Another Great Documentary on the Death Penalty: Into the Abyss (2011)

 Every so often, we recommend a book or movie or film that informs and educates about the complexity of issues involved in capital cases and the death penalty in America today.  

Today, we're sharing a documentary that is available on Netflix right now.  

 It's Into the Abyss (2011) directed by Werner Herzog 



Critics at Rotten Tomatoes rank this film 92% on the Tomatometer and 76% of the reporting audience at Rotten Tomatoes liked it.

What's it about?  

From Rotten Tomatoes (quoting from the synopsis on the film's site):

"In his fascinating exploration of a triple homicide case in Conroe, Texas, master filmmaker Werner Herzog probes the human psyche to explore why people kill-and why a state kills. In intimate conversations with those involved, including 28-year-old death row inmate Michael Perry (scheduled to die within eight days of appearing on-screen),

Herzog achieves what he describes as "a gaze into the abyss of the human soul." Herzog's inquiries also extend to the families of the victims and perpetrators as well as a state executioner and pastor who've been with death row prisoners as they've taken their final breaths. As he's so often done before, Herzog's investigation unveils layers of humanity, making an enlightening trip out of ominous territory. -- (C) Official Site"

Florida Execution Scheduled for August 2017

The Florida Execution Schedule is up and running again.  Governor Rick Scott has signed the Death Warrant for an August execution, the first execution for Florida in 18 months.

Mark James Asay is scheduled to be executed by the State of Florida on August 24, 2017, at six o'clock in the afternoon.  

Death Warrant Signed by Florida Governor Rick Scott

You can review the actual Death Warrant below, and it has been stored in the Terence Lenamon Online Library as well.  

Notice that it includes:

  1. the Governor's letter;
  2. correspondence from Florida Attorney General Pam Bondi;
  3. the Death Warrant; and 
  4. the Judgment and the Sentence of the Duval County trial court. 

Asay Previously Scheduled for Execution in March 2016

This is not the first time that Mark James Asay has sat on Death Row with an execution date looming before him.  He was previously scheduled for death back in March 2016.  

However, the SCOTUS ruling in Hurst v. Florida intervened and the Florida Supreme Court delayed that 2016 execution.  Last December, the Florida Supreme Court lifted its execution stay for Asay. 

Here is a copy of the Death Warrant itself, signed by Governor Rick Scott and published online by the Florida Supreme Court: 



Morva Execution Reminds Us of the Importance of Each Capital Jury Trial

Last night, Virginia Death Row inmate William Morva was executed by lethal injection.  Morva was sentenced to death for the 2006 killing of a sheriff's deputy and a hospital security guard while Morva was unsuccessfully trying to escape from a hospital.  

Morva Suffered Severe Mental Impairment

Earlier on the day of the Morva execution, Virginia governor Terry McAuliffe considered and denied a petition for clemency.  The basis of the petition was Morva's mental state.

William Morva had been evaluated by psychiatric and psychological experts.  It was their opinion that William Morva suffered serious mental illness and that he was mentally ill at the time of the killings for which he was convicted.  That Morva was delusional at the time, and could not comprehend what he was doing at the time.

In his statement released after the denial, Governor McAuliffe gave two reasons for denying clemency:

(1) the opinions of three mental health experts during the capital trial that Morva could understand right from wrong at the time of the killings; and

(2) the files of those monitoring Morva during his nine years of confinement, where "...mental health staff have monitored him weekly and assessed him quarterly for the past nine years and have never reported any evidence of delusional disorder or severe mental illness."

ABA Letter Asking for Clemency 

Many were fighting against this execution.  Among them, the American Bar Association which sent a letter to the governor of Virginia in a last ditch effort to get clemency and stop the execution. 

Read the ABA Letter here. 

Governor's Letter Affirms The Importance of Defense in Capital Trial

From the Governor's letter comes the following explanation - which only serves to affirm how very important the work of capital defense lawyers like Terence Lenamon is when it comes to a capital case.  

Terry focuses upon the sentencing phase of these death penalty trials, where the jury is given arguments from both sides on whether or not to sentence the defendant to death.  

The decision of that capital jury is strong -- and while it may be overturned upon appeal, the Morva case reminds us all that the jury's verdict may also remain ... and death can be the result.

From the Governor's statement:

“At the conclusion of that review, I have determined that Mr. Morva was given a fair trial and that the jury heard substantial evidence about his mental health as they prepared to sentence him in accordance with the law of our Commonwealth. In short, the record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully empaneled jury following a properly conducted trial.

“I personally oppose the death penalty; however, I took an oath to uphold the laws of this Commonwealth regardless of my personal views of those laws, as long as they are being fairly and justly applied. Thus, after extensive review and deliberation consistent with the process I have applied to previous requests for commutation, I have declined Mr. Morva’s petition. I have and will continue to pray for the families of the victims of these terrible crimes and for all of the people whose lives have been impacted.”


Death Penalty Without a Killing: Will Texas Execute Jeff Wood?

As you may know, the focus of Terence Lenamon's death penalty practice is upon the second trial in a death penalty case, the sentencing phase, where a man (or woman) has been convicted of a capital crime and now, the question is whether or not the state will succeed in their quest for capital punishment.  (See, e.g., this post which includes one of Terry Lenamon's opening statements.)

Death Penalty Sentencing Phase:  Mental Illness, Mental Disability

Often, the crux of his defense will turn on things like the mental illness or instability of his client.  Things like schizophrenia come into play.  

In some cases, the critical factor will be mental capacity or intellectual disability.  Things like traumatic brain injuries, chromosomal abnormalities, and introduction of toxins (including extended drug use) may be facts to be presented.

Jeff Wood on Texas Death Row

Terry's not representing Jeff Wood in Texas, but he knows the fight that is being fought right now.  Attorneys for Mr. Wood are trying to stop his execution, scheduled in a matter of days. 

If they don't succeed, Jeff Wood will die by lethal injection on August 24, 2016.

And Jeff Wood is argued to suffer both intellectual and emotional disabilities -- things that his lawyers argue should make him constitutionally ineligible for that execution.

An even bigger argument?  One that goes back to the guilt or innocence phase of a death penalty trial, more than in the sentencing trial. 

Jeff Wood didn't kill anyone.  He was sentenced to die under a Texas law that is called the "law of parties," where he is held just as liable for the death of the victim as his accomplice in crime, the person who did do the killing.  (That killer was executed back in 2002.)

So, will Texas execute Jeff Wood? 


Women on Death Row Documentary Available Free Online

According to the Death Penalty Information Center, as of January 1, 2016,  there were 55 women on death row. Fifteen women have been executed in the United States since 1976.

Right now, you can watch the documentary Women on Death Row for free if you have access to Netflix or Amazon Prime Video.

From IMBD:

Look into the personal lives of women currently awaiting execution on Death Row. Though each woman is convicted of committing society's ultimate crime, there is often another side of the story.


Women on Death Row (2006)


Death Row Stories - Redford CNN Documentary Online for Free


There are now two seasons of CNN’s documentary series Death Row Stories, where each episode focuses upon a single case and Death Row Inmate.   It's produced by Robert Redford and Susan Sarandon is the narrator.

CNN's "Death Row Stories" Documentary Available Online

You can watch all twelve episodes for free online at CNN's website. 

It's also available for streaming via Netflix.

Each Episode Focuses Upon One Death Row Case

The series does not focus on a single state, or upon states that favor capital punishment like Florida or Texas.  For instance, you'll find episodes on Colorado's Nathan Dunlap, Louisiana's John Thompson, and California's Kevin Cooper.

The series admits to focusing upon unfair and unjust situations involving capital punishment prosecutions -- and it's worth your time to catch an episode or two. 


In case anyone is wondering whether or not capital punishment is alive and well with the Supreme Court of the United States, consider the following:

1. Clinton Lee Young

This week, the Supreme Court of the United States refused to consider the case of Texas Death Row inmate Clinton Young, who was appealing a denial by a lower federal appellate court that he had ineffective assistance of counsel coupled with prosecutorial misconduct in his 2002 trial, where he was convicted and sentenced to death for shooting two men.  Read more about his case here.

2. Adam Ward

Today, Adam Ward is scheduled to be executed by the State of Texas for the killing of a housing code enforcement officer as the officer was photographing Ward's house.

There is no doubt that Adam Ward is mentally ill, and that he suffers from bipolar disorder.

Nevertheless, the Supreme Court of the United States has refused to hear Adam Ward's case, and will not be issuing a stay of execution.  His petition for a writ of habeas corpus was denied by SCOTUS this afternoon.

Simultaneously with filing their original pleading with United States Supreme Court, Adam Ward's attorneys have also sought review of the decision released by the highest Texas criminal court,  which has already denied his request for a stay of execution and which Ward's attorneys are asking they reconsider at this point. 

Adam Ward has been on medication for his mental illness since he was three years old, and this is part of the criminal record.

At the age of four, he spent over two months in a psychiatric unit where he was initially diagnosed with bipolar disorder. Again, this is part of Ward's appellate record.

SCOTUS Message Regarding the Death Penalty?

Absent a miracle, it appears that the State of Texas will be executing a man obviously suffering from mental illness today. What can we take from these two examples?

Currently, the United States Supreme Court is sending a clear message regarding capital punishment in this country.  Even if lifelong mental illness is involved. 

Florida Death Row Inmate Wayne Doty Wants to Die By Electric Chair

We've discussed this in prior posts, but lots of people forget that there are legal and SCOTUS-approved methods of execution on the books in Florida, Texas, and other states other than lethal injection. 

Old Sparky Stands Ready

In Florida, execution by electrocution using an electric chair nicknamed "Old Sparky" remains a constitutionally acceptable method of capital punishment.  And while Old Sparky hasn't been used in 16 years, it's still available to the State of Florida. 

No one has dismantled Old Sparky.

For more on the historical use of the electric chair in U.S. executions, read our earlier post   Electric Chair Executions: Consider This Historical Alternative to Lethal Injection.

Doty's Request to Circumvent Lethal Injection Method Is Logical

Which means that when Florida Death Row inmate Wayne Doty requested that the electric chair be the execution method used for him, he was pretty savvy.  There's no legal controversy pending before the Supreme Court of the United States over the electric chair like there is lethal injection methods and procedures. 

Wayne Doty wants to be executed as soon as possible for his "spiritual freedom."  By opting for the electric chair, he has a much higher chance of achieving that goal because he's circumventing all the constitutional fights over lethal injection as an execution method.

Whether or not Mr. Doty's request to be executed as soon as it can be arranged will be respected  has yet to be decided.  The court must confirm his mental health status in making this kind of request, for one thing. 

Most Death Row inmates fight to live -- having a Death Row inmate fight to die does bring his mental health into question. 

As for what will happen to Wayne Doty's request to be executed in Old Sparky, it's too soon to tell.

Today, a Florida judge delayed the decision regarding Florida Death Row Inmate Wayne Doty's request to January 2015.


13 Executions Remained Scheduled in 2015

Remaining Death Penalty Executions Scheduled for 2015

From the Death Penalty Information Center, here are the remaining executions that are scheduled in the United States for 2015:



14    TX    Licho Escamilla
21    AR    Bruce Earl Ward
21    AR    Don William Davis
29    FL    Jerry Correll



3    TX    Julius Murphy
3    AR    Terrick Terrell Nooner
3    AR    Stacey Eugene Johnson
3    MO    Ernest Lee Johnson
10    TX    Gilmar Guevara
18    TX    Raphael Holiday


14    AR    Marcel Wayne Williams
14    AR    Jack Harold Jones Jr

Book Recommendation: To Love and To Kill by M. William Phelps (Josh Fulgham Case)

Investigative journalist M William Phelps just released a book about the Josh Fulgham case -- a capital case that Terence Lenamon tried as Fulgham's criminal defense lawyer in the death penalty case. (We've been posting about Terry's defense in the Fulgham case here.)

Result?  Another victory for Terry over the state's seeking of capital punishment.  There was no death penalty; Fulgham got a life sentence (two consecutive terms). 

What led the jury to this decision?  Read Terry's Opening Statement in the Josh Fulgham case here.

New True Crime Book on Florida Capital Murder Case: Check it Out


Here's more about Phelp's book, “To Love and To Kill:

The missing-persons case of Heather Strong, a young, beautiful suburban mother, baffled Florida detectives. When the file was handed to a veteran investigator, he knew Heather was dead. The challenge was to find her body—and whoever killed her. Soon, a sordid triangle of sex, jealousy, and rage came to light. The killers were cunning, manipulative, depraved—and they were as close to Heather as a man and a woman could possibly be. Vividly recreated by master investigative journalist M. William Phelps, this riveting account of seething small-town passions is a classic tale of crime and justice.

You should take a look at it.  (Terry's mentioned in there, it's a good read.)

More about the author, M. William Phelps, from his author website:

Crime, murder and serial killer expert, creator/producer/writer and former host of the Investigation Discovery series DARK MINDS, acclaimed, award-winning investigative journalist M. William Phelps is the New York Times best-selling author of 30 books and winner of the 2013 Excellence in (Investigative) Journalism Award and the 2008 New England Book Festival Award. A highly sought-after pundit, Phelps has made over 100 media-related television appearances: Early Show, The Today Show, The View, Fox & Friends, truTV, Discovery Channel, Fox News Channel, Good Morning America, TLC, BIO, History, Oxygen, OWN, on top of over 100 additional media appearances: USA Radio Network, Catholic Radio, Mancow, Wall Street Journal Radio, Zac Daniel, Ave Maria Radio, Catholic Channel, EWTN Radio, ABC News Radio, and many more.

Phelps is one of the regular and recurring experts frequently appearing on two long-running series, Deadly Women and Snapped. Radio America calls Phelps “the nation’s leading authority on the mind of the female murderer,” and TV Rage says, “M. William Phelps dares to tread where few others will: into the mind of a killer.” A respected journalist, beyond his book writing Phelps has written for numerous publications—including the Providence Journal, Connecticut Magazine and Hartford Courant—and consulted on the first season of the hit Showtime cable television series Dexter.

Phelps grew up in East Hartford, CT, moved to Vernon, CT, at age 12, where he lived for 25 years. He now lives in a reclusive Connecticut farming community north of Hartford.

Beyond crime, Phelps has also written several history books, including the acclaimed, New York Times bestselling NATHAN HALE: The Life and Death of America’s First Spy, THE DEVIL’S ROOMING HOUSE, THE DEVIL’S RIGHT HAND, MURDER, NEW ENGLAND, and more.

Death Row in Florida and the USA: The New Stats

We're getting information now about how the death penalty and capital punishment fared in 2014.   The first quarterly report from the NAACP's Legal Defense Fund has been released.



image: Cell on Florida's Death Row

U.S. Death Row Populations: Most in California, 43% White

From it, we now have statistical confirmation that there were less people on death row last year.  Across the nation, the death row population decreased by 12%.  There were around 3000 people on Death Row at the end of 2014, around 450 less than the previous year.

The report shows that of these Death Row inmates, 43% are white; 42% are black; and 13% are Latino/Latina.  

Florida continues to have the largest Death Row population in the country, second only to California, with 403 inmates (California has 743).  Texas is third with 276 people living on its Death Row.  

To read the entire report, go here.  

Death Row and Executions

One thing to point out here:  in the top three listed above, both Florida and Texas are high with the number of Death Row inmates and both these states are active in executing people and carrying out capital punishment sentences.  

Not so, California.

One reason that California is number one in Death Row population statistics is that California isn't executing people like Florida, Texas, Georgia, Oklahoma, etc.  Instead, the population on the California Death Row grows.

So much so, in fact, that the state has run out of room.  To keep doing what its doing, California will have to spend cash to expand its Death Row facilities.  See the recent Los Angeles Times story for details, "California's death row, with no executions in sight, runs out of room."



The State of Texas was set to execute Scott Panetti today at six o'clock - but the Fifth Circuit Court of Appeals just issued a stay of execution - here is the single page issued from the federal appellate court this morning:



Terry Lenamon deals with the issues of death penalty sentencing and the seeking of capital punishment for those defendants who suffer from mental illness as part of his practice.

Panetti is diagnosed to suffer from schizophrenia.  Should the death penalty apply in his case?

Key to this case is the Texas legal perspective regarding cognition of right vs wrong on the part of the defendant and the federal constitutional prohibition against execution of the mentally ill via the Eighth Amendment protection from cruel and unusual punishment.

John Ruthell Henry Executed by the State of Florida

On June 19, 2014, the State of Florida executed John Ruthell Henry, rounding out a 24 hour period where three different executions took place in the United States -- the first executions since that horrible event back in April, where Oklahoma's lethal execution went terribly wrong.  

The United States Supreme Court declined to act in any last-minute blocking of the June 19th execution, despite concern by many that Henry was not mentally competent to undergo capital punishment.  (See our earlier post, "Will Florida Execute John Ruthell Henry Next Week?".) 

Apparently, lethal injections are still going strong in the United States despite what happened in April -- and regardless of the controversy over using these drugs as ways to kill people.

Execution List 2014

The Death Penalty Information Center keeps track of executions in the United States and you can review the list, which includes name, date of death, which state executed the person, and more online here (click on the image):

Florida Death Penalty Documentary: Cameras Allowed On Florida's Death Row

.. A documentary worth your time to watch, here's the description from YouTube: Robert Sullivan (EXECUTED), Dane T. Gafford (Danny Gafford( (INCARCARATED), and Dennis Whitney (DIED A PRISONER) tell their stories about the DEATH PENALTY and is it right or wrong. Filmed in 1980, "On Location: Death Row Florida State Prison", represents the first time ever that cameras were allowed on Death Row. Well known Producer/Director/Cinematographer and editor Ron Jones tells his story of his visit, along with reporter Beth Lawrence, deep inside Florida's Death Row.

Sister Helen Prejean on Race and the Death Penalty (DPIC on Pinterest)

 sister helen prejean quote on death penalty race issue

Timely Justice Act Challenge Is Pending While Death Row Inmate Marshall Gore's Execution Re-Set Causes Controversy

 Florida Governor Rick Scott delayed the execution of Marshall Lee Gore back in mid-August, writing a letter to the Florida State Prison warden with a re-set of the execution day to October 1, 2013.

Gore Gets 20 More Days of Life In Controversial Circumstance

This happened shortly after the Florida Supreme Court ruling that considered the mental illness arguments of Gore’s defense team and decided that Marshall Lee Gore did not meet the mental illness standards needed to avoid the death penalty.

Which meant that the Execution was back on the Florida Death Row Calendar, initially being set for September 10, 2013, until Governor Scott wrote the warden and moved the date.

Attorney General Request for Rescheduling and the Timely Justice Act

Meanwhile, news right now isn’t about mental illness and the ethical issues of executing someone with mental illness: it’s about the reasons why Mr. Gore has been given another few weeks of life to live by Governor Scott.

According to the news media, it’s because Pam Bondi, the Florida Attorney General, requested the extension. Not for any legal issues regarding Mr. Gore; sources like the Huffington Post are reporting that Ms. Bondi asked for the date to be changed because she had a scheduling conflict: there was a fundraiser scheduled and Bondi couldn’t be in two places at the same time.

Some folk aren’t thrilled about this: some are pointing to the Timely Justice Act (see our earlier posts on this law here) and suggesting that the rescheduling of Gore’s execution to accommodate a fundraising event doesn’t jive with the rationale and passionate push all those proponents gave to the passage of the Timely Justice Act.

Result? Governor Scott told the media that he rescheduled at Bondi’s request but he didn’t know the reason for her request. And Bondi has issued a statement to the press, mea culpa:

"As a prosecutor, there was nothing more important than seeing justice done, especially when it came to the unconscionable act of murder. I personally put two people on death row and, as Attorney General, have already participated in eight executions since I took office, a role I take very seriously.

"The planned execution of Marshall Lee Gore had already been stayed twice by the courts, and we absolutely should not have requested that the date of the execution be moved."

Meanwhile, what’s the latest with the Timely Justice Act review over at the Florida Supreme Court?

Nothing new has happened on the Supreme Court’s Docket for the Case (SC13-1123) since our last post discussing the filing of the reply brief by the Petitioners (replying to the response filed by Bondi’s Office).  

Presumably, the High Court is working on things, like reading all that research and argument in those filings and working toward a decision about what to do next.  Stay tuned. 


ACLU Slideshow - Texas Death Row Cell

 The ACLU has a slideshow of various photographs demonstrating the horror of living on Texas' Death Row.  Check it out here.

One example -- this photo of one man's cell on Texas Death Row -- here is where the inmate must eat, sleep, read, etc.

No wonder the ACLU has entitled their piece "a Death before Dying."


Texas Will Execute 500th Death Row Inmate Today: Kimberly McCarthy Will Die at Six O'Clock This Afternoon

 For those of you who saw Terry Lenamon during one of his many visits to Nancy Grace several weeks ago, to discuss the Jodi Arias sentencing phase, you may have heard some questions raised on the death penalty application to women as opposed to men.  

Do juries really sentence women to die?  Are women really executed in this country?  

Well, today's there is an example of a woman not only been sentenced to death but who will be executed for her punishment.  It's happening today, in Texas.

Kimberly McCarthy was convicted of killing her neighbor during a 1997 robbery where McCarthy was allegedly looking for cash and things to sell to support her drug habit.  McCarthy was tried and convicted and the appellate process went into action.  

However, it appears that all legal avenues have run their course and McCarthy will be executed at six o'clock today by lethal injection.  When this happens, she will make history.

Why?  Today's execution in Texas will be the 500th execution in the State of Texas since the death penalty was reinstated back in 1982.  

Florida Execution of Larry Eugene Mann Scheduled for April 10, 2013

Florida Governor Rick Scott has signed the death warrant for Larry Eugene Mann, who sets on Florida's Death Row after being convicted of kidnapping and first degree murder of Elisa Nelson, 10 years old, in November 1980.  

The Execution of Larry Eugene Mann is currently scheduled by the Florida Department of Corrections for 6 pm on April 10, 2013.

Image from Florida Department of Corrections Inmate Population Details (online here).



Texas and Ohio Still Have Active Execution Schedules; Other States - Not So Much.

With thanks to for keeping track of the national execution schedule (correct as of February 6, 2013), let's consider what is going on in the United States right now.  In all the states that allow for capital punishment, consider this:

  • There are 27 executions scheduled from March 1, 2013 to December 31, 2015 right now in the United States.  
  • One is in Arizona (Edward Schad on 3/6) and one is set in Oklahoma (Robert Thacker on 3/12).
  • The rest are all in Texas and Ohio.  

That's right: due in no small part to the efforts of Terence Lenamon (as discussed here in prior posts), there are no death penalty executions scheduled this year, or in 2014, or in 2015, in the State of Florida.

Here are the Executions Scheduled in Texas and Ohio:



3/6/2013              Frederick Treesh            

5/1/2013              Steven Smith   

8/7/2013              Billy Slagle         

9/25/2013            Harry Mitts, Jr.

11/14/2013         Ronald Phillips 

1/16/2014            Dennis McGuire             

3/19/2014            Gregory Lott    

5/28/2014            Arthur Tyler      

8/6/2014              William Montgomery   

10/15/2014         Raymond Tibbetts         

1/7/2015              Warren Henness            

05/14/15              Jeffrey Wogenstahl      


4/3/2013              Kimberly McCarthy       

4/09/2013            Ricky Lewis       

4/10/2013            Rigoberto Avila               

4/16/2013            Ronnie Threadgill           

4/24/2013            Elroy Chester   

4/25/2013            Richard Cobb   

5/7/2013              Caroll Joe Parr 

5/15/2013            Jeffrey Williams              

5/21/13                Robert Pruett  

7/16/13                John Quintanilla              

07/18/13              Vaughn Ross    

7/31/2013            Douglas Feldman

03/12/15              Robert Van Hook             




Texas Death Row: See Where They Live Their Lives While Waiting to Die

Terry and I had discussed posting on another matter this week, but this YouTube video literally made me nauseous as tears ran down my face so we'll be posting on that news story next week and we're sharing this with you today. 

Please watch this and think about what it means to serve time on Death Row -- and how horrific this is for any human being, but especially for those who are unjustly accused and innocent:


More on New Movie "West of Memphis" - Please See This Film Says Terry Lenamon

Terry Lenamon went to see the early screening of the new documentary West of Memphis in New York City (see our earlier post) and he'll be sharing his experiences here in a later post ... meanwhile, Terry's very excited about spreading the word about this film and generating public awareness about this case.

It's opening around the country on Christmas Day 2012.  Please plan on going to see it. 

Here's a trailer for West of Memphis:




Florida Execution of John Ferguson Stayed: ABA President Issues Statement Hours Before Stay is Granted - Did ABA Help Stop the Execution?

The Eleventh Circuit has stayed the execution of Florida Death Row inmate John Ferguson, a paranoid schizophrenic, a day after it vacated its previous stay and sent Ferguson's attorneys rushing to the U.S. Supreme Court for emergency action. 

Read the Order that stopped the October 23, 2012, execution here.

These are temporary holds while more legal arguments are made.  It's still a very good possibility that Mr. Ferguson will be executed by the State of Florida despite being seriously mentally ill. 

Perhaps the ABA pointing out that there are basic constitutional rights to be considered here made a difference?  Here, the press statement released by American Bar Association President Laurel Bellows on the day that John Ferguson was set to die this week:

Statement of Laurel Bellows, President, American Bar Association, Re: Execution of John Ferguson

WASHINGTON, D.C., Oct. 23, 2012 – The American Bar Association is alarmed that Florida is poised to execute John Ferguson, a man diagnosed as severely mentally ill for more than 40 years, before the constitutionality of his execution is fully evaluated. Although a district court evidentiary hearing regarding Ferguson’s competency is scheduled for Friday, that could be too late: His execution could occur as soon as today.

A federal trial judge had stayed Ferguson’s execution and ordered the hearing to afford “full, reflective consideration” of Ferguson’s constitutional claims; however, that stay has now been lifted by the court of appeals. In the interest of justice, it is imperative that Ferguson’s execution be again stayed until there is an opportunity for the federal courts to fully review his insanity claims on the merits and thus ensure that his execution will be constitutional. To do otherwise would be to risk a terrible miscarriage of justice — one that can never be undone.

Will Florida Execute John Ferguson, Paranoid Schizophrenic, Today?

As I type this, the latest news on Florida Death Row Inmate John Ferguson is that he has ordered, and may be eating right now, a last meal of a chicken sandwich and sweet tea

Or maybe that's already happened, and he's being prepared for execution.

The United States Supreme Court holds this man's life in his hands.  His attorneys have filed for stays of execution before the Highest Court in the Land after the U.S. District Court granted a stay of execution and the Eleventh Circuit Court of Appeals lifted that stay.

Ferguson is set to die today. 

Ferguson is a diagnosed schizophrenic and has been known to be severely mentally ill for most of his lifetime.

Will a man who is mentally ill be executed today?  Highly likely - the Supreme Court has already turned down 2 of his 3 filings.

 Image: Florida Dept of Corrections


U.S. Execution Schedule: Ohio Has Nine Men Scheduled to Die, More Than Any Other State

Hat tip to the National Coalition to Abolish the Death Penalty for keeping an online execution schedule, which we've reviewed and noticed that Ohio is beating even Texas in capital punishment in the upcoming months -- Ohio has 9 executions set; Texas has 8; Pennsylvania, Florida, and South Dakota each have one execution on their calendars. 

Here's how things are currently stacking up:

Sep 20: Donald Palmer, OH - Executed
Sep 20: Robert Harris, TX - Executed
Sep 25: Cleve Foster, TX - Executed
Oct 3: Terrance Williams, PA
Oct 16: John Ferguson , FL
Oct 18: Anthony Haynes, TX
Oct 28: Donald Moeller, SD
Oct 31: Donnie Roberts , TX
Nov 8: Mario Swain, TX
Nov 13: Brett Hartman, OH
Nov 14: Ramon Hernandez, TX
Nov 15: Preston Hughes, TX
Dec 12: Rigoberto Avila, Jr. , TX
Jan 16: Ronald Post, OH
Mar 6: Frederick Treesh, OH
May 1: Steven Smith, OH
Aug 7: Billy Slagle, OH
Sep 25: Harry Mitts, Jr., OH
Nov 14: Ronald Phillips, OH
Jan 16: Dennis McGuire, OH


So what is up with Ohio?

Well, there was a bill brought before the Ohio legislature to ban capital punishment last spring, but it failed.  And, yes -- proponents of the legislation were arguing for its passage not because of ethical positions against capital punishment nor concerns that innocents might die - but instead because of money.  Ohio, like the rest of the nation, spends lots and lots of money on death penalty cases and there was a movement to end the death penalty in Ohio to save tax dollars.  Read about it here.

This spring, a federal judge stepped aside after instituting a series of legal barriers to Ohio being able to execute people - U.S. District Court Judge Gregory Frost had issued opinions not on the constitutionality of the Ohio capital punishment statute but instead on the ways in which it was being carried out, effectively stopping the death penalty in Ohio for a significant period of time.  However, in April 2012, Judge Frost allowed the execution of Mark Wiles and now it appears that Ohio is trying to clear out its Death Row like some folk do a Fall Cleaning of their homes before the holiday season.

You may remember that Ohio was the state where Romell Broom fought against his execution and had that execution stayed by Judge Frost's Order (Broom is currently incarcerated at Chillecothe Correctional Facility in Ohio).  

Ohio is also the state that set national precedent by using a single drug lethal injection method in the execution of Johnnie Baston, the first man in this country to be executed in the exact same manner that vets euthanize dogs and cats. 

 With Judge Frost's ruling this spring in the Mark Wiles matter, Ohio's procedures for executing Death Row inmates was no longer under scrutiny as the opinion found that while "...Ohio has routinely offended" the protections provided by the U.S. Constitution, it had corrected things sufficiently to allow capital punishment to proceed once again since in Judge Frost's words, "the United States Constitution does not require a perfect execution,"  just one that "does not offend constitutional protections."

You can read the opinion here:

Death Watch Diary by Robert Towery Available on Amazon as 99 Cent EBook

Robert Towery was executed by the State of Arizona on March 8, 2012.  No one would know better than Mr. Towery about how life is on Death Row as execution approaches.

His diary of the last 30 days on Arizona's Death Row, on Death Watch, has been published as an ebook on and it's currently on a very good deal being priced at 99 cents. 

You can read this with a Kindle; however, you can also read this on any computer or smartphone with the free software provided by Amazon.

From the publisher:  Robert Towery was executed by the State of Arizona on March 8, 2012. For the last 35 days of his life, Robert was placed on “Death Watch” where his every move was recorded and chronicled by prison officials. Robert also kept a diary which he gave or mailed to his attorneys as installments. He detailed the ironies and absurdities of life in prison. He reveled in simple pleasures, such as a good meal or a sports event on television. He longed for human contact from his last visitors, and he touchingly tried to comfort his pod-mate, who doesn’t really understand that he was going to his death.


10 Things To Know About Florida's Death Row

Here are ten (10) things that you might not know about Florida's Death Row (facts courtesy of the Florida Department of Corrections):

1.  The Executioner gets paid $150.00 to kill someone in a State of Florida execution.

2.  There are three Death Rows in Florida.  Women* facing capital punishment live in Lowell, Florida, at the Lowell Correctional Institution Annex and men sentenced to death live in one of two places: either Starke, Florida, at the Florida State Prison or in Raiford, Florida, at the Union Correctional Institution.

*Currently, there are four women on Florida's Death Row.  Here is a list with photos.  Notice that Joshua Fulgham's co-defendant, Emilia Carr, is one of these four women.  (Terry Lenamon defended Joshua Fulgham, who received a life sentence, for more read our posts on the case.)

3.  Florida Death Row inmates do not get to use a fork or spoon.  They get plastic sporks.   They are served three meals a day on trays, with sporks, at 5 am, 11 am, and 4 pm.  That's right: no spoons and no food after 4 pm.  A cruel twist to the Early Bird Special, isn't it?

4.  A Death Row Cell in Florida is 9.5 feet high.  It's 6 feet long.  It's 9 feet wide.

5.  Death Row Inmates are not allowed to smoke cigarettes.

6.  Death Row inmates can have a 13 inch TV in their cells.  No cable, though.  No DISH TV.

7.  Florida Death Row has no air conditioning.

8.  Death Row inmates are checked for a count every hour, 24/7. 

9.  Death Row inmates in Florida get a shower, every other day.

10.  The only time that a Death Row inmate isn't in his or her cell is (1) for showers; (2) visits with lawyers, media interviews, visits for social reasons (family, friends); and (3) exercise time.  Also, if they need medical attention they are moved from their cells.  Otherwise, they spend all their time in their cell.  

Go here to watch a virtual tour of a Florida Death Row cell. 


U.S. Death Row in 2012: NAACP Death Row USA Study for Spring 2012 Released

This week, a new study was released on the state of Death Row here in America, surveying both the various state death rows as well as federal.  Here are some interesting facts from the NAACP Legal Defense Fund's Death Row USA quarterly report, Spring 2012 edition:

  • there aren't as many people awaiting execution - in 2000 there were 3682 and in 2012, there are 3170;
  • California has the most people setting on Death Row, Florida is second and Texas is third;
  • there are 61 women setting on Death Row today;
  • most people on Death Row are white (43.25%), and almost as many are African-American (41.80%);
  • under federal law, there is the possibility of capital punishment in courts of the:
    • U.S. Government; and
    • U.S. Military.
  • here are the states that have death penalty statutes in 2012:
    • Alabama,
    • Arizona,
    • Arkansas,
    • California,
    • Colorado,
    • Connecticut,
    • Delaware,
    • Florida,
    • Georgia,
    • Idaho,
    • Indiana,
    • Kansas,
    • Kentucky,
    • Louisiana,
    • Maryland,
    • Mississippi,
    • Missouri,
    • Montana,
    • Nebraska,
    • Nevada,
    • New Hampshire,
    • New Mexico*,
    • North Carolina,
    • Ohio,
    • Oklahoma,
    • Oregon,
    • Pennsylvania,
    • South Carolina,
    • South Dakota,
    • Tennessee,
    • Texas,
    • Utah,
    • Virginia,
    • Washington,
    • Wyoming.

*New Mexico repealed the death penalty prospectively. The two men already sentenced remain under sentence of death.

You can learn more about the NAACP Fund's Death Row USA project, here.

Death Row Watch: Are These Innocent Men Who Are About to be Executed?

1.  Larry Ray Swearingen, Texas Death Row

Larry Swearingen maintains his innocence and his attorneys are fighting to have some tribunal hear what they are arguing is new evidence, uncovered since his trial, that proves Larry Swearingen is innocent of the killing of a Texas coed, Melissa Trotter - this includes both DNA evidence and circumstantial evidence.  Bottom line, lots of forensic folk opine that Swearingen was in jail at the time of the murder, which seems like a pretty darn good alibi. 

Still, he's remain on Texas' Death Row for years. 

This week, the United States Supreme Court was asked by Swearingen a new question for the High Court: is executing an innocent person a form of "cruel and unusual punishment" under the federal constitution?

On February 27, 2012, the High Court denied Swearingen's Petition for Writ of Certiorari.  Which means they have shown Mr. Swearingen the door without ruling on his case. 

His execution date has been stayed.  Follow what happens next at his advocate web site

To read commentary on his situation, check out this recent piece in Bloomberg and an earlier piece by Grits for Breakfast. 

2.  Thomas Arthur,  Alabama Death Row

Thomas Arthur will be executed on March 29, 2012, by the State of Alabama unless something is done to stop the legal process.  This, despite the fact that he was also in jail at the time of the murder; another man has confessed to the murder; there is no DNA evidence connecting Arthur to the crime; the list goes on.

Read a summary of the situation here at the New York Times and a great overview of the case here at the Atlantic.. 

Follow what happens next at his advocate web site. 

3.  Read How These Two Cases Are Impacted by the AEDPA Here

Yesterday, we posted about the AEDPA and the recent U.S. Supreme Court case that came down with the statement that the federal appellate courts were "overreaching" to try and find a way around this federal statute, and "burdening" the high court.  Clearly, SCOTUS wants the federal appellate courts to limit their state court review in these sorts of cases. 

The pending executions of Thomas Arthur and Larry Swearingen are two examples of how the implementation of the AEDPA is arguably putting form over substance - especially in death penalty cases - with justice being lost in the process.

For more information:

AEDPA and Thomas Arthur

AEDPA and Larry Swearingen

North Carolina Death Row Inmate's Letter Describing "Life of Leisure" Adding to Death Penalty Debate

We've written about the conditions over on California's Death Row and how at least one inmate has made the news requesting the death penalty because life would be better for him on Death Row rather than serving life imprisonment at another California facility.  (Read our posts about Billy Joe Johnson here.)

Now, a North Carolina Death Row inmate is sharing that spotlight as he writes of how he gets three good meals, naps when he wants, top-notch medical care 24/7, and TV access, in his "life of leisure" on North Carolina's Death Row.

Here is the full text of his letter (no changes have been made to the original handwritten text although we've added breaks to make it easier to read):

My name is Danny Hembree. I was tried in Gaston Co. by twelve of its fine citizens. I was found guilty of 1st degree capital murder and sentenced to death by Judge Beverly Beal on Nov. 18, 2011.

The Great State of North Carolina's Dept. of Corr. was ordered to carry out my murder, or was it, or is it just another piece of the politition political money pie. I wonder if the public is aware that the cost of my first trial was a half a million dollars. Are they aware that the State has in place a system that automatically delays my lawful murder for years so that pieces of the money pie can continue to be passed around. Is the public aware that the chances of my lawful murder taking place in the next 20 years if even are very slim.

Is the public aware that I am a gentleman of lesiure, watching color tv in the A.C., reading, takeing naps at will, eating three well balanced hot meals a day. I'm housed in a building that connects to the new 55 million dollar hospital with round the clock free medical care 24/7. There are a lot of good citizens who bloged on various web sites stating their opinions about me and the punishment that I deserve.

Most of these blogs were made by anonymous cowards, but not all. I laugh at you self righteous clowns and I spit in the face of your so called justice system. The State of North Carolina has sentenced me to death but it's not real. You citizens of Gaston Co. should petition the State and force them to carry out my murder sentence instead of blindly taking it up the XXX from the State or are you to stupid to proceed.

I am a man who is ready to except his unjust punishment and face God almighty with a clear consceince unlike you cowards and your cowardly system. Kill me if you can suckers.

Ha! Ha! Ha!


Danny Hembree

Death Row Conditions Depend Upon the State

As this letter stirs more controversy and brings a national focus on Death Row conditions in North Carolina, one would hope that the American Public would also be reminded of the Death Row conditions in other states.  States where Mr. Hembree's "life of leisure" does not exist.

Reminds us of the 2002 letter that a Texas Death Row inmate sent to an anti-death penalty advocate about the conditions there: solitary confinement, rotten food, etc. 

And of the 2006 description of his time on Florida's Death Row by Juan Roberto Melendez - who was exonerated after serving 17 years in a Death Row Cell at Raiford. 

Perhaps we need to consider the source and not only his motivations but also his possible mental perspective before any assumptions are made that any state's Death Row is a cushy spot to spend your life. 

Hank Skinner DNA Fight in Texas: Execution or Innocence Hearing? Following The Web Coverage

On Texas Death Row, Henry Watkins "Hank" Skinner is fighting to have DNA testing done of evidence that he argues will support his claims of innocence in the beating death of his girlfriend,  Twila Busby, and her two grown-up sons back in 1993. 

In 2010, the U.S. Supreme Court issued its opinion that Skinner could proceed in civil court, arguing violation of his civil rights under the Civil Rights Act (42 U.S.C. § 1983) because the State of Texas post-conviction law on when DNA testing can be done after there has been a trial and a sentencing are in violation of those civil rights. 

The High Court didn't decide that the DNA testing could happen.  It just opened the doors to a civil courtroom debate on what had happened much earlier, in a criminal one.  This is a big deal.  

Right now, Hank Skinner is scheduled to be executed by the State of Texas on November 9, 2011.

Lots of folk are following the case of Hank Skinner.  Some, because they are interested in the civil rights aspects of the case  Some, because they are against the death penalty.  Others are following along because they believe that Hank Skinner is an innocent man. 

One person with a particularly unique perspective here is Kirk Bloodsworth, who supports Skinner's request that the DNA be tested as the first Death Row inmate in the United States to be exonerated after post-conviction DNA testing proved Bloodsworth to be innocent.

No matter the reason for your interest, here are some sites that are doing a fine job in bringing consistent information to us all regarding the Hank Skinner case:

What Can You Do for Hank Skinner?

Other than informing others, etc., you can sign the petition by the Texas Coalition here or contact the Texas Governor by phone, fax, or email at the contact information provided on his web site. 




Texas Death Row's Duane Edward Buck: Example of Importance of Sentencing Phase in Death Penalty Trial

The United State Supreme Court has just stayed the execution of Duane Edward Buck, and an excellent article providing the details of Mr. Buck's case - from crime to stay - can be found at The Texas Tribune, in a piece written by Brandi Grissom entitled "Supreme Court Grants Stay of Duane Buck Execution."

No one is arguing that Duane Edward Buck is not guilty of the homicides for which he was charged and convicted.  The controversy surrounding his case revolves entirely around that second phase of a death penalty case: the sentencing phase (the forte of Terry Lenamon, fyi). 

In Buck's sentencing phase, a defense expert named Dr. Walter Quijano took the stand in his capacity as a psychologist and told the jury that Mr. Buck likely would not be a danger to society in the future -- but (and here's the Big Issue) when he was cross-examined by the prosecution, Dr. Quijano testified that yes, he did believe that because Buck was black, there was an  increased risk that he would pose a threat to society.

Prosecution: "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

Dr. Quijano: "Yes."

Now, the United States Supreme Court will consider the events during that long ago sentencing phase of Duane Edward Buck's trial and decide whether or not the psychologist's answer of "yes" to the prosecution's question means Buck was denied his constitutional rights in that proceeding and that a new trial should be had.


Freedom for the West Memphis Three - Much to Consider in the Aftermath

Back in February 2010, we pondered the case of the West Memphis Three in a post entitled, "Johnny Depp on 48 Hours Today Fighting 4 West Memphis 3, Will He Help the Dubose Brothers?"

Eighteen months later, and the West Memphis Three are free men.  It's a big deal and a big story in more ways than one -- here are some of the various online sources that provide various takes on what has happened here:

1. The Power of the Media in Freeing the West Memphis Three.

  "How Rockers Helped Free the West Memphis Three" - Rolling Stone delves into the contribution made by public figures shedding light on the case, here discussing musicians (from Henry Rollins to Ozzy Osborne) though other popular figures also made contributions (such as Johnny Depp, mentioned above, and film director Oliver Stone, among others).

2.  The Psychological Lessons to be Learned from the West Memphis Three.

In an op-ed piece published in the Los Angeles Times, Jennifer L. Mnookin discusses psychological lessons to be learned in "[t]he 'West Memphis Three' and combating cognitive biases."

3. What Public Service Can Really Do --  Who Did What in the case of the West Memphis Three.

The University of Arkansas' Clinton School for Public Service held a program to discuss the case, where more than 1100 people attended to hear the discussion, ask questions, and learn things like panel participant and West Memphis 3 prosecutor Scott Ellington telling the crowd that the state lab would look at the DNA evidence after the private lab in Virginia (hired by the defense) was done; the video is available online here.

4. The Defense Team's First Hand Revelations About Representing the West Memphis Three

AmLawDaily interviewed the white collar defense attorney considered key to the West Memphis Three being freed: Ropes & Gray partner Stephen Braga on the defense lawyer's perspective of the case - Braga took the case pro bono.

5.  The Legal Analysis of the Case of the West Memphis Three (and Can It Apply to Others?)

Lawyer and law professor Gerald L. Shargel gives a legal analysis of what went down - including the use of the Alford Plea in a piece he writes for the Daily Beast, "How the West Memphis Three Got Out."


Oregon Death Row's Haugen Waives Appeals, Wants to Be Executed. Why?

Oregon's Death Row only has around 35 inmates, a very small number when compared to neighboring California with its Death Row population of 719 people.   We don't hear much about the death penalty in Oregon -- after all Oregon hasn't executed anyone since 1997. 

Gary Haugen is changing all that.  As an Oregon Death Row inmate, Haugen has been writing letter after letter to court officials, explaining that he wants to waive any remaining appeals that he may have, and go forward with his execution.  

Why?  According to Haugen, he's doing this to shine a light on a "costly broken system."

Haugen has been writing these letters since 2008; tomorrow, there will be hearing held at the state attorney's request for a death warrant

Gary Haugen could be executed by the State of Oregon this summer.  At the hearing, prosecutors will ask for an execution date of July 28, 2011. 

Will this be granted?  Maybe.  The judge must decide if Haugen is competent to waive his appellate rights.  

And, if the judge grants the state's request - will the State of Oregon be prepared.  Oh, yes.  The Oregon Department of Corrections has already informed the media that pentobarbital will be replacing sodium thiopental in their three-drug lethal injection cocktail.  They're ready to go.

Here's the thing:  will this execution ready accomplish what Haugen is writing is his reason for asking to die now?  Is this going to shed a spotlight on the "broken system" in Oregon or elsewhere?  And, is this a good enough reason for a judge to okay the state to execute someone? 

Is this a man tired of living on Death Row, or is this a man seeking a higher good with his life?  Where is justice here?

Troy Davis Turned Down by US Supreme Court

Troy Davis sits on Georgia's Death Row today with less and less hope to escape execution. 

This week, the United States Supreme Court declined Troy Davis' request to review the determination by federal trial judge William T. Moore Jr. that the evidence Mr. Davis has accumulated to prove he is innocent of the crime for which he has been sentenced to die is merely "smoke and mirrors.”

This is a very serious turn of events because this may well thwart the last appellate avenue for Troy Davis (for earlier posts on the Troy Davis case, go here).  The great majority of those who testified against Mr. Davis at trial have recanted their testimony.  Some of these witnesses have even gone so far as to suggest that the prosecution's star witness is the real killer here. 

For many, what Troy Davis has to offer is much more than smoke and mirrors.  Still, the High Court has ruled and now,the question becomes what can be done now to stop what may well be an innocent man from being executed by the State of Georgia.

It may well be that the Governor's mercy is Troy Davis' last and only hope.  It is legally possible that the State of Georgia could schedule Mr. Davis' fourth execution date at any time. 

U.S. Execution Schedule in 2011 and Tracking Stays on the Death Row Calendar

Scheduling executions for various states in this country continues to be in flux, primarily due to this continuing problem of having Hospira exit the marketplace as the supplier of sodium thiopental, a necessary component to the three-drug lethal injection method of execution. 

However, the Death Penalty Information Center is doing a fine job of keeping track of things, and not only can you learn the execution schedules for each state during 2011, the DPIC site also provides details behind the varous stays of execution that are popping up everywhere.To check out their latest information, just jump over to the DPIC Execution Schedule webpage.

Six executions have been stayed so far this year -- and we're only six weeks into 2011. 

We should expect more delays, of course.  Again, not just for the usual appellate reasons (challenges to procedure, proof, constitutional violations and the like), but because there remains the problem of how these states are going to kill these folk if they can't follow their usual lethal injection protocol.

Decisions, Decisions - How to Execute When Facing a Drug Shortage

Sure, they all have alternative methods on the books - but most states are delaying things until the drug issues resolve themselves.  On Death Row, lives are being given more time because states are facing tremendous political and fiscal pressure as each must decide:

And we must all remember that stays of execution are not commuting these death sentences.  No one is getting moved off Death Row.  They are justing getting more time to live.  And, that is something important, isn't it?

Hank Skinner Interview by CNN: Listen to a Man Fight for His Innocence

We've posted about the case of Texas Death Row Hank Skinner before: his case is now before the United States Supreme Court, where the High Court is considering if Skinner has a legal right to pursue a case in the civil system, in order to test evidence that was not tested at his criminal trial. 

Hank Skinner asserts that DNA evidence left in unknown person's blood stains on a jacket left at the murder scene, as well as on a kitchen knife, has never been tested -- and that since he is innocent, that untested blood should substantiate his continued assertion that he is innocent of the murders for which the State of Texas wants him executed. 

However, it's not often that members of the public get a chance to hear and watch a person living on any Death Row.  These folk are segregated from the public early on - probably soon after their arrest - and it's easy to turn them into two-dimensional villians on paper. 

Hank Skinner is a real, living person who has spent the last 17 years behind bars, proclaiming his innocence. Hank Skinner is a human being asking for lab tests to be done.  Period.  Is he so unreasonable in this request? 

Here, from CNN.Com:

Virginia Will Execute Teresa Lewis Tonight Absent a Miracle, My Comments to the Palm Beach Post

Virginia Death Row inmate Teresa Lewis, 41, has ordered her Last Meal:  fried chicken, sweet peas, and either German chocolate cake or apple pie for dessert, along with a Dr.Pepper.  Despite the efforts of lots of folk - including author John Grisham, for example - Teresa Lewis will die by lethal injection at the hands of the State of Virginia tonight unless nothing short of a miracle happens. 

Today, Teresa Lewis May Make History as the 1st Woman Executed by Virginia Since 1912

Lewis' final appeal was blocked by the United States Supreme Court just last week.  She has no more state appellate avenues to pursue.  Virginia Governor  Bob McDonnell could offer clemency, but he's already rejected Teresa Lewis' request once and there's not much hope that Governor McDonnell will change his mind at the eleventh hour.  

Governor McDonald Follow Ohio Governor Strickland's Recent Clemency Example? Doubtful.

Even Bianca Jaggar's plea, published today in the Huffington Post, may not be powerful enough to sway the governor.  Maybe Governor McDonald is remembering how Ohio Governor Ted Strickland granted clemency recently in the Kevin Keith case, and now he's trailing in the polls

My Perspective Was Asked by the Palm Beach Post - Here's The Gist of It

Given the fact that we don't often see women executed in this country, I was contacted by the Palm Beach Post to provide my perspective on the Teresa Lewis matter.  You can read the entirety of the article by reporter Daphne Duret online, entitled "Impending execution of Virginia woman brings spotlight to rarity of females on death row " 

As I related to Ms Duret and her readers, it has been my experience that mitigation is a powerful force for female defendants in a trial where the prosecution is seeking the death penalty.   When  a woman is found guilty of murder, juries seldom decide that a death sentence is appropriate.

A wide variety of mitigation factors usually exist in the personal histories of women who are on trial for capital murder, and these circumstances usually help juries to opt for mercy.  Women accused of homicide are always broken in some way -- there are histories of abuse, there are mental health issues, there are reasons for why their life path has resulted in their facing the jury in a death case. 

Key Issues in Teresa Lewis' Case - No Jury, Contributions of Male Co-Defendants

Perhaps the key issue in Teresa Lewis' case is that there was no jury involvement.  Teresa Lewis forego her right to a jury of her peers, and her criminal trial was in essence a plea of guilty and a sentence by the judge. 

However, another key issue is a point made by my colleague and mitigation expert Rosalie Bolin in the Palm Beach Post article: even when a woman is sentenced to death, they are usually sentences that are reduced later on in the process.  As Ms. Bolin points out, this is especially true when it's a multi-defendant case like Teresa Lewis' crime: the men who are co-defendants are usually found to be more responsible for the violence than the female.

There is a lot of mitigating evidence that a jury never heard before Teresa Lewis was sentenced to die for the murders of her husband and stepson (admitted homicides committed for life insurance money proceeds): 

  • the actual murderers, Matthew Shallenberger and Rodney Fuller, received only life sentences.
  • Teresa Lewis never held a weapon
  • Shallenberger, before his suicide, admitted that he - not Lewis - was the mastermind of the two murders-for-money  
  • Both male co-defendants would claim that Teresa Lewis was the follower of Shallenberger, doing as he wanted
  • IQ testing reveals Teresa Lewis (before sentencing) at  full scale IQ of 72, which is borderline mental retardation
  • After sentencing, psychological examination of Teresa Lewis revealed that she has  "multiple functional deficits, " and functions as a 12-14 year old 

Still, Teresa Lewis in all likelihood will die tonight.  Mitigation factors do exist in our statutes, but mercy is something bigger than laws written on books. 

It must exist in the hearts and souls of those setting in judgment -- and now, after one man setting in judgment sentenced Teresa Lewis to die, we all await to see how much mercy (or growing public outcry) may now sway another man, the governor of Virginia. 

Kentucky Set to Execute Gregory Wilson on September 16: Wilson's IQ is 62 and He Had Horribly Inadequate Defense Counsel

In Kentucky, over 22 years ago, Gregory L. Wilson was sentenced to death for the kidnapping, rape and murder of Deborah Pooley.  A co-defendant is serving a life sentence. 

Gregory Wilson should not be executed, many agree, but the grounds for stopping his execution are separate and strong:  there are those arguing against Wilson's execution because of his mental retardation.  There are others fighting against execution because of the shoddy indigent defense he was provided by the state of Kentucky at trial. 

1.  Indigent Defense Crisis Never More Obvious than in Gregory Wilson's Murder Trial.

There are lots of details surrounding the woefully inadequate defense that Mr. Wilson was provided when he was tried for murder back in 1987.  In what some have labeled a "sham trial," not only did Gregory Wilson not have death-qualified counsel for his case, the state only allotted $2500 as a fee for his legal team. 

Two thousand five hundred dollars for a DEATH CASE.  This is so ridiculous as to be insulting to us all. Right to counsel is a constitutional right -- and that is right to effective assistance of counsel, not just some kind of sham situation.  $2500 on its face should stop this execution. 

At this point, it starts to sound like a Coen Brothers movie, but it's the total truth: the trial judge in Greg Wilson's murder trial actually stuck a note on the door to the courthouse: "PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN."  No wonder.  Where could the judge find responsible lawyers who could financially bear to take this case?  Lawyers must be fiscally responsible: they have staff with salaries to pay; they have families with mortgages to meet. 

Result?  Two lawyers volunteered.  The first, John Foote, had no experience in felony cases, much less murder cases, much less death penalty ones.  The second, William Hagedorn, was pseudo-retired, gave his office number as the phone number for a local bar, and didn't bother to show for over half the trial. 

Neither defense attorney interviewed, subpoenaed, or investigated as they needed to do.  Evidence that would have helped Wilson was never, ever presented to the jury.  It's been reported that Stephen Bright, president of the Southern Center for Human Rights, views Wilson’s case as one of the worst examples of inept counsel in a death case he's seen. I'm sure a lot of people agree with Mr. Bright.

2. Pope Benedict XVI , Several Bishops, and Others Urge Mercy for Kentucky's Gregory L. Wilson Due to His Mental Issues.

Yesterday, the Pope joined with several Kentucky Bishops and over 400,000 Catholics in requesting that the Governor of Kentucky use clemency power to stop the execution of Gregory Wilson.  (Read the letter to the Governor by the Pope's American representative here.)

It seems that Greg Wilson tests with an IQ of 62, and the usual demarcation for mental retardation in the United States is 70 or below.  Still, his execution has not been halted as cruel and unusual. 

Meanwhile, on a challenge to the lethal injection execution method, the federal appellate court has ruled that Mr. Wilson waited too long to bring up this issue.  What? 

Yes, the 6th Court of Appeals denied Gregory Wilson's appeal on the basis of controlling precedent regarding the execution method.  Nevermind this man conceptually cannot understand the opinion that they've issued.   Read their full opinion here. 

Ohio Governor Stops Execution of Death Row Inmate Kevin Keith: Is This The Answer for Troy Davis?

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. 

Troy Davis Loses; Federal Judge Moore Takes 172 Pages to Tell Us Why - Look for an Appeal

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

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.]

Georgia Death Row's Troy Davis Evidentiary Hearing Concludes - What Next?

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. 

Hank Skinner's Civil Rights Case for DNA Testing Will Be Heard By U.S. Supreme Court - How Important is This?

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. 

In-Depth Look at the Law: The Offices of Criminal Conflict and Civil Regional Counsel (OCCCRC) - An Unacceptable Situation for Everyone Involved

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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Update - 1: the FACDL (Florida Association of Criminal Defense Lawyers) Death Is Different 15th Annual Death Penalty Seminar

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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