice: adult.
A plea deal was made. Graham pled guilty to two felonies. He wrote a letter to the trial judge, which the opinion (page 2, slip opinion) recites in part:
"this is my first and last time getting in trouble...I've decided to turn my life around....I made a promise to God and myself that if I get a second chance, I'm going to do whatever it takes to get into the NFL."
Terrance Graham was released as the trial court accepted the plea agreement and withheld adjudication, allowing the teenager credit for 12 months he'd already sat in jail awaiting trial. He was out on probation.
Less than two months later, Terrence was arrested again - this time, for a home invasion robbery. He and two pals robbed one home, and attempted to rob another, with one of the buddies getting shot somewhere along the way. Terrence drove the boy to the hospital and drove off, tried to flee from a cop, and crashed his dad's car into a phone pole.
He was 34 days short of his 18th birthday.
Around a year later, Graham was sentenced - and that deferred adjudication from his first arrest came back to the table. In spite of the recommendations of the Florida Department of Corrections and the arguments of the defense counsel, Graham was sentenced to life imprisonment.
Because of Florida's lack of a parole system (abolished earlier), this meant that the 18 year old would be spending the rest of his life behind bars unless the Governor granted clemency.
Cruel and Unusual Punishment
This week, the High Court ruled that it is unconstitutional to sentence young men and women to life imprisonment unless they are guilty of killing someone else (murder).
This will have a major impact upon the State of Florida, since the majority of those who will be impacted by ths ruling are incarcerated here.
How this will be implemented from a practical perspective remains to be seen. (Justice Thomas, in his dissent, is particularly concerned with the logistics here.) Even the High Court majority points out that this is not a Get Out of Jail Free card, but instead an invitation for an individual to demonstrate "maturity and rehabilitation" that warrants a return to freedom.
Mercy is Shown
However, from a mitigation point of view, this result is one of mercy. And, in the law - filled with sentencing guidelines, aggravating circumstances, and confining economic concerns - clear cut examples of what mercy is and how it is being shown need to be gathered and studied and remembered.
Mercy means going through the histories of individuals - and usually learning horrors they've experienced in the past. It means giving a chance with the risk that things may go wrong down the road.
Mercy is the heart's blood of our criminal justice system. Bottom line, this week's ruling was a victory for us all - and perhaps, a chance for a new and productive life for Mr. Graham after the bad choices of his teenage years.
The constitutional right to counsel for those who cannot afford their own lawyer means that the government foots the bill for the defendant’s legal counsel. This is true for a great many criminal cases (and the expansion of the right to counsel continues with the United States Supreme Court), but it is especially important when the state is seeking the death penalty in a criminal matter.
The Legalities: Legal Attempts to Satisfactorily Address the Crisis in Indigent Defense Costs
No one really challenges that an individual has the right to legal representation when his/her life is on the line. Many people challenge how to pay for that expense, and much has been – and continues to be – written about the complexities involved in indigent defense cost coverage.
For example, in February 2010, the American Constitution Society for Law and Policy (ACS) released a study (.pdf) revealing fatal flaws in the procedures surrounding Texas’ indigent defense representation. Research was undertaken on a national scale by the Constitution Project and in April 2009, its results were released in a comprehensive, 232 page report on indigent defense entitled “Justice Denied: American’s Continuing Neglect of our Constitutional Right to Counsel (.pdf).” There, preeminent legal experts agreed that the current system is chaotic and failing, and offered twenty-two (22) suggestions for salvaging the methodology in which indigent defense is provided in this country.
The Practicalities: Where Does the Money Go?
There are not as many articles written that provide detail on the practicalities of representing the indigent defendant in a capital case. Perhaps lawyers assume that other lawyers know what’s being talked about – but that presupposes that others (including every taxpayer in this country) are not interested in the details.
Actual costs involve not only legal fees and the expenses directly attached to the lead attorney’s efforts, as well as the additional legal counsel that must be involved in a capital case, but the expenses involved in a wide variety of other vital and necessary areas. These include expert costs, transcription fees, travel expenses, and other needs that rapidly contribute to the high cost of these death penalty cases.
1. The Attorneys’ Time
When the state decides to pursue the death penalty in a case, the prosecutor essentially makes two cases out of one. This is because the entirety of the case – from preparation through all the appeals – will now deal with two trains riding on the same track: first, the determination of guilt or innocence (trial phase) and second, the determination of punishment – and whether the defendant will die for the crime (penalty phase). It will take more than one attorney to defend this case.
Two attorneys are going to be needed in a death penalty defense case. There is simply too much to do for one lawyer to meet his legal and ethical duties of representation otherwise. And, there’s the matter of death-qualification: in Florida, as well as most other states, an attorney cannot defend a capital case unless he’s been approved to do so, based upon education and past experience in similar matters. When the state is asking to kill a citizen, it’s not time for a greenhorn to hurdle a learning curve.
Therefore, at the minimum, you have two attorneys who are working the case. Both will be experienced lawyers. Both will be able to bill a higher hourly rate than an newbie lawyer on any criminal matter. And, in indigent defense cases, it goes without saying that both will be earning much less on the indigent case than they would be on a paying client’s case (lost opportunity costs, from an accounting perspective).
2. The Attorneys’ Direct Costs (Fixed Representation Costs)
Accompanying the defense attorneys’ personal involvement are all those fixed expenses that are tied to his or her legal service. Each lawyer has an hourly rate that must add up over time to a total amount of revenue that can cover his fixed expenses – the things that he has to have up and running in order to do his job.
These fixed costs include all the basics: cellphone expense, office rent, equipment expense (buying the phone system, the copier, the computers, the printers, the fax machines), Lexis or WestLaw contracts (longterm contracts for access to legal research databases), electricity, even the costs of coffee (or a coffee service).
These costs also include salaries for the paralegals, associate attorneys, staff investigators, firm couriers, and other support staff that work on the legal team to get things done. Those motions don’t get written, finalized, printed, faxed, and distributed to the court and counsel by the lawyer alone. Many people working together – and working hard, sometimes in very emotional and stressful times – get these things done.
3. Attorneys’ Travel to Visit the Client Behind Bars
Indigent defendants facing the death penalty usually aren’t out on bail. They’re usually living in a cell near the courthouse where their case will be tried. If a public defender is representing them, then his/her office might be nearby. However, if the court has decided to appoint an attorney to represent the defendant, then that lawyer will have to travel from his/her office to the jail in order to meet with the client.
There may be lots of meetings between attorney and client in a death case. And never, ever does the lawyer get the economic advantage of the client coming to him.
4. Investigation Costs – Guilt Phase
First things first, it is the job of the criminal defense attorney to fight – and fight hard – against the prosecutor’s attempt to prove beyond a reasonable doubt that the defendant is guilty of the crime. This is essential for our system of justice. A lazy criminal defense attorney may let down his or her guard against insuring the rights established in our constitution (and our laws) are respected, and with an over-zealous state’s attorney, those rights will be trampled or ignored. It is only through a vigorous adversarial stance that all of us can feel safe in our freedom from government control.
Therefore, a defense attorney in a death case must investigate every lead, every fact, every tidbit that makes up the case. The entirety of the prosecution’s case must be understood, and its weaknesses exposed. The circumstances of the crime must be understood independently of the state’s efforts. The defense must investigate independently exactly what happened in the underlying situation that resulted in the defendant being charged. To do otherwise means the defense just trusts the efforts of the state – and that’s dangerous (and unethical, and illegal).
5. Investigation Costs – Penalty Phase
Along with investigating the crime, the defense in a death penalty case must investigate all the circumstances that make up the state’s “aggravating factors” as well as determine the facts that can be argued as “mitigating circumstances” should the possibility of a sentence of death be reached in the trial. This investigation can be wide, covering lots of territory and time, as well as deep, involving numerous psychological components.
Was the defendant mentally disturbed at the time? Is he mentally challenged to the point that he is considered “mentally retarded” under case precedent (and therefore not subject to the penalty of death)? Are there circumstances of abuse or neglect in his history than help explain the events and lead themselves to mercy? The investigation costs involved in the penalty phase can be just as costly as those in the guilty phase, maybe even higher.
5. Consulting Expert Costs – Guilt Phase
No lawyer worth his salt is going to pretend that he’s an expert on everything. Good lawyers readily admit they’re not even experts on all areas of the law, referring clients as needed to divorce attorneys or tax law firms, or immigration counsel.
In indigent defense cases, lawyers will need expert advise on a variety of facts and circumstances in order to understand what they’re dealing with – and yet, these experts won’t be needed to testify. Sometimes, consulting-only experts get the trial lawyer well-versed enough in the particular area (e.g., some component of forensics, say soil samples, or some area of psychological disorder, such as behaviors that suggest fetal alcohol syndrome) so that the testifying experts can be located and hired.
Rarely are these experts cheap, and they usually bill by the hour. The attorney usually knows them, they have a rapport, and maybe the discussions can be had over the phone, with the help of a courier service or delivery company. Costs will be kept as low as possible, but no expert worth the attorneys’ time is going to be inexpensive. They will charge a rate commiserate with their level of expertise.
6. Consulting Expert Costs – Penalty Phase
Consulting experts in the penalty phase may be even more necessary than in the trial phase. Psychiatric consultations on the childhood facts and the current behaviors of the defendant may be needed in order for the attorney to understand what issues he or she is facing in mitigation. Does the defense team need to pursue physical testing or mental testing or both? The legal team won’t know, they’ll need to consult an expert to guide them.
7. Testifying Expert Costs – Guilt Phase
Testifying experts in the guilt phase will cover all manner of the guilt determination. Law enforcement experts, forensic accountants, crime lab technicians, there is an infinite number of professionals that may be needed to bring the full, factual story to the fact-finder in the case.
Since their expertise, as well as their opinions in the particular case, will be subjected to review by the court before they are allowed to testify, their costs will include the completion of reports and the possibility of court hearings focused solely upon motions to the court on whether or not they should take the stand. The costs here, given their hourly rate, can skyrocket.
8. Testifying Expert Costs – Penalty Phase
After the defendant is found guilty, testifying experts that usually involve at least a doctorate level if not a medical degree will be needed. Mitigation factors involve a number of mental and physical factors that must be addressed. Psychiatric and psychological expertise is mandated. Psychiatrists and psychologists are never cheap, and again, since they are testifying, they may well file reports, and face courtroom scrutiny where they are essentially on trial as to their qualifications before they begin their work, providing an opinion on the underlying case itself.
9. Trial Preparation – Guilt Phase
Defending a capital case at the trial phase is an enormous undertaking. Every document must be reviewed, every witness’s recollection understood. Investigators’ contributions, expert opinions, and legal briefing must be threaded together into an understanding of what has happened to bring this defendant before this tribunal – and a defense must be mounted as to why he should be allowed to walk free. Hours and hours of attorney time is involved here, as well as those of the legal team. Trial itself may takes weeks or months, and preparation happens well into every night and weekend, preparing for the next day, the next week. It is very, very expensive.
10. Trial Preparation – Penalty Phase
Preparation for the event that a guilty verdict is returned begins long before the defense rests. The defense team must dovetail its preparation for the guilt phase with its preparation for the penalty phase, although there may be some work done in preparation for trying the penalty phase that does not occur until guilt has been decided. As described above, there is much, much preparation before a defense attorney will argue against the aggravating factors and for mitigating circumstances in a request for mercy when death is being deliberated. Experts, investigation, legal research, and other time-consuming tasks will be involved. It is not unusual for a single expert’s fee in a penalty phase to exceed $50,000.00.
A Florida County Expert Invoice as an Example of the Detailed Costs Involved Here
How can an expert’s fee be so high? An example of the detail involved here can be seen in the online invoice made available by Gwinnett County, Florida, for use by experts.
Note the hours that the expert is to complete on the form for the categories interview, research, consultation, report preparation, conference with attorney, trial preparation, attend court, and “other”. Assuming the expert charges $500/hour, and charges only a single hour for each of these categories (highly unlikely), the fee would be $4000.00 – and no expert is going to spend just one hour on these tasks.
Death at the Hands of the Government is the Issue: Indigent Defense in Capital Cases Is Complicated and Costly Because It Should Be.
The right to counsel in a case where an American citizen has been charged with a crime, and the state decides to seek the punishment of death in the case, must stand as sacrosanct. It is an honor to be among those chosen to act as defense counsel in these situations.
However, in all the debate of budgetary costs and the best methods of meeting indigent defense expense, too little light has been shed on how much effort and wherewithal must be undertaken in the fight to save someone’s life from capital punishment. Perhaps when more people understand how big the battlefield is, and how much work is involved in each of these cases, then the availability of funds to address the current financial crisis will be more easily found.
The Florida Capital Resource Center is non-profit and nonpartisan. Its goal is to assist attorneys throughout Florida who are representing indigent defendants facing the possibility of capital punishment.
At the Florida Capital Resource Center, resources will be continually compiled by fellow Florida criminal defense attorneys and offered to Florida death penalty defense lawyers as a means to assist and support both their defense (guilt phase) and their mitigation (sentencing phase) of capital murder cases in Florida.
The purpose of the website to build an online presence for the Florida Capital Resource Center, and to assist the FCRC in its work, as it collects and disseminates top-quality legal resources as economically as possible to any and all Florida criminal defense lawyers that are defending capital cases. From the site:
"As counsel in nine death penalty trials and counsel in over sixty capital cases, I share your concerns about shortcomings in Florida’s capital litigation system, especially in light of critical budget shortfalls. Because of these concerns, I have formed a non-profit corporation, the Florida Capital Resource Center, to serve as an information source and clearinghouse for capital defenders in our State."
Please take a moment and surf through the FCRC site, and send any comments or questions you may have. Your thoughts are most welcome.
It's been a long week for everyone. The younger Dubose Brothers were given life sentences by another jury last week, and this week all eyes have been upon the men and women setting in a Jacksonville, Florida, courtroom who are hearing evidence as part of Rasheem Dubose's sentencing phase.
Will Rasheem Dubose be given the death penalty?
The jury may give their recommendation to the judge as soon as today. Yesterday, jurors heard testimony about how Rasheem Dubose saved the life of another young girl -- the girl's mother recounted how Rasheem dove into a swimming pool, saving her daughter, who was drowning.
If you are interested in the death penalty issue, or in the Dubose Brothers' case in particular, you can follow the events via video feed at The Florida Time Union's Jacksonville.com.
Florida Capital Resource Center Is Supporting the Dubose Brothers' Defense Team
The Florida Capital Resource Center, my non-profit organization, has been providing support to the Dubose Brothers defense team. The costs of defending indigent individuals who are facing the possibility of capital punishment are simply out of control. This isn't new to regular readers here, it's a theme that ribbons through this blog.
Indigent defense is in severe crisis in this country, and particularly in Florida.
Recent news on the Casey Anthony motion for financial assistance as an indigent in that death penalty case has shed some light on the need; however, there has not been nearly enough light shed on the lack of support given to the death penalty defense lawyers of folk who cannot afford to pay for legal services.
It does not look like the Dubose Brothers case will garner much media exposure of the indigent defense financial crisis, either. The public is simply not aware of the injustice and chaos that exists.
This needs to change.
On Friday, Tajuane Dubose, 23, escaped the penalty of death. Today, Florida Judge Page Haddock will sentence his brother Terrell Dubose, 21, -- but the judge has already stated from the bench that Terrell will also be spared death, and likewise sentenced to life in prison.
The Jury Said No to the Death Penalty for these two boys
Tajuane and Terrell, with their brother Rasheem Dubose, 25, have been found guilty of first degree murder in the death of 8 year old DreShawna Davis, who died during a drive-by shooting in her grandmother's home back in 2006. Evidence during the guilt phase of the trial revealed that the bullets were meant for her uncle, who had robbed Rasheem earlier in the day and forced him to drop his pants.
Rasheem will hear the jury's decision on whether or not Rasheem should receive the death penalty tomorrow. Under Florida law, Judge Haddock will then sentence Rasheem based upon the jury's recommendations.
A separate jury is deciding Rasheem Dubose's fate. One jury made the sentencing decisions for both Tajuane Dubose and Terrell Dubose -- and that jury has already revealed that mitigating factors in its decision included (1) these two didn't fire the fatal shots and (2) the details regarding the brothers' childhood and background -- resulting in an almost unanimous jury decision that these two boys should not be subjected to death at the hands of the State of Florida.
Now, we await the decision of another jury about another Dubose brother. May they be merciful, as well.
As posted last week, the Times-Union and Jacksonville.com are live-blogging the trial as it happens. This is a great thing -- a phenomenal way for those interested in death penalty matters to follow the case online when it's not being telecast.
Benefits of the Live Blogging
In fact, there is something unique about following the reporter's blogging -- you see things through the blogger's vision, learning things that you might have otherwise not noticed. The grandfather's work uniform as he comes into the courtroom to take a seat in the back. Things like that, things that bring home that human lives are on the line here.
Additionally, there is the opportunity to make comments to the blog as things are occurring. You can ask questions, make commentary, read other folk's contributions. Participate with the reporter as the trial moves along.
LiveBlogging Ordered to Stop When Cameras in the Courtroom
Judge Haddock has set limits on live blogging by the media. Blogging from the courtroom can happen only when the media isn't using a camera (still or video). Judge Haddock doesn't like the blogging, the blogger is reporting that word from the bench is that the judge and the jurors are finding the reporter's typing on a laptop "distracting."
Distraction vs Intrusion
Distracting for some -- but a great window into the proceedings that are going to decide whether or not these three young men will be sentenced with death for so many others. Distraction and intrusion are not synonimous terms, and having the eyes of the world (via the WWW) on a room where the government is asking to kill three of its citizens is very important.
New York Times Exposing Love Affair Between Texas Judge and State Attorney During Death Penalty Trial
This week, Adam LIptak of the New York Times has taken the great light that is the New York Times, using it to shine into dark corners of corruption, and revealed as story that's been talked about in defense circles are awhile. And his efforts can't be noticed without also pointing out the efforts of Texas Monthly's editor Michael Hall, who started receiving letters from a Death Row inmate named Hood and took notice of them.
However, it's the New York Times that's really helping spread this shocking story, better late than never. We all need to know about this evildoing.
Seems that over in Texas (yes, Texas), during a trial where a man was facing the sentence of death, the judge (Verna Sue Holland) was having an affair with the prosecutor (Thomas S. O'Connell, Jr.). This love affair apparently went on for years, and was the subject of much courthouse gossip.
Imagine the stress this placed upon defense counsel for Charles Dean Hood, who was being tried in Judge Holland's court for a capital offense. Imagine their feelings now, since the United States Supreme Court has his petition for writ of cert before it, with the amicus brief of "former judges, state officials and prosecutors" numbering 21 in all, filing their support of his petition as friends of the court.
Charles Dean Hood sits today on Texas' Death Row, having facing more than one last minute stay of execution already. Judge Holland has retired. The U.S. Supreme Court has yet to rule.
Here's a curious fact: Judge Verna Sue Holland served for 16 years as a justice on the highest criminal court in Texas, their Court of Criminal Appeals. You know the one. That's the same court that Sharon Keller presides over as Chief Justice today (at least for now).
Columnist Sam Cook wrote an excellent article that appears at Fort Myer's News-Press web site.
It provides a perspective that isn't seen enough in death penalty coverage, and I'm hopeful that you'll find the time to read it.
Yesterday, the jury came back in the Kemar Johnston case. They had already found Mr. Johnston guilty of murder, now they were deliberating whether or not Kemar Johnston should die as punishment for the crime.
The jury recommended life in prison for Kemar Johnston. In doing so, the jury voted AGAINST the death penalty in this case.
Mercy over judgment. Mercy -- it's one of the clear themes of this blog, as is bringing attention to the variety of mitigating factors that come into play in every case where the sentence of death is at issue.
We argued that there were mitigating factors in Kemar Johnston's situation where it would be unjust to impose the death penalty. Among the evidence presented, clinical psychologist Hyman Eisenstein testified that he found Kemar to suffer from brain damage. Specifically, permanent damage to the frontal lobe had occurred which compromised Kemar's ability to make decisions as well as his ability to grasp the consequences of what he might choose to do, or not do.
Mitigating Factors and Aggravating Circumstances. We've discussed the process of capital punishment imposition before, generally describing the prosecutor's advancing of circumstances and the defense's propounding of mitigation issues. The sentencing phase of any capital trial follows set protocols established by statute.
The trial of Kemar Johnston brings this home as a prime example of how the sentencing phase works. State attorneys argued four aggravating circumstances. We argued 100 mitigating factors that should form a barrier between Kemar Johnston and execution by the State of Florida for the crimes of which he had been found guilty.
There are those that are all too ready to say that when one citizen takes a life, he should give his own in return. However, an eye for an eye is not what our society considers as justice.
This was a 20 year old boy whose birthday celebration - fueled with drugs and alcohol -- went horribly wrong and now, he will spend the rest of his life behind bars. Judgment was had: the jury found him guilty of murder.
Mercy was then imposed. A mentally challenged young man who is loved by many --so loved, that his sister, sobbing on the stand during the sentencing phase brought the entire courtroom to a halt as Kemar broke down, too -- was spared from the penalty of death.
A victory in this case, yes - but it's also a victory in the fight against Capital Punishment.
This is a victory for us all, not just for LenamonLaw (though we are celebrating this weekend). Until the death penalty is removed as a legal alternative, the fight to keep the government from killing its citizens must be fought a case at a time, in courtrooms across the country, just like we did this month for Kemar Johnston.
We can only hope that our spouses, and our children, understand the contributions that they make to this fight in their sacrifices -- and now, we'll be taking a bit of time to focus upon them, sharing our appreciation for their efforts as part of this team.
This week, an evidentiary courtroom battle began on whether or not the State of Florida can now -- today -- seek the death penalty against D'Andre Bannister. And whether or not Florida can seek capital punishment in this or any other case hinges upon one fact: the score that the defendant achieves on a standardized IQ test.
An IQ test score of 70 or less, and capital punishment is not an option.
The United States Supreme Court ruled in 2002 (Atkins v. Virginia) that those deemed "mentally retarded" cannot be executed, because this would be cruel and unusual punishment and therefore, unconstitutional. Florida statutes have defined that circumstance to exist when IQ scores hit a maximum of 70.
Mr. Bannister's fight this week, however, is not whether or not he's had a speedy trial, but whether or not he's eligible under the Atkins protection from a death penalty sentence. Because what score D'Andre Bannister receives depends not only upon which test he's taken, but also the year in which it was administered.
Experts are testifying regarding intelligence fluctuations over time, the accuracy of one test over another, and how the rigid structure and educational efforts of Mr. Bannister may have impacted his intelligence level over the past seven years.
Media reports are that D'Andre Bannister does not want to be considered "mentally retarded" (a label given in the language of the Atkins decision). Whether or not he understands that his life is on the line based upon a test score is not so clear.
The judge has spoken from the bench, however, and whatever the outcome of this fight -- the case will be set for trial sometime this summer. It's already made the record books as being the longest delayed death penalty trial in Florida's history.
According to the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." What isn’t provided in this constitutional mandate is how the defense lawyer’s fees and expenses are to be paid. The result of this financial myopia is a deepening financial crisis in Florida and across the country today.
Over time, the constitutional right to counsel provision has been reviewed and applied by both legislatures and courts – always with a resulting expansion of its application. For instance, a citizen’s right to legal representation in federal proceedings was initially set by statute and then approved by the U.S. Supreme Court in Johnson v. Zerbst, 304 U.S. 658 (1938), when our country was still suffering through the Great Depression. State courts were a different story, however.
Until the early twentieth century, those who could not afford to pay for their own criminal defense attorneys in state matters were dependent upon the local bar’s pro bono efforts. Individual attorneys made their own personal decisions on their commitments of time and expense in representing the poor. Legal Aid? Public Defender? These terms were not known in this country before World War II (unless you looked at a select few metropolises like New York City, where a legal aid organization had been in operation since the late 1800s).
Of course, historically this dovetails with an attitude that the practice of law was a “profession” not a “business,” where it was part of the profession’s honor and duty to undertake pro bono cases in their local area. Today, we no longer turn a blind eye to the realities of a law practice operating as a business concern. What was at one time a stigma – that lawyers work for a profit -- is an attitude that has not stood the test of time.
Expansion of the Right to Counsel into State Courts – first, the felonies
As the highest court in the land, the U.S. Supreme Court slowly began to hear cases coming before it that dealt with these state court situations, where state statutes did not require the particular state to provide a criminal defense counsel for the defendant. While the nation was still reeling in the Great Depression, the High Court heard Powell v. Alabama, 287 U.S. 45 (1932) and held that states had to provide legal counsel to indigents in all state cases where capital punishment was at issue.
Having defined who would be covered by the right to counsel, the High Court also considered cases that delved into the issue of when the right to counsel would start to apply in a particular case. Seeing justice as a poor person having the right to a lawyer long before he came before a judge, the U.S. Supreme Court issued a series of opinions in the mid-twentieth century that covered the indigent citizen almost from the moment that he or she first came into contact with law enforcement authorities, all the way to the point that he or she might theoretically be setting before the U.S. Supreme Court itself.
I'm not the first one to notice the potential analogies between the current Cheshire murder case and the long ago Kansas multiple homicide made famous by Truman Capote in his masterwork, In Cold Blood.
In fact, one author has gone so far as to capitalize on the comparisons being made, inserting Capote's title into his own book on the Connecticut case, "In the Middle of the Night: The Shocking True Story of a Family Killed In Cold Blood." Needless to say, his choice in titles is controversial and criticized.
That there's already a book on this case -- published and promoted last fall, long before the trial setting -- isn't surprising. This case has become the focus of many people across the country, looking at the case from many different perspectives. However, given our current media culture it's also true that once again, the danger of a trial by media rears its ugly head.
Trial by Media?
The New York Times is giving detailed coverage of this case, as are many different media outlets. There is no denying it is an event that bodes well for ratings.
A quaint town in Connecticut. Middle of the night. A family -- handsome dad (a doctor), pretty mom, two cute teenaged daughters -- sleeps, unaware that two men are breaking into their New England cottage. The father is beaten and tied up. The mother and one of the girls are raped. A fire is started. The mother is strangled. Both teen daughters die, tied to their beds, from smoke inhalation. Only the dad survives.
This is a horrific event and no one can help but be shocked at what happened here. Of course, the trial of the two parolees charged with these crimes will be covered by the press. As it should be -- criminal defense attorneys do not want to deny media coverage of criminal cases. Those journalistic eyes on the process, the investigation, the procedure, etc. all aid in insuring that justice is done and we don't have Kangeroo Courts in this country.
However, due to the well known nature of this case, jury selection will take a long time. It has to -- to find those who can serve as jurors without bias or prejudice cannot be easy here.
Not two days into jury selection, one potential juror already broke into tears during voir dire, just listening to the charges being read and many in the panel are being excused after telling the judge they know all about the case, "it's all over the papers."
Added to this media complication is the fact that this is a death penalty trial and under Connecticut law, selection of jurors is much more detailed since a man's life is being considered as part of the sentence, should guilt be found. Aggravating factors involving the crimes as well as mitigating circumstances involving the defendant will all come into play.
One more complication here: after the Connecticut legislature finalized a bill repealing the death penalty in their state, the governor vetoed the bill, giving as her sole reason for doing so -- the Cheshire killings.
Media Has Already Influenced Jury Pool - Has There Already Been a Trial by Media?
The media's impact has already impacted jury selection - it could take months to seat a jury in the Cheshire case. Whether or not this becomes another example of trial by media is still somewhat debatable. Detailed national coverage of this case goes back two years.
It's not hard to predict that the media scrutiny will only increase once the trial actually begins. And lots of defense folk and death penalty opponents will be watching the Cheshire proceedings as they unfold. Because -- as I written before for the Orlando Sentinel --- trial by the media is wrong, and no matter how horrific the Cheshire murders were, our system cannot condone the media suplanting the jury in this, or any other, case. Unfortunately, it may well be the case in the Cheshire proceedings that a trial by media is already a fait accompli.
House Bill 3986 - The Proposed Death Penalty Appeals Act and the Need to Include Adequate Funding for Indigent Defense Counsel
Recently, Representative Henry Johnson (D- Ga.) introduced House Bill 3986, the Effective Death Penalty Appeals Act. This proposed law would make sure that defendants who have been sentenced to death at trial have the chance to have those death sentences reviewed as federal habeas corpus relief when they are able to provide evidence that they are not guilty of the crime -- especially when that evidence was not presented at their trial.
The summary written by the Congressional Research Service (a nonpartisan part of the Library of Congress) provides:
Many may assume that this type of federal judicial review already exists for those individuals facing a sentence of death. After all, isn't the cost of appellate review one of the big chunks of Capital Punishment expense that is being used as an monetary argument to abolish the death penalty?
Right now, federal courts are limited in their ability to review state court decisions in Death Cases -- Troy Davis is one big example
While death penalty appeals are expensive in both time and money, the fact is that the innocent men and women on Death Row -- and they're there, don't think they're not -- may not have as easy of a time taking evidence proving their innocence before a tribunal in order to gain their freedom as the public might assume.Continue Reading...
What the U.S. Supreme Court is Telling Attorneys Representing Defendants in Death Penalty Cases - Considering Porter and VanHook
In yesterday's New York Times, Professor Linda Greenhouse gives us a thought-provoking analysis of the "selective empathy" of the current U.S. Supreme Court as she compares the recent decisions in Porter v. McCollum (Porter lives) and Bobby v. Van Hook (VanHook dies). After discussing in detail both opinions, Greenhouse concludes:
Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men's childhoods were -- indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.
I don't make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won't be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.
Those who represent defendants facing prosecutors arguing in courtrooms that the accused should die at the hands of the state undoubtedly understand Professor Greenhouse's acknowledgement that most folk setting on Death Row in this country have horrific personal histories.
The tragedy of Death Row goes far beyond the underlying crime and the suffering of the victim and the victim's loved ones - there's also the path woven through the past by the defendant to that fateful day when a crime was committed, a path with its own pain and shocking trauma. Porter's case typifies this, as does Van Hook's - and each of the Supreme Court opinions provide the details.
Comparing Porter and VanHook From a Criminal Defense Practitioner's Perspective
However, both these unanimous, per curiam decisions have more to tell us, the legal practitioners who have devoted our lives to the defense of individuals charged with capital crimes and facing the death penalty. In both opinions, the quality of the underlying representation of Van Hook and Porter were at issue. Both alleged ineffective assistance of counsel -- and it was upon this appellate point that the two cases reached the high court.
From this perspective, we must read Porter and Van Horn side by side without a focus upon the underlying facts of the crimes and instead ask ourselves if the minimally acceptable standard of representation was provided in each case. Without emotion. Lawyer to lawyer.
When this is done, and the examples provided by the Justices are considered (and they do give examples), then a disparity can be seen. A disparity that explains the different results in Porter and Van Horn in a way that a comparison of the crimes and the two condemned men cannot. And it also explains how both opinions could have unanimous, per curiam results.
Viewed in this way, Porter and Van Horn remind the criminal defense bar that each and every time a defense attorney undertakes the representation of a defendant in a case where the prosecutor is zealous to pursue the death penalty, there is nothing more important than what that defense lawyer does.
We, the attorneys defending against death, stand in the gap between life and death by our own level of care and attention to detail in the work that we do. Our focus cannot be upon the horror of our client's background (though we sympathize) nor with any public repulsion of the crime at issue and their sometimes disgust with us, as counsel, for defending our clientele.
Our focus must always be upon doing the absolute best job that we can in the defense of each and every case. It is our duty to review our own efforts to insure we are providing "effective assistance of counsel" long before any appellate court begins its review of any ineffectiveness.
Today, the US Supreme Court Considers Whether Victim of Fetal Alcohol Syndrome Can Suffer the Death Penalty
The U.S. Supreme Court is back at work, and today it will begin deciding whether or not it will hear the case of Holmes v. Louisiana. What's at stake is whether or not Brandy Holmes, who is only 23 years old and suffers mental retardation as a result of Fetal Alcohol Syndrome, should die by execution for a 2003 murder. The case docket is available online.
Fetal Alcohol Syndrome is a totally preventable cause of mental retardation
When mothers drink alcohol during pregnancy, they damage their unborn child. FAS babies are born with an assortment of disorders, and Fetal Alcohol Syndrome is the leading cause of mental retardation in the world.
Brandy Holmes is known to be a victim of her mother's drinking and suffers from FAS. During Brandy's trial, her mother testified about drinking alcohol all throughout her pregnancy. Get this: this mother testified that she actually named Brandy after her favorite type of alcohol. Wow. There's no factual controversy that Brandy's mental retardation is the result of her mother's drinking alcohol as she carried Brandy.
Thirty-three states already find that the mental retarded should not be executed - what will the US Supreme Court do?
Right now, 33 states have decided it is wrong to execute those who suffer from mental retardation. For details in the arguments against Louisiana executing this woman, read the amicus curaie brief of the Constitution Project.
As these words are being typed, the jurors over in Sarasota, Florida, are deciding whether or not Michael King should die.
Who is Michael King? The Mitigating Circumstances
Michael King has just been convicted of the kidnapping, rape, and murder of Denise Lee. He is 38 years old. The prosecution does not contest that King has been a good father to his 13-year-old son and he has a low IQ. Or that King was devoted to his girlfriend of many years, that he has been a stellar prisoner, has no prior record of crime, and doesn't drink or do drugs. Plus, King suffered a traumatic brain injury as a child (it happened during a sledding accident) which caused permanent damage.
Victim of Traumatic Brain Injury
Just yesterday, the hearing on whether or not Michael King is legally competent, due to that brain injury, concluded after the testimony of mental health experts and family witnesses of his behavior over the years, as well as the accident itself. There was evidence that King complained for years of always having a "buzzing" in his head and that he periodically suffered from hallucinations. One brother described how Michael would see ghosts, and that he would shoot at them. The judge ruled that King was competent for trial, and the penalty phase of the case resumed.
The Aggravating Factors
These are the mitigating circumstances that his defense attorney has argued to the jury, asking them to keep emotion out of the jury room as they decide between life and death. Michael King will live the rest of his life behind bars, and this is justice, she argued.
The State's attorney brought forth aggravating factors: (1) King committed the murder after he already kidnapped and raped Ms. Lee; (2) the killing itself was heinous, atrotious, or cruel; (3) he killed his victim in an attempt to escape arrest for the kidnapping and rape; and (4) the killing was cold, premeditated, and calculated.
The jury will return with a recommendation for the judge; it need not be based upon an unanimous vote. Then the judge, Sarasota Circuit Court Judge Deno Economou, will decide whether or not Michael King will be sentenced to die.
This is the same jury that took only two hours to decide Michael King was guilty of the murder of Denise Lee.
The Underlying Crime - The Murder of Denise Lee
Denise Lee and Michael King were strangers. Lee, the daughter of a detective for the Charlotte County Sheriff's Department and the mother of two small children, was taken from her home one afternoon and driven to King's residence where she was raped, shot, and later buried in a ditch. During the drive between her home and his, Lee called 911 using King's cellphone and her six minute call was played to the jury. Another 911 call, by a witness who followed the Camaro but lost it before it arrived at King's home, was also played. A third 911 call was also placed by a family member of Michael King's, who saw the victim in the Camaro when King stopped by his home. The failure of these 911 calls has led to legislation and continued efforts for legal change by the victim's family.
It is Friday afternoon. It only took this jury two hours to decide on the guilt of Michael King. Many would argue that there will be a swift recommendation vote, and the life of Michael King will be placed in the hands of Judge Economou before sunset. We'll know soon enough.
Yesterday, the jury came back in the murder trial of Justin Heyne. The 12 jurors found Heyne guilty of the March 2006 murder of his roommates, Sarah Buckowski and Benjamin Hamilton and their 5-year-old daughter, Ivory.
The verdict was read to a packed courtroom. Mr. Heyne stood to hear his fate in a dark blue suit, his defense attorney at his side. His family and the families of the victims all sat in the pews, witnessing the court clerk reading the jury's decision for each of the three crimes -- everyone hearing "guilty" three times over.
That was the end of the first trial.
In every death penalty case, there are two trials. Justin Heyne would have had nothing more to try if the jury had found him innocent. However, because three guilty verdicts were read, there is now the matter of sentencing. And with that, a sentencing trial to determine what a fair sentence should be.
The first trial took one week. (It already took a week to pick the jury.) Now, on Wednesday morning, that same jury resumes its position in the jury box of a Brevard County courtroom as the second trial begins.
The sentencing trial (the "penalty phase")
In the sentencing trial, more documentary evidence and witness testimony will be provided to the jury. Aggravating factors and mitigating circumstances will be addressed, as the defense attorneys argue that Heyne should not die by lethal injection but instead serve three mandatory sentences of life in prison without parole.
Whether the State of Florida should kill Justin Heyne is being decided in this second trial.
And, the jury doesn't decide this all alone. The twelve jurors vote on a "recommendation" (it doesn't have to be unanimous) and this recommendation is taken into consideration by the trial court judge. It is the judge who makes the ultimate decision.
As we've discussed earlier, the Florida statutes list the aggravating factors that the prosecutor can prove with proper evidence to argue for capital punishment. Florida law also lists the mitigating factors that the defense can use to fight for Heyne to live.
The Grandmother Doesn't Want the Death Penalty
Something the jury may not hear (unless the defense provides it to them) is the position of Juanita Perez, the mother of Benjamin Hamilton and grandmother of Ivory. Perez doesn't want Heyne to die.
In fact, for many months now, Juanita Perez pushed the State Attorney to accept Heyne's offer to plead guilty to all three murders in exchange for three life sentences. Why? Juanita Perez understands the lengthy appellate process that will insue after the sentencing phase is completed in this case, and she doesn't want her family to have to live through those years and years of appeals.
However, this mitigating factor -- the desires of the victims' mother and grandmother for closure -- has been ignored by the State, and they're fighting for Justin Heyne to die. Sure, the prosecutor is using the standard response: the crime was heinous (a child was killed), other relatives aren't as strident as Mrs. Perez here, etc., etc.
Still, one has to wonder why the prosecutors are pushing for death when Ivory's own grandmother isn't wanting Justin to die for Ivory's murder. It's up to the defense team to bring this very important circumstance to bear in the sentencing determination. Just one more example of how important every due process step of a death penalty case can be, and how important qualified death penalty counsel are in a capital punishment case.
Other mothers murder their children because the children are not wanted or are resented. One such mother, Susan Smith, strapped her two small boys, a fourteen month old and a three year old, into the backseat of her car, rolled up the windows, and pushed the car into a lake.
She first claimed her two sons were taken in a car jacking by an unidentified black man. Smith concocted elaborate lies in the national media, pleading for the safe return of her two children. Later, Smith told police she intended to kill herself, but changed her mind at the last minute and jumped from the car.
In fact, her father had committed suicide, and Susan had attempted suicide at least once in her life. Her stepfather sexually abused her, with whom she continued to have a sexual relationship once she was an adult. Smith also had an affair with her boss and craved a relationship with him. When he ended the affair because he did not want the complication of children in his life, she became desperate to rid herself of her children.
Susan Smith was convicted of two counts of murder. However, on July 28, 1995, a South Carolina jury rejected the idea of sentencing a young mother to death for drowning her two sons. She was sentenced to life imprisonment instead.Continue Reading...
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.Continue Reading...
Progressive postpartum depression is one of the least recognized diseases suffered by young mothers despite the fact that almost 80% of women who give birth experience some form of postpartum upset. Although this symptom picture is well described in the research literature, postpartum depression is not recognized in the mental health professional's legal "bible," the Diagnostic Statistical Manual of Mental Disorders, fourth edition ("DSM IV").  The symptoms of postpartum depression may masquerade as manic-depression (bipolar disorder). Periods of euphoria, agitation, sleeplessness, sexual promiscuity, and hyperactivity characterize the manic symptoms. Poor judgment is a result. 
Progressive Postpartum Depression and Psychosis
A common misperception is that the postpartum depression is nothing more than the "baby blues" and will disappear on its own shortly after childbirth.  However, if untreated, the disease can develop into a more severe form, progressive postpartum depression or even psychosis. When this happens, the mother suffers from continued episodes of mania or depression, each one progressively worse than the last. Rejections, separations, and losses often trigger subsequent recurrent episodes. Because of the episodic nature, the woman is often untreated or undiagnosed until a tragedy occurs.
Despite the common misconception that only newborns are at risk from this disease, mothers suffering from the more severe form kill older children. The case of Andrea Yates more than amply illustrates this point.Continue Reading...
Subsequent studies agree with Resnick's Classification of Motives in Maternal Filicide Cases
Subsequent studies have agreed on a commonality of motives in cases of maternal filicide. These motives are: (1) the mother's mental illness, often seen as "pathological," "acutely psychotic," or "mentally ill" killings, (2) lack of bonding with the child, manifested as "neonaticide," "unwanted child," or "ignored pregnancy" deaths, and (3) inadequate parenting, resulting in "accidental," "discipline-related," or "neglect" deaths.
Recent Studies Look Not Only at Motive, but at the Nature of the Mother-Child Relationship
Recent studies focus on more than just the motive, but on the nature of the mother-child relationship. Forensic psychiatric evaluations of women criminally charged with the deaths of their children found the following characterizations of the mother-child relationship: abusive / neglectful mothers, psychotic / depressed mothers, retaliatory mothers, psychopathic mothers, and detached mothers.Continue Reading...
The mitigating circumstances that can apply in any given first degree murder case are those set forth in Florida Statute § 921.141(6):
1. § 921.141(6)(a): The defendant has no significant history of prior criminal history.
2. § 921.141(6)(b): The capital felony was committed while the defendant was under influence of extreme mental or emotional disturbance.
3. § 921.141(6)(c): The victim was a participant in the defendant's conduct or consented to the act.
4. § 921.141(6)(d): The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
5. § 921.141(6)(e): The defendant acted under extreme duress or under- the substantial domination of another person.
6. § 921.141(6)(f): The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.
7. § 921.141(6)(g): The age of the defendant at the time of the crime.
8. § 921.141(6)(h): The existence of any other factors in the defendant's background that would mitigate against imposition of a death sentence.
At the outset, death is different.
In State v. Dixon, 283 So. 2d 1 (Fla. 1973), the Supreme Court of Florida upheld the constitutionality of the death penalty statute. The court found that "death is unique punishment in its finality and in its total rejection of the possibility of rehabilitation." As such, the court confirmed that it was the intent of the legislature to reserve application of the death penalty "only to the most aggravated and least mitigated of the most serious crime." Accordingly, the Florida Legislature put into place a special process with safeguards so that the death penalty is applied properly after conviction of a capital crime.
Multi-Step Process Between Conviction and Imposition of the Death Penalty
A separate multi-step process exists between conviction and the imposition of the death penalty. After a defendant is found guilty of a capital offense subject to the death penalty, the first step is a second trial to determine whether death will be imposed. At this trial, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, which weigh in favor of mercy.
The defense and prosecution can present new evidence supporting these circumstances. The jury then makes a sentencing recommendation based on these aggravators and mitigators. Florida, unlike many other states, does not require that the death recommendation be unanimous. A simple majority, a single person, is all it takes for a recommendation of death.
The Fifteen Aggravating Circumstances As Defined by Florida Statute
The aggravating circumstances that can apply in any given first degree murder case are limited to those set forth in Florida Statute § 921.141(5). These circumstances are limited to fifteen possible aggravators:Continue Reading...