Michel Escoto Trial: Terence Lenamon Gives Closing Arguments as Defense Counsel, No Longer on "Stand By"

In the Michel Escoto trial in Miami, Terence Lenamon has changed hats from being "standby counsel" for the defense as Escoto represented himself, to official defense counsel for defendant Michel Escoto.  

Terry Lenamon gave closing arguments for the defense in the case.  

For details, check out the Miami Herald coverage like this article by reporter David Ovalle, "Miami man planned new wife’s murder to collect $1 million in life insurance."

Also, stay tuned:  Terence Lenamon has been interviewed by national news media regarding this case and he will be seen in the Michel Escoto trial coverage by both Inside Edition and Dateline. 

Dates and times yet to be announced.

Update:  Today, the jury found Escoto guilty of murdering his newlywed wife, Wendy Trapaga.  

 

Lenamon Continues as Stand-By Defense Lawyer for Michel Escoto In Florida Murder Trial

 This week, Terence Lenamon remains in trial in the unique role of "stand by counsel" to defendant Michel Escoto, who represents himself in his murder trial this week.

The prosecution rested its case last week (read about that here).

Escoto now presents his defense case, with a DNA expert taking the stand for most of yesterday.

Stand-by counsel isn't the norm in a criminal case, but Mr. Escoto has chosen to exercise his right to represent himself in this trial and Terry Lenamon sits at the defense table without acting as trial attorney in this case. 

This case is getting more and more media coverage including national news coverage and you may recognize it as the "Newlywed Murder Case." 

See Terry:

You can see Terry Lenamon sitting as stand-by counsel in the Escoto trial in this video coverage of the case, on the day where Escoto was held in contempt of court, here. 

Terence Lenamon is "Stand By Counsel" in Michel Escoto Defense in Miami Newlywed Murder Trial

Right now, Terence Lenamon and Melissa Ortiz of Lenamon Law are in trial in Miami, Florida -- a murder trial that is expected to run for around two months in the courtroom of Miami-Dade Circuit Judge Marisa Tinkler Mendez.

However, Terry Lenamon and his associate are acting as "stand by counsel" for the defendant, because the defendant in this case, Michel Escoto, has chosen to exercise his constitutional right to represent himself in his criminal trial - which started today.  

Michel Escoto maintains he is innocent of this crime. 

Those in the Miami area may recognize Michel Escoto's name as the man accused of killing Wendy Trapaga, his newlywed wife, with the prosecution alleging that Escoto killed his bride in order to collect on a life insurance policy.  

For more details, check out the Miami Herald's coverage of the case, including today's article by David Ovalle, "Husband on trial in death of his newlywed wife in Miami-Dade."

Terence Lenamon Currently in Trial in Fort Myers

Terry Lenamon is currently defending client  Andrew Castor in a Fort Myers criminal courtroom, as jury selection began this week.

Image:  Terry in trial (different case) earlier this year. 

 

 

Joshua Fulgham Case on Snapped:Killer Couples on Oxygen TV This Sunday

This just in from Terry, who got the heads up from the show's producer today:

This Sunday, November 17, 2013, the series Snapped: Killer Couples on Oxygen TV will be spotlighting one of Terence Lenamon's clients, Joshua Fulgham.  

Be sure to watch!!!

For more on Terry's defense of Joshua Fulgham, check out our past blog posts (here) or read about the case on Wikipedia 

Mistrial in the Michael Woods Case Due to Juror Using Internet to Look Up Definitions

 Update on Terry Lenamon's trial this month:  today, the judge declared a mistrial in the Michael Woods case. 

Details in the Ocala Star Banner coverage online.  (This article has been updated - the addition includes an interview with a juror; to see the update, click here.)

You can see Terry in the photographs here, along with quotes from Terry Lenamon on the defense's motion for mistrial which was granted today.

Earlier news coverage reveals the jury asking for lots of stuff to be sent to them in the deliberation room, i.e., transcripts of five trial witnesses, and yesterday afternoon there was talk of a hung jury.

Now, the judge has granted a mistrial due to juror error, because a juror went online to look up definitions of words like "circumstantial" (see the Ocala Star Banner link above for details).  

This means that this jury will be excused and the three weeks of trial that Terry and the defense team have been fighting for Woods this month will have to be started once again, in a brand new trial.  

Will the prosecution revisit the death penalty it's seeking?  Stay tuned.

Have a good rest this weekend, Terry!

 

 

 

 

 

 

Infographic: Former San Quentin Warden on the Death Penalty

 

Complaint Filed Over Speech Made by Fifth Circuit Justice Edith Jones

 Edith Jones is a Justice and the former Chief Justice of the United States Court of Appeals for the Fifth Circuit - and as appellate lawyers will tell you, there's so much power to be found in federal appellate courts.  Not many cases make it past that level of review to the United States Supreme Court; accordingly, in many situations, the federal appellate court is the last word in the federal appeals process.

Which sorta explains why last week Terry Lenamon asked "whattha??" after reading coverage of a complaint being filed against Justice Edith Jones for comments she made in a speech entitled “Federal Death Penalty Review” at the University of Pennsylvania School of Law on February 20, 2013.

That was six days ago, and the controversy continues.  

Seems that the former chief justice gave a speech for lots of lawyers and judges up at the University of Pennsylvania which was not recorded.  However, so many people were outraged at what she had to say from the podium that seven people drafted affidavits swearing to what they heard, and they've been attached to a formal complaint.

One of the allegations, as described in the Complaint, is that she said:

  • The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;
  • Certain “racial groups like African Americans and Hispanics are predisposed to crime, are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous”crimes than people of other ethnicities;
  • Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;
  • Capital defendants who raise claims of “mental retardation” abuse the system;
  • The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope";
  • Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;
  • The country of Mexico does not provide and would not provide the legal protections that a Mexican National facing a death sentence in the United States would receive.

Read the Complaint here.

Read Jonathan Turley's take on things here.  

Meanwhile, today the news is spreading that a motion to keep Justice Edith Jones from reviewing a death penalty case has been granted.  Jones will not be a part of the three member panel that hears Texas Death Row inmate Elroy Chambers' federal appellate arguments.  

 

 

Terence Lenamon in the News: Back to Back Death Penalty Cases

 As reported earlier here on the blog, Terence Lenamon was successful in his arguments to keep Vernon Stevens off of Florida's Death Row as Mr. Stevens was sentenced to life imprisonment earlier this month.

Meanwhile, news coverage of the James E. Bannister murder case out of Ocala earlier this month had Terry Lenamon's co-counsel reporting to the trial judge that Terence Lenamon could not be actively participating in the Bannister proceeding because he was busy in the Stevens case.  

Added to that, explained Tania Alavi, she and Terence Lenamon were also co-defense counsel in the pending Florida death penalty murder case against Michael Woods, set for trial later in 2013 - and it's assumed that the Woods trial may be delayed in order for the Bannister case to proceed.

Here is Terry Lenamon's Opening Statement in the penalty phase of the Stevens trial: 

Report Released on Judge Who Had Private Communications with Prosecutor During Death Penalty Trial: Result, Suspension

The Report has been released in the disciplinary proceeding involving former Broward County, Florida judge Ana Gardiner (see our earlier post for details) and you can read the report in its entirety at Terry Lenamon's Online Library.  

Here's a key paragraph from the Report, which results in a recommendation that the former trial judge receive a one year suspension of her Florida law license: 

The Respondent's failure to disclose her social encounter with the
prosecutor, the significant emotional relationship that developed during the
pendency of the trial, and her extensive telephone and text message
communications tainted the entire legal process. The Respondent's argument that
there were no discussions about the trial, only an appearance of impropriety and no
reversible error in the trial misses the point. Due process embodies the
fundamental concept of fairness, and "especially in a death penalty case, [the
proceedings] must both be and appear to be fundamentally fair. Steinhorst v. State,
636 So.2d 498, 501 (Fla. 1994). [Emphasis supplied.] The public's perception of
fairness and impartiality of the judiciary is the bedrock of our legal system.

 

Judges and Prosecutors in Death Penalty Cases: When Are Their Private Communications During a Capital Trial Considered Inappropriate?

In Texas not too long ago, Charles Dean Hood lost his appeal for a new trial to the highest state court even though he had evidence that his defense counsel was unaware that at the time of Hood's criminal trial the judge presiding over that case, Judge Verna Sue Holland, was having an affair with the prosecutor in that trial, Thomas S. O'Connell, Jr.

Read details about it here, at the exceptional Texas blog, Grits for Breakfast.

The Texas Court of Criminal Appeals, where Judge Holland later presided, ruled that Mr. Hood should have raised the issue in his initial appeal and even though the lower court had ruled he deserved a new trial, the Texas Court of Criminal Appeals nixed it. 

Now, in Florida, there's a similar situation.  Florida Judge Ana Gardiner communicated with the prosecutor in a 2007 capital case while the death penalty trial of Omar Loureiro was ongoing, and the defense counsel wasn't aware this was happening. 

Gardiner resigned as judge in 2010 so the Judicial Misconduct complaint filed against her went nowhere.  Right now, she's dealing with the Florida Bar Association's disciplinary proceedings and last week, there was a two day inquiry (see the video feed provided by the Sun Sentinel online). 

Seems that the trial judge and the prosecutor in the Florida case are not portraying their relationship as a love affair, but instead a close friendship where each was supporting the other through difficult times.  This involved 949 phone calls and 471 text messages over the course of the death penalty trial. 

The Florida Bar Report on the prosecutor recommended a suspension - we'll know soon enough what will happen to Judge Gardiner. 

Joshua Fulgham Defense - Judge Sentences Fulgham to 2 Consecutive Life Terms

Trial is over and the judge has followed the jury's decision regarding sentencing:  Joshua Fulgham will not be sentenced to death but instead will serve life imprisonment (two consecutive terms) for the kidnapping and murder of his wife, Heather Strong.

For details, see the Ocala.com coverage.

Note:  My congratulations to Terry Lenamon - a hard fought defense, especially considering the circumstances of the case, the earlier death penalty sentence of Emilia Carr, and the defense's acknowledgement that Fulgham had participated in the killing itself, which brought all the focus of the trial from the guilt phase solely to the penalty phase. 

Congrats again to Terry! 

- Reba Kennedy

 

Cantero and Schlakman Op-Ed on Unanimous Juries in Death Penalty Cases - Need for Florida Legislation

This week, the Miami Herald published the opinion piece written by Raoul Cantero, former Florida Supreme Court justice, and Mark R. Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University. 

Mr Schlakman also participated in the American Bar Association's Florida Death Penalty Assessment. You can read that report in its entirety online in pdf format.

It's worth your time to read their article entitled " Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril."

Here's why: 

Florida allows death penalty juries to recommend the death penalty by a majority vote.  Every other state in the country that allows for capital punishment requires a jury to be unianimous in their decision to punish with death.

The Florida Supreme Court doesn't like this and back in 2005, it asked the Florida Legislature to change Florida law and require juries to be unanimous in their death penalty recommendations. 

Nothing happened in the statehouse. Although last year, State Senator Thad Altman (a Republican representing the Melbourne area) drafted legislation that would change Florida law and require juries to be unanimous in their recommendations of the death penalty.  You can follow that bill online here - it died in committee.

Over in the Florida House of Representatives, State Representative John Patrick Julien (a Democrat out of North Miami Beach), introduced a similar bill for the House's consideration in tandem with Altman's bill. Follow it here - it didn't survive committee either.

Cantero and Schlakman go into detail on the hows and whys of this situation. Whether or not they have any impact up in Tallahassee, time will tell. 

Martel v. Clair and Lawyers for Death Penalty Defendants: The Ultimate Duty When Representing Those Facing Capital Punishment

 This week, the New York  Times wrote a short article informing its readers of the case that is going before the United States Supreme Court out of California, Martel v. Clair (you can follow the case online via the USSCt docket ).  The High Court will be considering the following issue - and only this issue - in its review:

Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.

This week, the Justices heard oral argument in this case and next week, you can listen to that December 6, 2011, oral argument online here.   The State of California (technically, warden Michael Martel) was represented by Ward A. Campbell, Supervising Deputy Attorney General and the Death Row Inmate Kenneth Clair was represented by Seth P. Waxman out of Washington, D. C.

The Facts Behind Martel v. Clair

Back in 1987, California Death Row Inmate Kenneth Clair was sentenced to die for the sexual assault / strangulation death of Linda Faye Rodgers.  After the trial, Mr. Clair filed a petition for habeas corpus and a federal public defender was appointed to represent Clair in this federal court proceeding.  

Clair's efforts in the federal system and state system went forward for many years.  The federal district judge ruled that the federal proceedings would be stayed while Clair's state remedies were "exhausted" including those on claims raised after the murder trial was done.   At the California Supreme Court, a second habeas corpus request by Clair was denied, and the ball was back in the court of the federal system to seek relief.

In June 2005, Clair wrote a letter requesting a new lawyer and sent it to the federal judge, the second letter that Clair had sent to the court.  Clair had already written the judge to voice his concerns and complaints about his lawyer and what Clair saw as his attorney's neglect and disinterest in his case.  

The federal court had done something after that complaint letter: the attorney was questioned and the lawyer responded to the court by reporting that there had been a conference with their client, Mr. Clair, and that the attorney-client relationship would be continuing.  The conference happened in April 2005. 

Key to the second Clair letter: Clair told the court that a private investigator had discovered physical evidence that had never been tested and that his lawyer hadn't looked it over, much less had it tested or tried to introduce it at trial.  The investigator also wrote the judge, and confirmed what the Death Row inmate had written.  

Here's the shocker:  after getting that PI letter and the inmate's letter, the federal judge didn't move forward to investigate what this was all about.  The  U.S. Court of Appeals for the Ninth Circuit ultimately ruled that the district court abused its discretion and now, the case is before the High Court for review.

From the briefing:


At the end of ten years of capital federal habeas corpus proceedings in the district court, respondent suddenly complained about and sought replacement of his court-appointed public defender with a new appointed lawyer. The district court refused, explaining that "it appears Petitioner's counsel is doing a proper job" and that "[n]o conflict of interest or inadequacy of counsel is shown," and thereupon issued its ruling denying habeas corpus relief.

On appeal, however, the Ninth Circuit appointed a replacement lawyer, vacated the judgment, and remanded for further proceedings to allow the new lawyer to raise additional claims for relief. The Ninth Circuit explained that no showing of ineffectiveness of counsel was required, for it was enough that Clair had expressed "dissatisfaction" and had alleged that the public defender was failing to pursue potentially important evidence. 

 

Court Appointed Death Penalty Counsel - Huge Duty With Insufficient Funding

Last year, we discussed how California in particular was in crisis because of a funding problem in death penalty defense representation, "Lawyers Cannot Afford to Take Death Row Appeals in California."  

Is the fact that this lawyer had to operate on a shoestring budget (and that's being kind) a factor in the Clair case?  

And, assuming this to be true, then will the U.S. Supreme Court take this opportunity to address the indigent defense crisis in this country, where attorneys are appointed to represent defendants but are not given sufficient funding to do their job?  

The High Court arguably already had this opportunity back in the summer of 2010 and failed to address this problem.  We'll keep our fingers crossed, but we're not optimistic.  Money isn't the focus of the pending case - and there are lots of arguments against the Ninth Circuit's ruling on all sorts of reasons, including an "administratively unworkable result" challenge by a bunch of state attorneys general, including Florida's Pam Bondi (read the amicus brief here).  

 

Guest Post by Nancy Farrell of Criminal Justice Degrees: The Role of a Paralegal Serving on a Capital Defense Team

As part of our invitation to other bloggers to guest here on the Death Penalty Blog, Terry and I are happy to publish the following article sent to us by Nancy Farrell, who writes for the career-advice website, Criminal Justice Degrees Guide.  Here, without edit or change, is Nancy's article for your consideration.  Thanks, Nancy!  -- Reba Kennedy, Esq.

________________________

In any case dealing with capital punishment, indicted persons require a strong capital defense team to represent them in court. Those accused of offenses, punishable by death, are provided with up to two attorneys, and both must be well-versed in the laws relating to the particular case. According to judicial conference policy, council "should have distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will assure high quality representation.” What about essential capital defense personnel assisting the attorneys with the case, such as paralegals? How experienced should they be? What are the educational and experience requirements for paralegals working on capital defense cases?

Educational Requirements

Paralegals in the US are generally required to complete at least an associate's degree, although sometimes corporations and firms allow relevant experience to override a candidate's lack of higher education. There are many programs directly related to paralegal work, and some paralegals have majored in pre-law or obtained associate degrees in paralegal studies. Courses topics for both degree programs include: civil procedure, criminal law and procedure, ethics, law office administration and management, legal research and writing, and litigation. In addition to an associate's or bachelor's degree, some firms ask paralegals to obtain paralegal certification before their start date. This certification is not mandatory for legal assistants, but some employers view it as a commitment to the paralegal profession. Many paralegals working in the area of capital defense have prior experience, knowledge, in addition to certification in the field.

Experience Requirements

The Federal Defender's Office usually directly assigns paralegals and attorneys to indicted persons in capital punishment cases. Paralegals are required to locate witnesses, family members, and other personnel involved in the case. Additionally, they are required to put together records and other potential evidence that could be used in the case. Some paralegals must visit the crime scene in order to assist attorneys in any way that may be required of them. After looking through and analyzing comprehensive records and laws, they may be asked to write briefs on issues relating to the case. When the Federal Defenders Office hires paralegals to work on capital defense cases, it usually asks for candidates with three or more years of criminal investigation experience, in addition to great communication and writing skills. Although the office prefers those with paralegal training and certification, sometimes experience can be substituted for actual training.

Paralegals are valuable assets to capital defense teams, and attorneys frequently rely on them for finding relevant information for the case. If you are interested in the death penalty and cases relating to capital punishment, life as a paralegal can be a promising, exciting career path for you!

_______________________

Guest Blogger:  Nancy Farrell is a freelance writer and blogger. She regularly contributes to the website Criminal Justice Degrees Guide which provides (1) resource information for those interested in careers in criminal justice as well as (2) a blog posting related issues, including child abuse, human rights, divorce, and crime related articles. 

 If you are interested in providing an article for publication here on the blog, please review our prior post that gives all the details - and feel free to email me for more information.

- Reba

Here's One Way to Stop the Death Penalty: Have the Prosecutor Take It Off the Table

Over in Arizona, there is a big, bad murder case moving through the system. 

Seems that a man named  Jonathan Edward Vandergriff, along with Staci Lynn Barbosa, his co-defendant, were facing murder charges as well as child abuse by domestic violence, sexual assault of a minor under the age of 15, and sexual conduct with a minor under the age of 15. 

The woman wasn't facing a death penalty; the prosecution was seeking life in prison without parole (at least for the first 35 years) for her.  Vandergriff, however, they wanted to kill. 

The underlying crime was horrible. 

According to media reports, last June 15th, Ms. Barbosa took her infant son to a local hospital, where she was arrested.  Vandergriff turned himself in later that afternoon.

Seems doctors found that her baby, Matthew, was not only bruised, dehydrated, and malnourished (signs of neglect), but he was also suffering from broken ribs and a broken leg (femur).  His eyes were swollen, too, and he had signs not only of being sexually abused but he had symptoms of shaken baby syndrome.  

Matthew was moved to another facility as soon as possible, but it was too late.  The baby died that next day.

Given these facts, it's no surprise that the state attorney sought the death penalty here - against at least one of the defendants.  However, here's another surprise for you:  he's just taken it off the table.

State Attorney Changes His Mind - It's Not a Capital Case After All

That's right:  the Arizona trial will not include the death penalty.  The death-qualified attorney appointed to the case (at a rate of $100/hour and $900/month for travel expenses) has been given his hat.

Seems that last month, the prosecutor -- Deputy Mohave County Attorney Greg McPhillips -- announced that the State of Arizona would not seek the death penalty for Vandergriff, arguing instead for life in prison with or without the chance of parole after 35 years -- the same punishment that they are asking from Matthew's mother (and Vandergriff's co-defendant).

This led to the County Manager terminating the contract that funded the defense attorney, Tucson attorney Creighton Cornell.  The County is cutting its costs on the case as soon as it can - having paid defense costs of around $50,000 with an estimated cost of $200,000 for trial of a death case (it goes up if there are post-conviction costs).

Interesting aside:  brother Cornell had filed not only a motion to withdraw the public defender’s office from representing Vandergriff, he had also filed a motion to allege prosecution misconduct -- and both these motions had yet to be heard. 

Hmmmmm.

Nationally-Known Psychologist Responds to Texas Board Sanctioning of Dr. Death, George Denkowski

Yesterday, we posted about a new development regarding mitigating factors in Texas and elsewhere: the Texas State Board of Examiners of Psychologists has sanctioned George Denkowski, Ph.D., otherwise known as "Dr. Death," for his questionable evaluations of over a dozen men on Texas Death Row. 

Dr. Death was argued to have used unscientific methods to find that 16 men (two have been executed, the others set on Death Row) to boost their IQ scores out of the Atkins protective range.

Psychologist Paula Kaplan Responds

Dr. Paula Kaplan is a clinical and research psychologist, an Affiliate at Harvard University's DuBois Institute and a Fellow at the Women and Public Policy Program in Harvard's Kennedy School of Government.  She has written a piece that appears in Psychology Today magazine that discusses the recent punishment of Dr. George Denkowski.

Dr. Kaplan's April 19, 2011 article, "When Psychologists Make Life-or-Death Decisions: How psychologists directly determine who lives and dies in justice system," is a must-read for anyone interested in the evaluation of men and women for intellectual capacity, particularly as it impacts the decision on whether or not the death penalty will be sought. 

Of particular import:

... [It is] ... a dangerous myth that psychological assessments are absolutely objective and that psychologists' conduct of them can be totally free from bias.

Please take the time to read the article.  And if you can see fit to contribute to funding for the completion of Dr. Kaplan's film, then please consider helping her get that project finalized and out for all of us to see and hear.

Texas' Dr. Death, George Denkowski, Sanctioned by Texas Board - 14 Death Row Inmates May Be Saved

Back in January 2010, we first took note of something sinister happening over in Texas -- media spotlights were revealing that over a dozen Texas Death Row inmates had had their IQ scores suspiciously bumped up to a sufficiently high number that they were eligible for the death penalty and execution.  (Read that post for details here.)

This month, the story continues as the Texas State Board of Examiners of Psychologists has officially sanctioned, or punished, psychologist George Denkowski.  Seems George Denkowski, Ph.D. saw fit to examine 16 individuals and using his special techniques, find each of them competent to stand trial and face the death penalty.

Deal That Was Made: Is It a Hand Slap?

The sanction was a settlement between the Texas Board and Dr. Denkowski (who has often been labeled "Dr. Death" in the media).  The Board heard evidence that Dr. Denkowski's testing methods were not scientifically based.  Both his peers (psychologists) as well as death-qualified defense lawyers argued that he was simply unscientific. 

In the end, Dr. Death made a deal with the Texas Board:  he will not conduct intellectual disability evaluations in future criminal cases.  He will pay $5,500 as a fine.  He did not admit that he did anything wrong.  In return, the Board agreed to dismiss all the charges against him.

Fourteen of these men evaluated by Dr. Denkowski sit on Death Row today.  Two of these men have been executed.

These are the 14 individuals whose fate remains in the hands of the Texas appellate system after Dr. Death's bad acts have been revealed:

  • Anthony Pierce
  • Virgilio Maldonado
  • Calvin Hunter
  • Roosevelt Smith Jr.
  • John Matamoros
  • Derrick Charles 
  • Kim Ly Lim
  • Coy Wesbrook
  • Joel Escobedo
  • Jamie McCoskey
  • Warren Rivers
  • Tomas Gallo
  • Steven Butler
  • Alfred Brown

Hopefully, the settlement reached here will help the post-conviction efforts of the defense attorneys representing these 14 individuals as they argue that they are indeed protected from the death penalty under federal constitutional mandates that protect against execution of the "mentally retarded," see Atkins v. Virginia and its progeny. 

 

 

 

Will Florida's Overhaul of Criminal Court System Become Reality? The New Criminal High Court Just Passed Into Law

Yesterday, legislation passed in the Florida Senate to make radical changes to the state criminal justice system - and this will have a major impact upon how death penalty cases are handled here in the State of Florida if the Powers That Be can get this through the necessary hurdle of a constitutional amendment.

All this came about, apparently, as everyone up in Tallahassee is fighting over budget matters.  The Tampa Tribune points a finger at JD Alexander, the chairperson of the Florida Senate Budget Committee who inserted a surprise into a bill, amending the pending Senate bill by adding the same language - language approving major changes to our criminal courts - that he apparently cut and pasted from a House bill that passed earlier this month. 

What The New Legislation Does - Births a Brand New High Court for Criminal Cases

The Florida Legislature has approved splitting the Florida Supreme Court into two separate courts:  one civil, one criminal.  Since the Florida Supreme Court would be left with some empty seats, three to be exact, Governor Rick Scott would be able to appoint who would fill those positions on the highest civil court in the state. 

The new law also gives the Florida Legislature new power taken from the Florida Supreme Court as part of the Florida Supreme Court's makeover.  Now, the Legislature will control the internal rule-making process of the court.  

This is law, a done deal -- except for the hurdle of getting a Constitutional Amendment passed.

Backlog of Death Penalty Cases Said to Be Reason for Creating New Court

It's been argued that the reason for this judicial revamp is that death penalty cases are backlogged right now in the current Florida Supreme Court.  Republicans in the Florida House pointed to the 393 people setting on Florida's Death Row as one major reason that a new, separate high court dedicated to criminal matters was needed. 

Others are arguing that this has nothing whatsoever to do with Death Row; instead, they focus on the Florida Supreme Court and its ability to decide the boundaries of Florida's voting districts.  These folk suggest that moving three justices over to this new criminal court will open the door to Governor Scott appointing people to fill those positions that will have the same viewpoint he does on things. 

Power play, they say.  Not concern over capital punishment. 

It's Not Over Until the Voters Okay It Via a Constitutional Amendment

If anyone thinks that lines are being blurred between the legislative, judicial, and executive branches -- well, you're not alone.  

Most of the legal community in this state is discussing the huge impact of what has just happened here.  This is a very, very, very big deal. 

All that remains before these changes become effective in our state is for this to be placed on a ballot.  Making this big of an overall to the Florida judicial system means that the constitution has to be changed.  And, sixty percent (60%) of the voters will have to approve the new constitution as amended. 

Florida will vote on the Amendment on the November 2012 Ballot.  

Florida Capital Resource Center's First Amicus Brief - Victory Allows Mitigation Specialist in Death Penalty Case

As the Florida Capital Resource Center grows, stories like this will become more commonplace - but today, it's a major victory we're celebrating since the First District Court of Appeals has ruled in favor of allowing additional mitigation expertise in a pending prosecution where the death penalty is being sought.

As Terry puts it, "Our first Amicus filed on behalf of those working courageously to represent death qualified defendants in Florida!  Congrats to Rick Sichta (defendant's trial counsel)!"  (As the founder of FCRC, Terry is understandably proud and excited about this result.)

For those interested in reading the full opinion, we've included it as a site download.  Meanwhile, here's the gist of things, from the court itself:

Criminal Specialist Investigations, Inc., Petitioner, seeks a writ of certiorari quashing the trial court’s order denying a motion for additional mitigation coordinator fees in a capital case. Petitioner argues that the trial court failed to undertake the appropriate consideration of the reasonableness and necessity of the costs at issue with respect to this particular case. We agree. Accordingly, we grant the petition, quash the order under review, and remand this case for further proceedings.

The trial court appointed Rosalie Bolin as the mitigation coordinator in the case of Tajuane Dubose, who was charged with first-degree murder and shooting or throwing deadly missiles. Dubose was eligible for the death penalty, and his private court-appointed counsel hired Bolin to assist in the preparation for the penalty phase of his case, which the trial judge found was one of the most unusual and extraordinary cases he had presided over. Over the course of the case, the trial court approved several motions for mitigation coordinator fees. After the penalty phase was complete, and Dubose had been sentenced to life imprisonment, defense counsel filed an Amended Fourth and Final Ex-Parte Motion for Authorization to Incur Additional Mitigation Coordinator Fees. In the amended motion, defense counsel opined that the favorable verdict of life imprisonment was due largely to Bolin’s work on the case. He described Bolin’s role as “instrumental” and provided some detail about her work. Additionally, an itemized bill was attached to the motion, and counsel alleged that the Justice Administrative Commission (“JAC”) had no objection to the payment of the fees requested.

At a hearing where the motion was discussed, the trial judge opined that Florida law did not recognize any such position as that of a mitigation coordinator. The judge also opined that Bolin had already been paid too much and that the overpayment of mitigation coordinators was becoming a trend in capital cases.

To read and/or download the February 7, 2011, opinion of the First District Court of Appeals, go here.

Casey Anthony Has New Death-Qualified Attorney: Jacksonville's Ann Finnell

This past week, it was announced to the public by Casey Anthony's defense team that Florida's Ann E. Finnell had joined them, the latest death-qualified defense attorney to represent the young woman accused of murdering her toddler-daughter, Caylee Marie

This news comes on the heels of Professor Andrea Lyon withdrawing from the case in late June 2010. 

Ms. Finnell's efforts will focus upon the penalty phase of the trial, currently set for May 2011.  This, of course, means that Ann Finnell will take a lead role only when, and if, Casey Anthony is found guilty during the initial guilt or innocence phase of the trial.  (For the legal qualifications to serve as a death-qualified attorney under Florida law, read our earlier post.)

Personally, I don't know Ann Finnell but I've heard lots of great things about her -- she's known to be a fighter, a true believer, and a very good death penalty attorney.  As the first death-qualified attorney on the Casey Anthony case, I do know a bit about the representation that Ms. Finnell has just undertaken, however. 

And, as I did before with Professor Andrea Lyon, I wish my colleague Ann Finnell all the best in this important work. 

Death Penalty Defense: Cory Maples' Sullivan & Cromwell Representation vs Sakineh Ashtiani's Mohammed Mostafaei

The dichotomy speaks for itself, really, and it's a lot to ponder.  First, in the national news this week, we have a prominent New York law firm, Sullivan & Cromwell, whose errors may cost Alabama Death Row's Cory Maples his life.  On the other end of the spectrum, we learn yesterday that Iran's Sakineh Mohammedi Ashtiani's death penalty attorney who had been missing for almost a week, Mohammed Mostafaei, is alive and seeking asylum in Turkey after, apparently, advocating too well for his adultery-charged client who faces execution by stoning. 

The Quality of Representation Received by Alabama Death Row's Cory Maples

Earlier this week, we wrote on the Cory Maples situation.  In sum, two New York associates from swanky Sullivan & Cromwell walked into an Alabama trial court, post-conviction (pro hac vices granted), and filed a motion under Rule 32 of the Alabama Rules of Criminal Procedure.  Thereafter, the two associates left the law firm, and when the court clerk sent out notices that the Rule 32 motion had been denied (tick tick tick of the appellate clock), Sullivan & Cromwell returned the notices: "return to sender." 

Of importance, the Rule 32 Motion was denied in part because of (1) failure to state a claim and (2) asserting arguments that were to be made in direct appeal. Also of importance, their signature blocks never gave the firm's name, just the individual attorneys -- and yet, the law firm kept the representation after the two lawyers left its employ, learning of the missed appellate deadlines only after their client's mother called to check on status.  

This very serious situation has been made the subject of this week's Brief of the Week at the National Law Journal.   

The Quality of Representation Received by Iran's Sakineh Mohammedi Ashtiani

After writing about the possibly imminent stoning execution of Sakineh Mohammedi Ashtiani, a woman tried twice for adultery and sentenced - without evidence - to death by stoning under Iranian law, it was even more shocking to learn that fellow blogger and Death Penalty defense attorney for Ashtiani, Mohammed Mostafaei, had gone missing after leaving an interrogation by prison official. 

 

Continue Reading...

Texas Chief Justice Keller Gets Hand Slap, Michael Richard Still Died Too Soon

Yesterday, Sharon Keller learned the discipline that she would be receiving from the Texas Judicial Commission after a review of her actions as Chief Justice of Texas' highest criminal court on the day that Michael Richard was executed by lethal injection.(Read the ruling in its entirety here.)

It's a story we've been following for a long while now, waiting to see what would happen to Justice Keller after a shocking series of events that Execution Day afternoon. 

Almost three years have past since Sharon Keller's infamous response, "the Clerk's office closes at 5," and around a year since a fact-finding trial judge determined that nothing should happen to Justice Keller - that the mere "public humiliation she has surely suffered" was more than sufficient sanctioning of her conduct.

What Justice Sharon Keller Did on Michael Richard's Execution Day 

Justice Sharon Keller, as you will recall (the day's events are summarized in the Commission's Ruling), went home early on the day that (1) the United States Supreme Court announced it was going to be reviewing the constitutionality of lethal injection method of killing in Baez; and (2) Michael Richard was scheduled to die, by lethal injection. 

Justice Keller went home to meet a repairman.

Attorneys for Richard had literally hours to file the paperwork with the Texas court to stop the execution, but it's safe to assume - in fact, now there's been testimony - that the Texas high court was expecting the filing.  There was already an execution day procedure set in place at the court, and another Justice was waiting to get the paperwork. 

No one expected the Texas court to substantively change the state opinion on Richard's conviction and pending execution.  All that was needed was the Texas court's denial, so that the defense attorneys could substantiate to the U.S. Supreme Court that state remedies had been exhausted.  It was almost a rubber stamp of the documents, once they actually got filed with the Texas court. 

As detailed in the 19-page ruling issued by the Texas Commission, instead of that execution day procedure being followed, the clerk called Justice Keller at home when the attorneys had technological problems and called to say they'd need to file shortly after 5 o'clock (not unheard of, this happens all over the country).  Instead of following the internal court execution day procedure -- i.e., telling the clerk to check with the Justice on stand-by -- Justice Keller issued her Red Queen directive that we've all heard about for so long.

Sharon Keller Keeps Her Job, Gets a Hand Slap

And for this, she gets a hand slap.  Technically, she's received a "PUBLIC WARNING" from the Commission.  Keller could have lost her job, been removed from the bench, but she wasn't. 

Within the ruling, which deserves reading in its entirety, Keller is found to have failed to give "...Richard access to open courts or the right to be heard according to law," which seems serious enough.  But nothing follows.  Almost nothing.   

Tactful language skirts around the reality that the man died. 

The bottom line here is that in hindsight, we know that lethal injection would be found constitutional by the U.S. Supreme Court and that Michael Richard's execution probably would have gone forward (this is Texas, remember) within the year to 18 months following September 25, 2007.  Or maybe not.  Maybe Michael Richard would be alive today. 

We absolutely know that Michael Richard and his loved ones were denied those days and months between September 2007 and whenever he might have been ultimately executed because of the cavalier actions of Chief Justice Sharon Keller. 

The Imbalance Continues

Today, Sharon Keller has kept her job and experienced some social discomfort.  Or as the fact-finder described it, some "public humiliation." 

How do we balance that against the time period of living that was stolen from Michael Richard?  How can we? 

Mitigation Specialists Play a Vital Role In Death Penalty Defense

Failure to include a "mitigation specialist" in a death penalty case is arguably per se ineffective assistance of counsel, violating the defendant’s rights under both the Sixth and Eighth Constitution according to the United States Supreme Court. See Strickland v. Washington, 466 U.S. 668 (1984); Ake v. Oklahoma, 470 U.S. 68 (1985); Wiggins v. Smith, 539 U.S. 510 (2003); and Rompilla v. Beard, 125 S. Ct. 2456 (2005).  

Furthermore, the American Bar Association [ABA] Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. Feb. 2003), is of the opinion that a mitigation specialist (if not more than one) is a mandatory part of the defense in any capital case. See, ABA Guideline 10.4 (C)(2)(a). In fact, the ABA Guidelines require every criminal defense team facing a capital punishment sentence have at the minimum two attorneys, a private investigator, and a mitigation specialist. See ABA Guideline 1.1, 4.1, and Commentary

Therefore, part of the expense of today’s indigent defense in a death penalty case mandates the expenditure of hiring a competent and capable mitigation specialist. It’s the law – a mandatory component in capital defense. However, there are many that are unaware of this career path, and the level of expertise, intelligence, and savvy that is required for the job.

The Defense Professional: Mitigation Specialist in Capital Punishment Cases

Today, the National Legal Aid and Defender Association (NLADA) has a section devoted to the profession of mitigation specialist, the National Alliance of Sentencing Advocates and Mitigation Specialists (NASAMS). In doing so, NLADA has provided nationally accepted criteria to be met for those professionals seeking to work within this specialized area. NLADA also maintains a national database of recognized mitigation specialists available for death penalty trials across the country.

Working together with the rest of the defense team, the mitigation specialist works to find and fully understand the factual circumstances of the defendant’s life that allow the mitigation factors (“mitigators”) under state or federal law to apply in the case. In doing so, the importance of the mitigation specialist cannot be underestimated. 

Who are the Mitigation Specialists?

Mitigation specialists usually have advanced education in the form of graduate degrees in a form of social work or psychology as well as a background in criminal justice, particularly capital defense matters. Within their personal characteristics and talents are an ability to organize and an eye for detail.  Mitigation specialists have the ability to gather and analyze voluminous amounts of psychological, psychiatric, and other mental health documentation and records, as well as police records, school records, and family histories.

They are also expert at dealing with people in a non-confrontational manner.  Mitigation specialists have an almost uncanny level of social skills, as they must discuss oftentimes extremely emotional and sensitive issues with any number of individuals.  They interview and discuss the defendant with his family, friends, former employers, teachers, physicians, counselors, and psychiatrists. Their ability to work with people in difficult situations and in discussing often painful or embarrassing situations requires a particular finesse.

Invaluable Part of the Death Penalty Defense Team

The reality of today's defense of someone facing the death penalty isn't just the need for competent legal counsel and adequate defense funding.  It's the need for a competent, dedicated mitigation specialist to join him (or her) in the fight to save their life. 

For more on the Mitigation Specialist and the formidable job they undertake, or if you are interested in pursuing this as your chosen career path, please read my article “What is a Mitigation Specialist in a Death Penalty case?”

Death Row Appeal Based on Love Affair Between Judge and DA Rejected by U.S. Supreme Court

The sordid saga of Texas trial judge Verna Sue Holland and state prosecutor Thomas S. O'Connell, Jr. carrying on a sexual affair during the capital murder trial of Charles Dean Hood continues, and the latest chapter doesn't tell a happy tale.

This week, without comment, the United States Supreme Court declined to hear Mr. Hood's appeal based upon the judge and the district attorney's secret love affair -- which was going on during both the guilt and penalty phases of Hood's trial.  That's just not in dispute here: the judge and the state attorney have both signed affidavits admitting to it. 

Charles Dean Hood's Conviction While the Judge and DA Were Having a Love Affair is a Big Deal.

1.  This case has received national attention.  It continues to do so. 

2.  This case had an amicus brief signed by 20+ of the country's legal elite -- federal judges at the trial and appellate level, a former governor of the State of Texas, a former director of the Federal Bureau of Investigation among them.  They all argued to the High Court on behalf of Charles Dean Hood.  Something about the appearance of impropriety and the need to protect respect for the judiciary ....

Right now, it appears that lots of people are reeling at the High Court slamming the door in Mr. Hood's face.  That's no surprise.  It's shocking, isn't it?

What Happens Now?

In a somewhat bizarre twist, Charles Dean Hood has had help from the Texas Court of Criminal Appeals - the highest criminal court in the State of Texas.  A court where both Verna Sue Holland and the infamous Sharon Keller have both sat as justices (Keller's still there, for now, as Chief Justice; for more on Keller, search for her name here on the blog.  It's quite a story in its own right.)

How did this court help?  Mr. Hood has been granted another sentencing trial - where it is hoped he will escape his current death penalty sentence.  However, it is questionable whether or not Mr. Hood will have a trial on guilt or innocence in front of a judge that isn't ... well... "involved" with the prosecutor.

Why not?  We don't know.  The US Supreme Court didn't tell us. 

A Tale of Two Attorneys: How Kemar Johnston's Life Was Saved

When the court appointed attorney David Brenner on a murder case, he knew it was going to be the fight of a lifetime. Just how bad the case was quickly became apparent as details emerged.  

The client, Kemar Johnston, allegedly masterminded the premeditated torture and murder of two young men at Kemar’s birthday party. One of the victims was a 14 year old boy. 

Numerous partygoers witnessed the crime. Nine other codefendants participated, supposedly under Kemar’s direction. Veteran state prosecutors asked for the death penalty, but the local press and public had already tried and executed his client.

From Fort Myers, David Brenner Reaches Out to Miami's Terry Lenamon

David Brenner, a successful and highly skilled criminal attorney, quickly realized that he needed to find a second co-counsel, a death penalty qualified attorney, for Kemar. In Florida, two attorneys are required for a death penalty case because there are essentially two trials if the defendant is found guilty.   

The first trial determines guilt, and the second proceeding determines the punishment – life imprisonment or death. One attorney handles the guilt portion, and if they lose, the second phase attorney must step in and take over the critical task of saving the client’s life. David Brenner was not only well-connected locally in Fort Myers, but also across the state.  

He quickly located and reached out to a prominent death penalty lawyer in Miami, Terry Lenamon. David convinced Terry Lenamon to come on board, and they set to work on the case – a case that would last for over a year and would not only test their legal skills, but their nascent friendship as well.

Cohesion in the Kemar Johnston Trial - Guilt Phase and Penalty Phase

Dave and Terry had never worked together before, but both attorneys knew it was critical that the first phase defense and the penalty phase defense be cohesive and not contradictory. David had already been working closely with Kemar and knew him the better. As a result, David and Terry decided that Terry should handle the guilt phase, and that David would handle the critical sentencing phase, if it should come to that.

The Hotel Indigo

David’s and Terry’s work began in earnest. David’s Fort Myers office became the base of operations. Terry spent weeks away from his home at the Hotel Indigo, located next to David’s office.  As the case progressed, the office and the hotel room became piled with pictures, boxes, and walls plastered with sticky sheets of paper. 

The White Board

As a constant reminder of the case, David mounted a large 8 foot whiteboard on the wall directly facing his desk.   On that board, he placed pictures of all the suspects, codefendants, and Kemar.  As each of these people went to trial, took a plea, or were not charged, he stamped their sentence or the words “Not Charged” across their picture. 

Two Attorneys and Tons of Work

The two attorneys spent long hours and longer weeks poring over the discovery. They hired experts and investigators. They read thousands of pages of police reports, autopsy reports, crime scene reports, and witness statements.   Photographs were enlarged and examined with magnifying glasses. Case law was reviewed and re-reviewed. Motions were drafted and re-drafted. 

They formulated trial strategies, critiqued them to shreds, and reformulated them again. In the weeks immediately before the trial, both men put their families and personal lives on hold to devote themselves to Kemar’s defense.

Two Lawyers with Unbending Wills and an Insatiable Drive to Win

Good criminal defense requires a strong unbending will and an insatiable drive to win. Both David and Terry possessed these traits in abundance.  Neither fully appreciated how different their work styles were or how different their approaches might be. So as the weeks stretched on, so did the tempers of the two men stretch as well. 

The long exhausting hours exacerbated their style differences. The two attorneys knew their relative strengths, but often found themselves in heated discussions over strategy as well as tactics. When the exchanges became too heated, they both were wise enough to cool off  before tackling the issue again. Kemar’s picture and the faces on the white board constantly reminded them of the high stakes.

Out of the Crucible, a Defense was Forged.

Out of the crucible of those professional differences, David and Terry forged a defense and a penalty phase that saved Kemar Johnston’s life.  All the local townspeople and media were sure that Kemar would be sentenced to die. The trial would be a mere formality. When the jury’s sentencing recommendation came back, a surprised media reported that the jury voted life, not death, for Kemar.

A Life was Saved

It took two attorneys to put aside their differences and come together when it mattered most - two attorneys whose professionalism transcended their personal styles - to save a client’s life and see that justice was done. 

John Paul Stevens Retires from the U.S. Supreme Court: How Does This Impact the Death Penalty?

John Paul Stevens is retiring.  It's understandable: the man is turning 90 years old, and has served his country well. 

As a revered member of the United States Supreme Court, Justice Stevens will be remembered in American History for many things, not the least of which is his 2008 concurring opinion in Baze v. Rees where he wrote:

...The thoughtful opinions written by The Chief Justice and by Justice Ginsburg have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty....

...Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and legislatures to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: “Is it time to Kill the Death Penalty?” See Salinas, 34Am. J. Crim. L. 39 (2006). The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.

... In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring). 

At the time that the Baze v Rees decision came down, Justice Stevens was recognized as the first Supreme Court Justice setting on the bench at that time to come out and announce that he believed the death penalty to be unconstitutional.  That capital punishment violates the Eighth Amendment because it is, by definition, cruel and unusual punishment. 

Where will his replacement stand on the death penalty?  Can Justice Stevens' replacement be this brave, this courageous? 

Two Cases Are Before the U.S. Supreme Court Where It's Procedure vs. Two Men's Lives

Yesterday, within an hour of his scheduled execution, Hank Skinner request to the United States Supreme Court was granted, and the High Court stayed his execution by the State of Texas via lethal injection.  We posted on Mr. Skinner's case earlier this week:  he continues to proclaim his innocence - has never veered from this - and a significant amount of DNA evidence has never been tested. 

It seems that the defense never did the DNA testing on knives and other items during the trial, and while the items still set there, no one has ever checked to see if Texas got the right man. 

Now, it's possible that once DNA testing is done, the State of Texas will have to recognize that it has tried, convicted, and almost killed an innocent man for the murder of his ex-girlfriend and her two adult sons. 

The case, 09-9000, will be decided by SCOTUS within the next thirty days. 

And on the same day, the U.S. Supreme Court heard oral argument in the case of Magwood v. Peterson (09-158), where Justice John Paul Stevens pointed to the Elephant in the Room -- whether or not Magwood is not eligible for the death penalty was never determined in the case, and the State is now wanting to execute him because the defense didn't prove up the ineligibility in proper procedural time. 

Billy Joe Magwood was tried and convicted for the1979 killing of an Alabama sheriff, and he was sentenced to death in 1981.  However, under Alabama law, capital punishment is only available when certain aggravating factors exist - and Magwood's never fit into these categories. 

Since his case never met the statutory standards, it's being argued to the High Court that he shouldn't be killed by the state.  The state attorney, of course, argues that Magwood's argument is barred.  Waived. Adjudicated.  Whatever.

Mr. Skinner and Mr. Magwood sit on Death Row.  The States of Texas and Alabama, respectively, want to kill them.  Skinner may be innocent.  INNOCENT.  Magwood should NEVER have been sentenced to death for his crime, under the very same state's law that now seeks to kill him.

In both cases, different defense efforts might have kept these cases from ever being before the High Court, but they didn't happen.  These are two ineffective assistance of counsel cases. 

Now, we watch and learn:  how much is procedure to be valued -- the "finality of the process" -- over the live of an individual??? 

The U.S. Supreme Court is about to tell us.  Watch and learn.   

Will Texas Execute an Innocent Man Tomorrow? The World Awaits Hank Skinner's Fate

The Execution of Hank Skinner is on schedule.  Hank Skinner will die by lethal injection over in Texas unless something happens within the next few hours to stop it. 

The Hank Skinner Case - We Could Know the Truth, If DNA Testing Is Done

Texas is notorious for its active implementation of the death penalty, just as California is known for avoiding its capital punishment option.  Why is the Hank Skinner case such a big deal?

Because Hank Skinner says he's innocent -- and Hank Skinner may well BE INNOCENT.  We're not sure - but there's a way to know:  have DNA testing done on Skinner, and compare it with the evidence from the crime scene. 

UT Law professor Rob Owens, counsel for Hank Skinner, asks the simple question: why not?  Why not do the DNA testing before the execution?  Good question. 

Hank Skinner is Set to Die Tomorrow - Before DNA Testing Can Be Done

Last week, the Texas Court of Criminal Appeals nixed doing anything to stop the Skinner execution.  That's the court headed by Chief Justice Sharon Keller, who's facing possible removal for her actions during another 11th hour execution.

Now, Skinner has only two options -- Governor Perry can order a 30 day reprieve (allowing DNA testing in the interim) or the United States Supreme Court can act.  The High Court has been asked to stay the execution, in part because at trial, Skinner's court appointed attorney failed to test bloody knives and other evidence at the crime scene for DNA, to rule out his client as the killer.  (Skinner has been convicted of killing his girlfriend and her two adult sons on New Year's Eve 1993.) 

Texans are crying out for Governor Perry to halt tomorrow's execution and order the testing. Lots of folk all around the world are waiting and watching to see what Rick Perry (who's up for re-election this year) will do. 

What can you do to help?

The Innocence Project has an online petition that is easy to complete, and send over to the Texas Governor's office. Governor Perry's phone number?  (512) 463-2000.  Just in case you'd like to know ....

Mad Hatter Johnny Depp Interrupts Promotion of Alice to Fight Against Execution and Free the West Memphis 3

Johnny Depp is getting lots of media play due to his upcoming debut as the beloved Mad Hatter in Tim Burton's version of "Alice in Wonderland" next month. 

However, Johnny Depp won't be talking movies this Saturday when he appears on CBS-TV's "48 Hours. "  Instead, he'll be adding the power of his fame to the fight to stop the execution of Damien Echols and to free the West Memphis 3

Good for Johnny Depp. 

There are those, like Depp, who believe the three boys (now men - it's been 17 years) are innocent of the crimes.  There are others that argue it's not a matter of guilt, it's a matter of the system failing to follow proper protocols, and the need to correct improprieties that cannot be ignored. 

The "West Memphis 3" are Damion Echols, Jessie Misskelley, Jr., and Jason Baldwin, who were convicted of murdering three 8-year-old boys in West Memphis, Arkansas, back in 1993.  Only Echols was sentenced to death; Baldwin got life imprisonment and Misskelley was sentenced to life in prison plus 40 years. 

Other celebrities lending their support to the West Memphis 3 campaign include Wynona Ryder and Demi Lovato. 

Can celebrities really impact executions in this country?  Of course they can.

We can all look to the case of Georgia's Troy Davis as an example.   Famous names lending their clout to the Free Troy Davis campaign include The Pope, Desmond Tutu of South Africa, and former President Jimmy Carter. 

Right now, a federal hearing is pending in the Troy Davis case, and there's a big fight between the attorneys on why all the witnesses have recanted.  The state is implying witness tampering, and the defense lawyers have taken to the media, incensed at the implication.  Meanwhile, Davis's execution by the State of Georgia remains stayed by federal order. 

Our Prediction that California's Billy Joe Johnson Would Help the Fight Against the Death Penalty Proves True

Right before Halloween, we posted about the new Death Penalty Information Center revelation that focusing solely on a state's budget bottom line, capital punishment should be outlawed because it just costs too much -- and how Billy Joe Johnson's request to be sentenced to death in California only added fuel to that fire.  (Billy Joe wanted death because the digs at California's Death Row are so much better than those for lifers.)

Well, looks like that October prediction was right and Billy Joe Johnson is doing a lot to help the cause of Abolishing the Death Penalty. 

The Wall Street Journal's Law Blog is pointing to Billy Joe Johnson in California, and publishing a quote from Johnson's attorney that originally appeared in the Los Angeles Times -- Billy Jo isn't asking for Death Row because "...' he thinks conditions wiil be better, they are better," explains defense counsel Michael Molfetta. 

The Los Angeles Times has a lengthy feature article that actually goes into the details surrounding Billy Joe Johnson's decision (and yes, his request was granted and he has been sentenced to death by the State of California).   According to the LA Times, on California's Death Row:

1.  inmates get single cells, they don't have to share a two bunk cell

2. their cells are bigger than the standard maximum-security cells for lifers

3. inmates get better telephone access

4. they are allowed "contact visits"  by themselves, although the visit is in a see-through plexiglass booth (lifers have to visit in a communal hall, no one on one contact)

5.  they get breakfast and dinner served to them in their cells

6.  Lunch is served in the exercise yard, so they get to go outside daily

7.  Death Row inmates are allowed to visit with other Death Row inmates during the lunch hour

8.  Death Row inmates get to have TVs, CD Players, and the like in their cells

9. While other inmates are limited to six cubit feet of personal property, this doesn't apply to California Death Row inmates

10.  They get to wear jeans and chambray shirts

This description of life on California's Death Row is getting lots of attention -- all because Billy Joe Johnson's request has taken flight.  The prison authorities have good reasons for each of the list's purported "benefits" -- for example, Death Row inmates get more than 6 cubic feet of personal property space because their cases are so voluminous, they need more square footage than that for all the paperwork that their defense requires.  Similarly, they get more lenient phone rules than the usual inmate because they are literally fighting for their lives and there are times when communication with their counsel by phone is immediately needed and legally vital. 

Still, proponents of the Death Penalty may look upon this list with outrage and think that Billy Joe Johnson is somehow working the system by asking to die.  And, if that enables the Death Penalty Information Center's study on costs to get more footing, great. 

Because the goal is to end the death penalty, and if capital punishment is stopped for no other reason that it costs too much, fine.  The goal is to stop the State form killing people, period.

Death Row Inmate Troy Davis' Defense Attorney Tom Dunn Gives Up Law, Starts Teaching Career

Troy Davis is a name you probably recognize because of the international movement to free him as an innocent man, wrongfully convicted and sentenced to death by the State of Georgia. We've posted about Troy Davis here, and support the efforts to free him.

Who is Tom Dunn?

The name Tom Dunn probably isn't one you recognize, however. Tom Dunn is a criminal defense lawyer with over 20 years experience in the defense of capital/death penalty cases -- and Mr. Dunn acted as defense counsel for Troy Davis.

As the head of the Georgia Resource Center, Tom Dunn worked tirelessly as the nonprofit group sought justice for Troy Davis and many others. Now, Tom Dunn has apparently had enough.

Tom Dunn isn't going to be a lawyer anymore.

Beginning this year, Mr. Dunn is a middle school teacher. Specifically, he's teaching students at Martin Luther King Jr. Middle School -- an Atlanta school within walking distance from his old law firm, and where 97& of the student body qualifies for free/reduced lunches.

Why the career change?

You might be thinking burn out, or disillusionment with the current system of justice in this country.  Who could blame Tom Dunn if these were his reasons?  Death Penalty defense is the hardest job for a defense attorney -- you've literally got someone's life in your hands.  Passion, tenacity, and a strong moral commitment are just three necessary components to doing this work.   With Troy Davis being stonewalled time and again, it would be easy to understand throwing up your hands, throwing in the towel in frustration....

However, none of that applies.  Tom Dunn changed careers for health reasons:  he's got heart problems and the stress of Death Penalty defense doesn't jive with a condition that has left him with the heart of an elderly man.  

Death Penalty Defense Work Doesn't Lend Itself to "Gone Fishin'"

Obviously, Mr. Dunn could have retired and just "gone fishing."  Many do when faced with health crises like his.  And that's fine.  But what does one do with all the zeal, the knowledge and compassion, with the warrior that still has the need to right wrongs? 

It's one thing to resign your position, but being a Death Penalty defense attorney isn't something that you can just quit.  It's a field of work where the boundaries get blurry, and part of what you do becomes part of what you are. 

Today, Tom Dunn is taking all those years of experience and the wisdom culled from a Death Penalty Defense career, and he's helping young people see their potential, teaching them things that are not just in textbooks.   Tom Dunn is still in the fight, just on a different battlefield. 

And our hats are off to brother Tom Dunn. 

A Must Read: Exonerated Florida Death Row Inmate Juan Melendez Gives First Hand Account of His Summary Arrest, 5 Day Trial, and 18 Years on Death Row Before Being Released as an Innocent Man

Today, Emory University posted an article detailing the talk that Juan Melendez gave to Emory's new Criminal Law Society.  (Amnesty International sponsored the event.)  It is simply a must-read for those interested in the current criminal justice system in the State of Florida, especially those dealing with the imposition of the death penalty in our state. 

Included in this article:

1.  Juan Melendez's description of his arrest as he sat with his co-worker, eating lunch, on a fine sunny day;

2.  His recollection of the trial itself -- the attorneys, the jury, the presentation of evidence;

3.  His memories of his defense attorney at trial and thereafter;

4.  What it meant to live on Death Row, including the rats, roaches, and temptation for suicide;  and

5.  The miraculous revelation of the true killer and the disrespectful release of Mr. Melendez thereafter by the authorities.

You must read this.  Juan Melendez is telling us quite a bit here....

Ohio Set for Second Execution Attempt of Romell Broom Unless His Lawyers Work Fast

Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began. 

The 2+ Hour Failed Execution

Except they couldn't find a vein in which to insert the needle.  They tried his arms.  They tried his legs.  Broom lay there, tied to the table by long leather straps covering the length of his body.  Imagine this being done to you.

Broom lay there for OVER TWO HOURS while lab techs tried to kill him.  They failed.  Broom went back to his Death Row cell, and his execution was "rescheduled."  The Governor of the State of Ohio was contacted about the problem and he ordered a one week "postponement."

Ohio Has Scheduled a Second Execution

Well, now Broom's execution -- again, by lethal injection -- has been put back on the calendar, and a national outcry is joining with the arguments of his lawyers that this amounts to cruel and unusual punishment.   According to his counsel, this event has traumatized inmate Broom.  That's probably an understatement. 

Legal Arguments Based Upon Cruel and Unusual Punishment are Being Advanced in the Face of Willie Francis Precedent

Broom's attorneys -- as well as organizations like the American Civil Liberties Union -- are advancing the argument that Governor Strickland should grant clemency to Broom and commute his sentence to one of life imprisonment because of this botched execution.  Of course, the U.S. Supreme Court has held that a second execution is not, in and of itself, cruel and unusual.  Those in the know with their legal death penalty history will remember the Louisiana case of 16 year old Willie Francis, where an electric chair execution failed and the issue of whether or not a second try at killing Francis would be cruel and unusual.  In Francis v. Resweber, the High Court held second executions were constitutional.

Florida's Contribution -- the Lesson of Angel Diaz

Here in Florida, we remember the case a couple of years back where the execution of Angel Diaz was excruciating, as the executioners pushed the needs through his veins and into muscle tissue -- which meant Mr. Diaz took over half an hour to die, laying there in front of everyone on that gurney.  After that botched business, the State of Florida stopped lethal injection executions for a period of time.  Florida resumed executing inmates in 2008, under purportedly new and better injection procedures. 

Maybe Ohio needs to look at its own procedures instead of cavalierly putting Broom's name back on its death calendar.  Or maybe they should just stop executing people, period....

Cameron Todd Willingham Is Not the First Innocent Man Sentenced to Die -- Here's a List

Cameron Todd Willingham's story is sad and tragic and true, and it's a great thing that there is more and more media coverage of how this innocent man was executed by the State of Texas.   

Hopefully, the travesty of justice in the Cameron Todd Willingham case will remind us all that there are real people setting on Death Row in this country today who are innocent of the crimes of which they are convicted ... and that in some instances, there are correlated evildoers enjoying their freedom while they should be the ones being punished for their acts.

The Innocence Project List

The Innocence Project has started an online list of individuals who have been sitting on Death Row in this country -- convicted and innocent.  Currently, the site has not added Mr. Willingham's name to the list -- and there may be more names out there that aren't shown on the IP's site (I'd appreciate being notified of others, by the way), but these names are there, and it's worth a visit to the Innocence Project page to read their stories:

Kirk Bloodsworth

Rolando Cruz 

Alejandro Hernandez

Verneal Jimerson 

Dennis Williams

Robert Miller

Ron Williamson

Ronald Jones

Earl Washington

Frank Lee Smith

Charles Irvin Fain

Ray Krone

Nicholas Yarris

Ryan Matthews

Curtis McCarty

Kennedy Brewer

Michael Blair

Cameron Todd Willingham and John Grisham's The Innocent Man

John Grisham chose a story about the death penalty for his first non-fiction novel, and it's well worth the read.  The Innocent Man: Murder and Injustice in a Small Town, has been out for awhile -- so long in fact, that you can buy a used copy on Amazon for a buck ninety-nine ($1.99).   It's particularly compelling in light of the case of Cameron Todd Willingham -- an innocent man executed by the State of Texas with scientific evidence recently proving his innocence.

What's Grisham's book about?

It's a true story, which began over 25 years ago when a young cocktail waitress was raped and murdered, and the crime remained unsolved for 5 years.  All this time, the authorities believed that two specific men were responsible, and after these five years had passed, they ended up arresting the two guys, Ron Williamson and Dennis Fritz, for murder. 

They had no physical evidence.  The case went to a jury based solely on junk science and the testimony of a convict or two.  Ron Williamson was sent to death row; his pal got life in prison.

Eerie to read, as you ponder the Willingham case....

Claire Phillips' Portraits of Death Row - Foreign Citizens Sentenced to Die

Claire Phillips is a British artist who has traveled throughout the United States on a tour of Death Row facilities. Although she's not allowed to bring any of her tools of the trade with her - no sketchbooks, no brushes, no palette knives or pens - she spends sufficient time with her chosen subjects to replicate their images from memory. And Claire Phillips does a very good job.

In a recent gallery viewing, her portraits included:

Krishna Maharaj, a British subject who was convicted of murder here in Florida and originally sentenced to death. Luckily, efforts were successful to move Mr. Maharaj off Death Row, and his sentence was commuted to life imprisonment. Unfortunately, additional work was not successful in lessening that punishment and Mr. Maharaj can expect to spend the rest of his days in a Florida prison.

Linda Carty is an Englishwoman (she hails from the British Virgin Islands) who faces execution in Texas. With the current state of review (she has exhausted her state remedies and is pursuing a federal appeal), Ms. Carty may not be able to escape capital punishment.

According to the official summary from the Texas site, "[o]n 05/16/2001 Carty and three co-defendants invaded the home of a 25 year old female. The victim and her three day old baby were kidnapped and two other victims were beaten, duct taped, and left in the residence. The 25 year old female was hog-tied with duct tape, a bag was taped over her head, and she was placed in the trunk of a car. This victim died from suffocation."

Apparently, Linda Carty and her codefendants were accused of killing a mother in order to keep her newborn baby. The co-defendants took plea deals, leaving Linda Carty to face trial alone for the crimes. Without any forensic evidence tying her to the crime, and no eyewitness testimony, Carty was nevertheless found guilty and sentenced to death.

Earlier this year, Houston law firm Baker & Botts filed a federal appeal asking for a new trial for Linda Carty based, in part, upon ineffective assistance of counsel. The British Government filed its own amicus in her case with the Fifth Circuit Court of Appeals in New Orleans last month. That appeal is pending.

Recommended Websites: Jeffrey Deskovic Speaks

Jeffrey Deskovic has a unique story, and with it comes a perspective that can help us all understand the American criminal justice system a bit better than before. You see, Mr. Deskovic spent 16 years in prison for a murder and rape for which he was innocent.

Arrested when he was only 16 years old, the police coerced a false confession from the teenager after 7.5 hours of interrogation. Using that conviction, Deskovic was convicted and sentenced to 15 years to life, even though: (1) DNA evidence showed that semen inside of the victim; and (2) hair found on the victim were not a match for Deskovic, supporting his claims of innocence.

It was only through the efforts of the Innocence Project that Jeff Deskovic was freed - and this was not due to the courts reversing his case on appeal. No.

The only way that Mr. Deskovic was freed was because the Innocence Project collected the DNA evidence, compared the DNA to the state database, and discovered the real evildoer. Once again, thank God for the Innocence Project.

Now that he's fully exonerated, Jeffrey Deskovic devotes his time to fighting against wrongful convictions in this country. One of the ways that he does this is via the internet, and at his website, you can read about:

1. Mr. Deskovic's speechmaking around the country, including his national fight against the death penalty (he points out that if he had been 18 and not 16 when was convicted, he may well have been executed before he could have been exonerated under the current death row timelines);

2. Mr. Deskovic's articles that published in various media across the country, urging the repeal of the death penalty in various states as well as on the federal level;

3. Forum discussions where site members (membership is free) discuss topics of interest, such as the position of Judge Sotomayor on the death penalty (FYI, Jeff Deskovic is against Sotomayor being appointed to the U.S. Supreme Court).

VISIT Recommended Website: Jeffrey Deskovic Speaks.

Will New DNA Testing Free Florida Death Row Inmate David Eugene Johnston, Who Was Set to Die on May 27th?

Last Friday, the Florida Supreme Court received the lab report from the state crime lab on the DNA evidence pertaining to the murder of Mary Hammond in 1983, and the conviction of David Eugene Johnston for that crime.

Johnston was set to be executed by the State of Florida on May 27, 2009 - but the Florida Supreme Court stayed the execution so DNA testing of the evidence could be performed. After all these years, the state still has not only safeguarded Johnston's shorts, socks, and shoes but also fingernail clippings from the victim (which contain skin and blood evidence from a male).

The State Crime Lab report had no concrete result for the high court: instead, the formal recommendation was for more testing with better technology. Today, two labs are involved: one chosen by Johnston's attorneys (in Ohio) and one by the prosecutors (in Virginia).

Curiously - and tellingly, prosecutors had opposed DNA testing in this case, arguing (unsuccessfully, of course) to the high court that there was more than enough evidence to confirm Johnston's guilt without doing the testing. Two questions come to mind:

1. If it's so clear that he's that guilty, then why wouldn't the prosecutor just go along with the defense motion stand and let Johnston's request for testing just provide further support for the state's case?

2. Why not automatically insure that DNA testing has been performed before any execution is performed in this country? Surely this isn't too much to ask.

In Depth Look at the Law: Indigent Defense Crisis Part Two, How We Got Here -- the Legislature's Attempts to Cut the Budget With Criminal Defense Dollars Created this Catastrophe

There are, of course, the realities of today's economy that we must consider here. Recently, there was a news release that one out of every six dollars that Americans receive comes from a government source. Governments must be extremely careful with their dollars, given the current economic situation.

By revamping the indigent defense statutory scheme, the Florida Legislature undoubtedly was trying to be fiscally responsible to state taxpayers. Indeed, there have been significant budgetary cuts through legislation for state attorney offices and the state court system, as well as the indigent defense bar. The Legislature hasn't focused on just one segment of the judicial branch's expenditures. (The Florida Legislature has the power to review and approve court budgets, etc., through specific legislative guidelines, such as Chapter 216 of the Florida Statutes, Court Statutory Budget Controls.)

Still, the Legislature has created a true crisis in its attempts to save money. The situation is grim. The Florida Bar's Criminal Law Section has hosted more than one "Budget Summit" to try and find a solution to this dilemma, but so far a solution has not been found.

Money has become so tight that even indigent defendants are being charged $100 to cover their own prosecution costs. Think about that. An innocent man, poor and unable to make bail, is being asked to pay $100 to cover the expenses to prove himself not guilty of the charges asserted against him. There's something just plain wrong about this.

And right now, there is no concrete solution to an exploding problem in this State. This is something that is impacting everyone and we all need to be involved in finding answers here.

Next week: Public Defenders and the OCCCRC Don't Solve the Problem but Add to the Crisis With their own unmet budgetary needs

Florida Death Row Inmate Sues Estate of Murder Victim for Ownership of Truck

There will be many people who read about the actions of Florida Death Row inmate William Deparvine with disgust, or anger, or both - and with his appeal on the truck claim going forward, there will many more new stories to invite further emotional response to Deparvine's actions.

Who is William Deparvine?

William Deparvine is currently housed in the Death Row Unit of the Union Correctional Institution in Raiford, Florida. He's been found guilty of murdering Richard and Karla Van Dusen and he's been sentence to death for these crimes. This criminal conviction is being appealed.

Deparvine is an Excellent Example of a "Jailhouse Lawyer"

Many inmates in facilities across the country spend lots of time learning the law - and then sharing their information with fellow inmates, as well as entering the system with their own handwritten filings and letters to the court. However, in the case of William Deparvine, he's gone further than most: Deparvine has filed a lawsuit, representing himself (acting "pro se"), seeking to gain title to a classic pick-up truck from the Estate of Richard Van Dusen.

What many find particularly reprehensible about this act is that Deparvine met Van Dusen and his wife through a classified ad placed to sell the classic truck, and killed them while he was purportedly discussing its purchase with them. The jury found that the "bill of sale" for $6500 from VanDusen to Deparvine was not legit, and there is no other evidence that a sale ever took place. The executor of the Van Dusen Estate sold the truck shortly after the deaths - so all that Deparvine can hope to achieve, should he win his case, is a monetary sum. Many view this civil suit as a strategy on Deparvine's part to favorably impact his pending criminal appeal.

Still, Deparvine has survived the first level of any lawsuit without being thrown out. He has lost at the trial court level, but his case was not dismissed on grounds for which other jailhouse lawsuits are notoriously booted: lack of jurisdiction, for example, or failure to state a claim upon which relief can be granted.

Deparvine, the Jailhouse Lawyer, has successfully taken his case to the appellate level and his arguments are being considered by the 2d District Court of Appeals. Even the Van Dusen Estate's counsel has given Deparvine his due, as he was quoted in the media as saying "[Deparvine]'s one of the best jailhouse lawyers I've seen."

Deparvine Is Also an Example of Death Row Inmates Still Having Legal Rights

Due to the heinous nature of the crimes upon which their sentences are based, many Death Row inmates are considered by much of the public - as well as many in authority, truth be told - as not having any legal rights once they have been assessed capital punishment. And, while it is true that many of their rights have been taken from them as they live, day after day, in those small Death Row cells, they are still U.S. citizens and they still have many of the same legal rights as you and I.

For instance, they can still file suit. And, they can still seek monetary damages. As William Deparvine is educating so many with his Classic Pickup Truck lawsuit today.

The Problem of Prosecutors Withholding Exculpatory Evidence

A few weeks ago, we posted about the Ohio death row case of Vietnam Vet Gary Cone, where the United States Supreme Court returned the case back to the lower courts for a fresh consideration of his sentencing after finding that 23 years ago, Cone's due process rights had been violated because the prosecution withheld key evidence that was favorable to the defense - exculpatory evidence.

Sad to say, this happens all too often in this country.

Just this past week, in the Washington Post, Maryland attorneys Albert D. Brault and Timothy F. Maloney wrote an excellent article entitled, "A Standard for Fair Trials," where they outlined several examples of prosecutorial misconduct in the form of withholding exculpatory evidence.

Continue Reading...

California's Dennis Cyrus Trial and the Role of the Prosecutor in a Death Penalty Case

On Tuesday, our post focused upon the pending Dennis Cyrus case in California, and how this case may be the first time in over half a century that a defendant setting in a San Francisco court actually faces capital punishment for a crime.

Looking at the case from another angle, there are several key examples of how the prosecutor works in a death penalty case. First, there's the consideration of the head prosecutor for that jurisdiction.

Federal Prosecutors

Federal prosecutors pursue matters in federal criminal courts under the auspices of the region's U.S. Attorney, who in turn is an employee of the Department of Justice. U.S. Attorneys are appointed to their positions.

As a part of the executive branch, federal prosecutors have guidelines to follow in capital punishment matters. In the Cyrus case, the example is shown of the Bush Administration's established policy that there be uniformity among all U.S. Attorneys in their decisions to seek the death penalty. While the particular federal prosecutor does have some autonomy to try his or her case, there are boundaries within which that case must be pursued and tried - and those boundaries are marked by the President of the United States.

State Prosecutors

State prosecutors pursue matters in state criminal courts under the direction of the local District Attorney. Usually, these are county officials who have been elected for a specific term. They may have been prosecutors for many years, some may have served time on a criminal bench as judge before running for election.

Continue Reading...
 
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