Capital punishment is available under federal law as well as various state statutes.  For more, read:

Recent news coverage of the federal death penalty has focused upon the Trump Administration’s desire to re-institute federal executions.  For details, read the Washington Post article by Mark Berman and Ann E. Marimow entitled, “Trump administration’s plans to resume federal executions debated at appeals court,” published on January 15, 2020.

SCOTUS and the Federal Death Penalty

This week SCOTUSBlog published a great overview of federal death penalty in SCOTUS precedent, written by Kalvis Golde.  Given that many cases involving the federal death penalty have not reached the High Court, it is interesting to consider the inevitable increase in capital appeals by federal Death Row inmates given the White House’s encouragement of federal prosecution in seeking the death penalty and its planned resumption of federal executions.

Read it here:  The federal death penalty at the Supreme Court, SCOTUSblog (Feb. 14, 2020, 1:00 PM).

 

In 2012, the Supreme Court of the United States published its opinion in Miller v. Alabama, 132 S. Ct. 2455, 567 U.S. 460, 183 L. Ed. 2d 407 (2012).  It is a landmark case dealing with juvenile offenders in the criminal justice system.

 

Miller: Rare Juvenile Offender Whose Crime Reflects Irreparable Corruption

Under Miller,   SCOTUS held a juvenile convicted of a homicide offense cannot be sentenced to life in prison without the possibility of parole (LWOP) without judicial consideration of his or her “special circumstances in light of the principles and purposes of juvenile sentencing.”  Montgomery v. Louisiana, 136 S. Ct. 718, 725, 577 U.S. 460, 193 L. Ed. 2d 599 (2016). 

To do so is a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishment.” From the Miller opinion:

But given all we have said …  about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S., at 573, 125 S.Ct. 1183; Graham, 560 U.S., at ___, 130 S.Ct., at 2026-2027.

“Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Miller, 132 S.Ct. at 2469.

The cornerstone of the Miller decision is clear:  no matter how horrific the crimes they have committed, children can change.  In the aftermath of this SCOTUS opinion, it is considered to be a “Miller violation” of constitutional implications if the juvenile offender is sentenced to life without the possibility of parole absent evaluation of the particular circumstances and the likelihood of “irreparable corruption.”

Lenamon Argues Miller Applies to Vampire Clan Leader Rod Ferrell

Terence Lenamon currently argues the application of the Miller case to Florida inmate Rod Ferrell, who was convicted of a 1996 homicide known to the public through the media coverage of the “Vampire Cult Killings.” The case has also been the subject of both movies, TV shows, and several books.

For more, read: Terence Lenamon Defends Rod Ferrell in Resentencing Hearing: the Vampire Clan Case.

Rod Ferrell is now 39 years old and serving a sentence of life without the possibility of parole.  He was convicted and sentenced as a juvenile to the death penalty back in 1998.  In 2005, SCOTUS held it is a violation of the Eighth Amendment to execute offenders under the age of 18 years, resulting in the change of his sentence.  Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

Now, Terry is appealing Mr. Ferrell’s life sentence in a Lake County courtroom, arguing that Rod Ferrell is not one of the “rarest” children who are irreparably corrupt and accordingly, his sentencing should be revisited.

From Terry’s briefing: “Mr. Ferrell has clearly demonstrated he is far from irreparably corrupt,” including demonstrating the ability to change by continuing his education and earning a wastewater-management license while behind bars.

For more about the resentencing hearing and background on the case, read: “Vampire killer Rod Ferrell should get a shot at parole, attorney argues,” written by Stephen Hudak and published by the Orlando Sentinel on February 4, 2020.

Yesterday, in an article entitled “Florida Death Penalty Experts Concerned About Court Ruling,” written by Tamara Lush and published by the Associated Press and shared in the New York Times, Terence Lenamon explained his take on the curveball ruling in Poole.

  • Terry points to his own docket as an example, where he has represented several clients who were granted re-sentencing hearings post-Hurst. (We’ve discussed a few of these cases here on the blog.)
  • He explains how everything is in flux for those who have been successful in seeking re-sentencing under what was considered dependable law as laid down in Hurst.

Read the full AP article, which includes opinions and thoughts from other nationally-known death penalty experts including Robert Dunham of the DPIC (Death Penalty Information Center) here.   

Bad, Bad News

As Terry told me yesterday, as well as when he was interviewed by the AP yesterday, Poole is “bad, bad news” from a death penalty defense perspective.  It remains to be seen how serious its full impact will be upon both present and future death penalty defense cases.

Procedurally, the ball is in the prosecutors’ court.  Across the State of Florida, each state attorney will have to draft and file a formal motion in any re-sentencing hearing that removed the death penalty based upon the Hurst precedent.

For details on the new Florida Supreme Court decision, read our discussion (which includes a link to the full opinion) in yesterday’s post.

For more on Hurst, see:

Yesterday, the Florida Supreme Court reversed its opinion in Hurst v. State ruling that Florida does not require a jury to be unanimous when someone is being sentenced to death.  You can read the per curiam opinion in the case of State of Florida v. Poole by clicking on the image shown below:

 

Reasons for Hurst Reversal: Florida Supreme Court Opinion

Why is the state supreme court reversing itself on requiring the jury to be unanimous before someone is sentenced to death? From the opinion:

“This Court clearly erred in Hurst v. State by requiring that the jury make any finding beyond the section 921.141(3)(a) eligibility finding of one or more statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or Eighth Amendment, nor the Florida Constitution mandates that the jury make the section 941.121(3)(b) selection finding or that the jury recommend a sentence of death.” Poole, p. 28.

“It is no small matter for one Court to conclude that a predecessor Court has clearly erred. The later Court must approach precedent presuming that the earlier Court faithfully and competently carried out its duty. A conclusion that the earlier Court erred must be based on a searching inquiry, conducted with minds open to the possibility of reasonable differences of opinion. “[T]here is room for honest disagreement, even as we endeavor to find the correct answer.” Gamble v. United States, 139 S. Ct. 1960, 1986 (2019) (Thomas, J., concurring).

“In this case we cannot escape the conclusion that, to the extent it went beyond what a correct interpretation of Hurst v. Florida required, our Court in Hurst v. State got it wrong. We say that based on our thorough review of Hurst v. Florida, of the Supreme Court’s Sixth and Eighth Amendment precedents, and of our own state’s laws, constitution, and judicial precedents. Without legal justification, this Court used Hurst v. Florida—a narrow and predictable ruling that should have had limited practical effect on the administration of the death penalty in our state as an occasion to disregard decades of settled Supreme Court and Florida precedent.

“Under these circumstances, it would be unreasonable for us not to recede from Hurst v. State’s erroneous holdings.”

Poole, pp. 35-36.

Poole Dissent by Justice LaBarga: Death is Different

In  a dissent worthy of reading in its entirety, Justice LaBarga writes (emphasis added):

“I strongly object to the characterization of this Court’s decision in Hurst v. State as one where this Court ‘wrongly took [discretion] from the political branches.’ Majority op. at 39. As the court of last resort in Florida’s third and co-equal branch of government—whose responsibility it is to interpret the law— that is what this Court did in Hurst v. State. The constitutionality of a provision of Florida’s death penalty law is uniquely this Court’s to interpret. Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. Florida’s former bare majority requirement permitted a jury, with little more than a preponderance of the jurors, to recommend that a person be put to death.

This Court correctly decided that in Florida, the state and federal constitutions require much more and, until today, for a “brief and shining moment,” it did just that.

“Sadly, this Court has retreated from the overwhelming majority of jurisdictions in the United States that require a unanimous jury recommendation of death. In so doing, this Court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida.”

Poole, pp.51-57.

Curveball Case:  What Happens Now?

Before Hurst v. State came down in 2016, Florida death sentences needed only a recommendation for capital punishment from a majority of the jury before the death penalty could be imposed by the judge at sentencing.  Afterwards, the Florida Legislature acted, and passed a law requiring unanimous juries in capital cases.

This opinion throws a curveball that raises all sorts of questions about what happens in its aftermath.  For instance:

  • One result of Poole is the chance that Tallahassee legislators may decide to change their post-Hurst statute that establishes unanimous juries for death penalty sentences in Florida.
  • Another repercussion from Poole is Mark Anthony Poole will now be sentenced to the death penalty.
  • And of course, the obvious result: once Poole is final (e.g., there’s the limited time period where a motion for reconsideration can be filed), there are all those post-Hurst resentencing hearings which may be in limbo or reversed, returning them to death row.

Finally, there is the very real likelihood that in the future, an innocent person will be sentenced to death in the State of Florida.  As Justice LaBarga notes in his dissent, Florida “… holds the shameful national title as the state with the most death row exonerations.” Without the protection of a jury voting unanimously for death, this risk can only increase.

This week, Terry continues to be in trial as defense counsel for Captain John Nettleton.  News coverage of the trial (expected to conclude this week) includes the following:

 

The Death Penalty Information Center (DPIC) has released its annual summary of how the death penalty fared in this country during the preceding year.  The full report is available online here.

Hallmarks from 2019 include the following:

  • New Hampshire became the 21st state to abolish capital punishment.
  • California put all executions on hold.
  • Indiana reached its ten-year mark since its last execution.
  • As of 2019, 32 U.S. states have now either abolished the death penalty or not carried out an execution in more than a decade.
  • Capital punishment was at “near historic lows” in 2019 with 22 executions and a current count of 33 new death sentences,
  • The federal government attempted to resume executions after a 16-year hiatus.
  • Seven states carried out executions:  Texas (9); Tennessee (3); Alabama (3); Georgia (3); Florida (2); South Dakota (1); and Missouri (1).
  • Eight states imposed more than one death sentence: Florida (6); Ohio (6); Texas (4); Alabama (3); California (3); North Carolina (3);Pennsylvania (2); and South Carolina (2).
  • Georgia imposed a death sentence for the first time in five years in the Tiffany Moss case, where as a defendant with brain damage she was allowed to represent herself, presenting no defense at either the guilt or penalty phases of her trial.
  • At least 19 of the 22 prisoners executed in 2019 suffered from one or more of the following impairments: (1) significant evidence of mental illness (9); (2) evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range (8); or (3) chronic serious childhood trauma, neglect, and/or abuse (13).  For more, read the DPIC Report section “Problematic Executions” by clicking on the image below.

 

Today, Terry Lenamon is setting in a courtroom in the Jacksonville federal courthouse as one of the defense attorneys representing John Nettleton, who was once the Gitmo Naval Base commander and now sets accused of 10 felony counts involving lying to investigators and obstruction of justice.  Captain Nettleton is retired from active military service.

Jury selection began today, is predicted to finish up today or tomorrow, with opening statements by both the AUSA and Nettleton’s defense team sometime tomorrow afternoon.

See, “Jury selection begins in trial of Jacksonville Navy captain accused of obstructing death investigation,” published by FirstCoastNews on January 6, 2020.

National Media Coverage for Former Guantanamo Bay Commander Nettleton

The Justice Department filed its case against Captain Nettleton last January, and the case has been followed closely in the national media due in no small part to the fact that Nettleton was the man in charge of things at the Guantanamo Bay military base in Cuba.  See, e.g., “Justice Dept. charges former Guantanamo chief with obstructing death probe,”  written by Devlin Barrett and pubished by the Washington Post on January 9, 2019.

Nettleton Indictment by DOJ

The federal prosecutors must proceed with care here because this case does not involve allegations of Nettleton having a part in the death of Christopher M. Tur.

Read the complete federal indictment here.

From the indictment, the government’s case focuses solely upon allegations that Captain Nettleton when questioned after a fight with Tur, allegedly concealed evidence and fabricated facts that the DOJ posits stymied law enforcement’s ability to determine what happened to cause Tur’s death.

Lenamon at the Defense Table But This Is Not a Murder Trial

Nettleton’s defense team voiced their concerns to the judge last month that there be no suggestion whatsoever in the trial that Captain Nettleton was involved in the death of Tur.  The case is limited only to allegations that the Commander obstructed the investigation into Tur’s death some way.

It is important to remember that Terry’s client does not stand accused of murder and is far from facing the death penalty.  Instead, this matter serves to demonstrate  Terence Lenamon’s recognized skill as a defense trial lawyer (for instance, he’s on the faculty of Gerry Spence’s Trial Lawyers College) and that his practice does extend past death penalty cases.

Of particular importance to death penalty defense attorneys are the capital punishment issues pending before the Supreme Court of the United States (SCOTUS).  As we enter the new year, the capital defense bar watches and waits for SCOTUS to decide on four different matters, arising out of Arizona, Kansas, Louisiana, and Virginia.

Questions Presented to SCOTUS

The core issues presented by these four cases are (hat tip to SCOTUSBlog for these summaries of the Questions Presented):

  • Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense. (Kahler)
  • Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question. (Mathena)
  • 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.  (McKinney)
  • Whether the correction of error under Eddings v. Oklahoma requires resentencing. (McKinney)
  • Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict. (Ramos).

SCOTUS Docket Details (Links to Briefing, Orders, etc.)

For more detail on these four cases, read both the party briefing as well as the amici contributions, found on each case’s SCOTUS online docket:

  1. Mathena v. Malvo, No. 18-217
  2. McKinney v. Arizona, No. 18-1109
  3. Kahler v. Kansas, No. 18-6135.
  4. Ramos v. Louisiana, No. 18-5924.

ABA Analysis of the Four Death Penalty Cases Pending Before SCOTUS

The American Bar Association has compiled its annual year in review for capital punishment in this country.  The ABA Death Penalty Representation Project’s 2019 Year in Review can be reviewed here, where topics include brief discussions of these four pending cases and their import, in “SCOTUS Fall 2019: Pending Cases.”

SCOTUS Blog: Additional Coverage

The public service SCOTUSBlog has even more discussion on these four matters, including expert analysis of each case provided by a variety of legal experts:

  1. Mathena v. Malvo, No. 18-217
  2. McKinney v. Arizona, No. 18-1109
  3. Kahler v. Kansas, No. 18-6135.
  4. Ramos v. Louisiana, No. 18-5924.