There may be some who are offended a bit by John Oliver’s discourse in this video (it’s HBO, after all), but his discussion of the current lethal injection method of execution in this country is so important that hopefully, those folk will still watch through to the very end.

He’s right on point about this: injecting humans with these drugs in order to kill them is not the peaceful send-off that much of the general public assumes it to be.  Particularly important in view of the active execution schedule right now in this country (for details, check out the Upcoming Execution Schedule maintained by the Death Penalty Information Center).

Click on the image to watch on YouTube:

 

Terence Lenamon has filed the following three motions in the Markeith Loyd death penalty trial.  No hearing date as yet. For more information, see “Markeith Loyd seeks to combine murder trials, delay trial start to April,” written by Emelee Speck and published by ClickOrlando on August 2, 2019:

 

 

 

 

Surely prosecutors who seek the death penalty as part of their job must be proponents of capital punishment, right?  Well, maybe not.  Out of Arizona comes a memoir from an experienced prosecutor named Rick Unklesbay.

For over 35 years,  Mr. Unklesbay has sat at the state’s table in the courtroom, prosecuting serious felonies and homicide cases.  He has successfully sent 16 defendants to Arizona’s Death Row.  Today, he is in charge of a state task force investigating possible wrongful convictions.

And Rick Unklesbay argues against capital punishment and the government seeking the death penalty.

His book, Arbitrary Death: A Prosecutor’s Perspective on the Death Penalty, was published in May 2019 by Wheatmark, Inc., and is available in both paperback and e-book at Amazon.com.

For more on this new book, read the interview and coverage provided by KVOA-TV in “Prosecutor writes book on death penalty,” written by Lupita Morrillo and published on June 25, 2019.

Prosecutor’s Arguments Against the Death Penalty

From the publisher:  “Arbitrary Death: A Prosecutor’s Perspective on the Death Penalty is an insider’s view from someone who has spent decades prosecuting murder cases and who now argues that the death penalty doesn’t work and our system is fundamentally flawed.

“With a rational, balanced approach, Unklesbay depicts cases that represent how different parts of the criminal justice system are responsible for the arbitrary nature of the death penalty and work against the fair application of the law. The prosecution, trial courts, juries, and appellate courts all play a part in what ultimately is a roll of the dice as to whether a defendant lives or dies.

“Arbitrary Death is for anyone who wonders why and when its government seeks to legally take the life of one of its citizens. It will have you questioning whether you can support a system that applies death as an arbitrary punishment — and often decades after the sentence was given.”

There was a lot of hoopla when California Governor Gavin Newsom signed his executive order that stopped executions in the Golden State.  For details, check out our earlier discussion, which includes a link to the full text of Governor Newsom’s order.

Thing is, as a recent article in the Sacramento Bee points out, things haven’t changed as the Governor expected — or as many argued would be the result of his Moratorium.   The Moratorium is not saving the state any money; it’s not impacting the budget as expected.  “Gavin Newsom’s death penalty moratorium isn’t saving California money. Here’s why,” by Sophia Bollag, published by the Sacramento Bee on July 22, 2019.

Wassup?  It’s those prosecutors.

Prosecutorial Power to Seek the Death Penalty

As we’ve discussed periodically here, the initial decision on whether or not to proceed in seeking capital punishment lies solely with the prosecutor’s office.  See:

The governor has the power to issue his executive order, but he does not have the ability to stop attorneys representing the State of California from seeking the death penalty in new trials.  And, of course, budget-wise there is still the burden of paying for indigent defense in capital appeals.

Do Prosecutors Have Equal Power to Decline Seeking Death?

Of course, things can go the other way, as well.  Consider how Florida state attorney Aramis Ayala declined to pursue the death penalty in the Markeith Loyd matter.  (For details, read “Motion to Have State Attorney Aramis Ayala Testify in Markeith Loyd Death Penalty Trial Regarding Mitigating Circumstances.”)

Just as prosecutors can file their Notice of Intent to Seek the Death Penalty in a pending prosecution, they can also decline to do so.  It is their call.

But do they have pressure placed upon them to go forward, asking for capital punishment, regardless of their discretionary power here?  One has to wonder, and to consider what Ms. Ayala might have to say on the subject.  Read, “Lenamon Defense Witness, State Attorney Aramis Ayala, Announces She Will Not Run Again for State Attorney.”

 

 

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 MOTION TO STRIKE

Defense Amended Motion to S… by on Scribd

 

STATE’S NOTICE OF INTENT TO USE THE EVIDENCE

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.