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

Robert Lee McConnell was set to die on February 1st at the hand of executioners for the state of Nevada, until yesterday when a federal court intervened, granting his motion to stay.  It's the second time that Mr. McConnell has faced that last walk -- he was previously set to be executed back in 2005.  Then, the execution was less than half-hour away when a stay was granted.  In 2005, McConnell had announced to everyone that he was ready to die. 

One wonders what that's like -- sitting on Death Row, being moved to the Carson City prison where Nevada kills its prisoners, setting your affairs in order and spending what you think are your last days on earth, only to find that they're not your last days.  Especially when it's happened to you twice.

Robert Lee McConnell took responsibility for a terrible mistake that he made when he murdered his ex-girlfriend's fiance back in 2002.  He pled guilty to the crime. 

Robert Lee McConnell also represented himself, both at trial and in this latest motion for stay.  In a request that exceeded 160 pages, McConnell asked Federal District Court Judge Robert Jones to halt the execution arguing in part that the death sentence was fundementally unfair.  (McConnell seems to be somewhat a jailhouse lawyer, having had his appeals to the Nevada Supreme Court heard - and rejected - last July, where he challenged the constitutionality of the lethal injection method of execution. )

Judge Jones has granted the stay, and ordered that McConnell have one month to file the appropriate petitions as well as having legal counsel appointed to assist him in that task. 

Of some note, the American Civil Liberties Union (ACLU) was litigating the constitutionality of Nevada's lethal injection method of execution in 2007, and Nevada took the challenge seriously enough to stay the execution of William Castillo, a man who had asked for the death penalty. Nevada was planning on upping the drug cocktail to double the standard amount, as well as giving Castillo a mandatory sedative.  It was only when the ACLU dropped its suit that Nevada started back with capital punishment.  Castillo's case remains on appeal. (By the way, they call these folk "volunteers" when they want to die rather than live any longer in state imprisonment.  Chilling, isn't it?)

What McConnell will argue on his latest appeal will be interesting to follow. 

Not only does he (and his newly appointed counsel) have the recent ACLU challenge to reference, as well as whatever additional appellate points they will address, they also proceed in an environment where more and more people are recognizing that powerful, powerful reality: it is simply cheaper to allow prisoners like Mr. McConnell to remain behind bars than it is to continue with capital punishment.  

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Today, the Kentucky Supreme Court issued a ruling that no one is going to be executed in the State of Kentucky until things are done by the book regarding the lethal injection killing method.  The high court set no deadline on when capital punishment might resume in Kentucky, either.  Its formal opinion is already published online at the court's official web site.

The story starts with Ralph Baze

Ralph Baze sits on Kentucky's Death Row after being convicted and sentenced to death by lethal injection for the murder of Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, Kentucky, back in 1992 while the lawmen were trying to arrest him.  (Baze unsuccessfully urged self-defense.)   After his conviction, Baze joined with fellow Death Row inmate Thomas Clyde Bowling, Jr. in a constitutional fight.

Baze and Bowling both argued by appeal that execution of someone with the three drug "cocktail" established by Kentucky law (and used here in Florida, as described in our earlier series) constitutes cruel and unusual punishment and is therefore unconstitutional under the 8th Amendment. 

Baze v. Rees (Baze's appeal) was heard by the United States Supreme Court, and in April 2008, that court ruled that the three drug cocktail did not violate the constitution.  Ginsburg and Souter dissented.

Baze did not stop there.  He then urged a state appeal (joining with Bowling) challenging state procedure, and the Kentucky Supreme Court has heard him. 

What the Kentucky Supreme Court Ruled Today

In today's opinion, the state high court has found that the legal steps that are taken when Kentucky puts a condemned man (or woman) to death through the use of its three drug cocktail have to be specified -- spelled out -- in a state regulation.  

Writing for the majority, Justice Abramson states, ""[t]his court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes."  The opinion then orders the Kentucky Department of Corrections "...to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute...." 

This will take time.  An adminstrative regulation doesn't just get voted upon by some group -- due process requires much more than that.  What the Kentucky Supreme Court has done is to require the agency to write a regulation and then formally debut it as proposed law.  Then, the public gets a say in the matter as there is a set amount of time for public contributions on the language of the proposed regulation.  Things are discussed, edits may happen.  And only then is the proposal taken to Kentucky's Administrative Regulation Review Subcommittee, an arm of the state legislature that votes to adopt/reject the proposal.

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The San Antonio Express-News has provided a video containing snippets from the closing arguments in the trial of Sharon Keller, Chief Justice of the Texas Court of Criminal Appeals (the highest criminal court in that state).   It bears viewing, and it's only 2:24 minutes long.

Listening to it, you'll hear an attorney's deep voice talking about the death penalty and how capital punishment depends upon a public trust that there will not be a erroneous death sentence.

As you'll recall (we've posted the details of Justice Keller's trial here and the short video gives a synopsis as well), Justice Keller is being challenged for denying the attorneys for Death Row inmate Michael Richard the ability to file a motion to stay execution on the day he was scheduled to die  - they were running late, and Justice Keller admits to telling her clerk to respond that "the clerk's office closes at 5."  The motion to stay execution didn't get filed on time, and Mr. Richard was executed by lethal injection at 6 pm that day.

Mind you, that same morning -- the very same morning -- the US Supreme Court had granted writ in a Kentucky case which put lethal injection as a method of execution under scrutiny.  Keller's supporters point out that six months later, the Supreme Court decided that this method was not "cruel and unusual" and accordingly, Richard would have been executed anyway.

Here's the question that I'm not seeing: what if the US Supreme Court has RULED THE OTHER WAY in the Kentucky case?  Then, would we have a very clear example of the erroneous execution that is referenced in the closing arguments of Justice Keller's trial?

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John Marek died last Wednesday due to lethal injection at the hands of the State of Florida.  His hard-working defense attorney -- who had filed last minute appeals to the Supreme Court trying to keep Marek alive -- didn't go to watch.  Who can blame him. 

It was only a couple of weeks ago that we posted on the eleventh hour efforts to save Marek's life.   There was evidence that he wasn't the killer in this case.  There were procedural concerns regarding recusal of a lower court judge.  There is always the bigger picture -- the controversy over the constitutionality of the death penalty as well as the all-too-often forgotten concept of mercy. 

No matter.  There was no reconsideration of Marek's case by any of the powers that be and the sentence of punishment by death was carried out.   On August 19, 2009, the U.S. Supreme Court denied Marek's application for a stay of execution so they could consider his legal arguments.   And, minutes before the execution, it was confirmed that the Governor of Florida would not come forward to stop things. 

John Marek's Death was not obviously horrific, as other lethal injection executions have been.

It is reported that John Marek did not twitch or convulse or otherwise evidence any improprieties during the 13 minutes it took him to die.  Of course, we've already discussed how the Florida drug combo actually paralyzes the body, so observers wouldn't know if Marek was alive and aware for most of those 13 minutes but unable to move or speak ... or if he was in pain.  Many argue that the lethal injection method of killing someone is easier on the observers but may be very cruel to the dying inmate. 

Marek's Last Meal and Last Words

John Marek had a lettuce, tomato, and bacon sandwich (mayo, wheat bread) with onion rings and french fries -- and a Dr. Pepper -- for his last meal.   His last words were of his Christian faith, as he spoke "Jesus remember us sinners," followed by the Lord's Prayer --- and it is always ironic to remember that Christ, too, suffered execution by the government those many years ago. 

Marek lived in a small Death Row cell for 26 years. 

May he, and his loved ones, and the loved ones of murder victim Adela Marie Simmons, -- and that hard-working defense attorney who tried so hard and so well -- all find peace. 

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John Marek's attorneys are fighting hard to stop the State of Florida  from killing their client.

Today, they filed an appeal with the highest court in the land, the United States Supreme Court, to try and stop the execution of John Richard Marek.  With the Florida Supreme Court ruling that it will not hear anything further in this case, Marek is left with only the U.S. Supreme Court and the Governor of Florida between him and an otherwise certain execution.  (Read docket notice of Marek's Motion to Stay Execution here -- Justice Thomas is assigned to this request. )

What arguments can Marek possibly make to the U.S. Supreme Court now -- over 25 years after the crime occurred for which he was convicted, and within two weeks of his scheduled execution?  Lots of people don't understand the importance of the appellate process in death penalty matters, but Marek's case gives us some idea of how vital appeals can be.  When the government is about to kill one of its own citizens, then the courts must insure that the government is not violating any legal rights in doing so. 

And it appears that Marek has some valid legal arguments to make, such as:   

Evidence that Marek Was Not the Killer

It is not contested at this point that Marek was present at the scene where Adella Simmons was murdered one night on Dania Beach, back in 1983.  However, there is evidence that Marek did not kill the woman that he and his buddy, Ray Wigley, picked up on the Turnpike where her car had broken down. 

The evidence comes from Wigley himself.  Seems he admitted to killing the woman to several folk while he was incarcerated.  Those inmates have come forward with testimony that Ray Wigley -- who was not sentenced to death, as Marek was -- told people on several occasions that he murdered Ms. Simmons, not his pal Marek.  Wigley himself cannot testify.  Wigley is dead.

Past Appellate Arguments Regarding Recusal of Trial Court Judge 

Part of Marek's earlier arguments have been based upon the issue of when a judge should recuse himself.  (For those interested, the Reply Brief filed by Marek's counsel before the Florida Supreme Court is online for viewing.)  This is an issue recently addressed by the US Supreme Court. 

In a far-reaching decision released this past March,  Caperton v. A.T. Massey Coal Co. [08-22] (5-4 opinion),  the high court recognizes that due process is violated when someone is before a trial court judge has "...had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent...." and that judge does not recuse himself (withdraw from presiding over the matter).  Caperton has been criticized for not giving enough direction on when a trial judge should and should not recuse himself (as the dissents themselves discuss), therefore judicial recusal is a topic in Marek's appeal which may be of interest to the Justices. 

What is Before the US Supreme Court Right Now Regarding John Marek

First things first.  Justice Thomas is overseeing the Motion to Stay Execution.  Of course, halting the killing scheduled in 12 days is the first priority.  Afterwards, the Petition for Writ of Certiorari and Motion for Leave to Proceed In Forma Pauperis will be heard.  The deadline for the State of Florida to respond is September 7, 2009.   As of this posting, briefing was not available for review.

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Around twenty years ago, a cop was gunned down in Savannah and Troy Davis was caught and convicted for the crime. Nineteen years old at the time, he was sentenced to die, and he has watched all this time pass - 1989 to today - from a small, bleak Death Row cell over in Georgia.

Teen Sent to Die Without Any Physical Evidence

Davis has consistently maintained he is innocent of this crime. Over the years, the evidence used against him has slipped away: 7 of the 9 witnesses who testified Davis did it have changed their minds and recanted their testimony. Oh, and there never was any physical evidence linking Troy Davis to the crime. It's all eyewitness testimony.

No gun. No bullets. No blood or bone or anything else to use DNA testing on - like they seem to always have in CSI or NCIS.

One of Two Remaining Un-recanting Witnesses Is Rumored to be the Real Killer

Meanwhile, there has been some witness identification of another man as being the shooter - a man who is still free, and has been free all the while that Troy Davis has lived his life behind bars. And, rumors have it that this shooter just happens to be one of the two remaining witnesses that pointed their fingers at Troy Davis and didn't recant later. Wow.

Why the Troy Davis Case?

We're visiting the Troy Davis case this week, because the U.S. Supreme Court isn't. The high court has just taken off on its summer vacation, and before they hung up their "gone fishing" sign, a clerk took the time to notify Davis's attorney that they'll get around to deciding his case when they come back to work in September.

Which means that Troy Davis, who has been through the wringer more than once already (he was two hours away from being executed in September 2008 when the U.S. Supreme Court stayed the killing), must wait some more.

The U.S. Supreme Court has Waffled

Last September, the U.S. Supreme Court halted Troy's execution. Then - less than two weeks later - the Supremes decided they wouldn't intervene, and released the hounds as it were for Georgia to proceed with the execution. The cavalry appeared in the form of a federal appeals court in Georgia, which granted a temporary stay of execution and let Davis have the chance to continue his appellate fight.

By its decision, the U.S. Supreme Court last fall was telling Georgia that it would not consider the legal issue of whether or not it is unconstitutional to impose the death penalty when new evidence has been brought forth that shows the inmate's innocence. (This doesn't seem like a hard question to answer, but they refused it anyway.)

With Troy Davis back before them, Georgia considered the possibility that there might be evidence that proved Davis to be innocent, and then denied his request for a new trial - but was nice enough to hold off on capital punishment to let Troy Davis return to the U.S. Supreme Court.

Oh. The Georgia Pardons and Parole Board held hearings, too, and even interviewed Davis and the witnesses all over again ...and then denied clemency. Don't know much about this Board, and apparently no one else does either. No records are made; their hearings aren't open to the public.

Davis is black, the cop was white - and Davis is asking for a new trial, not a free pass

Did I fail to mention before this that Davis is black, the cop was white? Well, some folk think this fact is important.

Did I fail to point out that all Troy Davis is asking for is just the chance to have a trial where this exculpatory evidence can be brought before a factfinder? He's not asking for mercy, he's asking for justice.

Troy Davis has some very big supporters in his corner. Like the Pope.

And lots of people think that Troy Davis deserves another trial, to have a chance to bring forth this new evidence. Over 60,000 U.S. citizens have signed a petition asking for just that ... and there's been a lot of public outcry as well, from some people that you may recognize, like:

1. The Pope. Yes, Pope Benedict XVI knows about Troy Davis's case.
2. The European Union. Yes, all 27 countries have cohesively offered their support.
3. Desmond Tutu of South Africa, winner of the Nobel Peace Prize.
4. Former U.S. President Jimmy Carter.

Laura Moye of Amnesty International has been quoted as saying that this "gone fishing" delay of the U.S. Supreme Court is good, because it gives Troy Davis and his supporters more time to get publicity for his plight: to let people know that an innocent man is facing execution over in Georgia if nothing happens to stop it.

So, here's my little bit of publicity for Troy Davis. Please, spread the word.

For more information, please visit: Take Action for Troy

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Today, in part two of our three part series: the three drugs that make up the Florida execution cocktail are discussed in detail. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

1. Thipental Sodium - the First Drug to be Administered

Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that.

It stops working within minutes.

In an affidavit submitted during litigation in Tennessee, Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, swore under oath that:

the dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject's blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . [Further], under Thiopental Sodium the anesthetic effect is extremely short-lived, and will be effective for surgical restraint and anesthesia for a period of only five to seven minutes.

Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdul Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other grounds, 535 U.S. 1016, cert dismissed as improvidently granted, 537 U.S. 88 (2002), on remand on other grounds, ___F.3d___, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc) (emphasis supplied).

It actually heightens sensitivity to pain.

Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates like thiopental sodium can cause paradoxical excitement and can actually heighten sensitivity to pain. See Physicians Desk Reference, 50th Ed. 1996 at 438-440. Manufacturers warn against administration by intravenous injection (hereinafter AIV) unless a patient is unconscious or otherwise incapacitated. Id. Thus, there are serious problems with the first drug, the anesthetic, actually operating to anesthetize the person being executed sufficiently or for long enough to prevent suffering caused by the subsequent two drugs. Denno, supra, at 95-98.

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I have real concerns about the constitutionality of the current means of capital punishment here in Florida - and really, in most of the country today. And it's not just me - many Death Penalty Qualified Defense attorneys here in Florida share the same concern regarding execution by lethal injection.

Why?

There is a strong argument that execution by lethal injection violates both the Florida Constitution and the U.S. Constitution. In the next series of scholarly posts that appear here on the blog every Friday, we'll be looking at this issue.

The State and Federal Constitutions forbid foreseeable and unnecessary pain in the execution of an individual.

Much of the language that you will be seeing here is language that commonly appears in motions filed by counsel representing defendants who have been sentenced to death by the State of Florida. It's a solid and sturdy argument against the use of lethal injection, and there are many attorneys, legal scholars, professors, sociologists, and other professionals, who stand on this position:

Both the Florida and the U.S. Constitutions forbid the infliction of unnecessary pain -- that is, any pain that could reasonably be avoided -- in the execution of a sentence of death. The courts have ruled that the infliction of a severe punishment by the state cannot comport with human dignity when it is unnecessary and nothing more than the pointless infliction of suffering. Furthermore, [p]unishments are held to be cruel when they involve . . . a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890); see also Nelson v. Campbell, 541 U.S. 637, 125 S.Ct. 2117, 2122,158 L.Ed. 2d 924 (2004).

A punishment is particularly constitutionally offensive - and therefore, illegal -- if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973). Such things as (1) the probable length of time the condemned remains conscious of the process; (2) the physical or psychological pain he or she suffers during this period; and (3) the time it takes for death to occur must all be taken into consideration in determining whether a means of execution violates the constitution. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994), aff'd, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).

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Due process under the law has been constitutionally protected since our nation began, although the phrase gets tossed around quite a bit these days without much concern as to its real importance.

Due process is protected by the 5th (federal) and 14th (state) Amendments to the U.S. Constitution, although it is a principle with origins in the Magna Carta. In that historic document, England's King John promised that "...[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

King John signed the Magna Carta over 790 years ago. You'd think that due process of law would be pretty much settled into a traditional, solid role in our society by now. Particularly so, when it comes to those officials in positions of authority. But if you think that, you'd be wrong.

Due Process of Law is endangered in this country.

Never has our sacred right to due process under the law been more endangered than it is today. And no - I'm not about to delve into the current Florida case concerning a young woman awaiting trial for the murder of her child.

Instead, I'm looking over at our sister state, Texas, and what's been going on over there since the afternoon of September 26, 2007.

Texas Chief Justice Faces Criminal Charges, Civil Trial, and Impeachment Arising From Death Penalty Case

Criminal charges were recently filed against Sharon Keller, the Chief Justice of the Texas Court of Criminal Appeals, by Texans for Public Justice for her actions on the day that Michael Richard was executed by lethal injection. (In Texas, the Court of Criminal Appeals is the highest court for all criminal matters; the state divides its civil and criminal caseloads, and has a separate high court, the Texas Supreme Court, which hears all civil matters as the state court of last resort.)

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