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

People wonder why I am so adamently opposed to the death penalty, and then stories like this appear in the media and I, in turn, wonder how anyone can support capital punishment. 

Sam Milsap's Mea Culpa

Sam Milsap is a seasoned criminal lawyer with over 30 years experience, and for a long while he served as the head District Attorney of Bexar County, Texas (better known to most of us as the location of the city of San Antonio).  Last week, Mr. Milsap was a guest speaker in Topeka, Kansas, where the annual meeting of the Kansas Coalition Against the Death Penalty was being held.  And during his speech to this formidable group, Sam Milsap did a brave thing.  He admitted he was wrong.

Milsap explained from the podium that back in the early 1990s, he was in charge of prosecuting a young man named Ruben Montoya Cantu.  In his zeal to win -- something that every criminal defense attorney recognizes in ambitious, driven DAs -- Sam Milsap charged ahead in his case, and with only the testimony of one single eyewitness, he obtained a guilty verdict and a sentence of death for Mr. Cantu in the murder of Pedro Gomez. 

That's right.  No physical evidence.  None.  No admission of guilt from Cantu.  None.  Only the finger-pointing from one man -- Juan Moreno, who had been shot alongside Gomez as they were being robbed.   (Nevermind that the co-defendant said that 17 year old Ruben Cantu wasn't there at the time.)

Much has been written about the weakness of eyewitness testimony, so it should come as a surprise to no one when years later, Moreno changed his mind.  That's right:  the eyewitness recanted.

Or, as Milsap so eloquently described it, " ' 20 years later, my star witness says, ' I lied.'"

The Danger of Zealous Prosecutors in Death Penalty Cases

Sam Milsap must be given his due for not hanging out a "gone fishing" sign, but instead using his time and energy to do things like appear at the KCADP national conference to tell the story of how his vigorous efforts put a 17 year old to death by lethal execution in Texas.  That is a good thing, and every district attorney in the country should hear what Sam Milsap has to say.

Meanwhile, all of us must be aware of the temptations of prosecutors everywhere -- to win their case.  To acheive a personal victory, to pursue a reputation as an advocate as well as doing the job that is assigned to them.  In our criminal justice system, prosecutors have the role of proving up a case against a criminal defendant -- and if capital punishment is on the table, it's their job to try and prove its applicability in certain cases.

As Sam Milsap's story teaches, the danger here is that when a prosecutor makes a serious mistake, and the death penalty is involved, the consequences are too high.  That teenager in San Antonio is dead today, and no one can fix that -- although, from the sound of Mr. Milsap's speech last weekend, no one would like the opportunity to do so more than he. 

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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.

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In these economic times, there has been significant media coverage of various states considering the banning of the death penalty -- not on moral grounds or arguments about its ineffectiveness in crime prevention, but on the simple argument that it costs too much.   That's right:  it is cheaper to keep someone incarcerated for the rest of their lives than it is to kill them, ending their life on a set calendar date. 

How can this be?  How is the death penalty so costly?

First, asAmnestyUSA points out, there are the trial costs.  When a prosecutor decides to seek the death penalty, the cost of litigation skyrockets.  Discovery -- investigation of the crime -- becomes more intensive and therefore, more expensive.  There is a heavier motion practice in a death penalty case.  And, remember, once the death penalty is on the table, attorneys are preparing for not one but two trials -- first, the conviction phase (deciding guilt or innocence) and then the penalty phase (determining the sentence). 

That second trial, the sentencing phase of the case, can be extensive in preparation and presentation.  Aggravating circumstances must be presented to the factfinder with evidence that is authenticated and admissible.  Mitigating factors must likewise be provided to the jury.  Often, expert testimony will be provided by several leaders in their fields (scientific or forensic experts, mental health experts, etc.).  Death cannot be imposed upon someone who has been found guilty of a capital crime without all due process efforts being exhausted.

Second, there are the appeals that must follow any complicated capital punishment case.  Post-conviction proceedings will be filed.  These will take time.  Appellate courts will grade the papers of the trial court to insure that the law has been followed.   One growing concern is insuring that the defendant had effective assistance of counsel during the conviction phase.  Sometimes, appellate courts will be asked to consider the revelation of new evidence or the reconsideration of old evidence based upon new technology (such as new DNA testing procedures).   The appellate process in death penalty cases is time consuming and expensive, as well.

What kind of numbers are we talking about here, in terms of cost?

The Death Penalty Information Center has compiled a list of studies done regarding various states in the country, and how much they might save annually if they banned capital punishment.  According to the DPIC, Florida would save $51,000,000 each year and California would save a whopping $125,500,000 each year.

That's annually.   Which means - using the DPIC numbers -- that over a five year period, Florida would save $255,000,000 -- that's a quarter of a billion dollars -- and California would save an astounding $627,500,000 during the same five years.  

Surely this practical, basic argument merits serious consideration by even the most ardent supporter of capital punishment.   Especially for a state that is currently handing out IOUs ....

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This week, a national group fighting against the Death Penalty gave a special award to Jeanne Woodford in recognition of her courage in speaking out against the death penalty. Why is Jeanne Woodford so special?

Prison Guard to Warden of San Quentin to Head of State Corrections Department

Well, Mrs. Woodford began her career as a prison guard at San Quentin, rose to become the warden of California's famous state prison for several years, and then undertook what she herself calls the "top job in the state -- director of the California Department of Corrections and Rehabilitation."

During her stint as warden, Jeanne Woodford oversaw the execution of four prisoners. Retiring from civil service in 2006, she is now active in her efforts against capital punishment, and it serves us all to read her own words in explanation for her position in an editorial she wrote for the Los Angeles Times in October 2008.

Jeanne Woodford's Position Letter

There, Mrs. Woodford explains what led her, with her unique vantage point on capital punishment as warden of San Quentin and head of California's Corrections Department, to challenge the state's ability to impose death as punishment for a crime.

What Joanne Woodford writes is worth your time to read.

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Effective July 1, 2009, there will be no death penalty in New Mexico. Capital punishment will still apply to any capital crimes committed between now and midnight on June 30th. - and there has been no change in the punishment of death for the two men currently residing on New Mexico's Death Row.

Albuquerque's Sheriff Darren White Leading an Effort to Put It to a State-Wide Vote

Not everyone in New Mexico is pleased with this development. Sheriff Darren White is reportedly investigating the possibility of putting capital punishment to a full state-wide vote, which would enact an amendment to the New Mexico constitution approving of the death penalty for certain types of crimes.

According to Sheriff White, he's undertaking this action because of the large number of phone calls he's received from the citizenry, who are upset about the change. White says that state polls show a majority of New Mexicans are in favor of capital punishment.

Undoubtedly, Sheriff White will be assisted and supported by prosecutors across the state, as well as the New Mexico Sheriffs' and Police Association, as well as other law enforcement organizations that were against the New Mexico repeal efforts.

What About the Two Men on New Mexico's Death Row?

Since 1933, New Mexico has executed nine (9) individuals - all men - using three different methods : one by gas, one by lethal injection, the rest by electric chair. That's not a high death rate.

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