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

Yesterday, Ohio Governor Ted Strickland used his executive power of clemency and stopped the execution of Ohio Death Row inmate Kevin Keith.  In his statement, Governor Strickland states (read it in full here) (emphasis added):

Yet, despite the evidence supporting his guilt and the substantial legal review of Mr. Keith's conviction, many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it. In particular, Mr. Keith's conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised. I also find the absence of a full investigation of other credible suspects troubling.

Clearly, the careful exercise of a governor's executive clemency authority is appropriate in a case like this one, given the real and unanswered questions surrounding the murders for which Mr. Keith was convicted. Mr. Keith still has appellate legal proceedings pending which, in theory, could ultimately result in his conviction being overturned altogether. But the pending legal proceedings may never result in a full reexamination of his case, including an investigation of alternate suspects, by law enforcement authorities and/or the courts. That would be unfortunate--this case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court. Under these circumstances, I cannot allow Mr. Keith to be executed. I have decided, at this time, to commute Mr. Keith's sentence to life in prison without the possibility of parole. Should further evidence justify my doing so, I am prepared to review this matter again for possible further action.

Now, Governor Strickland has been quoted in the press as opining that he personally believes that Kevin Keith is probably guilty for the crimes for which he has been convicted.  Still, Governor Strickland has found that justice is best served by an attitude of better safe than sorry when a man's life is on the line. 

Governor Strickland Demonstrated Bravery in His Clemency Decision

His action yesterday took courage - he halted an execution in the face of public outcry, a Parole Board that had unanimously voted against Mr. Keith, and as he is running for re-election this fall. 

Governor Strickland should be respected for his bravery yesterday - and now, we must ask: what about Georgia's Governor and Troy Davis?

Will Georgia Consider the Mercy Granted to Kevin Keith as Troy Davis Sets on Its Death Row?

Well, things are different in Georgia.  The clemency power sets not with the Governor, but instead with the Georgia Board of Pardons and Paroles.  And the Georgia Parole Board already denied Troy Davis' clemency request back in 2008. 

They didn't give any explanation for their decision.  The Georgia Governor apparently has no power to do what the Ohio Governor did, even if he should desire to do so. 

For Troy Davis, Look to the U.S. Supreme Court - Not to Georgia

One might suggest that the United States Supreme Court, in its historical ruling that provided a federal district judge the opportunity to make his own personal review of the evidence against Troy Davis is analogous to the stance taken by Governor Strickland:  maybe the man is guilty, but we need to be sure before we - the State - execute him. 

Judge Moore's determination will be appealed.  The High Court will have Troy Davis back before it, there's not many options left for Mr. Davis at this juncture. 

For Troy Davis, one must ask:  will the United States Supreme Court be as brave as Governor Ted Strickland?  Time will tell. 

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Troy Davis has the eyes of the world on his situation, as he sits on Georgia's Death Row proclaiming his innocence.  We've posted before about the variety of celebrities and notables who have actively worked toward freeing a man that they believe is innocent. People like the Pope.  Former US President Jimmy Carter.  Bishop Desmond Tutu. 

It's rare for a Federal District Court Judge to undertake this type of review.

So, when the United States Supreme Court - in a rare, rare decision - sent Troy Davis's case back down the federal court ladder and ordered Federal District Judge William Moore to take a gander at Davis' claims of new evidence, it had to be a tad bit intimidating for the federal judge. 

It's not every matter that comes before a judge, even a federal district judge, that has the eyes of the Pope watching and waiting to grade his papers.  Much less the American public. 

Perhaps that's why it took Judge Moore almost half a ream of paper to explain why he was coming down against Troy Davis.  In fact, the Judge's Order is so long that the Southern District of Georgia's website breaks it down into two downloads:  pages 1 - 62 and  pages 63 - 172.  (Click on the page numbers here t read the Judge's opinion for yourself, word by word.)

Judge Moore Rules Against Troy Davis - Why? 

Simply put, the judge didn't believe that there was new evidence brought before him that substantiated Troy Davis' innocence. 

Clear and Convincing Standard

He set a high hurdle at the outset.  First things first, Judge Moore set the legal standard for the evidence at "clear and convincing" -- that's a very high standard to meet.  As in, Davis had to "show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence."

Then, he opined that should this burden be met, then he would hold it to be unconstitutional to execute Mr. Davis, upon "...a truly persuasive demonstration of innocence."

Overstated, Smoke and Mirrors - Holds Clear and Convincing Standard Not Met

From Judge Moore's Order: 

His Footnote 108: "After careful consideration and an in-depth review of twenty years of evidence, the Court is left with the firm conviction that while the State's case may not be ironclad, most reasonable
jurors would again vote to convict Mr. Davis of Officer MacPhail's murder. A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence. To act contrarily would wreck complete havoc on the criminal justice system. See
Herrera, 506 U.S. at 417."

from pp. 170-171: "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors. The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value. After careful consideration, the Court finds that Mr. Davis has failed to make a showing of actual innocence that would entitle him to habeas relief in federal court. Accordingly, the Petition for a Writ of Habeas Corpus is DENIED."

From the Pattern Jury Instructions from the Eleventh Circuit (emphasis added):

p. 20:  "The Government's burden of proof is heavy, but it doesn’t have to prove a Defendant's guilt beyond all possible doubt. The Government's proof only has to exclude any "reasonable doubt" concerning the Defendant's guilt. A "reasonable doubt" is a real doubt, based on your reason and
common sense after you’ve carefully and impartially considered all the evidence in the case.
“Proof beyond a reasonable doubt” is proof so convincing that you would be willing to rely and act on it without hesitation in the most important of your own affairs. If you are convinced that the Defendant
has been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so."

p.  80 : "Clear and convincing evidence is evidence sufficient to persuade you that the Defendant’s
claim is highly probable. It is a higher standard of proof than a preponderance of the evidence but less exacting than proof beyond a reasonable doubt." [From instruction on insanity.]

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Troy Davis may well be an innocent man setting on Georgia's Death Row, and things came closer to Davis proving his innocence as U.S. District Court Judge William T. Moore heard two days of evidence this week. 

Judge Moore did so because the United States Supreme Court mandated that the district judge had to hold an evidentiary hearing.   That's not something that happens every day. 

Background of the Troy Davis Case

Troy Davis has consistently maintained his innocence (more background here), and at trial, there was no physical evidence connecting him to the murder.  Nine of the ten witnesses who pointed the finger at Mr. Davis have recanted, and over 60,000 people signed a petition demanding that Davis get a new trial.  Among them, the Pope, Desmond Tutu, and former President Jimmy Carter. 

Nineteen at the time of the crime, Troy Davis is now 41 years old.  His entire adult life has been focused on a fight to prove his innocence and avoid the penalty of death by lethal injection that has been imposed upon him.

The Two Day Hearing This Week: What Happened June 23 - 24, 2010

Judge Moore skipped opening statements, and went directly to presentation of evidence.  Troy Davis's defense attorneys faced a high burden: pursuant to the Supreme Court's dictate, they had to legally show - "clearly establish" - that Mr. Davis was innocent of the August 19, 1989, shooting of Savannah police officer Mark MacPhail. 

Key to their arguments: the appellate reviews of the first trial consistently dealt with legal technicalities, but never considered evidence that simply was not available at that trial.  They are fierce in their position that this new evidence, once considered, inevitably leads to a determination of innocence.  The State of Georgia, of course, maintains that the new evidence doesn't change a thing.

If you're thinking that this seems a bit hinky, the defense having to prove innocence, you're right.  Usually, defense counsel works in an arena where someone is innocent until proven guilty.  Apparently the Supreme Court was swayed enough to allow Troy Davis a chance to present evidence, but did not go so far as provide him a true, 100% new trial of the matter. 

What Was Presented This Week

The defense team prepared 14 witnesses for testimony, among them several of the first trial's eyewitnesses who have changed their testimony, blaming coercion by the police for first pointing the finger at Troy Davis.  Davis' attorneys also presented 24 documentary exhibits to substantiate their argument that this was a case of mistaken identity - the police got the wrong guy at the get-go, mistaking Troy Davis for the true killer. 

Judge Moore did not allow those witnesses prepared to testify that Sylvester "Redd" Coles had confessed to them that he was the man who killed MacPhail. 

The strongest piece of evidence brought by the State?  Among 61 pieces of evidence, documents regarding a pair of black shorts taken from Troy Davis' mother's dryer on August 19th, purportedly spotted with human blood. This evidence didn't make it into the first trial, because the trial judge ruled that the police didn't have a proper warrant when they searched the dryer. 

Judge Moore did allow closing arguments, although he skipped opening.  Defense attorneys summed up their rush to judgment analysis of the Troy Davis trial long ago.  Prosecutors stuck by their story that there wasn't enough evidence to change anything.  Troy Davis, they argued, should still die as punishment for the shooting because he had not met the evidentiary burden otherwise. 

What's Next?  Legal Briefs and a Ruling

This fact-finding phase of this new hearing took two days, but that is not the end of things.  Judge Moore has given each side until July 7, 2010, to file their legal briefs with him.  He promise to rule as soon as possible thereafter. 

Of course, Judge Moore's determination is probably months and months down the road.  After that, little is left for Troy Davis: he could be found innocent, or he could face execution for the 4th time.

Let us keep watch and pray. 

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Hank Skinner won a victory on Monday, when the U.S. Supreme Court announced it will hear his arguments for additional DNA testing of evidence that was not tested at trial.  How big of a big deal is the Skinner case?

Civil Rights Case - Not Habeas Corpus

Skinner has brought before the High Court an issue upon which the various federal courts of appeal have split in their decisions:  whether or not a civil rights lawsuit can be pursued on the grounds that evidence which was not tested at trial for DNA should be tested after guilt and sentencing has been imposed.  This is NOT a habeas corpus case. 

Preventing the Execution of an Innocent Man

Hank Skinner has steadfastly asserted his innocence and we've all pondered this before - back in March, when his execution by the State of Texas loomed near.  In March 2010, the highest Texas criminal court denied his last appeal, and Skinner was faced with only two possibilities between life and death:  clemency by the Governor, or action by the U.S. Supreme Court.   In March, the Court granted a stay - only hours before Skinner was scheduled to be executed. 

Today, the Supreme Court has insured a significant period of time within which that execution is delayed.  However, there's a twist to the Skinner case - something that may be far-reaching.... (Read the Supreme Court Order summarily granting his petition for writ of certiorari here.)

What Hank Skinner is Asking the Court to Do

What Skinner is asking the Supreme Court to do is to allow a civil suit, based upon civil rights violations, to be a valid avenue for defendants who have already been found guilty by a jury in a criminal trial. 

Skinner isn't arguing legal error in the criminal case.  Skinner is arguing that he has a constitutional right to prove his innocence independently of the criminal trial.  Specifically, that the State of Texas violated his constitutional rights when they denied him the opportunity to test evidence for his DNA. 

The Fifth Circuit Court of Appeals said that Skinner couldn't pursue his civil rights case because its goal was to get his sentence reversed, turning it from guilt to innocence, and therefore it had to be pursued as a habeas corpus action.  (Read the Fifth Circuit opinion here.)

If Skinner wins, he's not winning as big a win as one might think: if Skinner prevails before the High Court, what he gets is the opportunity to pursue a civil rights claim in the lower courts.  His civil rights action essentially begins if, and only if, the Supreme Court gives him the green light to go forward. 

Will There Be a Civil Rights Alternative to Habeas Corpus for DNA Innocence Testing?

Let's see if the United States Supreme Court disagrees with the FIfth Circuit.  And let's hope that everyone remembers in all this procedural headiness that an innocent man may well be setting on Death Row, and the goal of our judicial system - civil or criminal - is justice being done. 

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One attempt at solving the indigent defense problem was the creation of a state agency made up of five offices to be called Offices of Criminal Conflict and Civil Regional Counsel ("OCCCRC") by the Florida Legislature in Chapter 2007-62. The idea was that full-time attorneys on a set salary in these new regional offices would theoretically solve at least part of the judicial appointment problem by taking on public defender cases where there was a conflict of interest (which is common in multi-defendant cases) -- as well as supervising court-appointed attorneys in child dependency cases and assorted civil actions. Sounded good.

Truth is, the OCCCRC lawyers haven't even been given a fair shake, they've been asked to play the game without a full deck of cards. The OCCCRCs aren't even getting the basics to do their job.

For example, the Fourth District OCCCRC has complained that it doesn't even have ordinary supplies and internet access for months at a time. In today's world, how can an attorney represent a client effectively without internet access? Legal research, communication and filing with the courts, e-mail, etc. are all done over the internet. How any lawyer at the OCCCRC can practice law each day is a miracle in action, and my hat is off to them. No wonder there's such a high turnover there.

And, adding insult to injury, these OCCCRCs are being sued. That's right - they have become defendants in their own right. Apparently, several counties throughout Florida have taken the position that OCCCRCs are not "public defender offices" at all under Florida law. Using this legal argument, counties aren't legally responsible to pay for the expenses of their local OCCCRC (pursuant to Article V, section 14 of the Florida Constitution).

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FACDL Death Penalty Seminar, Day 1:

This weekend, I am attending the Florida Association of Criminal Defense Lawyer's 15th Annual Death Penalty Seminar. This is an annual event that I have often attended since its inception. It is an opportunity for death penalty lawyers to share tactics, techniques, and review the latest developments in the law.

Steve Potolsky, a renowned criminal defense lawyer who was on the team in the first Federal death penalty case tried in Florida, started the seminar with a discussion of national attitudes toward the death penalty Steve asserted that we are entering a period of national reconsideration for the death penalty and cited several reasons for the decline in death sentences nationally. Among these are increased publilcity surrounding exoneration by DNA evidence and the fact that many states have done away with the possibility of parole or early release in such cases. He noted that New Hampshire repealed the death penalty.

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