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

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

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

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

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

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

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

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

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The U.S. Supreme Court is back at work, and today it will begin deciding whether or not it will hear the case of Holmes v. Louisiana. What's at stake is whether or not Brandy Holmes, who is only 23 years old and suffers mental retardation as a result of Fetal Alcohol Syndrome, should die by execution for a 2003 murder.  The case docket is available online.   

Fetal Alcohol Syndrome is a totally preventable cause of mental retardation

When mothers drink alcohol during pregnancy, they damage their unborn child. FAS babies are born with an assortment of disorders, and Fetal Alcohol Syndrome is the leading cause of mental retardation in the world.

Brandy Holmes is known to be a victim of her mother's drinking and suffers from FAS. During Brandy's trial, her mother testified about drinking alcohol all throughout her pregnancy. Get this:  this mother testified that she actually named Brandy after her favorite type of alcohol.  Wow.  There's no factual controversy that Brandy's mental retardation is the result of her mother's drinking alcohol as she carried Brandy.

Thirty-three states already find that the mental retarded should not be executed - what will the US Supreme Court do?

Right now, 33 states have decided it is wrong to execute those who suffer from mental retardation.   For details in the arguments against Louisiana executing this woman, read the amicus curaie brief of the Constitution Project.

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

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

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

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

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