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.

From SCOTUS:

"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?"

I.

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.

II.

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).

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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

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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
jury.

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.

CONCLUSION

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:

Ryan

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?

Tibbals

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?

SEPARATING RETRIBUTION FROM PROPORTIONALITY: A RESPONSE TO STINNEFORD

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
(2011).

 

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.

 
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