Discriminatory Bias in Death Penalty Trials: Will SCOTUS hear Rhines Petition?

Charles Rhines sits on the South Dakota Death Row waiting to hear if his Petition for Writ will be granted by the U.S. Supreme Court this week (conference of June 14, 2018).

Mr. Rhines seeks review of his capital trial proceedings, arguing that there was an improper refusal  to consider evidence demonstrating that his sexual orientation was a factor in the imposition of the death penalty by the jury.

His petition includes an affidavit from a juror stating the jury “...knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.

Read the briefing here.  

For more analysis, see: Jimmy Hoover, If Jury Racism Isn't OK, Neither Is Homophobia, Justices Told, Justice 360, May 30, 2018.


Fetal Alcohol Evidence as Mitigating Factor in Death Penalty: SCOTUS Ruling in Trevino

 This week, the Supreme Court of the United States issued its ruling on the request from Texas Death Row Inmate Carlos Trevino, who asked SCOTUS to review what happened in his criminal trial’s sentencing (penalty) phase and the introduction of mitigating evidence against the death penalty.

SCOTUS declined the request, and will not hear the case.  Justice Sonia Sotomayor dissented, arguing that the High Court should hear Trevino’s arguments. She is joined by Justice Ruth Bader Ginsburg.

Read Justice Sotomayor’s 13-page dissent here. 

Constitutional Argument:  Ineffective Assistance of Counsel

His argument was based within the constitutional framework of his right to effective assistance of counsel.  By failing to investigate and present evidence at trial of Mr. Trevino’s intellectual disabilities arising out of fetal alcohol syndrome or fetal alcohol spectrum disorder (FASD), he argued that his constitutional rights had been violated.

The only witness presented at the penalty phase of the trial was Carlo’s aunt, who testified Carlos dropped out of high school and that his mother was an alcoholic. 

Fetal Alcohol Spectrum Disorder (FASD)

Trevino’s mother drank extensively during her pregnancy.  As a result, Carlos Trevino was born with fetal alcohol spectrum disorder and its accompanying permanent brain damage. 

There is no controversy that Carlos Trevino suffers from FASD at this point. 

Returned For Mitigating Evidence

The case had been before SCOTUS once before.  In 2013, SCOTUS reversed the Fifth Circuit’s decision not to hear Mr. Trevino’s ineffectiveness of counsel argument.  The case was returned to the appeals court for further consideration. See, Trevino v. Thaler, 133 S. Ct. 1911, 569 U.S. 413, 185 L. Ed. 2d 1044 (2013).

Additional mitigating evidence was provided to the lower federal court.

This included specifics regarding how much his mother drank during the pregnancy (19-24 cans of beer on a daily basis), and that Carlos Trevino was incontinent and wearing diapers until he was 8 years old.  A clinical psychologist testified that Mr. Trevino’s history of FASD “would have impacted any of [his] decisions to participate in or refrain from any activities that resulted in his capital murder charges.”  Dissent, page 5. 

Still, the Fifth Circuit failed to find merit in the mitigation evidence.  This week, SCOTUS declined Mr. Trevino’s petition to review that decision.

Justice Sotomayor disagrees with this lower court decision as well as the SCOTUS declining to review Mr. Trevino’s petition.  

From her dissent, Justice Sotomayor points out that Trevino’s fetal alcohol spectrum disorder is key to understanding his violent behavior, and this was never presented to the jury during the sentencing phase.

She states (Dissent, page 13)(emphasis added):

The Fifth Circuit majority’s error is glaring, because considering all of the evidence, including that relating to Trevino’s FASD, it is obvious that “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins, 539 U. S., at 537.

The Fifth Circuit majority plainly misapplied our precedents. Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered. That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state. I therefore respectfully dissent from the denial of certiorari.”


Once again, these tragic results in appellate review demonstrate the incomprehensible importance of experienced and aggressive defense counsel in the initial criminal trial and its penalty phase.

High School Shooters and Death Penalty: Juvenile Sentencing

Right now,  17-year-old Dimitrios Pagoutzis sits in the Galveston County Jail after confessing to being the active shooter responsible for last week's high school shooting in Santa Fe, Texas.

In Florida, 19-year-old Nikolas Cruz sets in jail in Broward County, Florida, facing 17 counts of murder for the high school shooting on Valentine's Day at Marjory Stoneman Douglas High School in Parkland, Florida.  See, "Terence Lenamon's Son At Marjory Stoneman Douglas High School Shooting."

In the Cruz case, prosecutors are seeking the death penalty.  In the Pagoutzis case, they don't have that option.  That's because the 17-year-old is not a legal adult, and juveniles are treated differently under the law.

1.  Roper v. Simmons - SCOTUS 2005

Fifteen years ago, the Supreme Court of the United States ruled that it is a violation of the Eighth Amendment of the U.S. Constitution to sentence anyone under 18 years of age to death.  It is cruel and unusual punishment to execute a minor.  Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

From Roper (emphasis added):

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

* * *

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed


2.  Miller v. Alabama - SCOTUS 2012

Six years ago, the U.S. Supreme Court ruled that defendants under the age of 18 years cannot be sentenced to life in prison without the possiblity for parole, either.  Miller v. Alabama, 132 S. Ct. 2455, 567 U.S. 460, 183 L. Ed. 2d 407 (2012).

From Miller (emphasis added)

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment. 

Maximum Sentences for HIgh School Active Shooters

The rulings of the Supreme Court of the United States are those of the highest criminal court in the country.  They cannot be disregarded or overturned by any state court (or any lower federal court for that matter).

These two opinions are the law of the land.  Which means that while the Parkland, Florida shooter defendant faces the death penalty, the Santa Fe, Texas shooter defendant  cannot be sentenced to life without parole, much less capital punishment.

That's the law -- and all these outcries for the death penalty in the Texas case fly in the face of these constitutional precedents. 

For more information, see the Death Penalty Information Center's Roper v. Simmons Resource Page

SCOTUS Dissent as Two More Florida Death Row Petitions Denied

Two more petitions for a writ of certiorari were denied on Monday by the Supreme Court of the United States in capital cases coming out of Florida. 

They are dealing with review of current Florida Death Row inmates' sentences where they were sentenced to die under a statutory scheme deemed unconstitutional by the High Court. 

Florida Death Row Sentences Under Unconstitutional System Denied SCOTUS Review

Without more, let us all consider the words of Justice Sotomayor in her dissent published in the cases of Guardado v. Jones and Cozzie v. Florida: 

JUSTICE SOTOMAYOR, dissenting from the denial of certiorari.

Twice now this Court has declined to vacate and remand to the Florida Supreme Court in cases where that court failed to address a substantial Eighth Amendment challenge to capital defendants' sentences, and twice I have dissented from that inaction. See Truehill v. Florida, 583 U. S. ___, ___ (2017); Middleton v. Florida, 583 U. S. ___, ___ (2018). Four petitioners were involved in those cases.

Today we add two more to the list, for a total of at least six capital defendants who now face execution by the State without having received full consideration of their claims.

It should not be necessary for me to explain again why petitioners' challenges are substantial, why the Florida Supreme Court should have addressed those challenges, or why this Court has an obligation to intervene. Nevertheless, recent developments at the Florida Supreme Court compel me to dissent in full once again.

As a reminder, like the petitioners in Truehill and Middleton, Jesse Guardado and Steven Cozzie challenge their death sentences pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985). I summarized those challenges in Middleton as follows:

[Petitioners] were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional. See Hurst v. Florida, 577 U. S. ___ (2016). Relying on the unanimity of the juries' recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners' death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst. By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to petitioners' death sentences. 583 U. S., at ___-___ (slip op., at 1-2) (dissenting from denial of certiorari).
Reliance on those pre-Hurst recommendations, rendered after the juries repeatedly were instructed that their role was merely advisory, implicates Caldwell, where this Court recognized that "the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role," in contravention of the Eighth Amendment. 472 U. S., at 333.

Following the dissent from the denial of certiorari in Truehill, the Florida Supreme Court has on at least two occasions taken the position that it has, in fact, considered and rejected petitioners' Caldwell-based challenges.1 In Franklin v. State, ___ So. 3d ___, 2018 WL 897427 (Feb. 15, 2018) (per curiam), the Florida Supreme Court stated that, "prior to Hurst, [it] repeatedly rejected Caldwell challenges to the standard jury instructions." Id., at *3. The decisions it cited in support of that pre-Hurst precedent rely on one fact: "Informing the jury that its recommended sentence is `advisory' is a correct statement of Florida law and does not violate Caldwell." Rigterink v. State, 66 So.3d 866, 897 (Fla. 2011) (per curiam); Globe v. State, 877 So.2d 663, 673-674 (Fla. 2004) (per curiam) (stating that it has rejected Caldwell challenges to the standard jury instructions, citing cases that similarly rely on the fact that the instructions accurately reflect the advisory nature of the jurors' role). But of course, "the rationale underlying [this] previous rejection of the Caldwell challenge [has] now [been] undermined by this Court in Hurst," Truehill, 583 U. S., at ___ (slip op., at 2), and the Florida Supreme Court must therefore "grapple with the Eighth Amendment implications of [its subsequent post-Hurst] holding" that "then-advisory jury findings are now binding and sufficient to satisfy Hurst," Middleton, 583 U. S., at ___ (slip op., at 2). Its pre-Hurst precedent thus does not absolve the Florida Supreme Court from addressing petitioners' new post-Hurst Caldwell-based challenges.

The Florida Supreme Court in Franklin did not stop there, however. It went on to state that it had "also rejected Caldwell-related Hurst claims" more recently, citing Truehill v. State, 211 So.3d 930 (Fla. 2017) (per curiam), and Oliver v. State, 214 So.3d 606 (Fla. 2017) (per curiam), noting that "the defendants in Oliver and Truehill petitioned the United States Supreme Court for a writ of certiorari to review their Caldwell claims, which the Court denied." Franklin, 2018 WL 897427, *3. This is a surprising statement, because Quentin Truehill and Terence Oliver were the two petitioners whose claims were at issue in my dissent in Truehill. Franklin did not discuss that dissent, joined by two other Justices, which specifically noted that "the Florida Supreme Court has failed to address" the important Caldwell-based challenge. Truehill, 583 U. S., at ___ (slip op., at 1). Earlier this month, in rejecting a motion to vacate a sentence brought by petitioner Jesse Guardado, the Florida Supreme Court again held that it had "considered and rejected" post-Hurst Caldwell-based challenges, citing Franklin, 2018 WL 897427, and Truehill, 211 So.3d 930. Guardado v. State, ___ So. 3d ___, 2018 WL 1193196, *2 (Mar. 8, 2018).2

It is hard to understand how the Florida Supreme Court "considered and rejected" these Caldwell-based challenges based on its decisions in Truehill and Oliver. Those cases did not mention or discuss Caldwell. Nor did they mention or discuss the fundamental Eighth Amendment principle it announced: "It is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell, 472 U. S., at 328-329. In neither Truehill nor Oliver did the Florida Supreme Court discuss the grave Eighth Amendment concerns implicated by its finding that the Hurst violations in those cases are harmless, a conclusion that transforms those advisory jury recommendations into binding findings of fact. Although the Florida Supreme Court noted in Truehill that the defendant in that case "contends that he is entitled to relief pursuant to Hurst v. Florida because the jury in his case was repeatedly instructed regarding the non-binding nature of its verdict," 211 So. 3d, at 955, that was the first and last reference to that argument. There was absolutely no reference to the argument in Oliver. 214 So.3d 606.3

Therefore, the Florida Supreme Court has (again)4 failed to address an important and substantial Eighth Amendment challenge to capital defendants' sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges. This Court can and should intervene in the face of this troubling situation.

I dissent.

Foot Notes

1. The cases in which the Florida Supreme Court has taken this position, i.e., that it has considered and rejected the Caldwell-based claims discussed herein, are not the ones currently under review before our Court in these petitions.

2. As petitioner Guardado explained in his supplemental brief, in addition to the postconviction motion that forms the basis of the petition currently before our Court, he also filed a motion to vacate his sentence. See Supp. Brief for Petitioner 1. It was with respect to that motion that the Florida Supreme Court issued the opinion stating that it had "considered and rejected" the Caldwell-based challenge. No mention of the Caldwell-based claim was made in the Florida Supreme Court opinion directly under review in this petition. 226 So.3d 213 (2017). In fact, petitioner Guardado filed a motion with the Florida Supreme Court for rehearing and clarification of the denial of his postconviction motion, noting, inter alia, that the opinion "unreasonably omitted any consideration or discussion of [his] arguments regarding the interplay between Caldwell and Hurst." App. to Pet. for Cert. in No. 17-7171, p. 68a. The Florida Supreme Court denied the motion in an unreasoned one-line order. See id., at 7a. Petitioner Steven Cozzie also moved for rehearing below, similarly arguing in part that the Florida Supreme Court "overlooked the effect of instructing [his] jury many times that its recommendation was advisory only," citing Caldwell. App. to Pet. for Cert. in No. 17-7545, p. 66a. The Florida Supreme Court also denied the motion in an unreasoned one-line order. See id., at 43a.

3. Tellingly, in neither Franklin nor Guardado did the Florida Supreme Court supply a pincite for its "consider[ation] and reject[ion]" in Truehill and Oliver of these Caldwell-based claims.

4. "Toutes choses sont dites déjà; mais comme personne n'écoute, il faut toujours recommencer." Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) ("Everything has been said already; but as no one listens, we must always begin again").

Importance of the Underlying Record: SCOTUS Denies Cert in Hidalgo v Arizona

It's Monday morning, and the Supreme Court of the United States (SCOTUS) has issued its orders of the day.  Included among them, denial of the Petition for Writ of Certiorari in Hidalgo v. Arizona.  

For background, read our earlier posts:

The Reverberating Importance of Trial in a Capital Case

Key here:  the importance of the underlying record in a capital case is once again in the spotlight.  The things that happen in the courtroom reverberate for years, not just in the particular circumstances of the defendant on trial for his (her) life, but for others on Death Row; those facing the possibility of the death penalty, and in reality, all of us and the country as a whole.  

What happens in the courtroom, where for instance Terry Lenamon works to defend one of the Terrorist Boyz from the death penalty this month, has far-reaching implications. And we can expect Arizona's death penalty lawyers to take note of Justice Breyer today.  

Justice Breyer Explains Need for Evidence in Hidalgo

From Justice Breyer today:

Although, in my view, the Arizona Supreme Court misapplied our precedent, I agree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty.

That evidence is unrebutted. It points to a possible constitutional problem.

And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation.

However, in this case, the opportunity to develop the record through an evidentiary hearing was denied.

As a result, the record as it has come to us is limited and largely unexamined by experts and the courts below in the first instance.

We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors).

Nor has it been fully explained whether and to what extent an empirical study would be relevant to resolving the constitutional question presented.

Capital defendants may have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here.

And the issue presented in this petition will be better suited for certiorari with such a record.

ABA 2018 Resolution: Ban Death Penalty for Defendants Under Age of 21

 The American Bar Association has adopted a formal resolution regarding the Death Penalty as well as publishing its report in support of the resolution.

You can read the full report here.  

The 2018 ABA Resolution on Death Penalty

Here is the full text of the resolution here, drafted by the ABA's Civil Rights and Social Justice Section:

RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or execution of any individual who was 21 years old or younger at the time of the offense.

Notice that the ABA does NOT go so far as to oppose capital punishment.  They are not moving to abolish the death penalty here.

Adolescence and Death Penalty 

The ABA is urging that young people should be dealt a different hand when it comes to capital punishment, because of their adolescence.  From the report:

It is now both appropriate and necessary to address the issue of late adolescence and the death penalty because of the overwhelming legal, scientific, and societal changes of the last three decades. The newly-understood similarities between juvenile and late adolescent brains, as well as the evolution of death penalty law and relevant standards under the Eighth Amendment lead to the clear conclusion that individuals in late adolescence should be exempted from capital punishment.18 Capital defense attorneys are increasingly making this constitutional claim in death penalty litigation and this topic has become part of ongoing juvenile and criminal justice policy reform conversations around the country. As the ABA is a leader in protecting the rights of the vulnerable and ensuring that our justice system is fair, it is therefore incumbent upon this organization to recognize the need for heightened protections for an additional group of individuals: offenders whose crimes occurred while they were 21 years old or younger.

- ABA Report page 3.


Death Penalty: Four Things to Watch in 2018

 The Marshall Project has published its analysis of the state of the Death Penalty as we enter into 2018.  See, "What to Know About the Death Penalty in 2018," by Maurice Chammah of the Marshall Project and published in the ABA Journal.

It's a good read. Taking everything that has happened - and which we know will be happening this year (like the pending SCOTUS decisions), the Marshall Project has collected them into four specific areas:

1. The Supreme Court of the United States

There's a great discussion on what might happen if Justice Kennedy retires.  And while Florida is still dealing with Hurst v. Florida, and now we've got Hidalgo v. Arizona pending before the High Court.  

See:  "Will SCOTUS Hear Hidalgo v Arizona and End the Death Penalty?"

2. The Attorney General for the United States

Attorney General Jeff Sessions is all for the death penalty. That's not news.  But the article has some interesting discussion on his dropping of the death penalty back in Alabama.  And how there is a way Sessions could "speed up executions in the states."

3. The States (Florida and Texas playing a big part here)

Big issue here, really, is getting those lethal injection drugs in order to carry out executions.  The Marshall Project points to fentanyl being used, and how the FDA blocked importing drugs from India.


 4. The Counties in those States 

There are certain counties in Florida and Texas that are hot beds for death penalty issues.  Among them, the state attorneys prosecuting cases in Tampa and Orlando.  Can they implement their own ban on capital punishment simply by failing to file a notice of intent to seek the death penalty?  

Another interesting thing to ponder in the Marshall Project synopsis:  what about life without parole? How merciful is it, or it is just as cruel as death, or even more so?  

Hidalgo v Arizona SCOTUS Update: Is No News Good News?

Updating our prior post on the case of Hidalgo v Arizona, where a petition to the Supreme Court of the United States has been filed on behalf of Arizona Death Row inmate Abel Hidalgo. 

This is the case that some argue could result in a SCOTUS finding that capital punishment is unconstitutional. For details read our earlier post, "Will SCOTUS Hear Hidalgo v Arizona and End the Death Penalty?"

Supreme Court On Holiday 

SCOTUS has adjourned for its holiday break.  The next time that the Justices will meet to consider things ("scheduling conference") is on January 5, 2018.

SCOTUS did have Hidalgo v Arizona on the table this month.  It was part of the December 1st conference. 

But they didn't go either way on the petition (request).  Didn't deny writ, didn't grant it. 

Arizona Court Record Sent to SCOTUS on December 11, 2017

They did do something:  

On December 6th, SCOTUS sent for the lower court record. The record was received by the High Court yesterday (12/11/17).  

So what does it mean that the Arizona record was requested two days before the formal scheduling conference?  

As SCOTUS blog has explained in its coverage, this gives a hint of sorts.  Some think it means that there will be a denial of Hidalgo's request but that a justice (SCOTUS thinks it's probably Justice Breyer) is writing an explanation of his or her position on why writ should be granted. 

But we don't know this is accurate. So, maybe no news is good news, right? 



Opening Statements and Closing Arguments in James Bannister Death Penalty Trial

What do the prosecutors and the defense attorneys say to the jury in a death penalty case, when those 12 people are going to decide whether or not the defendant should be sentenced to death?

Real life isn't like those short speeches we see on the TV shows like Law and Order.  For those interested in the process and how death penalty trials work -- and specifically, what Terence Lenamon said to the jury in the Bannister case where the jury came back for Life, not Death, we have added the following into Terry's Online Libary:


Death Penalty Trial Opening Statements: Trial Transcripts



Closing Arguments by State and Defense in Death Penalty Trial of James Bannister

Will SCOTUS Hear Hidalgo v Arizona and End the Death Penalty?

Right now, there is a petition before the Supreme Court of the United States coming out of the State of Arizona.  If SCOTUS agrees to hear this case, then it's a big deal.  It may be the 21st Century's Furman v. Georgia.

Hidalgo v Arizona Petition Before SCOTUS

The case is Hidalgo v. Arizona.  Follow it here.

Why is it a big deal?  Key to the petition is the issue of "aggravating factors" and how they work.  Each state has its own list.  (See Terry's list of state aggravating factors and mitigating circumstances here.)

In Arizona, they've added so many factors to the list that anyone convicted of murder can face death in that state.  There's also a budget argument, some Arizona counties are more likely to seek death because they can afford it. 

Tribe's Op-Ed Argues Hidalgo to Strike Down the Death Penalty

Lots of illustrious folk are voicing their concerns over capital punishment and their interest in the High Court rendering its opinion in Hidalgo.  But if you just want to read one, check out Laurence Tribe's op-ed in the Washington Post, "The Supreme Court Should Strike Down the Death Penalty."

Amicus Briefs Filed in Hidalgo

Also check out the amicus briefs:

  1. Brief filed by Amnesty International
  2. Brief filed by Fair Punishment Project
  3. Brief filed by The Promise of Justice Initiative
  4. Brief filed by Former and Current Arizona Judges, Prosecutors, Defenders, Legislators and Others.


Closing Argument in Death Penalty Trial of William Wells

 Terence Lenamon argued against the imposition of the death penalty in the William Wells case last month, and the result was a jury finding that Wells should not receive death but instead life without parole.

The jurors' determination was based upon consideration of the aggravating factors argued by the State as they balanced against the mitigating circumstances urged by Terry.  Mercy won:


So, what did Terry argue to these twelve jurors that resulted in four of them deciding against capital punishment?  

Read his Closing Argument here, stored for future reference in the Terence Lenamon Online Library:

Penalty Phase Closing Argument in William Wells adv Florida 

Florida Jury Instructions in Capital Cases: SCOTUS Denies Cert in Truehill and Oliver

The Supreme Court of the United States has denied certiorari in two important Florida death penalty appeals, which questioned current jury instructions given in capital cases. 

SCOTUS Dissent in Challenge to Florida Jury Instructions in Death Penalty Cases

From Justice Sotomayer, a dissent joined by Justice Ginsburg and Justice Breyer, stating in part:

“At least twice now, capital defendants in Florida have raised an important Eighth Amendment challenge to their death sentences that the Florida Supreme Court has failed to address. Specifically, those capital defendants, petitioners here, argue that the jury instructions in their cases impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory. “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task,” and we have thus found unconstitutional under the Eighth Amendment comments that “minimize the jury’s sense of responsibility for determining the appropriateness of death.” Caldwell v. Mississippi, 472 U. S. 320, 341 (1985). ….

“Because petitioners here raised a potentially meritorious Eighth Amendment challenge to their death sentences, and because the stakes in capital cases are too high to ignore such constitutional challenges, I dissent from the Court’s refusal to correct that error.”

Read the full dissent in Truehill v. Florida / Oliver v. Florida, placed for future reference in the Terence Lenamon Online Library:



William Wells Verdict: No Death Penalty

Many in Florida have been following the capital case of William Wells. He's been known in the media as "the Monster of Mayport" for years now. 

No Death Penalty: "A Vote for Humanity and Mercy" - Terry Lenamon

Terence Lenamon and co-counsel Tania Alavi of Ocala represented William Wells in his 2017 capital trial before the Honorable William Davis in Starke, Florida.  Lenamon Law associate Melissa Ortiz and mitigation specialist Kate O'Shea played pivotal roles in the defense team's victory against death in this case. 

Result:  The jury did NOT vote for the death penalty.  In what Terry's views as "... a vote for humanity and mercy," the jurors found that the balance between aggravators and mitigating factors did not warrant capital punishment.

Background from the Trial:

The State of Florida sought the death penalty for William Wells based upon the death of an inmate at the hands of William Wells and Wayne Doty.  Wells confessed to the killing.

Wells was incarcerated at the Florida State Prison at the time of this killing because of his prior conviction for five counts of 1st degree murder back in 2003. 

Wells pled guilty to killing his wife, his wife's lover, her father, her brother, and a drug dealer over a time period covering 11 days.  All the bodies were kept in Wells' trailer with him and his small son.  

With this background, how could Lenamon and his team convince the jury not to decide on death for this man? 

What swayed them?  Read the arguments for yourself.

Opening and Closing in the William Well's Death Penalty Trial

First, there is the Opening Statement by Terry's co-counsel Tania Z. Alavi in Terry's Digital Library. 

Then, there were Terry's Closing Arguments.  That part of the trial will be uploaded into the Digital Library once they've been transcribed and forwarded.


William Wells Penalty Phase Opening Statement by Lenamon co-counsel Tania Z. Alavi 

DPIC Podcast: Does Capital Punishment Deter Murder?

This month, the Death Penalty Information Center shares a new podcast with its PowerPoint presentation, entitled "Does Capital Punishment Deter Murder?."

View the PowerPoint presentation here. 

Listen to the podcast here. 

In it, DPIC Fellow Seth Rose and Executive Director Robert Dunham detail research studies that reveal Death Penalty does not deter murders from being committed nor does it work to keep police officers safer than in states where capital punishment is not condoned.



Dunham explains:  "There's no evidence that the death penalty deters murder and there's no evidence that it protects the police. Murder rates may be affected by many things, but the death penalty doesn't appear to be one of them."


Dennis Prager Explains The Position FOR the Death Penalty

Terence Lenamon fights against the death penalty as his life's calling. This week, he is involved the jury selection for the William Wells case over in Starke.  (Wells is the man whom the media has dubbed the "Mayport Monster.")

And if you listen to the arguments of Dennis Prager in this video (which had over 887,000 videos at the time this post was published), then you get the idea just how hard Terry's job can be.

Because there are people out there who think the death penalty is acceptable. And that today's technology makes it almost impossible to convict and execute an innocent person.  

Just watch the other side's position here.

Then, take comfort that people like Terence Lenamon and the folks at the Innocence Project are out there, hard at work.  

And maybe someone can point Mr. Prager to recent exposes that DNA isn't all that reliable, crime labs and prosecutors do bad things, and that (as one example), Cameron Todd Willingham died an innocent man, executed for the arson death of his daughters. 


Florida Supreme Court Ruling in Asay v. Florida

Of course, the biggest result of the Florida Supreme Court's decision this week in Asay v. Florida is its failure to block the impeding execution of Mark James Asay.  

Read the full opinion here: Asay v. State, No. SC17-1400 (Fla. Aug. 14, 2017).

Asay Execution Remains Scheduled for August 24, 2017

The State of Florida has scheduled this execution for August 24, 2017.  This week's Florida Supreme Court opinion will not block that from happening.

It will be the first execution in the State of Florida in many months (over a year and a half), since executions were halted here after SCOTUS ruled that the Florida death penalty statute was unconstitutional.

Impact on Florida Death Row Inmates' Review of Death Sentences 

After SCOTUS's ruling in Hurst v. Florida, the Florida Legislature revised the state capital punishment laws twice.  This year, a new statute became effective that mandates juries be unanimous in their recommendation of a sentence of death.

As we have discussed earlier, one result of the SCOTUS ruling meant that Florida Death Row inmates might have legal arguments for re-sentencing and life sentences on constitutional grounds.

The Asay opinion by the Florida Supreme Court did not agree with Asay's constitutional arguments -- although the sole dissenter, Justice Barbara Pariente, did find merit in them.  Specifically, that the cut-off date for determining which Florida Death Row inmates should be allowed re-sentencing hearings is unconstitutional.  

Justice Pariente dissents, agreeing with Petitioner Asay that all Florida Death Row inmates who were sentenced to death in jury trials without unanimous recommendations for death should get a new sentencing hearing.  

Lethal Injection Protocol for State of Florida

This new opinion in Asay is also important for the Florida Supreme Court's declination to consider Asay's arguments about:

(1) the State of Florida's decision to use a new drug in its lethal injection method of execution (etomidateand

(2) its use of a three drug cocktail and not a single drug in the execution process.


Motion to Exclude Death Penalty for William Wells Denied

Next month, the death penalty trial of William Wells is set to begin in Bradford County, Florida, on September 4, 2017.  

You may recognize this case as the "Mayport Monster" case.  Terence Lenamon is defense counsel for William Wells.  

Of interest here to many:  this is another defendant facing the death penalty who suffers from mental disability.  

How Does the Defense Get Death Penalty Excluded From Possible Sentence?

It's the job of the defense team to fight for these defendants after the prosecutor has notified everyone that the government is seeking the death penalty.

So, how does this get argued in a capital case?  A Motion is filed by the defense, and heard by the judge.  The motion is the official request to have the death penalty taken on the table by the judge.

The judge then makes a decision and rules, in an Order signed by the judge that either grants or denies the relief.

In the Wells' case, Terence Lenamon's motion to exclude the death penalty has been denied.  It has been placed into the Terence Lenamon Online Library.  

Here is that motion as it was filed in the court record, for those of you interested in this issue and those who may be interested in how the actual motion reads: 


Great New Florida Death Penalty Resource from DPIC

The Death Penalty Information Center website is a great resource for anyone interested in learning more about capital punishment in the United States.  And the site just keeps getting better.  

They've got site-specific pages for each state, for one thing.

DPIC State-Specific Page: Florida

There's a great deal of Florida Death Penalty information collected on the DPIC Florida page, great info like:

  • Death Sentences List
  • Exonerations List
  • Time Line for Capital Punishment in Florida
  • and links to other resources -- among them, the Florida Capital Resource Center (which Terence Lenamon founded several years ago). 

And there's a specific page dedicated to the impact of Hurst on Florida's Death Row that is especially informative. 

DPIC Impact of Hurst Page 

The page dedicated to the impact of Hurst provides a complete list of the Florida Death Row Inmates who may be impacted by the SCOTUS ruling in Hurst.  

And at the top, it gives the date of its last update and the status of these prisoners' cases.

For instance, on July 13, 2017:

  • Total number of prisoners whose cases have been reviewed in light of Hurst:  119 
  • Number of prisoners who have obtained relief under Hurst:  99 (83.19%)
  • Number of prisoners who have been denied relief under Hurst:  20 (16.81%)

Go check it out.  Just more great work by the DPIC.  


Florida Death Row Inmates Getting Review After Hurst

As we have discussed earlier, the SCOTUS ruling in Hurst means that almost 400 Florida Death Row inmates may need new sentencing hearings ... and that's happening now.  

Hurst Impact on Current Florida Death Row Inmates -- Manatee Example

For details, read the coverage of the recent developments for three Florida Death Row inmates, all from Manatee County, in "Challenges to Florida’s death penalty impact three Manatee death row inmates," written by Jessica DeLeon and published in the Bradenton Herald on July 1, 2017.  

SCOTUS Death Penalty Review

Now that summer is here for the Supreme Court of the United States, we can look back over their actions in the past session to get an idea of where they may rule in future death penalty cases.  As Hurst demonstrates, SCOTUS has great power here -- but will it ultimately use that power to outlaw capital punishment in this country?

For a good overview of what happened this year with SCOTUS and some predictions on where the High Court is headed, read the op-ed by Professor Stephen McAllister and published in SCOTUSBlog, "Death-penalty symposium: A court increasingly uncomfortable with the death penalty."

For more, read our past discussion in:

Court Rules on Post-Hurst Sentencing Hearings

How Many Florida Death Row Inmates Will Get Resentencing Hearings?

What Does the New Hurst Decision Mean for Florida Death Penalty?



Death Penalty in the United States: Time Line

 Here's a great resource for a quick overview of the death penalty in the United States, state by state, including clemency granted and denied and various issues with execution methods.  

Compiled by CNN, you can read it here as their Death Penalty Fast Facts.

Among the details found there: 

1.  Since 1973, there have been 157 death row exonerations and 26 of those executions have been in Florida.  That's 17%. 

2.  There are 62 people sitting on the Federal Death Row -- no, not any state.  The federal government can execute, too. 

3.  A Florida governor has suspended the death penalty,  Governor Jeb Bush did so after the horrific execution of Angel Diaz back in 2006.

4.  A drug called sodium thiopental was popular in lethal execution methods in several states until the DEA began questioning where the states were getting their supply and seized all of Georgia's supply of thiopental.  

That led to the only US manufacturer to stop making it, and overseas manufacturers to refuse to sell it to American buyers.  Result?  States began looking for a substitutefor sodium thiopental.  Georgia chose pentobarbital to replace sodium thiopental in its 3-drug cocktail. 

5.  Pentobarbital hasn't been so easy to find for executions either.  Ohio couldn't find any pentobarbital to buy, so it substituted midazolam along with hydromorphone in its lethal injection procedure.  This was used on Alan Johnson, who reportedly gasped for air for as long as 13 minutes before passing away 24 minutes after the execution began.


New Jury Instructions for Florida Death Penalty

 Last week, the Supreme Court of the United States opted not to review a case dealing with the Florida Supreme Court's determination that there must be an unanimous jury for the death penalty. 

Which means that it's clear going forward that in Florida capital cases, the prosecution must convince all twelve jurors that capital punishment is warranted before the death penalty can be imposed.

Jury Instructions in Florida Death Penalty Cases

This changes how the prosecutor and the defense lawyer do things, of course.  Judges, too.  For instance, as Terence Lenamon has discussed in an interview by the Ocala Star Banner, there will be necessary changes to the Jury Instructions that must be given in a capital case.

May 29th Ended Comment Period for Florida Supreme Court

Right now, the Florida Supreme Court is working on amending the Standard Jury Instructions that are to be given in a capital case, in light of the SCOTUS precedent.  

The time period for public commentary on these new instructions ended this week.  

SC17-583 Opinion: Jury Instructions Under Review 

Pursuant to the Florida Supreme Court's Opinion SC17-583, here are the specific Standard Jury Instructions that are involved:

Two Standard Jury Instructions in Criminal Cases are in the process of being amended:

7.11 (Preliminary Instructions in Penalty Proceedings—Capital Cases) 

7.12 (Dialogue for Polling the Jury (Death Penalty Case).

Two new jury instructions are being proposed:

3.12(e) (Jury Verdict Form— Death Penalty)

7.11(a) (Final Instructions in Penalty Proceedings—Capital Cases).





SCOTUS rules on Intellectual Disability Test for Death Penalty

The Supreme Court of the United States (SCOTUS) has ruled in the case of Bobby Moore v. State of Texas, and it's a victory for opponents of the death penalty.

This case is one more step in the treatment of those with mental health issues or intellectual disability issues in capital punishment.  Another recent and important case here:  2014's Hall v. Florida.

Moore v. Texas Does Two Things

In an opinion written by Justice Ruth Bader Ginsburg, two things have happened:

1.  Texas Death Row Inmate Bobby Moore will get the opportunity to argue that he should not be executed because his intellectual disability bars him from capital punishment as cruel and unusual punishment under the U.S. Constitution; and

2.  The State of Texas has been told its method of determining who can be executed when their intellectual abilities are in question is wrong.  Its procedure does not meet constitutional muster according to SCOTUS.

Full Text of Moore v. Texas

Read the opinion here as we've stored it in the Terence Lenamon Online Library: 


Recommended Read - The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience

We've discussed the importance of scientific study and analysis of brain disorders and brain damage in death penalty defense many times before. 

In fact, you may know Terence Lenamon as one of the pioneers in using QEEG as part of a death penalty defense.  For more on Terry's experience with QEEG in the courtroom, check out:

Recommended Read:  The Brain Defense by Kevin Davis

Hopefully, the national spotlight on this vital issue will grow with the publication of a new book by journalist Kevin Davis, entitled The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms.

Of particular note is an entire chapter of the book dedicated to neuroscience and capital punishment in America today.  Davis interviewed Terence Lenamon for the book and its chapter on brain science in death penalty cases.

Lenamon Discusses QEEG and Grady Nelson Case in The Brain Defense

Of particular note to readers is Terry Lenamon's in-depth discussion of his defense of Grady Nelson and his defense reasoning and strategy in both the guilt and sentencing phases of that trial. 

QEEG was an important factor in the Florida death penalty trial of Grady Nelson.  Terry discusses how it impacted that result (death was denied) as well as how vital QEEG is to the future of death penalty defense. 

You can get the book on Amazon as well as read an excerpt from the book and its growing number of positive reviews there:



Guest Post: Dylan Roof's Death Sentence Bucks Trend in America

Dylan Roofs death sentence for the South Carolina shooting which left nine people dead, departs from the national downward trending of death penalty cases. 

Before the June 17, 2015 mass shooting, Roof’s only contact with police had been two arrests each occurring in the months immediately before the deadly attack. Following a February 28 incident at a Columbia mall, Roof was questioned by law enforcement and arrested on a misdemeanor charge of drug possession and banned from the mall for twelve-months. Roof was captured and held with no bail up until trial. 

From the mid-1990s when death penalty cases stood at over 300 a year, the number of new death penalty cases has dropped to 30 in 2016 according to the Death Penalty Information Center.  The previous low was a 40-year low of 40 in 2015. 

Executions have dropped from almost 100 in 1999 to twenty in 2016 according to DPIC. Better defense teams, publicity of wrongful-conviction cases and changing public opinions of capital punishment have all led to the decline according to Robert Dunham, Executive Director of DPIC. 

We’re in the middle of a climate change on the death penalty,” Dunham said. “The long-term trend shows a reduced utilization of the death penalty.” 

Roof, who fired a .45 caliber handgun told jurors “I felt like I had to do it. I still feel that way.” 

The jury recommended the death penalty after three hours of deliberation.

In some ways, Roof’s case is an anomaly. He decided to defend himself, didn’t show any remorse and talking about killing again. 

Someone representing themselves is not going to be able to put on that type of case,” said Brandon Garrett, a professor with the University of Virginia Law School. 

Is Dylann Roof’s Execution Justified? 

The drop in death penalty cases can be linked to improvements in capital defense teams nationally. Also, there are fewer cities and counties pushing the death penalty for budgetary reasons. 

Texas, with 538 executions since the death penalty was reinstated in 1976, is seeing a decline as well. Death sentences have fallen from a zenith of 48 in 1999 to three in 2015 and three in 2016, said Kristin Houle, director of the Texas Coalition to Abolish the Death Penalty. 

In a 2016 Gallup Poll, a majority of people across America — 60-percent — favor the death penalty. That figure is down from 80-percent who supported the punishment in 1994. 

Garrett feels the shift from death sentences may be irreversible. “The trends are long-standing and ingrained,” he said. “I see them continuing.”


Contributed by New York criminal defense attorney Arkady Bukh, 14 Wall St, New York NY 10005, (212) 729-1632)

Florida Supreme Court Rules on Post-Hurst Sentencing Hearings

Right before Christmas (on December 22nd), the Florida Supreme Court issued two opinions that answer the question of vacating the death sentences of Florida Death Row inmates after the SCOTUS ruling that their capital punishment had been decided unconstitutionally (Hurst).

Asay v State and Mosley v State

The two cases are Asay v State of Florida and Mosley v State of Florida.  Both opinions have been stored for your convenience in the Terence Lenamon Online Library. (Click the link in the left sidebar.)

Hearing for Mosley; Not for Asay

In sum, Asay holds that Mark James Asay does not get a new sentencing hearing because he had finished his direct appeal process before the SCOTUS decision in Ring v. Arizona. 

In Mosley, the High Court finds that he was sentenced to death by a judge who disregarded the jury's recommendation and did so after Ring v. Arizona.  He gets a new sentencing hearing.

Read Mosley here: 


What Happens To Pending Florida Death Penalty Trials?

What happens with the current Florida prosecutions, where the death penalty is being sought by prosecutors?

Here's a great article using in part the example of the Michael Lamar Woods' case, where Terence Lenamon acts a defense counsel. 

Jury Instructions in Death Penalty Cases

Read all about how things are working in the current legal limbo in the piece written by Nicky Gorny for the Ocala Star Banner and published on December 15, 2016, in "On hold: Death penalty debate affects Marion defendants," with quotes from Terry Lenamon.

Key here, Jury Instructions.  Terry explains how things may be delayed because of the need for proper jury instructions in capital cases.


DSM and the Death Penalty: Issue in SCOTUS Oral Argument Transcript

The United States Supreme Court has just heard oral arguments in a death penalty case where the intellectual ability and mental capabilities of the defendant is an issue. 

Those interested in this aspect of capital punishment may want to read the oral argument transcript in Moore v. Texas, which is available online here.

DSM and Death Penalty

Notice the discussion of  the  Diagnostic and Statistical Manual of Mental Disorders (DSM).

What is appropriate?  What is accurate?

Here's an earlier post on the issue for a background on DSM -- did you know that narcissistic personality disorder was removed from DSM-V? See, "Use of DSM in the Law: the Doctors Need to Recognize this Reality in DSM-V."

See also, which discusses the impact of Hall v. Florida on this issue: Assessing Adaptive Functioning in Death Penalty Cases after Hall and DSM-5, Leigh D. Hagan, Eric Y. Drogin, Thomas J. Guilmette Journal of the American Academy of Psychiatry and the Law Online Mar 2016, 44 (1) 96-105.


Texas Use of the 'Lennie Standard' for Mental Competency in Death Penalty

For those like Terence Lenamon, who fight on the issues of mental illness and intellectual ability in capital punishment, the use of the "Lennie Standard" by the State of Texas comes as no surprise.  It's been used for years.

Of Mice and Men

Thing is, lots of people weren't aware of this standard and they are pretty shocked by it. 

What is the "Lennie Standard" used by Texas?  It refers one of the main characters in John Steinbeck's novel Of Mice and Men. (Warning: this is a real tear jerker.  Have tissues ready.)

For details on the Lennie Standard and the current case before SCOTUS which will be reviewing its use by Texas, read the DW.com article, "Texas on trial for using fictional character in death penalty cases."

Moore v. Texas Argument November 29, 2016

The SCOTUS case?  Moore v. Texas, with oral argument scheduled for November 29, 2016.



Florida Supreme Court: Retroactive Application of Hall v. Florida

Well, there was another big case out of the Florida Supreme Court regarding capital punishment this month. Walls v. State was released on October 20, 2016.

Retroactive Application of Hall v. Florida

Last week, the decision in Walls v. State was issued. In this case, the High Court has ruled that over two dozen Florida Death Row inmates who unsuccessfully argued that they should be spared the death penalty because of intellectual disabilities should have the opportunity to do so now.

In sum, Walls is taking the Hall v. Florida decision and agreeing that it should apply retroactively.

In Hall v. Florida, the United States Supreme Court ruled that the Florida procedure for deciding who suffers intellectual disability for purposes of the death penalty violated the constitution and imposed cruel and unusual punishment.

As you may know, defending the issue of intellectual disabilities in defendants facing the death penalty is a particular passion for Terence Lenamon. 

In case you're interested, we’ve uploaded the entire opinion in Terry’s online library for your convenience. Here it is:


Walls v. State by Reba Kennedy on Scribd

SCOTUS Opens Door to PTSD, Child Abuse Mitigation Evidence in 25 Death Penalty Cases

This week, the United States Supreme Court refused to take a case.  The High Court's refusal to hear arguments and grade the papers of a lower Arizona court decision means that decision stands.  It's good law.  It's final.

Sometimes, SCOTUS's power lies it is decision not to exercise that power. 

The Arizona Case Where Writ Was Denied by SCOTUS

Last fall, the U.S.  Court of Appeals for the Ninth Circuit ruled that James McKinney's sentence of death by the State of Arizona was unconstitutional.  His capital punishment sentence was overturned, and McKinney's federal appeal was a victory not only for himself, but for around 25 other people sitting on Arizona's Death Row.

The Ninth Circuit opinion can be read online here at Google Scholar. 

Mitigation Evidence of Child Abuse Victim and PTSD

In sum, the federal appeals court ruled that the Arizona rule of "causal nexus" had violated the federal constitution by keeping out evidence of McKinney's being abused as a child and his diagnosis of Post Traumatic Stress Disorder (PTSD).

The abuse McKinney suffered as a child and the resulting psychological trauma is detailed in the Ninth Circuit's majority opinion.

This is mitigating evidence used by defense lawyers to argue against the sentence of death during the sentencing phase of a capital trial.  (Terry Lenamon is passionate about this issue and the fight for balancing psychological and mental issues of the defendant on the sentencing scale.)

This means that the McKinney opinion can now form the basis of other appeals, seeking review of the mitigation evidence and sentencing trials of other defendants who were sentenced to death in Arizona. 

Heated Dissent in the Ninth Circuit Case

The dissent pulls no punches.  There is strong disagreement about what the majority decides, and the refusal of SCOTUS to grant writ in this case may be a surprise to many.

As the dissent (five justices joining) points out, for one thing this case may well impact every death penalty given in Arizona from 1989 to 2005 and more.  From the Dissent:

"Also quite troubling, the majority wrongly smears the Arizona Supreme Court and calls into question every single death sentence imposed in Arizona between 1989 and 2005 and our cases which have denied habeas relief as to those sentences."

For more, read the Associated Press coverage by Astrid Galvan, "US Supreme Court Won't Hear Arizona Death Case."

Federal Death Penalty Challenged as Unconstitutional

Remember the tragedy back in June 2015 when 9 people were gunned down at a church in Charleston, South Carolina? 

A young man named Dylann Roof was arrested and charged with the multiple homicides under federal criminal laws against hate crimes.

This makes Dylann Roof eligible for capital punishment under the FEDERAL death penalty, not any state statute. The laws of South Carolina are not at issue here.

Now, Roof's defense counsel are arguing that the federal death penalty violates the U.S. Constitution as cruel and unusual punishment under both the Fifth and the Eighth Amendments.

Read their brief here. 

Did you know that there was a federal death penalty statute that operates independently of any state law?

Time Magazine's Death Penalty Issue: a Year Later

It's been about a year since Time Magazine put the Death Penalty on its cover, with an analysis of capital punishment in this country and the reasons why the Death Penalty is dying here.



Let's Read It Again and Consider What's Happened.

It's a good read.  Now, here's the question -- does it hold up a year later, given that we're seeing lots of things happening regarding the death penalty in this country.  Things like:

  • Arizona and Ohio not able to execute with lethal injection because they can't find the drugs to do it? 
  • And Arkansas has just seen its high court rule that executions may proceed there? 
  • And Florida's death penalty scheme is once again being challenged as unconstitutional?

The five reasons listed by Time Magazine's David Von Drehle:

  1. Not getting better at execution.
  2. Crime rate plunged.
  3. Dwindling justifications.
  4. Governments are going broke.

Read it again.  See what you think.



How Long Is Too Long to Sit on Death Row? SCOTUS Agrees to Hear Cruel and Unusual Argument

Earlier this month, the U.S. Supreme Court announced that it would hear a case coming out of Texas, where a man was sentenced to die over 36 years ago.

Bobby James Moore faced a jury and a death penalty sentence back in 1980 for the killing of a store employee during an armed robbery of a grocery store in Houston, Texas.

Bobby James Moore has faced execution every day since then.  That's been 36 years of facing death.

How Long is Too Long to Wait To Execute Someone on Death Row?

Now, Mr. Moore's lawyers are arguing that being in this position for three and a half DECADES is cruel and unusual punishment.  

His constitutional rights have been violated because the Eighth Amendment protects him, and all citizens against cruel and unusual punishment. 

Is 15 Years in Solitary Confinement Awaiting Death Against the Constitution?

Important fact here:  since 2001, Mr. Moore has lived in solitary confinement for 23 hours a day.  Alone, in a cell, every day 365 days a year, for the past 15 years.

(Moore also has a second issue before SCOTUS.  He's also arguing that the Eighth Amendment has been violated in his case because of the use of antiquated medical testing on his intellectual abilities in order to allow him to be executed at all.)

Read Moore's Petition as provided by SCOTUS blog here.


Annual Fast and Vigil Begins on June 29 in Washington DC


Each year, people who are opposed to the death penalty in this country come to the nation's capital to make their position known to the Powers that Be.

Fast and Vigil Begins on June 29

This year, beginning on June 29, 2016, and continuing through to July 2, 2016, they will be gathered at the steps of the United States Supreme Court in what's known as the annual Fast and Vigil. 

People come from all over the globe to the Fast and Vigil.  This will be its 23rd year, and you may need to register in order to attend some of the bigger events (there's speakers and lectures, all sorts of stuff). 

If you're interested in learning more about it, check out the details on the website,  as well as the resources provided by the National Coalition to Abolish the Death Penalty (NCADP). 

SCOTUS - Latest Death Penalty Opinions

Last week, the Supreme Court of the United States issued two opinions that deal with capital punishment in this country. 

May 31 SCOTUS Death Penalty Opinions: Tucker and Lynch

Read them here:

The first one, coming out of Louisiana, upheld the death penalty sentence.  The second one, coming from Arizona, went against the death penalty in that case.

So, what can we learn from these two cases?  Well, reading and comparing them gives us a pretty clear picture of where the Justices stand on the issue.

In the Arizona case, Justices Thomas and Alito dissent.  They would have kept the man, Shawn Patrick Lynch, on Death Row based in part on the "sheer depravity" of the underlying homicide. (The majority ruled based upon the failure of the jury to be instructed that the sole option to a death sentence was life without parole.)

In the Louisiana case, Justices Breyer and Ginsberg dissent.  They looked to the geographical origins of the conviction, Caddo Parish, where almost "half the death sentences in Louisiana" arise even though "only 5% of that State's population" comes from there.

Death Row petitioner Lamondre Tucker might not have received the death penalty if he had been tried in another part of the state, and accordingly the dissenters would have granted his petition.

Importantly, Breyer and Ginsberg come right out and suggest that the High Court needs to re-consider its position on the death penalty, and if capital punishment is cruel and unusual punishment and therefore, unconstitutional. 

The big deal?  The empty seat. 

Why Should We Care About These Two Cases?

What will happen to the death penalty when someone finally puts on those black robes and starts to work in the place left by the recent death of Justice Scalia?  We read these opinions for clues, and ponder the future. 

What does the New York Times think? That these cases support the current position of SCOTUS;  they won't declare the death penalty unconstitutional, but they will work to find ways to limit its usage.  Do you agree?

Petition for Writ of Certiorari in Woods v. Florida with Appendix

Right now, Terence Lenamon is working at the appellate level, addressing an important Discovery Issue that has serious implications in capital cases throughout the State of Florida.

The issue: 

Does the Sixth Amendment preclude compelled disclosure of test findings and reports from non-testifying expert witnesses?

It's an "uphill battle," according to Terry. With his permission, we're sharing his briefing in the matter below, in case you are interested in reading more about it.  These two documents are also stored online in the Terence Lenamon Online Library.

1.  Petition for Writ of Certiorari in Woods v. State of Florida

2.  Appendix to Petition for Writ in Woods v. Florida


New Florida Death Penalty Statute Signed Into Law This Week

On March 7, 2016, Florida Governor Rick Scott signed the new Florida Death Penalty statute into law.  It is effective immediately.


The New Florida Death Penalty Law

Now, Florida juries must have unanimous agreement that there is at least ONE "aggravating circumstance" before there can be a sentence of death. 

And now, at least 10 jurors have to vote for death sentence (under the old law, you only needed 7).

Finally, some things stay the same:  the jury still recommends while the judge presiding over the capital trial makes the final decision.  He or she can opt for a life sentence instead of death, but cannot choose capital punishment if the jury (now 10 or more) has not voted for the death penalty.

What about all those cases where people were sentenced to death under the old law that the Supreme Court of the United States held to be unconstitutional? 

Well, that's still subject to debate and not a settled question.


What Happens to Florida Death Penalty after SCOTUS Ruling in Hurst v. Florida?

Now that the Florida death penalty scheme has been ruled unconstitutional by the United States Supreme Court in Hurst v. Florida. what happens now?

1.  Florida Supreme Court Allows Feb 11 Execution to Proceed

That's not an easy question to answer.  For one thing, the State of Florida is more than ready to keep its execution schedule. 

Cary Michael Lambrix is scheduled to die by lethal injection on February 11, 2016.  The Florida Supreme Court denied Lambrix's request to delay that execution because of the Hurst decision.

2.  Florida Death Row Inmates Wanting New Sentencing Hearings

Meanwhile, a large part of the current Florida Death Row population were sentenced to death under the scheme that was held unconstitutional in Hurst.  They, of course, will be wanting to challenge that process and seek new sentencing hearings as a result.

Will this be granted to them?  Read the debate in a recent Orlando Sentinel article here.

3.  Florida Attorney General and Florida Legislature At Work on a Fix

As for Florida lawmakers, the Florida Attorney General issued a prompt news release after the Hurst opinion was issued. 

Pam Bondi stated that her office would be working with the current Florida Legislature to get a fix as soon as possible, and in the meantime, those cases currently on Death Row would be reviewed on a "case by case basis."

Florida Death Penalty Statute Is Unconstitutional Rules U.S. Supreme Court

Today, the Supreme Court of the United States released its opinion in Hurst v. Florida.

Read the Supreme Court Opinion (including its sole dissent by Justice Alito) here.

What has happened here is that the highest court in the nation has ruled Florida's process in death penalty trials violates the Sixth Amendment of the U.S. Constitution.

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .”



How does the Florida death penalty trial process violate the Sixth Amendment according to SCOTUS? 

Under Florida law, jurors in a capital case make recommendations to the judge regarding whether or not a defendant should be sentenced to death or not.  However, under that law, it was the Florida judge who presided over the capital case who made the final decision on whether or not the defendant was sentenced to die for the crime he or she had just been convicted.

All of the justices agreed that this procedure was in violation of the Sixth Amendment except one: Justice Samuel Alito dissented.

Specifically, SCOTUS holds that Florida's process does not conform with its 2002 decision in Ring v. Arizona.  

Florida Law Held to Violate Ring v. Arizona

In that case, Ring held that anyone facing the death penalty had a right to have a jury of their peers decide if the aggravating circumstances presented by the prosecution made them eligible for the death penalty.

Since the Florida process has juries advising the judge, but the trial judge making that ultimate decision, the High Court ruled that Florida's process was unconstitutional.

From the majority opinion:

The analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s. Like Arizona at the time of Ring, Florida does not require the jury to make the critical findings necessary to impose the death penalty. Rather, Florida requires a judge to find these facts. Fla. Stat. §921.141(3).

Although Florida incorporates an advisory jury verdict that Arizona lacked, we have previously made clear that this distinction is immaterial: “It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge.

A Florida trial court no more has the assistance of a jury’s findings of fact with respect to  sentencing issues than does a trial judge in Arizona.” Walton v. Arizona, 497 U. S. 639, 648 (1990); accord, State v. Steele, 921 So. 2d 538, 546 (Fla. 2005) (“[T]he trial court alone must make detailed findings about the existence and weight of aggravating circumstances; it has no jury findings on which to rely”).

And in sum:

The Sixth Amendment protects a defendant’s right to an impartial jury. This right  required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding.

Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.

The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Update:  Lenamon in Miami Herald on Hurst

01/13/2016 Update:

Read Terence Lenamon's take on the case (among others like ACLU rep) in Miami Herald discussion of the Hurst decision here.

Every Execution in the United States Since 1770: Must Read in Time Magazine

Wow.  Gathering together data from the Death Penalty Information Center as well as pre-1976 data from M. Watt Espy and John Ortiz Smykla, Time Magazine (hat tip to Chris Wilson, Emily Maltby and Lon Tweeten) has put together a really amazing compilation regarding the death penalty in America.

Go here to read, " Every Execution in U.S. History in a Single Chart."

You'll learn a lot. 

Like there have been executions in this country by burning people to death

And the most popular form of execution in the USA?  Hanging. 

Worth your time to peruse and ponder. 


Florida Death Penalty: SCOTUS Oral Argument in Hurst v. Florida

The Supreme Court of the United States just heard oral arguments in the Florida death penalty statute case  Hurst v. Florida --  go here to read the full transcript. 

For details on the case as it proceeds before the High Court, check out SCOTUS blog.


Or maybe you're rather watch it via CSPAN video here:





The Next to Die: New Online Resource for U.S. Death Penalty Issues

There's a new online resource for those interested in capital punishment and the death penalty here in the United States.  It's called The Next To Die.

New Death Penalty Online Resource:  The Next to Die

The Next to Die is a site published by The Marshall Project (a non-profit news organization - more about The Marshall Project here) and its partners in the main stream media that include The Tampa Bay Times and the Houston Chronicle. 

What you can find at The Next to Die site:

  1. information about executions that are scheduled with time ticking down;
  2. updates on news coverage for upcoming executions; and
  3. background information on capital punishment (much of it provided by the Death Penalty Resource Center).

Note:  this is NOT a site that takes a position on the death penalty; it is being provided as a news source.  Moral questions aren't being addressed here.  Its purpose is to "... bring accountability to the death penalty, a punishment that so divides Americans."


October 2015: Big Month for Death Penalty Before SCOTUS

This month, the Supreme Court of the United States is going to be hearing oral arguments in the following Death Penalty cases, each asking the High Court to rule on aspects of the Eighth Amendment.

Text of the Eighth Amendment

 First, here’s the Eighth Amendment - that’s right, it’s only 16 words long:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.



Death Penalty Oral Arguments Before U.S. Supreme Court This Month

Now, here are the death penalty cases that will be argued this month before the Supreme Court of the United States, starting next Wednesday (October 7):

1.  Kansas v. Gleason and Kansas v. Carr (two companion death penalty cases)

Oral argument: October 7 2015

Companion cases' shared question: does a jury in a death penalty case have to be “affirmatively instructed” that mitigating circumstances do not have to proven by the defense lawyers at the beyond a reasonable doubt standard?


Or, as stated in briefing (Gleason):


Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances?


Kansas v. Carr has a second question: if multiple defendants are convicted of capital murder and therefore eligible for the death penalty, then should their sentencing trials be separated?

Or, as stated in briefing (Carr):


1. Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances?

2. Whether the Confrontation Clause, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), applies to the "selection" phase of capital sentencing proceedings, as the Kansas Supreme Court held here, i.e., after a defendant has been convicted of capital murder and proof of eligibility for the death penalty has been presented in the guilt phase subject to full confrontation, or does not apply to such purely sentencing evidence, as at least three Circuits have held?

3. Whether the trial court's decision not to sever the sentencing phase of the co-defendant brothers' trial here-a decision that comports with the traditional approach preferring joinder in circumstances like this-violated an Eighth Amendment right to an "individualized sentencing" determination and was not harmless in any event?

Hurst v. Florida

Oral argument: October 13, 2015

This is the Florida case where the current capital punishment statute is being challenged.

Question for SCOTUS: does the Florida death penalty statute, which states that the judge make “independent findings” about aggravating factors if he or she is imposing the death penalty, violate the Eighth Amendment and/or the Sixth Amendment (right to a jury trial)?

Or, as stated in briefing:


Whether the Florida Supreme Court correctly held that the jury in a death penalty case does not have a constitutional obligation to render a verdict in the penalty phase of whether the defendant is mentally retarded or not when evidence has been presented to support such a conclusion.

Whether the Supreme Court Of Florida has correctly concluded that this court’s decision in Ring v. Arizona, 536 U.S. 584 (2002) (1) has no applicability to Florida's death sentencing scheme generally, (2)that specifically it does not require the jury's recommendation of death be unanimous, (3) that the jury's findings of aggravating factors need not be unanimous, (4) that the jury has no role in determining the factual issue of the defendant's mental retardation, and (5) that the lack of unanimity does not offend our evolving standards of decency as required by the Eighth Amendment?


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

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

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

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

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

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

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

Colorado Trial of James Holmes Enters Sentencing Phase

This week, the State of Colorado proceeds in its case against James Holmes, the young man convicted last week of several counts of murder in the shooting of 12 people inside a movie theater in Aurora, Colorado.

Specifically, Holmes was found guilty of 24 counts of first-degree murder for which he now faces the possibility of death.  (That was in addition to 134 counts of first-degree attempted murder, and 6 counts of attempted second-degree murder, which do not carry the death penalty.)

It's a case that has had lots of media attention; you probably remember that eerie photo of James Holmes with his "Joker-like" hair and strange staring eyes.

Colorado Theater Shooting Case: Sentencing Phase Begins

What happens now is the part of a death penalty case that Terence Lenamon is all too familiar: the sentence phase.  As in Florida, the Colorado prosecutors -- who are asking for death in the case -- will provide evidence in the form of documents and testimony of the "aggravating factors" they argue support capital punishment for James Holmes.

After the state finishes putting on that evidence, the defense team will present evidence of "mitigating factors" which argue against the death penalty for James Holmes. 

Read the Colorado Aggravating Factors and Mitigating Factors as they are defined by Colorado law here.  (Terry has collected these statutes for all the death penalty states as well as those that apply in federal court and military tribunals.)

Holmes' Schizophrenia isn't in dispute.

One key factor here:  the mental illness of the defendant and whether or not his insanity will block capital punishment here.  There is no controversy that James Holmes is mentally ill; he is diagnosed as schizophrenic.

The state is arguing that despite that diagnosis, Holmes was legally sane when he killed those people at the movie theater and should get the death penalty in order for justice to be served.

The defense is arguing that it would be cruel and unusual to do so.  Holmes' behavior in prison -- licking the walls, smearing feces on the walls, believing Barack Omaha speaks to him through the television, etc. -- leaves little doubt that he is very ill. 

Once again, the law's definition of "insanity" is tested against the reality of the defendant.  This part of the trial, with the same jury that found Holmes guilty, should take about a month to complete. 


What About Those Other 2015 Death Penalty Cases Before SCOTUS?

With all the talk about the Supreme Court of the United States okaying the State of Oklahoma’s lethal injection method of execution (see Glossip v. Gross), there hasn’t been much discussion about two other capital punishment cases that were pending before the High Court.


As we posted about a few months back, in addition to Glossip, SCOTUS had two other big death penalty cases to decide: Brumfield and Hurst.  

1.  Brumfield v. Cain

Out of Louisiana, the issue here is if the procedure that state has set up to decide if someone is mentally disabled, and therefore protected by this Eighth Amendment bar from being executed, past constitutional muster.  Here’s our post with details on the case.

Result:  on June 18, 2015, the High Court reversed the lower court’s decision and remanded the case back for a trial on the merits regarding the inmate’s intellectual disability and whether under Atkins v. Virginia he can or cannot be executed.

Read the SCOTUS Opinion in Brumfield (with Dissents) here.

For lots of analysis, check out SCOTUSBlog on the Brumfield opinion (and dissents, it was 5-4).

2. Hurst v. Florida

Coming from Florida, the only issue being decided by SCOTUS is if Florida's death penalty sentencing scheme violates either the Sixth Amendment or the  Eighth Amendment in light of Ring v. Arizona, 536 U. S. 584 (2002).  Here’s our post with details on this important Florida death penalty case.

Result: Pending.  Amici briefs were still being filed in June 2015; no oral argument has been scheduled yet.

Follow the SCOTUS Docket for Hurst v Florida here.

Follow the Hurst case via SCOTUSBlog here.

Read This Miami Herald Opinion Piece on SCOTUS and Death Penalty

Leonard Pitts. Jr., wrote an opinion piece on the death penalty that was published in the Miami Herald on June 13, 2015. 

Pitts' op-ed has been circulating around the web in circles where capital punishment is a concern.  It's also been read by those who are watching Washington, D.C. to learn what the Supreme Court will do with the death penalty cases pending before it. 

If you haven't seen it, maybe you will find it worth your time to read.  Pitts speaks to the Supreme Court, and to Justice Scalia directly, regarding the High Court's stance on the death penalty :

"What do you think of the Death Penalty now, Justice Scalia?"

SCOTUS on Death Penalty: Do The Justices Read Time Magazine?

Recently, TIME Magazine had a cover story regarding the Death Penalty in this country.  Included in its coverage of capital punishment in the United States was an opinion piece by sports legend Kareem Abdul-Jabbar.  
Mr. Abdul-Jabbar writes about his arguments for abolishing the Death Penalty.  You can read it here.
This is another example of the growing media coverage of the Death Penalty and the debate over whether or not there should be executions in the United States today.
If you read some of these articles, you may get the idea that the Supreme Court of the United States has the issue of outlawing executions before it.  
The widest reading of things before SCOTUS today would be a wide interpretation of the lethal injection method of execution as those issues have been presented in an Oklahoma case, Glossip v. Gross.  It's debatable if that case is really arguing against lethal injections as a method of execution or it is is targeting the use of a particular chemical in an execution using the lethal injection method.
And remember, there are several alternative methods of execution with SCOTUS approval already in place if the lethal injection method of execution were to be ruled unconstitutional. 

DPIC Launches New Series: "50 Facts About the Death Penalty"


For more information, go to the DPIC website.  

Boston Marathon Bomber Death Penalty Trial - Penalty Phase

 This week, the Massachusetts trial of Boston Marathon Bomber Dzhokhar Tsarnaev continues in much the same way that a death penalty trial would in Florida or Texas.  

The Two Parts of a Death Penalty Trial

In the Boston Marathon Bomber's case, just like a Florida death penalty trial or a Texas case seeking the execution of the defendant:

  • The jury has decided that the defendant is guilty.  
  • The jury verdict includes a crime for which state law provides the death penalty.  
  • The prosecution has sought capital punishment in the case - something that was noticed and known to both the state's attorneys and the criminal defense team from very early on in the process.
  • Now, the Boston Marathon Bomber's courtroom trial proceeds into the part of the case where Terence Lenamon takes the lead for his defendants: that is, the penalty phase of the capital case.  
  • The prosecution will be arguing for death and citing "aggravating factors" that the jury should consider in its deliberations.
  • The defense will be urging "mitigating factors" that should be balanced against the death penalty in the jury's decision-making.

Federal Law Controls Death Penalty Decision by Jury

This case, however, is controlled by federal law.  Specifically, 18 USC Section 3592, the federal statute for "Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified." 

Here is Terence Lenamon's complete list of federal aggravating factors and the defense's mitigating factors if you want to compare them to what the Boston trial is presenting.

The prosecutors only need to prove ONE aggravating factor to the jury in order to support their demand for the death penalty as a sentence.  Given the death of a small boy at the scene, reportedly near the site where the bomb was placed and within view of the defendant at the time that the bomb was left there, there are facts which may be sufficient on this one circumstance to meet this legal burden under the federal statute.

The defense, looking at mitigating factors, may well point to the young age of the defendant and an argument that he was unduly influenced by his older brother - the other bomber who died during the arrest.  Some may expect to see evidence presented that survivors of the blast are opposed to the death penalty (but the state may argue against its admission).  

Other psychological evidence may be presented, and the defense only has to meet a "preponderance of the evidence" standard (something akin to 51%) to prove the mitigation arguments.  That's a lower burden than the prosecutor must meet.

Will the jury sentence this man to death?  Would you?   


Infographic: Executions and Mentally Challenged Statistics


Terence Lenamon works to defend all his clients who are facing the possibility of capital punishment, and he works particularly hard for those defendants who have mental capacity issues based upon psychological and/or physical concerns.  

Mitigating factors in these areas should prevent these individuals from being given the death penalty, much less being executed; however, as these statistics show, and as Terry Lenamon discusses regularly, the reality is that people with mental challenges are executed in this country regardless of the constitutional prohibition against it being cruel and unusual punishment.  

SCOTUS hears Brumfield v Cain on Execution of the Mentally Disabled

 This week, the Supreme Court of the United States heard oral argument in the case of Brumfield v. Cain, a death penalty case coming out of Louisiana and filed by Death Row inmate Kevan Brumfield.

The crux of the case is how someone is determined to be mentally disabled and therefore, not subject to capital punishment and the death penalty under the federal constitution.  
Of course, this isn’t the first time that the High Court has considered this issue; it’s a complex legal question that the Supreme Court has considered in earlier, landmark cases like Atkins v. Virginia, where it found that convicted individuals who are “mentally retarded”  cannot be executed because this would violate the Eighth Amendment’s bar against cruel and unusual punishment.  
In Brumfield, the question isn’t whether or not someone with severe mental disability can be executed — it’s whether or not the means that the State of Louisiana has in place to determine whether or not the person is mentally disabled, and therefore protected by this Eighth Amendment bar, past constitutional muster.
Brumfield Questions Presented
(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and 
(2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Death Penalty Is Alive and Well in 2015

It's true that there have been two state governors who recently halted executions in their state, pointing to the pending action by the U.S. Supreme Court.  

Both the governor of the State of Ohio and the governor of Pennsylvania have used their executive power to stop any executions from happening in their two states, at least for the time being.  (Of note, Pennsylvania hasn't executed anyone since 1999.)

And, it's true that the State of Oklahoma has had its executions stayed.  This halt is also due to recent activity before SCOTUS.

However, it's important to recognize that this isn't signaling the halt of capital punishment in this country.  

SCOTUS may have undertaken review of lethal injection as a method of capital punishment when a part of that lethal injection cocktail involves using midazolam, but the Supreme Court hasn't gone so far as to stop the death penalty itself in this country.  

Midazolam is one of the drugs used in the Florida lethal injection procedure.  Florida had an execution scheduled for February 26, 2015, but there was a move to stay that execution based upon the pending case before the Supreme Court.

The Florida Supreme Court granted that motion to stay, filed by Jerry William Correll's counsel, earlier today.

Read the Florida Supreme Court's Order Granting Stay here.

SCOTUS Allowed Two Death Penalty Executions Already This Year

Texas got the green light to execute Robert Ladd last month from SCOTUS.  Georgia also went ahead with the execution of Warren Hill after SCOTUS declined to grant writ in that case.  

States Considering Capital Punishment 

Moreover, capital punishment is being considered as a form of punishment in at least one state right now.   Michigan is considering instituting capital punishment.

States Considering Other Forms of Execution

Other states are considering other ways of execution in case lethal injection proves to be too difficult, constitutionally (or practically, given the limited supply of drugs).  

  1. Wyoming is considering the firing squad.
  2. Utah is considering the firing squad, as well.  
  3. Oklahoma is considering the gas chamber.

It's not over and it looks like SCOTUS is making it clear that we shouldn't misread its granting of writ in the Oklahoma case as being a bigger signal than it is.  


Image:  San Quentin Execution Chamber


Is Death Penalty by Lethal Injection Unconstitutional?

The Supreme Court has agreed to consider the case of Glossip v. Gross (coming out of Oklahoma) which is a death penalty case that may have national impact on how capital punishment is handled by Florida, Texas, and the rest of the country.

Image: State of Florida Execution Chamber No. 3

In Glossip, the issues presented to the High Court do not involve all lethal injections, or whether this execution method itself is “cruel and unusual punishment” in violation of the Eight Amendment.

It’s not that broad.

What the U.S. Supreme Court will be deciding is if a lethal injection execution method using midazolam as one of the three drugs involved in a lethal injection execution is “cruel and unusual.”

Still, the fact that the High Court is hearing this issue seems to have a powerful effect: recently, the Governor of Ohio announced that all of Ohio’s executions set for this year (2015) would be stayed given the pending matters before SCOTUS.

Glossip Case

There are three Oklahoma Death Row inmates going before SCOTUS, arguing against the use of midazolam as part of the three-drug lethal injection cocktail used by the State of Oklahoma.

1. You can follow the case on the SCOTUS Docket

2. For a good review of the Glossip case - both its history and the issues being presented to the Justices (oral argument probably in April 2015), check out James Ching’s take on things

3. Here are the Questions Presented to the U.S. Supreme Court in Glossip (writ granted January 23, 2015)(emphasis added):  

In Baze v. Rees, 553 U.S. 35 (2008), the Court held that Kentucky's three­-drug execution protocol was constitutional based on the uncontested fact that "proper administration of the first drug"-which was a "fast-acting barbiturate" that created "a deep, comalike unconsciousness"-will ensure that the prisoner will not experience the known pain of suffering from the administration of the second and third drugs, pancuronium bromide and potassium chloride. Id. at 44.

The Baze plurality established a stay standard to prevent unwarranted last­-minute litigation challenging lethal-injection protocols that were substantially similar to the one reviewed in Baze; a stay would not be granted absent a showing of a "demonstrated risk of severe pain" that was "substantial when compared to the known and available alternatives." Id. at 6l.

In this case, Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze.

However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness.

For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures.

Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution.

Oklahoma's intention to use midazolam to execute the Petitioners raises the following questions, left unanswered by this Court in Baze:

Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.

Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?

Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state's lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

Georgia Executes Warren Hill: SCOTUS Allows Execution to Proceed

The State of Georgia executed Warren Hill today, despite arguments that Mr. Hill was intellectually disabled.  Last minute arguments made to the Supreme Court were unsuccessful.  


The Supreme Court issued orders today in the Hill case are important to all death penalty defense issues as hints regarding how the High Court will be ruling in future cases involving capital punishment. 

There were only two dissents in the Warren Hill matter. Justices Breyer and Sotomayor would have granted the stay of execution.   

Read the SCOTUS orders here and here

Hill's argument was that the case of Hall v. Florida should apply to his case to find unconstitutional Georgia's law that there only be proof beyond a reasonable doubt that he is so severely intellectually disabled to be executed.  

Interesting point to consider:  Hill was executed by lethal injection.  The Supreme Court has agreed to hear the case of Glossip v. Gross, where it is argued that lethal injection drug procedures are unconstitutional as cruel and unusual punishment.


Must Read: Miami Herald's Leonard Pitts' Op-Ed

 Columnist Leonard Pitts Jr. won the 2004 Pulitzer Prize for his work, and his column is published twice a week in the Miami Herald.  

Recently, Mr Pitts expressed his opinion on capital punishment in this country in a piece that Terry Lenamon thought should be shared here, for those interested in the death penalty and how it is implemented regarding the mentally ill - specifically, Scott Panetti:



Read Statement from Lawyers for Texas Death Row's Scott Panetti on 12/3 Execution Status

Terry Lenamon received the following information from Kathryn Kase regarding her fight to stop Scott Panetti from being executed by the State of Texas, and we are sharing the following here:

Executing the Insane: The Case of Scott Panetti from Off Center Media on Vimeo.


On Thursday, November 6, 2014, the trial court judge in Kerrville, Texas refused to withdraw or modify the December 3, 2014 execution date for Scott Panetti.

Below is a statement from Kathryn Kase, one of Mr. Panetti’s attorneys and Executive Director of Texas Defender Service, followed by background about the case.

Statement from Kathryn Kase, attorney for Scott Panetti:

“Texas has conducted itself disgracefully in the case of Scott Panetti, who has had schizophrenia for over thirty years and suffers from a fixed delusion that Satan is trying to kill him through the state of Texas. Yesterday, a judge ruled that Texas will not slow its rush to execute to Mr. Panetti, despite the fact that he has not had a competency hearing in seven years.

“This shameful case has revealed the state's disregard for the dignity of the mentally ill at every turn: from allowing Mr. Panetti to represent himself at his capital trial dressed in a cowboy costume despite his severe mental illness to more recently, when the state did not disclose to Mr. Panetti's attorneys that his execution date had been set. It is extremely troubling that we only learned about the execution date from the media two weeks after the date had been scheduled.

“Mr. Panetti went to death row in 1995 a man who had already been hospitalized over a dozen times for the incurable and devastating illness of schizophrenia; he attempted to represent himself in court through the haze of his ongoing schizophrenia, and he remains a man with schizophrenia and a fixed delusion today. The prospect of his execution, particularly following such a profoundly compromised legal process, is morally reprehensible.”

-Kathryn Kase, attorney for Scott Panetti and Executive Director of Texas Defender Service -November 7, 2014

Case Background

On Monday, November 3, 2014, an Emergency Motion for Hearing was filed in state court by attorneys for Scott Panetti, a severely mentally ill man scheduled for execution in Texas on December 3, 2014, asking the State withdraw or modify the execution date so that Mr. Panetti is given a meaningful opportunity to contest his competency for execution.

Mr. Panetti has not had a competency hearing in nearly seven years.

Astonishingly, it is noted in the Motion that Mr. Panetti's attorneys learned of the execution date from the newspaper on October 30th -- two weeks after the date was set, apparently in secret, with no notice whatsoever to the lawyers who have represented Mr. Panetti for nearly a decade.

"The State has an unequivocal, constitutional duty in every case to pursue justice -- not a conviction, not an execution, not a win at all costs. By not informing attorneys that an execution date had been set, the State has fallen woefully short of that duty in Scott Panetti's case,” said Greg Wiercioch, counsel of record for Mr. Panetti.

“The State's conduct would be disturbing if this were a routine case. But it is unconscionable in a death penalty case where the District Attorney himself did not believe Scott Panetti was competent to represent himself at trial,” said Mr. Wiercioch.

The Motion states, “[t]here can be no serious dispute that, because of Mr. Panetti’s long-standing and incurable psychotic disorder, he meets the threshold showing that entitles him to the appointment of two experts and an evidentiary hearing under Article 46.05 of the Code of Criminal Procedure,’ and that “[t]he U. S. Supreme Court held – in Mr. Panetti’s own case – that the procedure for determining a prisoner’s competency for execution must comport with due process under the Eighth and Fourteenth Amendments.” (page 2)

“Mr. Panetti’s severe mental illness has infected every stage of his capital case. His execution now would cross a moral line and serve no penological purpose. It is reasonable and necessary for a competency hearing to take place before the State wrongly executes someone who is clearly incompetent for execution,” said Kathryn Kase, co-counsel for Mr. Panetti.

Three-Decade History of Severe Psychosis and Delusions

Mr. Panetti has suffered from extreme mental illness for over 30 years. He was hospitalized a dozen times for psychosis and delusions in the six years leading up to the crime for which he was convicted and sentenced to death.

The first time Mr. Panetti showed signs of being afflicted with a psychotic disorder was in 1978, over 14 years before the crime. During his multiple hospitalizations, doctors diagnosed him with chronic schizophrenia and schizoaffective disorder and proscribed antipsychotic medication.

In 1986, Mr. Panetti first succumbed to the delusion that he was engaged in spiritual warfare with Satan. In an affidavit his first wife signed to have him involuntarily committed, she testified that he was obsessed with the idea that the devil was in the house. He engaged in a series of bizarre behaviors to exorcize his home, including burying his furniture in the backyard because he thought the devil was in the furniture.

Two years before the crime for which he was convicted and sentenced to death, Mr. Panetti was involuntarily committed for homicidal behavior and was found to be suffering from delusions and psychotic religiosity. The crime for which he was convicted and sentenced to death also had the hallmarks of a severely disturbed mind.

While off his anti-psychotic medication in 1992, Mr. Panetti shaved his head and dressed in camouflage fatigues before going to his in-laws’ home and committing the offense for which he was convicted and sentenced to death. Detailed information about Mr. Panetti’s medical history can be found in this mental illness timeline starting in 1978 that shows how Mr. Panetti’s mental health degenerated over the years, including how in 1986, the Social Security Administration made a determination that Mr. Panetti was so disabled from schizophrenia that he was entitled to government benefits.

While representing himself at trial in 1995, Mr. Panetti sought over 200 subpoenas, including ones for John F. Kennedy, the Pope, and Jesus Christ. He wore a TV-Western cowboy costume and a purple bandana.

Mr. Panetti’s statements in court, at both the guilt and sentencing phase, were bizarre and incomprehensible. He took the witnesses stand and testified about his own life in excessive and irrelevant detail. Mr. Panetti announced that he would assume the personality of “Sarge” and recounted the gruesome details of the crime in the third person. He gestured as if pointing a rifle to the jury box (visibly upsetting the jurors) and matter- of-factly imitated the sound of shots being fired.

Fixed Delusion that Texas is Trying to Kill Him for Preaching the Gospel

Mr. Panetti has a fixed delusion that his execution is being orchestrated by Satan, working through the State of Texas, to put an end to his preaching the Gospel of Jesus Christ. If his execution date is not withdrawn, he will go to the execution chamber convinced that he is being put to death for preaching the Gospels, not for the murder of his wife’s parents, and the retributive goal of capital punishment will not be served. 


Will Scott Panetti Be Executed in Texas? Another Death Penalty Mental Competency Fight

The State of Texas has scheduled the execution of Scott Panetti for December 3, 2014, despite the fact that Mr. Panetti has been diagnosed to suffer from both schizophrenia and schizoaffective disorder.

During his criminal trial, there was quite a bit of hoopla as Scott Panetti represented himself at trial, appearing before the court in what looked to be a cowboy outfit.

Things became more bizarre as he wanted to put the Pope as well as Jesus Christ, President John F. Kennedy, and Anne Bancroft on the witness stand for examination. 



We'd be hard pressed to find anyone who wouldn’t agree that Scott Panetti is mentally ill.

However, the State of Texas has a test for whether or not someone can be execution that allows Panetti’s capital punishment to go forward. The State’s argument is that since Panetti has been shown to recognize a logical connection between the crime that he committed and the punishment that has been assessed as a result (death), then the execution can legally go forward without violating federal constitutional prohibitions against executing someone who is mentally ill.

This has been a long fight.

Panetti’s case has already been before the United States Supreme Court once: the High Court stayed his execution then on the grounds that the State had failed to consider Panetti’s history of mental illness (which goes back many years).  

For those interested in this subject, the amicus curaie brief filed by the American Psychological Association before the Supreme Court on behalf of Scott Panetti can be read online here. 

Moving once again through the court system, the State won arguments before appellate panels that Panetti is indeed legally competent under the Texas definition.

Last month, the U.S. Supreme Court denied Panetti’s request to look at his case a second time.

This week, Panetti’s lawyers have filed more arguments here in Texas trying to stop this execution from happening.

Surely justice will prevail. 

Sister Helen Prejean Talk: Preview of Terence Lenamon and Sister Helen on Nov 8

Terence Lenamon will have the honor of being part of a panel discussion on death penalty issues with Sister Helen Prejean next month (see our previous post for time and date details).

As for what that panel discussion might include, check out this video of Sister Helen discussing "Together We Can End the Death Penalty," in San Francisco in a session hosted by the San Francisco Public Defender's Office


Terence Lenamon and QEEG: New Law Textbook, Appearing at FordhamLaw

Terry is a big proponent of QEEG as evidence in criminal matters.  (See our earlier posts for details, including " When will QEEG Brain Mapping Get Widespread Respect in Courtroom?").  
His position is that the admission of QEEG evidence in the Grady Nelson death penalty trial was critical to victory in that case.  For more, read the blog post "QEEG Brain Mapping Evidence and Mitigation in South Florida's Grady Nelson Trial."
Terry’s latest:
1.  Next month, Terence Lenamon will be part of a panel discussion at Fordham Law School in New York on "Neuroscience in the Courtroom," discussing "How Neuroscience Expands and Transforms Proof."   Here are the details.   
Advances in neuroscience are challenging conventional notions about human thought, behavior, pain, and brain injury. These developments are upending established medical concepts as well as traditional moral and ethical considerations. These insights could potentially uproot old paradigms embedded in the law and rules of evidence. 
Fordham Law’s “Neuroscience in the Courtroom” has assembled a panel of world-class neuroscientists and distinguished experts, judges, and lawyers to share their knowledge and experience regarding issues posed by advances in neuroscience and neuro-imaging/investigations: diffusion tensor imaging (DTI), functional MRI (FMRI), quantitative electroencephalography (QEEG), volumetric MRI, near infra-red spectroscopy (NIRS), and positron emission tomography (PET).
By casting a new light on traditional ideas regarding brain injury, pain, morality, criminal culpability, competence, objectivity/subjectivity, and causation, neuroscience presents an array of challenges that are being played out in the courtrooms of this country and globally. 
Attend Fordham Law’s “Neuroscience in the Courtroom” to learn how judges and lawyers can respond to the advances, insights and challenges that neuroscience and neuro-imaging present for proof and adjudication. 
The conference is designed for
  • Judges who will preside over cases involving neuroscience issues

  • Attorneys in relevant practices (e.g., personal injury, criminal, trusts and estates) who will contend with neuroscience issues with their clients

2.  Terence Lenamon’s work in the Grady Nelson case, and his work with QEEG, is featured in the new textbook edition of Law and Neuroscience by Professor Owen Jones et al.
The implications for law of new neuroscientific techniques and findings are now among the hottest topics in legal, academic, and media venues. Law and Neuroscience a collaboration of professors in law, neuroscience, and biology is the first coursebook to chart this new territory, providing the world s most comprehensive collection of neurolaw materials.
  • Designed from the ground up with extensive e-capability in mind, with each e-chapter extensively linked to outside sources.

  • Technical subjects explained in an accessible and user-friendly manner.

  • Extensive glossary of key terms.

  • Covers highly current material; over 60% of the cases and publications included were published since 2008



Death Penalty Wrongful Conviction in North Carolina

Image from NCCADP.ORG:  Henry McCollum, right after he’s been exonerated.
DNA Frees 2 Brothers After 30 Years Behind Bars
Henry McCollum and Leon Brown are brothers.  
For the past 30 years, McCollum has lived on North Carolina’s Death Row after being convicted of murder and sentenced to death back in 1984. Brown lived on Death Row, too, until his murder conviction was tossed.  The crime happened when Henry was 19 and Leon was only 15 years old.  
These two men have literally grown up from boys to men behind the bars of a North Carolina prison facility.  And they are innocent of the crimes for which they were charged.
They were accused of raping and murdering an 11 year old girl, Sabrina Buie, and each did sign a confession to the crime.  However, both have low IQ scores which immediately bring the “confessions” into question.  (McCollum tests at 60 IQ; Brown at 49).
Confession debates can be put aside, however.  DNA testing done by the Innocence Project has proven that these two men are innocent, and that a man named Roscoe Artis — on Death Row for a similar murder — has a match to the DNA found at the scene of Sabrina Buie’s murder.
McCollum holds the record as the longest-serving inmate on death row in North Carolina.  Both of the brothers have now been freed.   
Another example of the need for warriors like Terry Lenamon out there in the trenches when the Death Penalty is on the table.    


The Wrong Carlos: Great Read - and Shows How Important Terry Lenamon's Work Is For Justice

Have you heard about how Texas executed the wrong man (no, not Cameron Todd Willingham)?

Here's a good read for all those interested in the American system of death penalty / capital punishment. It tells the story of Carlos DeLuna, wrongfully executed for murdering a woman named Wanda Lopez.

It was only after an investigatory team at the Columbia Law School looked into Carlos DeLuna's case that it was discovered his claims that the authorities "had the wrong Carlos" were true.

Shows how important a good capital lawyer can be, and how vital Terry Lenamon's work is to the system of justice.


Jodi Arias Will Defend Herself in Penalty Phase of Death Penalty Trial

Today, Jodi Arias was granted her request to represent herself in the second part of her Arizona death penalty trial.  The second phase of the trial is called the "penalty phase" and it's here that factors are considered in deciding whether or not she should be sentenced to death for the 2008 crime of killing Travis Alexander.  

For those following the Jodi Arias case, you'll remember that the jury convicted her of first degree murder but failed to come to an agreement on capital punishment.  The prosecution was granted a second trial for the penalty phase, and that's going to go forward now with Arias representing herself.

Stand-by Counsel for Jodi Arias

She'll probably get a stand-by counsel here.  

You'll recall that Terence Lenamon recently acted in this role in the Michel Escoto case, when Escoto was allowed to represent himself here in Florida.  

Watch Terry during his Dateline NBC interview on the Escoto trial here.  

Penalty Phase: What Jodi Arias Must Prove as Her Own Lawyer

During the penalty phase, the prosecution will present aggravating factors that support the death penalty for Jodi Arias.  

She will be responsible for presenting mitigating factors (something that Terry is known to be proficient at -- presenting mitigation as a reason to not sentence someone to death).  

Arizona's mitigating factors are any evidence relevant to “any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense.”

In order for the prosecutor to get a sentence of capital punishment for Jodi Arias, see A.R.S. § 13-751:

There must be 2 findings:

1. proof has been provided beyond a reasonable doubt of one or more aggravating circumstance under the 14 aggravating circumstances listed in A.R.S. § 13-751(F), and

2.  there is no proof of mitigating circumstances "sufficiently substantial to call for leniency.” A.R.S. § 13-751(E).


Florida Supreme Court Changes Rules for Death Penalty Appeals (Read Order)

The Florida Supreme Court  has issued its Order that changes the Florida appellate process in death penalty cases. 


The changes include what is required before a Florida attorney can represent someone in a capital case.  approved a series of changes Thursday aimed at improving the death-penalty appeals process.

Read the complete Order here: 


Must-See Video: Death Penalty Information Center's 2013 Roundup

Will Florida Execute John Ruthell Henry Next Week?

 Now that the Supreme Court of the United States has ruled that Florida’s method of deciding if someone can or cannot be executed if they suffer from a mental disability has been ruled unconstitutional (read our posts on Hall v. Florida here), many people may assume that it’s automatic that Death Row inmates with mental disabilities will be spared execution.

You’d be wrong.

Florida Death Row Inmate John Ruthell Henry – Mental State Bars Execution?

Right now, John Henry sits on Florida Death Row, having been convicted and sentenced to die for the three homicides, including the murder of his wife and and her son.   His lawyers are arguing that Henry’s mental state precludes execution – that Henry suffers from hallucinations, delusions, and is not mentally sane.

He is scheduled to die next Wednesday.

Florida Governor Rick Scott Orders Evaluation

On May 2, 2014, Florida Governor Rick Scott signed the death warrant allowing Mr. Henry’s capital punishment to proceed. See the Florida Capital Resource Center’s Active Warrants Page here.

On May 14th, Gov. Scott changed things with his Executive Order where Scott appointed 3 doctors to examine Henry to decide his current mental state.

Florida Supreme Court Denies Appeal

Today, the Florida Supreme Court denied an appeal filed by John Ruthell Henry’s counsel, based upon the SCOTUS Hall v. Florida precedent, which argued that Henry should not be executed because he is intellectually disabled and the Eighth Amendment therefore bars the death penalty.

The Florida High Court determined that since “intellectual disability” involves "significantly subaverage general functioning" and John Henry can communicate, is able to form relationships, and more, he does not meet the “intellectual disability” legal standard and this cannot form the basis of thwarting capital punishment in his situation.

John Henry faces an execution by the State of Florida next Wednesday, June 18, at  6 p.m. -- Will this happen? 

SCOTUS Finds Florida Death Penalty Statute Re Mentally Disabled Unconstitutional in Hall v Florida

 Today, the United States Supreme Court held that the Florida statutory method for determining who is mentally disabled as a mitigating factor that bars the imposition of the death penalty to be UNCONSTITUTIONAL.


"The State’s threshold requirement, as interpreted by the Florida Supreme Court, is unconstitutional."

Read the entire opinion in the Terence Lenamon Online Library.



US Supreme Court Finds Silence Gets No Jury Instruction in Sentencing Phase in Death Penalty Case

Terence Lenamon is known for his work in defending people who are facing capital punishment as prosecutors seek the death penalty in trying these people for serious crimes.  Much of Terry's work is done in the "sentencing phase" of a death penalty case, where the defendant has been found guilty in the "trial phase" and now, the focus is upon whether or not he (or she) should be punished with death.

Of note, this week the United States Supreme Court handed down its opinion in an important case involving the sentencing phase of a criminal trial.

Coming out of Kentucky, the case involved defendant Robert Woodall, who did not testify in the sentencing phase of his trial.  His lawyer asked the trial judge to instruct the jury that the jurors should not assume anything bad from this - in lawyer-speak, he asked for a jury instruction that there should be no negative inference from the failure of the defendant to testify in the sentencing phase.

The Kentucky criminal trial judge declined the defense lawyer's request and the Woodall jury was not instructed on this issue.  Woodall appealled this decision, and the 6th Circuit Court of Appeals held that the failure to give this jury instruction was unconstitutional -- it violated the citizen's right to remain silent.

On Tuesday, SCOTUS reversed the 6th Circuit.  It's not unconstitutional, according to the High Court.

Explained Justice Scalia in the majority opinion (read White v. Woodall here): the state court didn't act "unreasonably" so the federal court has to defer to Kentucky here.  

Three justices dissented, arguing that the Right to Remain Silent (5th Amendment) covers both the trial and sentencing phases of a criminal trial ....

So, according to the Supreme Court of the United States, if the defendant in the sentencing phase remains silent, then the jury can assume that's a suggestion of his deserving to die?

U.S. Supreme Court Hears Oral Arguments Today in Hall v. Florida

 Today, the United States Supreme Court heard oral arguments in the case of Hall v. Florida, where Florida death row inmate Freddie Lee Hall argues that it is unconstitutional for the State of Florida to use a specific IQ score (i.e., 70) as the basis for allowing execution of anyone whose intellectual capacity measures above that number. (Precedent does not use the phrase "lack of intellectual capacity," but instead "mental retardation" as a basis for denying capital punishment as it would be cruel and unusual punishment.) 

Read the transcript of the oral argument here.

For background on the case, check out our prior posts:

 U.S. Supreme Court Deciding Major Death Penalty Case Regarding Intellectual Ability and Capital Punishment: the Case of Freddie L. Hall

Florida Death Penalty Case Re Low IQ as Mitigating Factor in Death Penalty Case before USSCt: Will Florida Statute Be Found Unconstitutional?




U.S. Supreme Court Deciding Major Death Penalty Case Regarding Intellectual Ability and Capital Punishment: the Case of Freddie L. Hall

Right now, the U.S. Supreme Court is in the process of reviewing a Florida death penalty case that will impact capital punishment cases all across the United States. The High Court has agreed to review the decision made by the Florida Supreme Court in the case of Freddie L. Hall, a man sentenced to die under Florida law for killing a police officer as well as the rape and murder of a young pregnant woman back in 1978.

Attorneys for Mr. Hall are trying to block the State of Florida from executing him on the grounds that Freddie Hall has insufficient intellectual ability to allow for capital punishment under the Constitution. Their arguments are based upon the Eighth Amendment to the U.S. Constitution which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Read the Florida Supreme Court Opinion here.

Follow the U.S. Supreme Court Docket in Hall v. Florida, No. 12-10882, here.

This is a big deal because the Hall case asks a big question: when is someone so mentally challenged that they should not be executed? (The question presented to the Supreme Court reads: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.)

It’s not the first time that the United States Supreme Court has considered this circumstance, but now the Court may give guidance on where the line should be drawn.  In the landmark Atkins v. Virginia case the Court determined that individuals suffering from mental disabilities (low IQ) could not be executed because it would constitute cruel and unusual punishment.  

Deciding what individuals are so limited as to be barred from capital punishment was not answered in Atkins, however.  

In the Hall case, the Supreme Court will be looking at the manner in which the State of Florida determines someone’s mental impairment and if the methods used by Florida (as well as other states, like Texas) are sufficient constitutionally.

Texas and Florida use similar methods: a 3-prong test where the subject must have demonstrated before the age of 18 years old to have a low IQ as well as impaired mental functioning. Florida, unlike Texas, also draws a line at an IQ of 70 or lower.

Freddie Hall has a record of IQ tests ranging from the mid 60s to 80, hence the appellate challenges made on his behalf since Florida prosecutors have argued that Hall can be executed under current Florida standards.

On November 25, 2013, oral arguments were set in the United States Supreme Court for March 3, 2014.

Lenamon Win in Michael Woods Case: State Will No Longer Seek Death Penalty in Toni Centracco Murder Retrial

Terry Lenamon's client, Michael Lamar Woods, will not be facing the possibility of being sentenced to death in the murder of Toni Centracco -- prosecutors have filed the formal notification that in the new trial of Mr. Woods, the state will no longer seek the death penalty.

As you may recall from our earlier post, after a long courtroom fight and lots of jury deliberation time, the Woods jury was released and Terence Lenamon's request for a mistrial was granted after one of the jurors used the internet to do research on definitions given to the jury by the judge.  

Terry's work isn't done though.  Michael Woods is still facing the death penalty in another murder trial where he is charged with the killings of Toni Centracco's boyfriend Marshall Pardee and Chyavana Hampton.  

For Terry's take on the Woods case - and what the dismissed jurors told news media after they were released from the courtroom on how they would have voted if they case had gone to verdict, go here to read the report by April Warren in the Ocala Star Journal.


Florida Death Penalty Case Re Low IQ as Mitigating Factor in Death Penalty Case before USSCt: Will Florida Statute Be Found Unconstitutional?

mugshot Freddie Hall, Florida Death Row Inmate

Image: Florida Death Row Inmate Freddie Hall Goes to U.S. Supreme Court


The United States Supreme Court will be considering an important Death Penalty case coming out of the State of Florida this term, as writ has been granted in Cause No. 12--10882, Hall v. Florida. (You can follow the Supreme Court docket on the case online here.)

There is only a single question presented:  Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

Florida Statute Sets IQ Score Cutoff - Does This Violate Atkins or Does Bies Allow It? 

The Florida Supreme Court’s decision to allow the execution of Freddie Hall will be reviewed by the United States Supreme Court, bringing more guidance (hopefully) on the execution of persons with very low IQ scores and whether or not people who test at levels like Mr. Hall (71, 73, and 80 on three different occasions) should face execution given their limited intellectual capacity.

In Florida, there is a state statute that provides what has been deemed an “ineffectual bright-line cutoff” by Freddie Hall’s lawyers which sets the determination of whether or not intelligence levels bar capital punishment at a score of 70 or below.

Freddie Hall's lawyers are arguing that executing Mr. Hall would be in violation of Atkins because of Mr. Hall's mental challenges.  This mitigating factor should prohibit capital punishment in his case.

Florida is arguing that another Supreme Court case is analogous to Mr. Hall's situation and decides the issue.  

From the Florida Supreme Court’s opinion in Hall v. Florida (read it online here):

After Atkins v. Virginia, 536 U.S. 304 (2002), was decided, Hall filed a motion to declare section 921.137, Florida Statutes (2004),[1] unconstitutional. While the motion was pending, we adopted Florida Rule of Criminal Procedure 3.203 as a mechanism to file Atkins claims. Hall timely filed such a claim on November 30, 2004. No action was taken on the motion until, on March 27, 2008, Hall filed a motion to prohibit relitigation of the mental retardation issue, which was denied. The court then held an evidentiary hearing on Hall's successive motion to vacate his sentence.

At the evidentiary hearing held on December 7 and 8, 2009, Hall presented testimony from Dr. Valerie McClain, who testified that she did not obtain Hall's IQ; Lugene Ellis, Hall's half-brother, who testified about his recollection of Hall as a child; James Hall, Hall's brother, who testified regarding Hall's problems with reading, writing, and caring for himself; Dr. Harry Krop, who testified that Hall's IQ using the Wechsler Adult Intelligence Scale Revises was 73 and that a prior result on the same test given by Marilyn Feldman resulted in a score of 80; and Dr. Gregory Prichard, who testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall sought to introduce a report compiled by then-deceased Dr. Bill Mosman through Dr. Prichard, but the court denied it and only allowed Hall to proffer the report for the record. After reviewing the evidence presented, the court determined that Hall could not meet the first prong of the mental retardation standard to establish his mental retardation—an IQ below 70. The court denied relief in an order issued May 26, 2010, and entered an amended order on June 16, 2010. …

Hall asserts that the statutorily prescribed cutoff is arbitrary because it does not consider the range of scores mentioned in Atkins. We have previously found this argument to be meritless….

Hall next contends that the lower court improperly limited his introduction of evidence of the second two elements to establish mental retardation. We have recognized that all three elements must be established for a defendant to show that he or she is mentally retarded and thus ineligible for execution….

Third, Hall complains that the trial court abused its discretion in refusing to admit the report prepared by Dr. Mosman through the testimony of Dr. Prichard….

Finally, Hall alleges that the lower court should have been precluded from holding an evidentiary hearing on Hall's alleged mental retardation and should have entered a life sentence because the court previously found him to be mentally retarded. We disagree….

Here, Hall argues that the issue should be estopped because of the trial court's finding that Hall was mentally retarded as mitigation. As summarized by the Supreme Court in Bies [ Bobby v. Bies, 129 S. Ct. 2145 (2009)], even if the core requirements for issue preclusion had been met, an exception to the doctrine's application would be warranted due to this Court's intervening decision in Atkins. Mental retardation as a mitigator and mental retardation under Atkins . . . are discrete legal issues. The Atkins decision itself highlights one difference: "[R]eliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury." 536 U.S. at 321. This reality explains why prosecutors, pre-Atkins, had little incentive vigorously to contest evidence of retardation. . . . Because the change in law substantially altered the State's incentive to contest Bies' mental capacity, applying preclusion would not advance the equitable administration of the law.

Bies, 129 S. Ct. at 2153. Accordingly, we deny relief on this claim.


We'll be monitoring this case -- especially since Terry Lenamon's forte is representing people facing the death penalty in the penalty phase of criminal trials, where he advances various mitigation arguments.  Stay tuned. 

Ocala Trial of Michael Woods for Murder of Toni Centracco Underway, Terry Lenamon Defending Woods in Death Penalty Case

 Right now, Terry Lenamon is defending Michael Woods in a Marion County, Florida, courtroom, with the process of selecting a jury from a panel of 150 potential jurors beginning on Monday morning.

This is a death penalty case (Woods has been charged with first degree murder) where Terry is bringing his expertise and experience in the penalty phase to the Woods defense team.

For those interested in following Terry in trial, the Ocala Star Banner is reporting on the trial and their coverage can be followed online, including:

From mystery to arrest: How the Centracco murder case unfolded,” by April Warren, published October 14, 2013; and

Jury selection starts in trial of Michael Woods, charged in Centracco murder,” by April Warren, also published October 14, 2013.

Terry Lenamon's Client Indicted for Murder on Snitch Testimony; Now, Snitch Says He Lied

Terry’s busy with trial stuff right now, but took the time to send over a quick email about sharing the latest news story about what snitches do in the justice system (as in, throwing a big, fat wrench in the works).

Maybe you’ve already heard about the case.

If not, check out the Miami Herald article here, “Charges dropped in 1999 murder of retired Miami-Dade cop,” for which Terry Lenamon was interviewed and where Lenamon opines about how dangerous using snitch testimony in criminal cases can be.

FYI, Terence Lenamon represents Shannon Dawson, one of the defendants indicted for the murder of Raymond Stanisky based upon testimony given by a snitch who has now recanted his testimony, admitted he lied, and who now faces perjury charges. 

For more on the unreliability of snitch testimony, check out:

"Unreliable Informant Testimony" by Nicholaos Jonas, et al (Chapter 10 of Conviction of the Innocent: Lessons from Psychological Research, edited by Brian L. Cutler, PhD.)

Campbell, Erreka, Ditch the Snitch: Why State and Federal Governments Should Limit the Use and Admissibility of Informant Testimony (December 9, 2010). Available at SSRN:  http://ssrn.com/abstract=1884468 or http://dx.doi.org/10.2139/ssrn.1884468



Florida Death Penalty Law Unconstitutional: Racial Discrimination in Seeking Death Penalty Argues Terence Lenamon in Michael Woods Case

Terence Lenamon is one busy trial lawyer; right now, he defending a man named Michael Woods who faces the death penalty in a trial that is set to begin on October 14, 2013 for the murder of Toni Centracco in a killing that prosecutors charge occurred during the commission of a burglary of a home in Ocala, Florida.

To see Terry and his co-defense counsel James Reich on the job, check out the photo here, during a hearing on Monday. (Reich is the defense lawyer for the guilt phase; Lenamon is the defense lawyer for the penalty phase (if the trial goes that far).)
Challenge to Constitutionality of Death Penalty
Terry is arguing that the death penalty is unconstitutional as it is applied in the 5th Judicial District of the State of Florida based on racial discrimination.  
The motion filed in support of this position (soon to be in the Online Library) argues that in this jurisdiction (the 5th Judicial District), statistics are that capital punishment is sought 4 times more often if the defendant is non-white and charged with killing a single white female than any other racial combination of defendant/victim.
The entire Motion (with its Supporting Affidavit) will be published in the Terence Lenamon Online Library at no charge as a public service to those interested in death penalty issues.  
Stay tuned to learn the judge's decision on this motion, it's expected within the week.

Florida Timely Justice Act Challenge: Reply Brief Filed

 The Reply brief, responding to the briefing of the Attorney General for the State of Florida in her Response, was filed on July 29, 2013.  Click on the image below to read the brief (or download the pdf):

From the Reply Brief (pp. 43-44) , this Conclusion:

There is an inexplicable disconnect between what the Timely Justice Act is intended to do, the terms of the Act, and what the State contends the Act will actually do. The Legislature’s purpose has been clearly expressed over and over: the judicial system is failing to properly administer capital postconviction litigation so the Legislature must step in to fix the system. Equally clear and repeatedly expressed is the State’s view of what the Act will actually do: nothing. And that disconnect is not important merely because it demonstrates the irrationality and disingenuousness surrounding the unthinking manner in which the Act was passed and justified, it also demonstrates that the State’s arguments are unrelated to the Act’s constitutionality.

Nowhere does the law say that Separation of Powers violations are allowable as long as there is no great harm done, such that the State’s primary defense of the Act—that it will do nothing—is utterly irrelevant to the primary claims of the Petition. Article II § 3 of the Florida Constitution states that “[n]o person belonging to one branch [of government] shall exercise any powers appertaining to either of the other branches . . . .” The State is unable to point to any authority which interprets that provision tn to apply only where a harm is demonstrated. Thus, even though Petitioners describe numerous, practical and realistic harms that will result from the Act, the State’s primary defense of the Act is no defense at all. 

The Act is about rulemaking, expressed as rulemaking, described by its  drafters as rulemaking, but rhetorically defended by the State as being about substantive policy. Petitioners urge that this Court should not permit its capital postconviction system to be, to any extent, supplanted by such measures.


Today is August 12: nothing else has happened on the docket since July 30th - two weeks of silence. 

We'll keep you posted.  

Schizophrenia Doesn't Stop Execution of Mentally Ill Florida Death Row Inmate John Errol Ferguson This Week

 On Monday, the State of Florida executed John Errol Ferguson, a 35 year resident of Florida’s Death Row. It was a very controversial case and many believed that Mr. Ferguson should have been spared capital punishment because he suffered from severe mental illness. Ferguson was diagnosed as being schizophrenic - his schizophrenia isn’t disputed.

Indeed, Ferguson proclaimed himself to be the “Prince of God” and his mental illness was readily apparent long before the murders were committed upon which his death sentence was based. (His last words, according to the Miami Herald, were “I just want everyone to know that I am a Prince of God and I will rise again.”)

Still, the Eleventh Circuit upheld the death penalty for John Errol Ferguson and outcries from the public (like this Palm Beach Post editorial) and briefing from the American Bar Association (see the July 26, 2013 brief, where inconsistencies under state application of the Panetti v. Quarterman standard were argued for a stay) were unsuccessful.

Read the ABA Amicus Brief here by clicking on this image:


For more on schizophrenia, check out The National Institute of Mental Health’s explanation (”a chronic, severe, and disabling brain disorder....") or the information provided by the Mayo Clinic (”a group of severe brain disorders in which people interpret reality abnormally. Schizophrenia may result in some combination of hallucinations, delusions, and disordered thinking and behavior….”).


Florida Supreme Court To Decide Constitutionality of Timely Justice Act After June 2013 Emergency All Writs Motion Filed

On June 26, 2013, a formal challenge to the new Timely Justice Act (read about this new law here) was filed before the Florida Supreme Court.  The image above is the acknowledgment by the state High Court -- and with it, an online notice that 

Because of significant public and media interest in this matter, this case has been designated as a high profile case and all material must be filed through the Florida Courts eFiling Portal. All documents filed will be posted on the Supreme Court web page. Parties are directed to ensure that all documents filed are in compliance with rules 2.420, 2.425 and 2.526 of the Florida Rules of Judicial Administration.


Emergency Petition to Florida Supreme Court to Stop Timely Justice Act

This filing is a joint effort to stop the impending Timely Justice Act from becoming Florida law because of its myriad of constitutional violations.  Given that the Florida Legislature passed this thing and Governor Rick Scott signed it into law, this emergency motion is an effort to stop some very, very bad things from happening in Florida courtrooms and on Florida's death row. 

From the Motion:

The Timely Justice Act violates the doctrine of Separation of Powers by requiring that constitutional officers of the judicial and executive branches of government take immediate actions upon the effective date of the Act, in accordance with a strict statutory time schedule, and by creating obligations on attorneys that conflict with preexisting, judicially-determined rules.

It also unconstitutionally suspends the writ of habeas corpus, violates due process by interfering with judicial resolution of constitutional claims, violates equal protection by limiting the successive claims of capital but not non-capital defendants, and will result in cruel and unusual punishments contrary to evolving standards of decency.


Will the Florida Supreme Court take action to block the Timely Justice Act? Stay tuned.

New Documentary for Your Consideration: "Death Row, a Journey From West Yorkshire to the Execution Chambers of America"

 Liz Green is the brainchild behind a new BBC Radio documentary dealing with capital punishment, it's entitled "Death Row, A Journey From West Yorkshire to The Execution Chambers Of America."

It's worth your time: of note, this documentary is a finalist in the New York International Radio Festival Awards.

Conceived, written, produced and presented by Liz Green.Technical production by Dan Dan Purvis , music consultant Dave Spice , production administration Liz Newman .

You can listen to it now by downloading the mp3 via Dropbox here, and after June 17, 2013, a link will be available as a winner's link at the Radio Festival site.  

Florida Timely Justice Bill Goes To Governor's Desk: Bad News for Florida to Put Executions on a Fast Track

 The Senate has passed the Timely Justice Bill and now all that it needs to become Florida law is the approval of Florida Governor Rick Scott.

Today, there is an excellent piece in the Sun Sentinel on what this means to justice in the Sunshine State:  it's written by  Gary Stein and it's worth your time to read.

Go here to read "Florida's fast track death penalty bill is blood-thirsty form of justice."

If that doesn't sway you that this fast tracking executions might not be the best thing to do, then consider the arguments made by former Florida Death Row resident Seth Penalver this week, a man acquitted last December after serving a good part of his life under the penalty of death for a crime he did not commit.  

Read Seth Penalver's story here.

Read Seth Penalver's message to Governor Rick Scott about the Timely Justice Bill here.

Have your own message for Governor Scott?  Click here to reach him by email. 



Checking the Status of 2013 Bills Dealing with Death Penalty Before Florida Legislature

 For details on these bills, check out our post from last month.

Out of the three the proposed "Timely Justice Act" seems to be moving forward with some strength, as Senate Bill 1750 has been scheduled on the Appropriations' Committee agenda tomorrow morning (04/18/13, 9:00 am, 412 Knott Building, Tallahassee, Florida in case you're interested).

The other two bills (Senate Bill 1022 and House Bill 4057) have not moved much, though the House bill is related to the Timely Justice Act of Senate Bill 1750.

Will the Timely Justice Act become Florida law?  

It's still too soon to tell, but there are lots of people out there that are in favor of speeding up the execution process -- for more, check out this Miami Herald coverage of the pending legislation.  



Fletcher v. JAC: April 2013 Attorneys Fee Opinion from the First District Court of Appeals in Florida

The continuing battle over indigent defense attorneys fees in death penalty cases continues in the State of Florida as a new opinion has come out of the 1st District Court of Appeals, Fletcher v. Justice Administrative Commission (read the opinion here).  

The Petition for Writ of Certiorari was granted and the case remanded to the trial court for reconsideration of the attorneys' fees award with specific instructions given that "...If the trial court determines that an award greater than the statutory cap is justified, it should make the appropriate findings to support the award."

From the court:

While we are sensitive to the court’s budgetary concerns and the need to keep the courthouse doors open and thus preserve access to courts, these concerns must be balanced with the defendant’s Sixth Amendment right to appointed, conflict-free counsel. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. State, 78 So. 3d 1305 (Fla. 2012). .....

Rick A. Sichta and Susanne K. Sichta of Jacksonville  appeared on behalf of the Petitioner in the case while Stuart L. Hartstone and Terence M. Lenamon of The Florida Capital Resource Center filed as friends of the court (Amicus Curiae).

We've placed Terry's amicus brief together with its Appendix into the Terry Lenamon Online Library. Just click on the Library image in the left sidebar or click below to read those documents.


Gideon v Wainwright Decision Has Anniversary Today: Right to Counsel for Indigent in Felony Cases Ruling 50 Years Ago

 On March 18, 1963, the United States Supreme Court opinion in Gideon v. Wainwright came down, and with it the right to counsel for those who cannot afford their own lawyer began to be respected and protected in this country.  

In celebration of this historic precedent coming out of the State of Florida, and given the reality that there will be lots of discussion on the ramifications of Gideon v. Wainwright (pro and con) in other media, here is the majority opinion from the case itself, written by Justice Hugo Black all those years ago:


Gideon v. Wainwright, 372 U.S. 335 (1983)

MR. JUSTICE BLACK delivered the opinion of the Court.

Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under 337*337 Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:

"The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

"The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel."

Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State's witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument "emphasizing his innocence to the charge contained in the Information filed in this case." The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court's refusal to appoint counsel for him denied him rights "guaranteed by the Constitution and the Bill of Rights by the United States Government."[1]

Treating the petition for habeas corpus as properly before it, the State Supreme Court, "upon consideration thereof" but without an opinion, denied all relief. Since 1942, when Betts v. Brady, 316 U. S. 455, was decided by a divided 338*338 Court, the problem of a defendant's federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts.[2] To give this problem another review here, we granted certiorari. 370 U. S. 908. Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: "Should this Court's holding in Betts v. Brady, 316 U. S. 455, be reconsidered?"


The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. Betts was indicated for robbery in a Maryland state court. On arraignment, he told the trial judge of his lack of funds to hire a lawyer and asked the court to appoint one for him. Betts was advised that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded not guilty, had witnesses summoned, cross-examined the State's witnesses, examined his own, and chose not to testify himself. He was found guilty by the judge, sitting without a jury, and sentenced to eight years in prison. 339*339 Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth Amendment. Betts was denied any relief, and on review this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision. The Court said:

"Asserted denial [of due process] is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial." 316 U. S., at 462.

Treating due process as "a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights," the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so "offensive to the common and fundamental ideas of fairness" as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding if left standing would require us to reject Gideon's claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration we conclude that Betts v. Brady should be overruled.


The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." We have construed 340*340 this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived.[3] Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down "no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment." 316 U. S., at 465. In order to decide whether the Sixth Amendment's guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered "[r]elevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date." 316 U. S., at 465. On the basis of this historical data the Court concluded that "appointment of counsel is not a fundamental right, essential to a fair trial." 316 U. S., at 471. It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment's guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, "made obligatory upon the States by the Fourteenth Amendment." Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was "a fundamental right, essential to a fair trial." it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court.

341*341 We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama, 287 U. S. 45 (1932), a case upholding the right of counsel, where the Court held that despite sweeping language to the contrary in Hurtado v. California, 110 U. S. 516 (1884), the Fourteenth Amendment "embraced" those " `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' " even though they had been "specifically dealt with in another part of the federal Constitution." 287 U. S., at 67. In many cases other than Powell and Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances.[4] For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that 342*342 private property shall not be taken for public use without just compensation,[5] the Fourth Amendment's prohibition of unreasonable searches and seizures,[6] and the Eighth's ban on cruel and unusual punishment.[7] On the other hand, this Court in Palko v. Connecticut, 302 U. S. 319 (1937), refused to hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that "immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states" and that guarantees "in their origin . . . effective against the federal government alone" had by prior cases "been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption." 302 U. S., at 324-325, 326.

We accept Betts v. Brady's assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is "fundamental and essential to a fair trial" is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that "the right to the aid of 343*343 counsel is of this fundamental character." Powell v. Alabama, 287 U. S. 45, 68 (1932). While the Court at the close of its Powell opinion did by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language:

"We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution." Grosjean v. American Press Co., 297 U. S. 233, 243-244 (1936).


Continue Reading...

Will Florida Juries Need Unanimous Vote for Death Penalty? Senate Bill Gains Speed in Tallahassee to Change Florida Law

 Right now, in Florida, it's shocking but true that not everyone on the jury has to agree on execution of the defendant as punishment for the crime before that recommendation can come forward from the jury room.

Florida and Alabama juries don't need unanimous votes to recommend the death penalty.  That may change.

Florida Senate Bill 148 (SB148) looks to be gaining steam up in Tallahassee -- and if SB 148 is passed, then Florida's death penalty process will change.  

If SB 148 becomes law, then Florida death penalty cases will have to have every single juror voting in favor of the death penalty before the defendant can face a sentence of death.  Right now, Florida requires all jurors to agree on the verdict of guilty (unanimous verdict) but in sentencing, not all jurors have to agree on the death penalty in order for the jury to recommend capital punishment to the judge. 

CBS-Miami is reporting that this bill almost came up for vote in the Florida Senate's Criminal Justice Committee last week, but the clock ran out - so look for a vote within the next week or so.  

Florida Legislature Considering Death Penalty in SB1750, SB1022, and HB4057

 The Florida Legislature opened for business this week, and the 2013 budget session will continue for the next 9 weeks as lawmakers up in Tallahassee bicker and fight and vote on new laws for the State of Florida, many of which will go into effect this summer.  

Among them are these bills dealing with capital punishment in the State of Florida:

1.  Florida Senate Bill 1750 - SB1750

Postconviction Capital Case Proceedings; Citing this act as the "Timely Justice Act;" providing that  the capital collateral regional counsel and the attorneys appointed pursuant to law shall file only  those postconviction or collateral actions authorized by statute; removing a request to the Supreme Court to adopt by rule the provisions that limit the time for postconviction proceedings in capital  cases; providing procedures that apply if an inmate seeks both to dismiss a pending postconviction proceeding and to discharge collateral counsel, etc.

Senate Committee References: Judiciary (JU) , Appropriations Subcommittee on Criminal and Civil Justice (ACJ) , Appropriations (AP)

Last Action: 03/07/2013 Introduced -SJ 185

Effective Date: Except as otherwise provided herein, this act shall take effect July 1, 2015, contingent upon voter approval of SJR 1740 in the General Election of 2014.

2.  Florida Senate Bill 1022 - SB1022

Death Penalty; Deleting provisions providing for the death penalty for capital felonies; repealing provisions relating to prohibiting the imposition of the death sentence upon a defendant with mental retardation; repealing provisions relating to determination of whether to impose a sentence of death or life imprisonment for a capital drug trafficking felony; deleting provisions relating to preservation of DNA evidence in death penalty cases, etc.

Senate Committee References: Judiciary (JU) , Criminal Justice (CJ) , Appropriations (AP) , Rules (RC)

Last Action: 03/05/2013 Introduced -SJ 73

Effective Date: July 1, 2013

3.  Florida House Bill 4057 - HB4057

Criminal Proceedings: Repeals provisions relating to capital postconviction proceedings, order in which closing arguments are given, grounds for death warrant, sentencing orders in capital cases; postconviction review in capital cases; repeals provisions relating to commencement of capital postconviction actions, capital postconviction claims, & sanctions in postconviction proceedings; deletes provisions relating to legislative intent concerning adoption of rules concerning acceptance of guilty pleas & effect of certain postponements for speedy trial purposes; deletes provisions relating to development of uniform order of supervision form, providing for imposition of sanction following revocation of probation or parole, allowing for offenders under supervision to be charged for urinalysis testing in certain circumstances, & providing for payment plans & establishment of priority orders for payments.

Effective Date: upon becoming a law

Last Event: 1st Reading on Tuesday, March 05, 2013 11:59 PM

To follow these bills as they proceed through the session, click on the above links to the tracking sites found on the Florida House and Florida Senate web pages.  


Why Florida Statutes Don't Work for Capital Defense Representation: Funding Isn't There - Terry Lenamon Writes the Innocence Commission With Details

Back in May 2012, Terry Lenamon in his role as Chairman of the Board of Directors for the Florida Capital Resource Center, wrote to Les Garringer, the Executive Director of the Florida Innocence Commision, to explain how recent Florida laws have impacted the ability of Florida capital defense attorneys to effectively do their jobs, which is defending people that the State of Florida seeks to execute. 

Here are excerpts from that correspondence which may be of interest to our readers and those concerned about the death penalty in this country.  Terry writes:

Florida’s capital defendants are facing a deficiency in effective representation, particularly in those areas of the State responsible for the highest number of death sentences. One of the primary reasons for this deficit in quality representation is Florida’s statutory scheme for compensating private court-appointed counsel – section 27.5304, Florida Statutes (2010). For several reasons, the current scheme works to discourage qualified private attorneys from registering for court- appointment. At the same time, the statute provides economic incentive for  those who do register to spend as little time on a case as possible. Together, these unintended consequences have resulted in a significant decrease in the quality of representation available to capital defendants.

Highly Qualified Attorneys Need Not Apply

The compensation scheme codified in section 27.5304 was intended to save the State money by limiting attorney’s fees and encouraging plea deals. Thus, section 27.5304(5) provides a schedule of flat fees for attorneys based on the class of offense, and as noted in subsection (11), the Legislature intended “that the flat fees prescribed . . . comprise the full and complete compensation for private court-appointed counsel.” However, for more serious or complex cases, these flat fees are set unreasonably low:

1. For misdemeanors and juveniles represented at the trial level: $1,000.
2. For noncapital, nonlife felonies represented at the trial level: $2,500.
3. For life felonies represented at the trial level: $3,000.
4. For capital cases represented at the trial level: $15,000.
5. For representation on appeal: $2,000.

§27.5304(5)(a) (2010).

The fees are especially unreasonable as they relate to capital cases. A properly managed capital case that reaches trial typically lasts several months, if not years, and will generally require hundreds of hours of attorney time to prepare. However, based on a recent survey in which 91% of responding Florida lawyers listed their hourly rate at $150 or higher, the statutory flat fee for capital cases amounts to 100 hours or less of attorney time – an amount that barely covers the in-court time of an attorney over the course of both phases of a trial. [2]  Thus, in the capital context, the prescribed flat fees immediately discourage qualified attorneys from registering for court-appointment – and even more so for attorneys with greater experience who presumably charge a higher rate.....


Death Penalty in 2011: Amnesty International's Global Overview

Peterson v. State of Florida: Florida Supreme Court Rules Florida Death Penalty Statute is Constitutional - Even if All the Jurors Don't Agree On Everything (Three Justices Dissent)

The opinion in the case of Peterson v. State of Florida was released this week, and in it the Florida Supreme Court summarily reviewed the argument that the death penalty statute passed by the Florida Legislature does not pass constitutional muster because Florida's death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). 

Federal Appellate Court Reviewing District Judge Opinion: Florida Scheme Is Unconstitutional

The same argument -- that the Florida death penalty scheme cannot meet the requirements of the United States Supreme Court opinion in Ring v. Arizona -- was held to be valid by a federal district court in Florida last summer.  You can read the opinion of U.S. District Judge Jose Martinez  here

Judge Martinez's decision is currently being reviewed by the Eleventh Circuit Court of Appeals; for details, check out our April 2012 post (with its links)

Florida Supreme Court Rules That Ring v. Arizona Is Met: Florida Death Penalty Statute Passes Test

In the majority opinion, after lengthy consideration of both the guilt and penalty phases of Peterson's trial, review is then given to the Ring v. Arizona argument with the following result:

... Whether the Court Should Reconsider Bottoson v. Moore and King v. Moore

Finally, Peterson asserts that Florida's death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002), because Ring requires a jury determination of facts relied upon to increase maximum sentences in the capital sentencing context and Florida's death penalty statute does not provide for such jury determinations. Specifically, he asks that this Court reconsider its decisions in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla. 2002). We have consistently rejected claims that Florida's death penalty statute is unconstitutional. See, e.g., Baker v. State, 71 So. 3d 802, 823-24 (Fla. 2011), cert. denied, 132 S. Ct. 1639 (U.S. Feb. 27, 2012) (No. 11-8053); Darling v. State, 966 So. 2d 366, 387 (Fla. 2007); Frances v. State, 970 So. 2d 806, 822 (Fla. 2007). Peterson has not presented any argument that requires us to reconsider this precedent. Thus, we deny relief.

So, the Florida Supreme Court has ruled that its death penalty statute is just fine, thank you very much.  However, this was not an unianimous decision.  Nope.

Three Florida Supreme Court Justices Find Florida Isn't Meeting Ring v. Arizona Standard

Justice Pariente provides a dissent regarding the sentence, with which both Justices Labarga and Perry concur.  We provide her dissent in its entirety here:

I concur in affirming Peterson's convictions, but dissent as to his sentence because, based on this record, there is no unanimous finding by a jury that any of the applicable aggravators apply to this case. Peterson was sentenced to death following a seven-to-five jury recommendation absent any fact-finding as to which of the aggravators the jury found. None of the aggravators were aggravators that automatically demonstrate the jury has made the necessary findings to warrant the possibility of a death sentence, such as a prior violent felony or that the murder occurred while in the course of an enumerated felony that also was found by the jury. For the reasons explained more fully in my dissent in Butler v. State, 842 So. 2d 817, 835-40 (Fla. 2003) (Pariente, J., concurring in part and dissenting in part), I continue to believe that Florida's death penalty statute, as applied in circumstances like those presented in this case, is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). Whether our statute meets the requirements of the Federal Constitution will be an issue for the United States Supreme Court to decide. However, the fact that we do not require unanimity in fact-finding as to the aggravators necessary to impose the death penalty is, in my view, an independent violation of Florida's constitutional right to trial by jury.

Under our current sentencing scheme, not all defendants who are convicted of first-degree murder are eligible for a sentence of death. The trial judge must make additional findings before the death penalty can be imposed. See generally § 775.082, Fla. Stat. (2011). Without these findings, a trial court cannot impose a higher sentence than life imprisonment on the basis of the verdict alone. See § 775.082(1), Fla. Stat. (stating that without findings by the court that a defendant "shall be punished by death, . . . such person shall be punished by life imprisonment"). It is only after a sentencing hearing and additional findings of fact regarding aggravators and mitigators that the sentence of death may be imposed. Not only is this requirement imposed by Florida law, but it is constitutionally mandated by the Eighth Amendment to prevent death sentences from being arbitrarily imposed.

In addition, as interpreted by the United States Supreme Court in Ring, the Sixth Amendment requires that a jury find those aggravating factors. As Justice Scalia explained in his concurring opinion in Ring, the bottom line is that "the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by a jury." Ring, 536 U.S. at 610 (Scalia, J., concurring).

In Ring, the United States Supreme Court held that Arizona's sentencing scheme violated the Constitution—a scheme that was quite similar to Florida's in that under Arizona's prior statutory scheme, the maximum punishment allowed by law on the

Continue Reading...

U.S. Supreme Court Denies Cert in Robbins v. Texas: What Happens When Trial Evidence is Known to be Scientifically Unsound? Apparently, Nothing.

At its conference last week (on May 10, 2012), the United States Supreme Court did what it always does: confers on petitions placed before it, and decides if they should be granted.  If you're interested, you can follow this process week after week as it is live-blogged over at scotusblog.com.

Of particular interest, the case of Robbins v. Texas, where the issue before the High Court is whether a new trial is required for a convicted defendant when scientific evidence is later determined to be unreliable.  In Robbins, the doctor who took the stand on behalf of the prosecution in the role of medical examiner, Dr. Patricia Moore, changed her opinion -- after the trial was over and the defendant sentenced to life imprisonment for capital murder of his girlfriend's baby.  (Thank God, there was no death sentence here - but this capital case and its due process arguments do impact on death penalty defense.)

Seems there are lots and lots of medical experts that have gone on the record in this case to state that it's not clear how this baby died ... and there may have been no crime here whatsoever.  But it's not just experts arguing about causation: here, the medical examiner who took the state for the State of Texas has changed her opinion about cause of death.  That's a big deal. 

No homicide.  Big mistake at trial, right? Another wrongful conviction ....

And yet, the Texas appellate courts haven't fixed this.  Here's the opinion from the highest criminal court in the State of Texas regarding Robbins' arguments.

From the amicus brief filed by the Innocence Project: (emphasis added)

First, the Texas appellate court’s decision turns the burden of proof on its head by requiring Petitioner to disprove an element of a crime – that the child’s death was the result of a homicide – in order to receive a new trial. Under this standard, Petitioner can not obtain a new trial because he can not prove that there was no crime, even though the central evidence at Petitioner’s trial that a crime occurred has been refuted by the very expert who originally offered the evidence. The Texas court of appeals has created a standard that is impossible to satisfy where – as here – forensic science can neither support nor disprove the conclusion presented to the

Second, the Texas appellate court failed to recognize that the conclusion presented to the jury at Petitioner’s trial – that, within a reasonable degree of scientific certainty, the victim had been murdered – was in fact false. Dr. Moore’s retraction of her trial testimony did not signify simply that she was less certain about whether Tristen’s  death was a homicide. Instead, it completely refuted the central evidence at trial that  a crime occurred by confirming that the results of the autopsy did not support any conclusion as to the cause and manner of Tristen’s death. Therefore, the scientific  conclusion that was presented to the jury was, as a matter of science, actually false.  The Texas appellate court’s decision requiring Petitioner to prove that homicide was not a possibility in order to show that the conclusion was false fails to account for the nature and role of scientific evidence.

Third, the Texas appellate court’s decision fails to account for the uniquely  persuasive impact of scientific evidence in criminal trials. Given jurors’ inclination to assign significant weight to scientific expert testimony, once Dr. Moore testified that Tristen’s death was caused by a criminal act, the jury likely focused on whether it was Petitioner who committed the crime, instead of whether a crime was committed at all.

And just as Dr. Moore’s testimony likely carried significant weight with the jury, so would testimony that the cause and manner of death was “undetermined.” Therefore, if the forensic evidence had been presented to the jury accurately – which would  have established that forensic science could not determine how Tristen died – such evidence certainly would have affected how the jury evaluated all of the evidence  against Petitioner. If the decision of the Texas Court of Criminal Appeals is allowed to stand, Petitioner will be denied a new trial even though the central scientific evidence supporting his conviction has been shown to be so unreliable that the accuracy of the jury’s guilty verdict has been critically undermined. Such a result does not comport with due process.


For the foregoing reasons, and for the reasons stated in the petition, the petition for certiorari should be granted.

This morning, the Supreme Court denied cert in Robbins (read the order here).  No explanation given. 

Fulgham Trial: Jury Finds Joshua Fulgham Guilty in Quick Deliberation, Terry Lenamon Defends in Penalty Phase of Trial, Example of Florida Statute's Mitigating Factors In Application

The jury has found Joshua Fulgham guilty of first degree murder (see earlier posts for details of the case).  

Beginning today, Terry Lenamon and the defense team will be arguing Florida mitigating factors and how their application should prevent Fulgham being sentenced to the death penalty.

For details on mitigating factors, see our earlier post here

The trial is being covered on a daily basis, in detail, at Ocala.com.

Joshua Fulgham Defense - Transcript of Terry Lenamon's Opening Statement

For those following the Marion County, Florida trial of Joshua Fulgham, here is the transcript of Terry Lenamon's opening statement.

Trial continues this week ....

Florida Death Penalty Statute Unconstitutional: 11th Circuit Court of Appeals Reviews Lower Court Ruling

An amicus brief was filed this week in the Evans v. McNeil by amici curiae NACDL, FACDL, and Florida Capital Resource Center. before the United States Court of Appeals for the Eleventh Circuit.

 To read the brief in its entirety, please go here.

This is the latest fight in the battle over whether or not the Florida Death Penalty Statute is unconstitutional. 

The case, Evans v. McNeil, involves a petition for writ of habeas corpus, filed in the United States District Court for the Southern District of Florida, Miami Division, where that court found the Florida Death Penalty Statute violated Ring v. Arizona, 536 U.S. 584 (2002), and was therefore unconstitutional.

Read the lower court's ruling here.


US Supreme Court Grants Writ on Two Habeas - Mental Incompetency Cases

For those that know Terry or have read his memoir, Heinous, Atrocious and Cruel (see it there in the left sidebar), you know that he is very concerned about mentally challenged individuals being sentenced to death not just in Florida but elsewhere in this country.  

Which means we'll be carefully following two cases that are now pending before the United States Supreme Court - they've granted review in both and oral arguments should be happening in the Fall.  One comes out of Ohio; the other out of Arizona. 

The two cases?  Ryan v. Gonzalez (follow online here).and Tibbals v. Carter (follow online here).  By granting writ here, the High Court will determine if mentally incompetent individuals who are already on Death Row are entitled under the law to a stay of federal habeas proceedings because they cannot effectively assist their counsel.

In the lower court appellate opinions, both cases held that the individual needs to be mentally competent in order for there to be federal habeas proceedings.  In both cases, stays were ordered with no end date.  Now, the High Court has responded to requests by the states (prosecutors) that these stays be terminated and the proceedings move forward. 

Precedent to consider? 

Rees v. Peyton (1966)

Ford v. Wainwright (1986) - insanity means no death penalty

Atkins v. Virginia (2002) -  "mental retardation" (phrase from the case itself) means no death penalty

Questions Presented:


Several years after Gonzales's counsel initiated federal habeas proceedings and filed an exhaustive petition seeking relief, counsel asserted that Gonzales was incompetent to communicate rationally and the proceedings should be indefinitely stayed pending possible restoration of competency.  Based on 18 U.S.C. § 3599(a)(2), the Ninth Circuit agreed, even though Gonzales's claims were record-based or purely legal.

Did the Ninth Circuit err when it held that 18 U.S.C. § 3599(a)(2)-which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys"-impliedly entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?


1.         Do capital prisoners possess a "right to competence" in federal habeas proceedings under Rees v. Peyton, 384 U.S. 312 (1966)?
2.         Can a federal district court order an indefinite stay of a federal habeas proceeding under Rees?


Several New, Excellent Law Review Articles on Death Penalty Issues Available Online For Your Consideration

One of the great things about the internet is its ability to educate and inform, and here's yet another example of that:  several excellent articles discussing aspects of the death penalty, and specifically, death penalty defense, have appeared this month.

All, available for free, online.  Please consider reading the following:

Defendant remorse, need for affect, and juror sentencing decisions

by Emily P. Corwin, BA, Robert J. Cramer, PhD, Desiree A. Griffin, PhD and Stanley L. Brodsky, PhD

Journal of the American Academy of  Psychiatry and the Law Online, 2012

Landmarks, Portents, or Just Curves in the Road?

by Carol Nackenoff

Tulsa L. Rev., 2011

But He Knew It Was Wrong: Evaluating Adolescent Culpability

by Peter Ash, M.D.

Journal of the American Academy of Psychiatry and the Law Online 2012

An Alternative to Death-Qualification: The Nonunanimous Penalty Jury

by John Tucker

Yale Law School Legal Scholarship Repository 2012

Commentary: Pursuing Justice in Death Penalty Trials

by Clarence Watson, JD, MD, Spencer Eth, MD and Gregory B. Leong, MD

Journal of the American Academy of Psychiatry and the Law Online 2012

Burden of Proof in Establishing Mental Retardation in Capital Cases

by Alexander Westphal MD and Madelon Baranoski, PhD

Journal of the American Academy of Psychiatry and the Law Online  2012



Wetzel v. Lambert: Another US Supreme Court Decision on the Frustrating AEDPA

Many have come to know about the AEDPA (Anti-terrorism and Effective Death Penalty Act of 1996 ) because of the Troy Davis case (read our earlier post here).  The AEDPA, however, impacts many, many capital punishment cases here in the United States, since it ties the hands of federal court judges to act in reviewing death penalty cases coming out of state courts. 

What the AEDPA Does

What the AEDPA does is limit the ability or power of habeas corpus laws.  For many, this translates to risking innocent men and women being executed in this country. 

This month, another AEDPA ruling has come down from the United States Supreme Court.  The matter involved the highest court in the country reviewing the determinations of the highest court for the State of Pennyslvania as well as the U.S. Third Circuit Court of Appeals.

The Story of Wetzel v Lambert

The case of Wetzel v Lambert was decided by the U.S. Supreme Court per curiam on February 21, 2012, with three justices dissenting (Breyer; Ginsburg; Kagan).  You can read the opinion and follow its aftermath here. 

Here's the backstory:  in Pennsylvania back in 1984, a man named James Lambert was convicted and sentenced to death for the murder of two bar patrons during a robbery of a place called Prince's Lounge in Philadelphia.  At the murder trial, one of the robbers took the stand for the prosecution and pointed the finger at Mr. Lambert along with another man, Bruce Reese, as being in cahoots with him in robbing the bar. 

Lambert is convicted, the death penalty is imposed, and the appellate process begins.  Twenty years later, Lambert's attorneys advance an argument that error has occurred because the prosecution never disclosed to the defense at trial of the "police activity sheet."  It's a big deal. 

If the state attorneys had done this, then this would fly in the face of longstanding Supreme Court precedent, Brady v. Maryland, 373 U. S. 83 (1963). 

What's in the "police activity sheet"?  In that sheet, a photo of a man named Lawrence Woodlock was shown to two people who were at the bar during the robbery.  Woodlock was named as a co-defendant by the state attorneys on the sheet in the Prince's Lounge robbery.  Woodlock had a record of over 13 armed robberies of bars.  Woodlock was already in custody at the time of trial on other charges.

It also had the names of two police investigators in the Lambert case and the names of those who died during the robbery with their corresponding case numbers.  Finally, it had Jackson - Lambert's buddy who took the stand against him - as stating that Woodlock had been involved in the Prince's Lounge job. 

For all these years, much less during the trial, the Commonwealth of Pennsylvania had not notified the defense of this document much less provided it to Lambert.  Lambert's counsel was never notified that known armed robber Larry Woodlock had ever been investigated, or had his photo shown to a Prince's Lounge witness. 

Why did this matter now?

It matters because if that police activity sheet were available at trial, Lambert's attorneys could have argued that someone other than Lambert committed the armed robbery at Prince's Lounge - or that there were more people involved in the robbery that the state had been suggesting. 

Additionally, Lambert argued that his trial counsel could have used the sheet in their examination of the finger-pointing Jackson when he was on the witness stand.  Why wasn't Jackson mentioning Woodlock in his trial testimony? 

In sum, the police document is argued to be "exculpatory evidence" under federal law and accordingly, pursuant to Brady v. Maryland, the state prosecutor must provide material exculpatory information that it has in its possession, custody, or control to the defense attorneys.

How the AEDPA Comes In - Frustrations of the Federal Courts

The AEDPA limits the power of the federal courts - even the United States Supreme Court (outside of de novo cert) - to review state court decisions.   Federal appellate courts, faced with clear injustice and with hands tied by the AEDPA, will push the edge of the envelope to try and do the right thing - particularly when a death penalty case comes before them.

However, the United States Supreme Court writes in Wetzel that this is "overreaching" that "...continues to occupy an undue portion of the Supreme Court's docket."

What Happens Now in Wetzel v. Lambert

On this issue of the unshared police document, the Pennsylvania Supreme Court unanimously decided in favor of the state attorneys:  (1) the ambiguous notation on a police activity sheet regarding a suspect's identification of a "co-defendant" was not material and (2) using the sheet to impeach Jackson's testimony would have been cumulative, no big addition to the case.

The issue was then taken to the federal courts, since the state high court had ruled and state remedies were exhausted.  The Federal District Court agreed with the Pennsylvania Supreme Court.   Habeas request denied. 

The Third Circuit Court of Appeals did not.  It found that the state court's second ground for its decision,  the cumulative nature of the impeachment, was unreasonable.  The appellate court did not voice an opinion on the other ground.  

The United States Supreme Court has now found that the Third Circuit Court of Appeals has to rule on both grounds, and has sent the case back to the lower federal appellate court for additional work.  With its reversal, this caveat:

Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prosecution. That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.  

Cruel and Unusual Punishment and the Death Penalty: Law Professors Give Us More to Ponder

Worth your time to read, this law review article just published by the Virginia Law Review in a continuing discussion of the Eighth Amendment to the U.S. Constitution as it relates to "cruel and unusual" punishment and the death penalty -- was the Cruel and Unusual Punishments Clause originally meant to prohibit excessive punishments as well as barbaric ones and that proportionality review is therefore unquestionably legitimate, as Florida's Professor Stinneford suggests?


by William T. Berry III, assistant professor of law at the University of Mississippi where Professor Berry responds to an earlier article written by John F. Stinneford, Assistant Professor of Law, University of Florida Levin College of Law, Gainesville, Florida:

Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899


Berry argues that there are perhaps two weaknesses in Professor Stinneford’s arguments - see where you stand. 

Mental Illness and the Death Penalty: List of Studies on How The Mentally Ill Should Not Face Capital Punishment

The reality that individuals suffering from severe mental illness set on Death Rows all across the country today should not even be the subject for debate - the reality is too obvious.  Whether they were mentally ill at the time of the crime for which they face a sentence of death is one issue.  Whether they literally lost their minds living 24/7 in Death Row conditions is another.  

The real question becomes, should the severely mentally ill be subject to the death penalty?  Many legal scholars and health professionals have considered this issue and a number of worthwhile studies and reports are now available to us all, courtesy of the internet. 

Five Excellent Studies and Reports Regarding Mental Illness and the Death Penalty

1.  Double Tragedies: Victims Speak Out Against the Death Penalty For People with Severe Mental Illness (available for download; 37 pages) by the National Alliance on Mental Illness (NAMI) and Murder Victims’ Families for Human Rights;

2.  Position Statement of the Mental Health America;

3.  Mental Illness and the Death Penalty in North Carolina: a Diagnostic Approach (available for download; 78 pages) by the Charlotte Law School;

4. Mental Illness and the Death Penalty (available for download, 8 pages) by the American Civil Liberties Union; and

5. Task Force Report on Mental Disability and the Death Penalty (available for download, 13 pages), by multi-disciplined task force and published by the APA.

Hank Skinner Victory: US Supreme Court Rules Civil Rights Law Can Be Used in Death Row DNA Testing

Move over, habeas corpus.  The United States Supreme Court has ruled (read the full opinion here) that Texas Death Row inmate Hank Skinner can indeed pursue a civil lawsuit brought under federal civil rights law as he tries to get certain evidence tested for DNA now, long after his criminal trial where he was found guilty and sentenced to death.

For details on Hank Skinner's underlying criminal conviction, please read our prior post giving the details as well as checking out the post where Skinner is on video, discussing his situation. 

The State of Texas as well as many others in the criminal law community, were arguing that Skinner could not advance a claim in civil courts because the law surrounding habeas corpus prevented him from doing so.  In sum, they said, Skinner was seeking his freedom and accordingly, he had to file a petition for writ of habeas corpus.  The civil rights arguments, in a civil courtroom and not a criminal one, were not available to him, or anyone else.

Wrong, the Supreme Court said today.

The opinion today makes it the law of the land that a Death Row inmate who is seeking to test evidence for DNA that "... may prove exculpatory, inculpatory or inconclusive." will be allowed to do so because this is within his civil rights.

Already, the next question is being asked: who else can this opinion help?  Death Row inmates and their lawyers must now consider the possibility that the Skinner decision will help them, as well. 

This is a major victory for those interested in justice, and particularly for those who understand the weaknesses of the indigent defense death penalty trials in this country.  Our sincerest congratulations to attorney Law Professor Robert Owen of the University of Texas' Capital Punishment Center who represented Hank Skinner before the High Court. 

Mental Illness and the Death Penalty - 1

Last month, two death row inmates had their sentences changed to life without parole after authorities confirmed each suffers from severe mental illness.  In Oregon, Robert James Acremant had his sentence changed after state experts confirmed his diagnosis of paranoid schizophrenia.  (He still faces a death sentence in California on another charge.) 

In North Carolina, Isaac Stroud no longer faces capital punishment after being held to suffer from a severe mental disability that the court found made him incapable of assisting with his own defense. (No specific psychological diagnosis was provided.)

This is not the same as being mentally challenged ("mentally retarded" is the term used in the Supreme Court precedent) - here, we are considering mental illness.  But what does it mean to be "mentally ill" in regards to the death penalty? And do mentally ill Death Row inmates still get executed in America today?

It is Unconstitutional to Execute Someone Who Is Mentally Ill - Sometimes.

In 1986, the U.S. Supreme Court held in Ford v. Wainwright, 477 U.S. 399 (1986), a case coming out of Florida, that it would be unconstitutional to execute someone who is mentally incompetent - even if they were sane enough at the time the sentence was imposed.  It is considered cruel and unusual punishment. 

However, as recently as 2008, the Florida Supreme Court has held that a convicted inmate, acknowledged to suffer severe mental illness, could be executed.  In Power v. State of Florida, 992 So.2d 218 (Fla. 2008)(read the opinion here), the highest court in the state held that having mental illness doesn't automatically bring with it an Eighth Amendment shield from capital punishment.

Robert Beeler Power failed in his claim to federal constitutional protection from execution before the Florida Supreme Court as they relied upon their previous holding in Diaz v. State, 945 So.2d 1136 (Fla. 2006)(read the opinion here), opining that the United States Supreme Court has not recognized a complete bar to execution based upon mental illness and referencing language from their Diaz opinion where "mental illness" was found to be merely a mitigating factor - as either a mitigating factor under the formal statute or one allowed to be considered by the court when imposing sentence. Power, 992 So.2d at 222.

Robert Beeler Power died on December 10, 2010, while awaiting execution on Florida's Death Row.

The Most Common Types of Mental Illness Involved in Death Penalty Cases

The following are the psychological diagnoses most often seen on Death Rows around the country; however, as science advances it is assumed that others will be added to this list as other disorders or conditions are recognized by the psychiatric and psychological communities.  For details on what these mental illnesses involve, click on the links which will take you to the National Alliance on Mental Illness (NIMI) website: 

  1. Bipolar Disorder
  2. Borderline Personality Disorder
  3. Depression
  4. Post-Traumatic Stress Disorder
  5. Schizophrenia

Next post: Those Who Have Been Executed Despite Being Diagnosed With These Conditions

Will Texas Trial Judge Get Chance to Rule Death Penalty Unconstitutional in Pending Murder Case?

In Houston, Texas, a man named John Edward Green is on trial for the murder of  a Houston woman and her sister during the commission of a robbery, and the State of Texas is seeking the death penalty.  Presiding over this trial is state district judge Kevin Fine, and Judge Fine has become somewhat of a national celebrity in some circles as someone trying to rule on the constitutionality of the death penalty (which most think is an issue pretty well settled by the U.S. Supreme Court), opening the doors to appellate review, and reconsideration, by doing so.

Judge Fine did make a ruling on the issue back in March (he declared the death penalty unconstitutional then) but he took that back (rescinded) and opted to schedule an evidentiary hearing on the matter.  That hearing was scheduled to begin December 7, 2010. 

Of course, he's been stopped.  The Texas Court of Criminal Appeals shot him down under the standard been-there, done-that argument you would expect. (Officially, they heard the Harris County District Attorney's Office motion to stop the hearing, and two days into it, the appellate court halted the proceedings before Judge Fine until further notice.)

Then, the CCA reconsidered things, and on December 7, 2010 ordered (read the Order here) that they have decided to reconsider relator's motion for leave to file a petition for writ of prohibition and a petition for writ of mandamus and "... the Honorable Kevin Fine, Judge of the 177th District Court, and John Edward Green, Jr., the real party in interest, may wish to respond. Therefore, within 15 days of the date of this order, Judge Fine and Mr. Green, or his representative, shall file their respective responses in this Court. Proceedings in the trial court shall be stayed pending further order by this Court."

Now, an amicus curaie has been filed -- signed by over 60 friends of the highest criminal court in the state -- asking that it reconsider its ruling.  A former Texas governor has signed this brief (Mark White). So have the former governors of Maryland (Parris Glendening) and Indiana (Joe Kernan), as well as lots of other impressive signatories that include former judges, district attorneys, and other prominent folk.

The eyes of the nation are on this Austin court now - as well as the world.  The New York Times, the Wall Street Journal, BBC News, and others are all watching to see what the Texas Court of Criminal Appeals will do now. 

What's at Stake Here?

Judge Fine has told the media that he is not personally vested in the issue of capital punishment, and that the hearing is focused only upon Mr. Green's case and is not to be considered as a method to bring the entirety issue of capital punishment up for appellate review.  The evidentiary hearing was set to allow defense counsel the ability to present evidence dealing with how the State of Texas implements capital punishment, using forensic evidence and witness testimony to demonstrate constitutional error that would impact upon their client's case. 

Be that as it may, here in Florida and elsewhere,we can recall how Furman dealt with state implementation of the death penalty, and resulted in a four year national moratorium

Avalaches can and do start from a single, small rock.

Bruce Carneil Webster: Will Mentally Retarded Man on Federal Death Row Be Executed?

This Monday, without comment, the United States Supreme Court denied the petition for writ of certiorari filed by Bruce Carneil Webster, who sets on the federal Death Row.  (See the docket sheet here.)

Mr. Webster had sought the High Court's relief, arguing that courts should be able to consider evidence that one federal judge sitting on the 5th Circuit Court of Appeals opined "...is virtually guaranteed..." to prove that Bruce Carneil Webster is mentally retarded, which would make his 14-year-old death sentence unconstitutional.  

What is this evidence of his mental state? 

Three federal physicians from the Social Security Administration found Webster to be mentally retarded when he applied for disability benefits in 1993.  This was a year before the crime for which he was sentence to death was committed, e.g., the kidnapping and murder of 16-year-old Lisa Rene.  

It is not disputed that this was a horrific crime: Lisa Rene was kidnapped, raped, beaten, and then buried alive -- and her abduction by Webster and his cohorts was recorded during a call to 911.  It is also not disputed that Webster is not seeking to revisit his conviction: he is only contesting the applicability of capital punishment under the constitutional precedents established by same High Court that has now denied him relief.

What's going on here? 

Form over substance.  There is a law on the books, it's been there since 1996, that limits a federal appellate court at this juncture in the process from considering anything but evidence which points to a defendant's innocence.  (Read 28 USC 2255 here.

So, even though the U.S. Supreme Court ruled in 2002 (Atkins v. Virginia) that individuals who are mentally retarded should not be subject to execution by the state, the 1996 statute appears to be a bar for that constitutional argument to ever reach a judicial bench for consideration.

Webster's attorneys aren't done, though.  They've told the press that they will continue their fight, filing more argument in more courts - perhaps in Indiana - as they attempt to find an American court that will finally give the federal constitution some application in this case. 

Former US Supreme Court Justice John Paul Stevens Writes Against the Death Penalty in New York Review of Books

Former Supreme Court Justice John Paul Stevens believed in capital punishment at one time; he does not support the death penalty today.  And, in an article published in the December 23, 2010, issue of the New York Review of Books (available now online), entitled "On the Death Sentence," Justice Stevens tells us why. 

What John Paul Stevens has written is a review of a book, of course.  He's providing his opinion on the merits of David Garland's new work,  Peculiar Institution: America’s Death Penalty in an Age of Abolition (Belknap Press/Harvard University Press, 417 pp., $35.00).  It is the New York Review of Books and Stevens' commentary on the death penalty necessarily parallels his analysis of Garland's contribution and its merits.

Still, Stevens' essay gives us as much or more about his own views on the death penalty - and why he finds it to be unconstitutional - as it does his opinion on whether or not we should buy and read the new Garland book.  No longer confined by the role of active Justice on the High Court, John Paul Stevens uses this opportunity to give voice to his perspective on capital punishment in America today, taking advantage of the historical perspective found in Garland's book to take us through a detailed account of why this sage scholar who voted in 1976 to reinstate the death penalty in Gregg v. Georgia now believes that capital punishment is wrong. 

It's definitely worth your time to read. 

Death Penalty Info Center Releases New Poll - More Favor Life Over Death

Today, the Death Penalty Information Center (DPIC) held a press conference to release details about their latest poll concerning capital punishment in America today.  The DPIC describes its efforts as one of "the most comprehensive studies ever conducted of Americans’ views on the death penalty."

The poll itself was done by Lake Research Partners.  Those polled?  1500 registered voters.  Results?   Sixty-one percent (61%) opt for something other than the death sentence for murder with prefered alternative punishments being life with no possibility of parole and with restitution to the victim’s family (39%), life with no possibility of parole (13%), or life with the possibility of parole (9%).

See DPIC for more details.  Here is one chart summarizing their findings:



QEEG Brain Mapping and the Death Penalty

As discussed earlier this week, the ability to consider QEEG Brain Mapping as evidence in capital trials is of major importance

QEEG is different than other brain imaging tools.

Over the years, the ability of experts to provide analysis of the human brain through x-rays, CAT scans (Computerized Axial Tomography scans) or MRIs (Magnetic Resonance Imaging) has become routinely accepted, although each in their own time was considered to be a scientific breakthrough into the understanding of how the brain functions (or malfunctions).  These types of scientific tools, however, deal more with the structure of the brain itself.  Use any of them, get a visual of the particular subject's brain structure.  A snapshot of sorts.

With QEEG (Quantitative Electroencephalography), you get more. QEEG goes to function, not just structure.  Through this new technology, experts can study how a particular subject's brain is functioning -- in real time -- through this painless evaluation of the brain's electrical activity.  This is done by around 20 sensors being placed upon the person's scalp; they then read electrical neuron activity under certain conditions (eyes closed, open, etc.).  QEEG provides more than a snapshot; through expert analysis, these results more fully explain exactly how well, or how lacking, a particular person's brain is capable of functioning. 

Why is this so vital in capital cases?

Intellectual functioning has been considered in regard to the death penalty by the United States Supreme Court.  In the landmark case of Atkins v. Virginia, 536 U.S. 304 (2002) the High Court ruled that it is unconstitutional to execute an individual suffering from "mental retardation" because this would be in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.  The Supreme Court had also considered the issue in Penry v. Lynaugh, 492 U.S. 302 (1989)("Penry 1") opining that "mental retardation" should be a mitigating factor to be considered by the jury during sentencing - a case that was referenced and not expressly overruled in Atkins but which has come to be considered as effectively overruled by the Atkins case.  Consider the Florida statute (Florida Code Section 921.141(6)) listing our state's mitigating factors in death cases:

Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another person and his or
her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty

Over time, reference to the term "mental retardation" as it appears in precedent has been replaced with the more appropriate term "intellectual disability."  See, R. Schalock et al., "The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability," 45 Intellectual and Developmental Disabilities 2 (April 2007).  

Determination of a defendant's intellectual ability is therefore paramount to the issue of sentencing - and the ability to use QEEG brain analysis here is of paramount importance to those interested in both the imposition of justice and the application of mercy.

Brain Mapping Evidence in Death Penalty Cases: QEEG Is Recognized

For my blog readers, here is the press release issued earlier this week regarding QEEG admissibility:

Highly Publicized Grady Nelson Death Penalty Trial Sets National Precedent with Florida Circuit Court Judge Hogan-Scola’s Admission of QEEG Brain Mapping Evidence

Miami, Florida (PRWEB) 28 October, 2010 -- “This may be the first time in any United States criminal courtroom where QEEG analysis has been ruled admissible and respected for its ability to provide vital information on brain injury and impairment,” explains Terence Lenamon, death-qualified Miami criminal defense attorney and co-counsel with David S. Markus in Grady Nelson’s penalty phase trial. 

On November 8, 2010, the death sentence will be at issue as the penalty phase begins in the highly-publicized trial of Grady Nelson for the first-degree murder of his wife, Angelina Martinez, who died after being stabbed over 60 times. This time, in a precedent-setting ruling by Judge Jacqueline Hogan-Scola, jurors will be able to include the results of brain mapping via a quantitative EEG (“QEEG”) in their deliberations of mitigating factors balancing between a life or death sentence for Nelson. 

In its simplest terms, explains testifying expert Dr. Robert W. Thatcher, a nationally known pioneer in QEEG analysis who is Board Certified by the American Board of Certification of Quantitative Electroencephalography and a principal in Applied Neuroscience, Incorporated, “…QEEG is a computer analysis of around 19 channels of simultaneous EEG recording under controlled conditions including 3-dimensional source imaging.”

Otherwise known as “brain mapping,” for over 20 years admission of QEEG results has been deemed largely inadmissible in state and federal courts across the country under the legal standards set by the U.S. Supreme Court under either its Frye or Daubert rulings. Historically, some judges have found QEEG testing to be insufficiently reliable to be admitted as scientific evidence. 

This evidentiary impasse has continued despite QEEG’s growing respect within the scientific community. Today, there are over 50 companies selling QEEG products in the marketplace. Among them, Applied Neuroscience, Incorporated sells its NeuroGuide Deluxe™ which has been tested as reliable. 

On October 6, 2010, the defense motion to allow QEEG evidence presented by Dr. Thatcher as admissible to the jury deciding the sentence of convicted murderer Grady Nelson was granted. After hearing arguments from both sides, and considering the scientific evidence and expert testimony given by both sides, the court ruled that QEEG met the standards of Daubert and Frye and would be allowed. 

 “[E]verything I have heard, the methodologies are sound, the techniques are sound, the science is sound,” ruled Judge Hogan-Scola, announcing that the QEEG evidence would be allowed when the penalty phase begins next month. 

To have Judge Hogan-Scola courageously allow QEEG evidence as part of the mitigating evidence brought forward by attorney Terence Lenamon in the penalty trial of Grady Nelson is newsworthy on a national level. It is a particularly important and welcomed step in the understanding of mental capacity as it relates to the punishment of defendants in this country, particularly those facing the death penalty.

“We are understandably encouraged by the fierce dedication to justice exhibited by Judge Hogan-Scola in her ruling on QEEG,” continues Mr. Lenamon. “Having a judge with her combination of legal expertise and scientific knowledge was crucial here, and the time to recognize QEEG analysis by experts such as Dr. Thatcher as sound science is long overdue.”

The Mentally Ill Are Executed in the United States - 1: Who is Legally Insane Under The Law?

Many people believe that if someone is mentally ill, then they cannot be executed for their crimes.  This is not true; an individual suffering from a mental illness can be sentenced to death in the United States.  In fact, the protections against someone being executed due to their psychological impairments is rather limited: many seriously mentally ill individuals set on Death Row in this country today.  

What is "legal insanity" under the law?  It depends upon which jurisdiction applies.

The reality is that a defendant's mental capacity becomes an issue as early as the initial investigation by law enforcement into the crime, however, it is clearly a major component of any criminal trial of that individual, first addressed in the guilt phase of a capital case.  Legal insanity is an affirmative defense to a crime: it is proven by the defense in the guilt phase of the case where the state is seeking the death penalty, not the penalty phase.

There are two prevailing legal tests to determine whether or not a defendant is legally insane (again, as a defense to be pled and proven by defense counsel at trial).  The first, and most popular, is the “M’Naghten test.”   See, Clark v. Arizona, 548 U.S. 735 (2006).

M'Naghten Test

Under M'Naghten, the determining factor is whether or not the defendant was (1) able to understand what he (or she) was doing at the time of the crime due to some “defect of reason or disease of the mind" or, (2) if he (or she) was aware of what they were doing, that he (or she) nevertheless failed to comprehend or understand that what they were doing was wrong.

ALI - Model Penal Code Test

The alternative test for legal insanity has been provided by the American Law Institute in the Model Penal Code.  Under the ALI test, the key is if  the defendant lacked the substantial capacity, as a result of a mental disease or defect either (1) to appreciate the criminality of his conduct or  (2) to conform his conduct to the requirements of law. 

M'Naghten is considered a much stricter standard than the ALI test.  Under M'Naghten, the two defendants made popular by Truman Capote in the nonfiction novel In Cold Blood were found to be legally sane, convicted of capital murder, and after being sentenced to death, each was hanged by the State of Kansas. 

Using the ALI/Model Penal Code test, John Hinckley was found to be legally insane, therefore not legally culpable for his attempted assassination of President Ronald Reagan, and not subject to capital punishment.  Public outrage at the Hinckley result has forced many jurisdictions to return to the harsher M'Naghten standard.

Next in the series: Mental Illness as a Mitigating Factor


U.S. Supreme Court Sets Oral Argument in Three Death Penalty Cases: Thompson, Skinner, Pinholster

In just a few weeks the new term for the U.S. Supreme Court will begin, and the High Court has already scheduled oral arguments in three pending death penalty-related cases: Connick v. Thompson, Skinner v. Switzer, and Cullen v. Pinholster.  

1.  Connick v. Thompson comes out of Louisiana.  On October 6, 2010, argument will be heard in part on a $14,000,000 award granted to Mr. John Thompson, finally acquitted of charges for which he had been previously sentenced to death.  Argument will hinge on whether or not the impact of the award exposes prosecutors to vicarious liability in areas of prosecutorial misconduct.

Question Presented: "Whether failure-to-train liability may be imposed on a district attorney’s office for a prosecutor’s deliberate violation of Brady v. Maryland, 373 U.S. 83 (1963), despite no history of similar violations in the office." Go here to read the briefs on file by the parties and the amicus curaie briefing (all in full text). 

2. Skinner v. Switzer is a Texas case that will be heard on October 13, 2010.  Hank Skinner's case has become somewhat famous at this point -- as Mr. Skinner sets on Texas' death row, he is taking his fight to prove innocence into the civil courts (and out of the criminal system), asserting that he has a right to DNA testing as part of his constitutional civil rights.  

Question presented: "May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?"  Go here to read the briefs on file by the parties and the amicus curiae briefing (all in full text). 

3.  Cullen v. Pinholster will be held on November 9, 2010.  This California case delves into the issue of ineffective assistance of counsel in this mental illness case, and the U.S. Court of Appeals for the Ninth Circuit has already overturned Mr. Pinholster's death penalty sentence on the failure of his trial counsel to present mitigating evidence of Pinholster's mental health.

Questions Presented: "1. Whether a federal court may reject a state court adjudication of a petitioner’s claim as “unreasonable” under 28 U.S.C. § 2254, and grant habeas corpus relief, based on a factual predicate for the claim that the petitioner could have presented to the state court but did not.

"2. Whether a federal court may grant relief under 28 U.S.C. § 2254 on a claim that trial counsel in a capital case ineffectively failed to produce mitigating evidence of organic brain damage and a difficult childhood because counsel, who consulted with a psychiatrist who disclaimed any such diagnosis, as well as with the defendant and his mother, did not seek out a different psychiatrist and different family members." Go here to read the briefs filed by the parties and amicus curiae filings (all in full text.)

Will Cal Coburn Brown Be Executed in Single-Drug Lethal Injection by Washington State Tomorrow, Despite His Mental Illness? Probably.

Much of the American public may believe that the mentally ill are spared capital punishment in this country, because to execute someone suffering from mental illness would be cruel and unusual - and therefore, in violation of our federal constitution. 

And they're wrong.  Dead wrong.

Washington State plans to execute Cal Coburn Brown tomorrow, a man acknowledged to suffer from bipolar disorder.

The mentally ill are executed in the United States.  In fact, right now defense attorneys are fighting hard to stop the execution scheduled tomorrow by the State of Washington of Cal Coburn Brown.  

The governor has denied a clemency request already, tipping her hat to the jury who had the opportunity to consider mental illness during the sentencing phase of Mr. Brown's trial. 

This morning, the United States Supreme Court rejected Cal Coburn Brown's appeal without explanation.  Right now, he has one remaining appeal that is pending, unless the lawyers file something else very, very soon. 

Brown Will Be First in Washington Executed By Single Drug Lethal Injection Method

If Mr. Brown is killed by the State of Washington tomorrow, then he'll be the first person executed in Washington since 2001.  Cal Brown will also be the first Washington Death Row inmate to die by the single-drug lethal injection method, as Washington has joined with Ohio in implementing this new form of execution (over the three-drug cocktail method). 

If you'll remember, it was just last December that Ohio used the single-drug execution method in an execution, when Ohio inmate Kenneth Biros was executed on December 8, 2009.  This single-drug execution method, where a massive dose of one drug is injected, is just the same as the methods used by vets across the country in the euthanasia of dogs and cats.  Surely this analogy suggests how wrong this method is for anyone, much less someone suffering from mental illness. 

Cal Coburn Brown is mentally ill: he has been medicated for bipolar disorder for 16 years.

It is not disputed that Mr. Brown suffers from bipolar disorder, nor is it disputed that he confessed to killing Holly Washa in 1991.  Cal Brown was mentally ill then and now.  However, since 1994, Mr. Brown has been on medication for his condition. 

His suffering of bipolar disorder, so far, has not prevented Cal Coburn Brown from being convicted of capital murder and being sentenced to death for his crime.  Unless something happens fast, a mentally ill man will be executed tomorrow by the State of Washington. 

What is bipolar disorder? 

According to the National Association for the Mentally Ill:

Bipolar disorder, or manic depression, is a medical illness that causes extreme shifts in mood, energy, and functioning. These changes may be subtle or dramatic and typically vary greatly over the course of a person’s life as well as among individuals. Over 10 million people in America have bipolar disorder, and the illness affects men and women equally. Bipolar disorder is a chronic and generally life-long condition with recurring episodes of mania and depression that can last from days to months that often begin in adolescence or early adulthood, and occasionally even in children. Most people generally require some sort of lifelong treatment. While medication is one key element in successful treatment of bipolar disorder, psychotherapy, support, and education about the illness are also essential components of the treatment process.


James Biela: The Fight of MItigating Evidence against Death Penalty Online Today

Today, streaming video will be provided online as the death penalty defense team continues presenting its mitigating evidence in the penalty phase of Jame Biela's trial in a Reno, Nevada, courtroom. 

They're fighting to have James Biela sentenced to life without parole.  The State is seeking the death penalty in what many refer to as the Brianna Denison murder trial. 

For those that miss it today, RGJ.COM appears to be keeping an archives of the entire case - including video of the sentencing trial.

Mitigating Evidence - The Forensics

First up today, a forensic psychiatrist will be taking the stand to relate Biela's childhood history of abuse and neglect, as well as his father's mental illness and its impact upon the defendant.  There will be testimony that as a little boy, James Biela heard his father beat his mother on a nightly basis, that the family was so poor they went without heat and food, and other events that has been described as"things no child should have to witness."  Both his mother and his brother will testify. 

Obviously, evidence of that abuse is important -- because it will work to explain the background of experience that Biela used (and uses) to understand and deal with the world around him.  Working together, all this evidence will be used to substantiate the applicability of the mitigating factors of Nevada law in the case to the jurors. 

Aggravating Factors in this High Profile Case

The State is arguing that Biela is a serial rapist and deserving of capital punishment under Nevada law.  Rape, of course, was outlawed as a basis for the death penalty long ago by the United States Supreme Court. 

Perhaps more than the aggravating factors found in the Nevada statute, the underlying basis for prosecutors pushing for the death penalty in this case is the media coverage the death of Brianna Denison garnered -- it became an ongoing mystery for more than one crime-coverage television show. 

Biela Found Guilty by Jury Who Will Also Decide His Fate

In Nevada, the jury decides guilty or innocence and it also decides life or death.  Yesterday, the Nevada jury found James Biela guilty of three crimes: (1) raping and killing Brianna Denison in 2008; (2) kidnapping and sexually assault of a student in 2007; and (3) raping a woman at gunpoint earlier that same year.

Family and friends of James Biela have stood by him in the courtroom, and his ex-girlfriend was present to hear the jury verdict of guilty.  Let us join them all in prayerful hope that mercy will triumph over judgment.

Related Posts Plugin for WordPress, Blogger...