Should current law apply when an appeals court reviews the evidence of mitigating factors and aggravating conditions in a death penalty case?  What about if the case was tried years – even decades – before the appellate review takes place?  Does the court look at current law, or go back to find the law in place at the time of the sentencing phase of the capital trial?

If you think you know the answers to these questions right now, you’re wrong.

No one knows the answers to these questions today.  However, we all will know the answers sometime soon, when SCOTUS gives us its decision in McKinney v. Arizona.

On June 26, 2019, the time to file Respondent’s Brief on the Merits was extended to October 3, 2019. So, we’re looking several months into the future before any opinion comes down.

Background of McKinney v. Arizona

Almost thirty years ago (in 1991), James McKinney and his half-brother were burglars living in Arizona, a death penalty state.  In two of their burglaries, a victim was shot in the back of the head.  When they were caught and tried, each brother pointed the finger at the other as the shooter in these killings.

James McKinney was found guilty of two counts of first-degree murder. His brother was convicted of one count of first-degree murder and one count of second-degree murder.

Under Arizona law, it was the trial judge who sentenced James McKinney to death.  This happened in 1993, and McKinney’s appeal to the Arizona Supreme Court was unsuccessful in a ruling by the state’s high court.

There, the Arizona Supreme Court used its “causal nexus” test in deciding whether or not evidence of James McKinney’s abusive childhood and resulting trauma should be considered in sentencing.  The finding was there was no “causal nexus” between the shootings and his trauma.

In 2005, the State of Arizona stopped using this “causal nexus” test in capital cases.

Federal Appellate Review of McKinney

Mr. McKinney’s legal team did not stop with the 1993 ruling.  They continued in the federal system.  Eventually, his arguments were heard by the Ninth Circuit, which held that the Arizona Supreme Court decision that the mitigating evidence would not be considered was in violation of SCOTUS’s decision in Eddings v. Oklahoma.

The federal appeals court ordered the lower federal court to grant habeas for James McKinney unless the State of Arizona either allowed him another sentencing hearing or summarily reduced his sentence to something other than death.

Arizona challenged this ruling.  The Arizona Supreme Court affirmed the death sentence, holding that SCOTUS’ requirement that juries (not judges) must make the fact findings necessary to support the death penalty did not apply in James McKinney’s case because the SCOTUS rulings came after his conviction was final (in 1996).

Which brings us to where we are today:  James McKinney has filed his petition for a writ of certiorari with the Supreme Court of the United States. (Read the full petition here.)

McKinney and Hurst v. Florida

He argues that his case impacts not only his case as well as other cases in Arizona, but also cases in other parts of the country, including Florida, because of a split in the circuits and state courts.

Specifically, his questions presented are:

  1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.
  2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

Key here:  McKinney argues that if his case were being heard today in Florida, then Hurst would apply and he would get a sentencing hearing in front of a jury. 

From the petition, page 5: “… Ring and Hurst would apply to McKinney’s case, and he would be entitled to resentencing by a jury….”

For those who have access to the REELZ channel, there is a new docu-series hosted by Deborah Norville dealing with certain high-profile cases where the defendant was sentenced to die for his (or her) crimes and ultimately executed.

Saturday (June 29, 2019) will have all six episodes of the series’ first season, starting at 1:00 pm EST.  (A second season has been green-lighted.)

Executed With Deborah Norville

“Executed with Deborah Norville” describes itself as:

Host Deborah Norville peels back the cover on some of the most ghastly real life crime sprees and criminals in modern history where capital punishment was the final answer. Norville shows viewers the untold stories behind the headline grabbing events and examines the lasting impact and aftermath of the crimes via movies, TV shows and pop culture. In hour-long episodes Norville breaks down the terrifying real stories of D.C. Sniper John Allen Muhammad, Gary Gilmore, Clarence Ray Allen, Aileen Wuornos, Karla Faye Tucker and Stanley “Tookie” Williams. In addition to interviews with those intimately connected to the story viewers will also see dramatic recreations, raw news footage and police interrogations.

For those interested in the death penalty, check out these episodes.  Are they fair?  Are they slanted?  Given the concerns for a trial by media in any death penalty case, do these kinds of shows have the propensity to influence a jury?

This week, the DPIC unveiled its new website, providing easier access to its resources on the death penalty and the state of capital punishment in this country.

The site also expands not only the amount of information provided by the non-profit organization, but how that data is presented.  From the DPIC release:

Among the most notable additions of the new website are 20 interactive Tableau graphics, including States With and Without the Death Penalty, Prisoners on Death Row, and a number of graphics on executions, exonerations, and grants of clemency. The graphics will allow users to filter information in a variety of new ways, including narrowing by year or range of years, geography, race, sex, and, for some graphics, race of victim. The website launch is the first reconceptualization of the DPIC website.

DPIC Tracking Hurst Relief Requests Before the Florida Supreme Court

Of note from a Florida capital case perspective is its page dedicated to Hurst v. Florida, providing not only background information on Hurst but keeping track of subsequent Florida Supreme Court decisions applying Hurst.

Last updated in April 2019, the DPIC is maintaining an online chart of all Florida Supreme Court decisions involving Hurst (see the chart here).  According to their figures, there were 297 cases before the Florida Supreme Court seeking relief based upon Hurst, with 139 prisoners being granted relief (approximately 47%) with 158 prisoners seeing their requests for relief denied by the state’s High Court (approximately 53%).

Terence Lenamon is involved in seeking Hurst relief this summer, advocating for inmate Michael Jackson.  For details, read our earlier post.

Also see:

This week’s death penalty trial of Markeith Loyd will include the following motion by Terence Lenamon to prevent the prosecution from introducing evidence in other alleged crimes involving Markeith Loyd. Read the full text of the filings here, as presented to the judge:


Defense Amended Motion to S… by on Scribd



State of Florida’s 2017… by on Scribd


About ten days ago, Terence Lenamon’s motion to have former Florida state attorney Aramis Ayala testify for the defense in the death penalty trial of Markeith Loyd was denied by Judge Leticia Marques.  For details on Ayala’s stance on the death penalty and how that played in the Loyd proceedings, read our earlier discussion (which includes the full text of the defense motion seeking her mitigating testimony).  From that motion:

Ayala’s testimony is significant in that as the sitting and elected State Attorney, she determined that despite the interpretation that these crimes were “brutal”, the brutality was nevertheless outweighed by mitigating factors that guided her to a decision not to seek death. 

This week, Aramis Ayala, the first African American to serve as a State Attorney for the State of Florida,  announced in a video published on her official Facebook page that she will not run for a second term as state attorney for Orange and Osceola counties.

You can watch her announcement here.

Ayala’s stance on the death penalty has only become clearer since the day that Governor Rick Scott removed all the capital cases from her docket.  She is now considered by the news media as “…a national figure soon after her death penalty decision and has traveled overseas to speak about why the death penalty should be abolished.”  Orlando Political Observer, May 30, 2019.


Today, Terence Lenamon argued his motion that  Florida State Attorney Aramis Ayala be allowed to testify as part of the defense for Markeith Loyd.  Back in 2017, Ms. Ayala declined to seek the death penalty as prosecutor in the Loyd case; as a result, Governor Rick Scott replaced her at the state’s trial table.  (Watch an excerpt of the hearing here.)

Trial Court Judge Leticia Marques denied the motion.

The Loyd case is set for trial in September.

Read the Motion Presented in Loyd Defense, Asking for Ayala’s Testimony

The motion, as filed of record, is shown below for those interested in the arguments that were made today.


Terence Lenamon will once again be teaching at the In Defense of the Damned Seminar presented by Gerry Spence’s Trial Lawyers’ College.

The seminar will be held at the TLC Ranch outside of Dubois, Wyoming, near Yellowstone National Park over June 21-29.   If you are interested in the possibility of attending this seminar, act fast.  There is already a wait list.

Details about the Seminar from the TLC website:


This TLC seminar on the Thunderhead Ranch in Dubois, WY will equip you with the critical skills you need for all phases of your most difficult trials, where everything is on the line for LIFE, DEATH AND FREEDOM. This course will help you access your individual unique selves in order to discover the story of your clients’ cases, develop honest defenses and perfect your performance during the most critical trial skills including voir dire, opening statement, direct, cross-examination and final argument. And you will learn how to apply the TLC methods of mitigation in the penalty phases of your cases. Supported by an experienced team of criminal defense lawyers, behavioral experts and communications specialists [at least a 6:1 student-faculty ratio], you will learn innovative TLC methods by doing, not suffering through endless lectures. You will learn how to win the hearts and minds of your jurors, even against overwhelming odds. Hands-on, small group work on cases will make your newly-learned methods readily accessible in the courtroom. Join us, and learn how to win justice for your client. Because of high demand for this course, attendees will be chosen based on caseload and other factors determined by faculty. Early registration does not guarantee a seat in this course.

As reported in the Tallahassee Democrat in its article “Funding for court-appointed counsel dries up; JAC can’t pay bills,” written by Jeffrey Schweers and published on April 11, 2019, Florida’s Justice Administrative Commission has run out of money.

Accordingly, Terence Lenamon has filed a motion to continue the current death penalty trial of Markeith Loyd, with all proceedings being placed on hold for around two months, giving JAC time to get back on track.

Hopefully, the motion will be heard on Wednesday, April 17, 2019. To read the complete Motion with its details regarding the impact of JAC funding on indigent defense in a capital case, click on the image below:


Across the world, death sentences and executions are happening for all sorts of reasons, and in many countries the legal protections advanced by Terence Lenamon and other criminal defense lawyers like him are not provided to the accused or to the convicted.

2018: More Executions in the United States

This month, Amnesty International released its latest findings into executions by the government worldwide.  Among them:

  1. Amnesty International recorded at least 690 executions in 20 countries in 2018;
  2. There were 31% less executions in 2018 than in 2017 (at least 993);
  3. In 2018, there were fewer executions reported than Amnesty International has recorded in the past 10 years;
  4. The number of executions (25) and death sentences (45) reported in the United States rose in 2018 (albeit “slightly” as compared to 2017);
  5. Texas nearly doubled its figure compared to 2017 (from 7 to 13);
  6. Nebraska carried out its first execution since 1997;
  7. South Dakota carried out its first execution since 2012; and
  8. Tennessee carried out its first execution since 2009.

Full Report: Death Sentences and Executions 2018 by Amnesty International

For more on the Death Penalty in 2018, read the full text of the new report from Amnesty International: