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

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. 

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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.

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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. 

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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

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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.

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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. 

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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. 

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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:

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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.

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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.”

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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

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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.)

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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.

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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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