Rasheem Dubose Sentencing Trial in Jacksonville: Jury Expected to Decide Very Soon

It's been a long week for everyone.  The younger Dubose Brothers were given life sentences by another jury last week, and this week all eyes have been upon the men and women setting in a Jacksonville, Florida, courtroom who are hearing evidence as part of Rasheem Dubose's sentencing phase.

Will Rasheem Dubose be given the death penalty? 

The jury may give their recommendation to the judge as soon as today.  Yesterday, jurors heard testimony about how Rasheem Dubose saved the life of another young girl -- the girl's mother recounted how Rasheem dove into a swimming pool, saving her daughter, who was drowning. 

If you are interested in the death penalty issue, or in the Dubose Brothers' case in particular, you can follow the events via video feed at The Florida Time Union's Jacksonville.com.

Florida Capital Resource Center Is Supporting the Dubose Brothers' Defense Team

The Florida Capital Resource Center, my non-profit organization, has been providing support to the Dubose Brothers defense team.  The costs of defending indigent individuals who are facing the possibility of capital punishment are simply out of control.  This isn't new to regular readers here, it's a theme that ribbons through this blog

Indigent defense is in severe crisis in this country, and particularly in Florida. 

Recent news on the Casey Anthony motion for financial assistance as an indigent in that death penalty case has shed some light on the need; however, there has not been nearly enough light shed on the lack of support given to the death penalty defense lawyers of folk who cannot afford to pay for legal services. 

It does not look like the Dubose Brothers case will garner much media exposure of the indigent defense financial crisis, either.  The public is simply not aware of the injustice and chaos that exists.  

This needs to change. 

Dubose Brothers Sentencing Continues in Jacksonville - No Death Penalty So Far

On Friday, Tajuane Dubose, 23, escaped the penalty of death.  Today, Florida Judge Page Haddock will sentence his brother Terrell Dubose, 21, -- but the judge has already stated from the bench that Terrell will also be spared death, and likewise sentenced to life in prison.

The Jury Said No to the Death Penalty for these two boys

Tajuane and Terrell, with their brother Rasheem Dubose, 25, have been found guilty of first degree murder in the death of 8 year old DreShawna Davis, who died during a drive-by shooting in her grandmother's home back in 2006.  Evidence during the guilt phase of the trial revealed that the bullets were meant for her uncle, who had robbed Rasheem earlier in the day and forced him to drop his pants. 

Rasheem will hear the jury's decision on whether or not Rasheem should receive the death penalty tomorrow.  Under Florida law, Judge Haddock will then sentence Rasheem based upon the jury's recommendations.

A separate jury is deciding Rasheem Dubose's fate.  One jury made the sentencing decisions for both Tajuane Dubose and Terrell Dubose -- and that jury has already revealed that mitigating factors in its decision included (1) these two didn't fire the fatal shots and (2) the details regarding the brothers' childhood and background -- resulting in an almost unanimous jury decision that these two boys should not be subjected to death at the hands of the State of Florida.

Now, we await the decision of another jury about another Dubose brother.  May they be merciful, as well. 





Follow the Trial Via LiveBlog - Dubose Brothers in Jacksonville Fight Against the Death Penalty

The Dubose Brothers death penalty trial continues this week in Jacksonville, and the liveblog has survived a legal challenge.

As posted last week, the Times-Union and Jacksonville.com are live-blogging the trial as it happens.  This is a great thing -- a phenomenal way for those interested in death penalty matters to follow the case online when it's not being telecast. 

Benefits of the Live Blogging

In fact, there is something unique about following the reporter's blogging -- you see things through the blogger's vision, learning things that you might have otherwise not noticed.  The grandfather's work uniform as he comes into the courtroom to take a seat in the back.  Things like that, things that bring home that human lives are on the line here. 

Additionally, there is the opportunity to make comments to the blog as things are occurring.  You can ask questions, make commentary, read other folk's contributions.  Participate with the reporter as the trial moves along. 

LiveBlogging Ordered to Stop When Cameras in the Courtroom

Judge Haddock has set limits on live blogging by the media.  Blogging from the courtroom can happen only when the media isn't using a camera (still or video).  Judge Haddock doesn't like the blogging, the blogger is reporting that word from the bench is that the judge and the jurors are finding the reporter's typing on a laptop "distracting."  

Distraction vs Intrusion

Distracting for some -- but a great window into the proceedings that are going to decide whether or not these three young men will be sentenced with death for so many others.  Distraction and intrusion are not synonimous terms, and having the eyes of the world (via the WWW) on a room where the government is asking to kill three of its citizens is very important. 

Kemar Johnston - Excellent Article by Fort Myers' Sam Cook

Columnist Sam Cook wrote an excellent article that appears at Fort Myer's News-Press web site. 

It provides a perspective that isn't seen enough in death penalty coverage, and I'm hopeful that you'll find the time to read it. 

Kemar Johnston Jury Verdict - No to the Death Penalty

Yesterday, the jury came back in the Kemar Johnston case.  They had already found Mr. Johnston guilty of murder, now they were deliberating whether or not Kemar Johnston should die as punishment for the crime. 

The jury recommended life in prison for Kemar Johnston.  In doing so, the jury voted AGAINST the death penalty in this case.

Mercy over judgment.  Mercy -- it's one of the clear themes of this blog, as is bringing attention to the variety of mitigating factors that come into play in every case where the sentence of death is at issue. 

We argued that there were mitigating factors in Kemar Johnston's situation where it would be unjust to impose the death penalty.  Among the evidence presented, clinical psychologist Hyman Eisenstein testified that he found Kemar to suffer from brain damage.  Specifically, permanent damage to the frontal lobe had occurred which compromised Kemar's ability to make decisions as well as his ability to grasp the consequences of what he might choose to do, or not do. 

Mitigating Factors and Aggravating Circumstances.  We've discussed the process of capital punishment imposition before, generally describing the prosecutor's advancing of circumstances and the defense's propounding of mitigation issues.  The sentencing phase of any capital trial follows set protocols established by statute.

The trial of Kemar Johnston brings this home as a prime example of how the sentencing phase works.  State attorneys argued four aggravating circumstances.  We argued 100 mitigating factors that should form a barrier between Kemar Johnston and execution by the State of Florida for the crimes of which he had been found guilty.

There are those that are all too ready to say that when one citizen takes a life, he should give his own in return.  However, an eye for an eye is not what our society considers as justice.

This was a 20 year old boy whose birthday celebration - fueled with drugs and alcohol -- went horribly wrong and now, he will spend the rest of his life behind bars.   Judgment was had: the jury found him guilty of murder.

Mercy was then imposed.  A mentally challenged young man who is loved by many --so loved, that his sister, sobbing on the stand during the sentencing phase brought the entire courtroom to a halt as Kemar broke down, too -- was spared from the penalty of death. 

A victory in this case, yes - but it's also a victory in the fight against Capital Punishment. 

This is a victory for us all, not just for LenamonLaw (though we are celebrating this weekend).  Until the death penalty is removed as a legal alternative, the fight to keep the government from killing its citizens must be fought a case at a time, in courtrooms across the country, just like we did this month for Kemar Johnston.

We can only hope that our spouses, and our children, understand the contributions that they make to this fight in their sacrifices -- and now, we'll be taking a bit of time to focus upon them, sharing our appreciation for their efforts as part of this team. 

Read Our Closing Arguments in the Kemar Johnston Trial

Since this is a case where the State of Florida is seeking the Death Penalty, a second trial will began next month.  Jurors will return to the courtroom of Judge Tom Reese in this sentencing phase of the proceedings to decide whether or not Johnston should receive life imprisonment or the penalty of death. 
For those interested in the actual proceedings of a death penalty case, I am attaching here, from the public record, a transcript (.pdf) of the closing arguments in this case, given just before the jury began its deliberations. 
State of Florida v. Kemar Manley Johnston, Case No. 06-019906 B in the Circuit Court of the 20th Judicial Circuit in and for Lee County, Florida
Arguing for the State
Marie E. Doerr, Ass't State Attorney
Robert Lee, Ass't State Attorney (rebuttal)
Arguing for the Defendant
Terry Lenamon, Esq.



The IQ of Florida's D'Andre Bannister - Death Penalty Now After 7 Years W/O Trial?

For over seven (7) years, D'Andre Bannister has sat behind the bars of a Florida jail cell, awaiting trial on the charges that he murdered his stepson.  That's right.  He's never been tried. 

This week, an evidentiary courtroom battle began on whether or not the State of Florida can now -- today -- seek the death penalty against D'Andre Bannister.  And whether or not Florida can seek capital punishment in this or any other case hinges upon one fact:  the score that the defendant achieves on a standardized IQ test. 

An IQ test score of 70 or less, and capital punishment is not an option.

The United States Supreme Court ruled in 2002 (Atkins v. Virginia) that those deemed "mentally retarded" cannot be executed, because this would be cruel and unusual punishment and therefore, unconstitutional.  Florida statutes have defined that circumstance to exist when IQ scores hit a maximum of 70.

Mr. Bannister's fight this week, however, is not whether or not he's had a speedy trial, but whether or not he's eligible under the Atkins protection from a death penalty sentence.  Because what score D'Andre Bannister receives depends not only upon which test he's taken, but also the year in which it was administered.

Experts are testifying regarding intelligence fluctuations over time, the accuracy of one test over another, and how the rigid structure and educational efforts of Mr. Bannister may have impacted his intelligence level over the past seven years.

Media reports are that D'Andre Bannister does not want to be considered "mentally retarded" (a label given in the language of the Atkins decision).  Whether or not he understands that his life is on the line based upon a test score is not so clear. 

The judge has spoken from the bench, however, and whatever the outcome of this fight -- the case will be set for trial sometime this summer.  It's already made the record books as being the longest delayed death penalty trial in Florida's history.


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.

This week's Justin Heyne Case Demonstrates the Two Trials Involved in a Death Penalty Case

Yesterday, the jury came back in the murder trial of Justin Heyne.  The 12 jurors found Heyne guilty of the March 2006 murder of his roommates, Sarah Buckowski and Benjamin Hamilton and their 5-year-old daughter, Ivory. 

The verdict was read to a packed courtroom.  Mr. Heyne stood to hear his fate in a dark blue suit, his defense attorney at his side.  His family and the families of the victims all sat in the pews, witnessing the court clerk reading the jury's decision for each of the three crimes -- everyone hearing "guilty"  three times over.

That was the end of the first trial.

In every death penalty case, there are two trials.  Justin Heyne would have had nothing more to try if the jury had found him innocent.  However, because three guilty verdicts were read, there is now the matter of sentencing.  And with that, a sentencing trial to determine what a fair sentence should be.

The first trial took one week.  (It already took a week to pick the jury.)  Now, on Wednesday morning, that same jury resumes its position in the jury box of a Brevard County courtroom as the second trial begins.

The sentencing trial (the "penalty phase")

In the sentencing trial, more documentary evidence and witness testimony will be provided to the jury.  Aggravating factors and mitigating circumstances will be addressed, as the defense attorneys argue that Heyne should not die by lethal injection but instead serve three mandatory sentences of life in prison without parole. 

Whether the State of Florida should kill Justin Heyne is being decided in this second trial.

And, the jury doesn't decide this all alone.  The twelve jurors vote on a "recommendation" (it doesn't have to be unanimous) and this recommendation is taken into consideration by the trial court judge.  It is the judge who makes the ultimate decision. 

As we've discussed earlier, the Florida statutes list the aggravating factors that the prosecutor can prove with proper evidence to argue for capital punishment.  Florida law also lists the mitigating factors that the defense can use to fight for Heyne to live. 

The Grandmother Doesn't Want the Death Penalty

Something the jury may not hear (unless the defense provides it to them) is the position of Juanita Perez, the mother of Benjamin Hamilton and grandmother of  Ivory.  Perez doesn't want Heyne to die.

In fact, for many months now, Juanita Perez pushed the State Attorney to accept Heyne's offer to plead guilty to all three murders in exchange for three life sentences.   Why?  Juanita Perez understands the lengthy appellate process that will insue after the sentencing phase is completed in this case, and she doesn't want her family to have to live through those years and years of appeals. 

However, this mitigating factor -- the desires of the victims' mother and grandmother for closure -- has been ignored by the State, and they're fighting for Justin Heyne to die.   Sure, the prosecutor is using the standard response: the crime was heinous (a child was killed), other relatives aren't as strident as Mrs. Perez here, etc., etc.

Still, one has to wonder why the prosecutors are pushing for death when Ivory's own grandmother isn't wanting Justin to die for Ivory's murder.  It's up to the defense team to bring this very important circumstance to bear in the sentencing determination.   Just one more example of how important every due process step of a death penalty case can be, and how important qualified death penalty counsel are in a capital punishment case. 

In Depth Look: Filicide is Different - 3

Progressive postpartum depression is one of the least recognized diseases suffered by young mothers despite the fact that almost 80% of women who give birth experience some form of postpartum upset. Although this symptom picture is well described in the research literature, postpartum depression is not recognized in the mental health professional's legal "bible," the Diagnostic Statistical Manual of Mental Disorders, fourth edition ("DSM IV"). [20] The symptoms of postpartum depression may masquerade as manic-depression (bipolar disorder). Periods of euphoria, agitation, sleeplessness, sexual promiscuity, and hyperactivity characterize the manic symptoms. Poor judgment is a result. [21]

Progressive Postpartum Depression and Psychosis

A common misperception is that the postpartum depression is nothing more than the "baby blues" and will disappear on its own shortly after childbirth. [22] However, if untreated, the disease can develop into a more severe form, progressive postpartum depression or even psychosis. When this happens, the mother suffers from continued episodes of mania or depression, each one progressively worse than the last. Rejections, separations, and losses often trigger subsequent recurrent episodes. Because of the episodic nature, the woman is often untreated or undiagnosed until a tragedy occurs.

Despite the common misconception that only newborns are at risk from this disease, mothers suffering from the more severe form kill older children. The case of Andrea Yates more than amply illustrates this point.

The Andrea Yates Case

Andrea Yates suffered from postpartum depression, which progressively deepened with each child she had. Andrea cared for her three young boys while her husband worked to support the family. Her husband became involved in a fundamentalist religious group and eschewed material possession, downsizing their home to a mobile home and then a bus. After the birth of her fourth son, she attempted suicide twice before being hospitalized. The birth of her fifth child, a daughter, caused her to become severely depressed and delusional. She was hospitalized and medicated, but Andrea hid her delusions from her doctors and family. She was having conversations with Satan and feared punishment if she told anyone.

On June 20, 2001, Andrea drowned all five of her children to save them from Satan while they were still innocent. She called 911 and then her husband, who had just left for work an hour before. Andrea told him all the children were hurt, and he needed to come home. When Andrea confessed to the murders, she said she loved her children, but not in the "right" way. Andrea thought she was a bad mother because her children were not developing in an academic or righteous sense.

Andrea Yates was charged with capital murder with possible penalty of death. Whether Yates believed she was saving her children from Satan or she was simply overwhelmed with caring for them, the jury found her guilty of murder after deliberating for three and a half hours. The prosecution then sought the death penalty. After only 35 minutes of deliberation, the jury elected a prison sentence for life. [23]

Continued, in part 4 ....

This four-part series of posts "Filicide is Different" continues next Friday, as part of Friday's In Depth Look / Friday's Legal Memo. The final part of the series discusses mothers who don't want their children, the Susan Smith case, and the overall treatment of maternal filicide by the American Justice system.

[20] Oberman, supra at 71.
[21] Husman, supra, at 41-42.
[22] Id.
[23] Margaret G. Spinneli, Maternal Infanticide Associated With Mental Illness, 161 Am. J. Psychiatry 1548, 1548 (2004).

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