Will the Jurors Decide that Michael King Should Die? Will They Decide Before 5 Today?

As these words are being typed, the jurors over in Sarasota, Florida, are deciding whether or not Michael King should die.

Who is Michael King? The Mitigating Circumstances

Michael King has just been convicted of the kidnapping, rape, and murder of Denise Lee.  He is 38 years old.  The prosecution does not contest that King has been a good father to his 13-year-old son and he has a low IQ.   Or that King was devoted to his girlfriend of many years, that he has been a stellar prisoner,  has no prior record of crime, and doesn't drink or do drugs.   Plus, King suffered a traumatic brain injury as a child (it happened during a sledding accident) which caused permanent damage.

Victim of Traumatic Brain Injury

Just yesterday, the hearing on whether or not Michael King is legally competent, due to that brain injury, concluded after the testimony of mental health experts and family witnesses of his behavior over the years, as well as the accident itself.  There was evidence that King complained for years of always having a "buzzing" in his head and that he periodically suffered from hallucinations.  One brother described how Michael would see ghosts, and that he would shoot at them.   The judge ruled that King was competent for trial, and the penalty phase of the case resumed. 

The Aggravating Factors

These are the mitigating circumstances that his defense attorney has argued to the jury, asking them to keep emotion out of the jury room as they decide between life and death.   Michael King will live the rest of his life behind bars, and this is justice, she argued.

The State's attorney brought forth aggravating factors:  (1) King committed the murder after he already kidnapped and raped Ms. Lee; (2) the killing itself was heinous, atrotious, or cruel; (3) he killed his victim in an attempt to escape arrest for the kidnapping and rape;  and (4) the killing was cold, premeditated, and calculated.

The jury will return with a recommendation for the judge; it need not be based upon an unanimous vote.  Then the judge, Sarasota Circuit Court Judge Deno Economou, will decide whether or not Michael King will be sentenced to die. 

This is the same jury that took only two hours to decide Michael King was guilty of the murder of Denise Lee.  

The Underlying Crime - The Murder of Denise Lee

Denise Lee and Michael King were strangers.  Lee, the daughter of a detective for the Charlotte County Sheriff's Department and the mother of two small children, was taken from her home one afternoon and driven to King's residence where she was raped, shot, and later buried in a ditch.   During the drive between her home and his, Lee called 911 using King's cellphone and her six minute call was played to the jury.  Another 911 call, by a witness who followed the Camaro but lost it before it arrived at King's home, was also played.  A third 911 call was also placed by a family member of Michael King's, who saw the victim in the Camaro when King stopped by his home.   The failure of these 911 calls has led to legislation and continued efforts for legal change by the victim's family.

It is Friday afternoon.  It only took this jury two hours to decide on the guilt of Michael King.  Many would argue that there will be a swift recommendation vote, and the life of Michael King will be placed in the hands of Judge Economou before sunset.   We'll know soon enough.

In Depth Look: Filicide is Different - 4

Other mothers murder their children because the children are not wanted or are resented. One such mother, Susan Smith, strapped her two small boys, a fourteen month old and a three year old, into the backseat of her car, rolled up the windows, and pushed the car into a lake.

She first claimed her two sons were taken in a car jacking by an unidentified black man. Smith concocted elaborate lies in the national media, pleading for the safe return of her two children. Later, Smith told police she intended to kill herself, but changed her mind at the last minute and jumped from the car.

In fact, her father had committed suicide, and Susan had attempted suicide at least once in her life. Her stepfather sexually abused her, with whom she continued to have a sexual relationship once she was an adult. Smith also had an affair with her boss and craved a relationship with him. When he ended the affair because he did not want the complication of children in his life, she became desperate to rid herself of her children.

Susan Smith was convicted of two counts of murder. However, on July 28, 1995, a South Carolina jury rejected the idea of sentencing a young mother to death for drowning her two sons. She was sentenced to life imprisonment instead.

As these widely publicized maternal filicide cases illustrate (see earlier Filicide is Different posts), juries show mercy by avoiding the death penalty where a manslaughter charge is not available.[24] Even though this country does not officially recognize that filicide is significantly different from other homicides, one U.S. study of filicide found that local district attorneys prosecuted only 64% of 171 cases over a 30-year period. [25] Of those cases that are prosecuted, juries as well as prosecutors are aware of the mental and emotional mitigating factors that make the death penalty disproportionate and inappropriate in cases of filicide and infanticide.

Even the vast majority of homicidal child abusers are convicted of manslaughter rather than of murder. [26] Perhaps because women kill their children in "gentler" ways than men, such as drowning or suffocation, often sedating the children first, [27] fathers are more likely than mothers to be charged with murder than manslaughter.[28] Similarly, more fathers than mothers convicted of manslaughter are imprisoned; convicted mothers are more likely than fathers to be hospitalized or treated rather than imprisoned. [29]

[24] Janet Ford, Note, Susan Smith and Other Homicidal Mothers - In Search of the Punishment That Fits the Crime, 3 Cardozo Women's L.J. 521, 530 (1996).
[25] McKee, Why Mothers Kill, supra, at 12.
[26] Ford, supra, at 525.
[27] Linda Cylc, Classifications and Descriptions of Parents Who Commit Filicide, at 7 http://www.publications.villanova.edu/Concept/2005/Filicide.pdf.
[28] Yarwood, supra, at 1.
[29] Yarwood, supra, at 1.

US Supreme Court Finds Prosecution Intentionally Violated Due Process in 20 Yr Old Death Penalty Case

Monday, the Supreme Court heard argument in the Bies case (see 04/27/09 post), and the very next day issued its opinion in Cone v. Bell, 555 U.S. ___ (2009), both capital punishment cases where the defendant argued a diminished capacity of some sort. In today's case, there was an intentional hiding of the ball by the State and a definite due process problem.

Gary Cone was a known drug addict who murdered two people.

It is undisputed that Gary Cone was a Vietnam veteran who returned home to Memphis, Tennessee, and failed to cope well with civilian life. One Saturday morning in 1980, Gary Cone robbed a jewelry store - obviously, not very well - and was promptly pursued by local police in what turned into a high speed chase.

Veering into a residential neighborhood, Cone abandoned his car and shot both a police officer and a Good Samaritan who tried to stop him as Cone fled on foot. On the hunt for another getaway car, Cone tried to carjack someone and when they refused to give them the keys, he tried to shoot them, too, only to find he was out of bullets. By this time, helicopters were flying overhead and the scene was escalating to a frantic pace. (You've seen the reality TV shows like COPS, you can visualize these events.)

Somehow that Saturday afternoon, Cone got away. No one could find him. However, early the next morning, Gary Cone was still in the neighborhood - knocking on the door of an elderly couple, Shipley and Cleopatra Todd. He asked to use their phone; Cleo Todd refused and slammed the door on Cone. Cleo called the cops, and still Cone could not be found.

The tragedy occurred later that same day. Cone returned to the Todd home, forced himself into their house, and beat the two senior citizens to death before tearing their house apart. He shaved there, got himself to the Memphis airport, and was busted while robbing a drug store in Pompano Beach, Florida a couple of days later.

Vietnam Vet Cone Asserted an Insanity Defense - He Didn't Contest His Actions

Vietnam vet Gary Cone was arrested, tried, and convicted of the Todds' murder. He never challenged evidence that showed he committed these horrific acts. What he asserted as his defense was his mental illness: Cone's defense team brought forth evidence to show that Cone suffered from chronic amphetamine psychosis, a mental disorder caused by excessive drug abuse.

Experts testified that the drug use began while Cone was serving in Vietnam, where he was using "horrific" quantities of drugs while dealing with the bodies of dead soldiers. The mental illness caused by this drug use created a level of paranoia and a disorder including hallucinations that would keep Cone from understanding or being able to conform to everyday life and the boundaries imposed by Tennessee law.

In sum, the entirety of Cone's defense was mental illness. He was legally insane when the crimes were committed.

Prosecution Hid Reports from Cops on the Scene that Cone was "Wild-Eyed" and looked frenzied, and was acting crazy and weird

Who knows why the prosecution did such a blatantly wrong thing, but they did. They decided NOT to turn over witness statements and police reports from cops on the scene that obviously supported the lunacy of Gary Cone.

And these eyewitness accounts from police on the scene back in 1980 that fateful weekend in Memphis were crucial to the mental insanity arguments made by Gary Cone. They said things like Cone was "acting weird" and looked like he "was drunk or high." A cop reported that Cone was looking around in "a frenzied manner," and walking around in "an agitated manner." (For all the details, check out the Supreme Court opinion.)

These witness statements and police reports were withheld in direct contravention of the due process guarantees provided by the United States Constitution as well as the directives of the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963). Brady holds that when a State suppresses evidence favorable to an accused that is material either to the finding of guilt or to the assessment of punishment, the State violates the defendant's right to due process, "irrespective of the good faith or bad faith of the prosecution." Id., at 87.

However, the Cone case is particularly egregious because the prosecution made no mistake here - they intentionally kept this evidence back. Those present at the oral argument in the Cone case report that the Justices were particularly upset about this fact and showed their displeasure in their questioning of the attorneys arguing on behalf of the prosecution. Imagine that - now that is real courtroom drama.

Supreme Court Sends the Case Back - Sentencing Phase Due Process Was Thwarted

The written opinion came down yesterday. Justice John Paul Stevens, writing for the majority, explained that information in the documents that were withheld by Tennessee prosecutors would not have sustained Cone's insanity defense - the police reports and witness statements were not enough to clear him of the crimes - but they were extremely relevant to his sentencing and whether or not the death penalty should be imposed:

"[b]ecause the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted."
Now, a federal judge will decide whether Gary Cone should remain on Death Row.

Here's another example of why criminal defense attorneys are committed to their work.

And for those of you wondering why people like me do what we do, well here is one prime example.

Due process is the only thing that protects the individual in this society when those in authority don't do the right thing. And it's through criminal defense attorneys at the trial and appellate levels that bring these cases through the review process, so that justice can be served and the backdoor maneuvers of overzealous prosecutors can be brought into the light of day.

News sources:

All Headline News
The Tennessean

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