For those following the ongoing death penalty trial of Markeith Loyd in Florida, the following four court filings by Terence Lenamon, attorney for the defense, have been uploaded into Terry Lenamon’s Online Library as a public service:

 

Death Penalty Trial: Motion Regarding Metal Detectors; read the full text of the motion as filed of record here:

 

 

Other court filings by the defense for Markeith Loyd include:

Click on the above links to read these filings in their entirety.

States may overwhelmingly choose the lethal injection method of execution these days, but that doesn’t mean that the same procedure is followed or the same drugs are used. Consider and compare the drugs, and drug combinations, used in executions as compiled by the Death Penalty Information Center in its State by State Lethal Injection Protocols Table.  (Note the Florida protocol has been updated since this table was created.)

2019 Florida Execution Protocol: 3 Drugs in Lethal Injection Cocktail

As of February 2019, the State of Florida execution protocol involves the following (go here to read the full Lethal Injection Protocol submitted to the Governor of Florida by the Florida Department of Corrections) insofar as the preparation of the fatal drugs:

Four Syringes are Prepared with Three Drugs and Saline Solution

(f) A designated execution team member, in the presence of one or more additional team members and an independent observer from FDLE, will prepare the lethal injection chemicals as follows, ensuring that each syringe used in the lethal injection process is appropriately labeled, including the name of the chemical contained therein:

(1) Etomidate injection: A sterile, disposable sixty cubic centimeter (60cc) syringe and needle will be used to draw fifty milliliters (50mls) of etomidate injection 2mg/ml from one or more vials containing same, for a total of one hundred milligrams (100mg) of etomidate injection. The syringe will then be fitted with an eighteen (18) gauge, one (1) inch, blunt cannula (tube), clearly labeled with the number one (1), and placed in the first slot on a stand designed to hold eight (8) such syringes in separate slots. The stand will be clearly labeled with the letter “A.” This process will be repeated with a second syringe, which will be clearly labeled with a number two (2) and placed in the second slot on stand “A.”

Two additional syringes will be drawn in the same manner, fitted with the blunt cannula, and clearly labeled with the numbers one ( 1) and two (2), respectively. These two syringes will be placed in the first two slots on a second stand that has been clearly labeled with the letter “B.” All materials used to prepare these syringes will be removed from the work area and discarded pursuant to state and federal law.

(2) Rocuronium bromide injection: A sterile, disposable sixty cubic centimeter (60cc) syringe wi11 be used to draw five hundred milligrams (500mg) of rocuronium bromide injection from one or more vials containing same. The syringe will then be fitted with an eighteen (18) gauge, one (I) inch, blunt cannula (tube). This procedure will be repeated until there are four (4) syringes, each containing five hundred milligrams (500mg) of rocuronium bromide injection, for a total oftwo thousand milligrams (2000mg). Two syringes will be clearly labeled with the numbers four (4) and five (5), respectively, and placed into slots four (4) and five (5) on stand “A.” This procedure will be repeated with the other two syringes, each of which will be fitted with a blunt cannula, labeled appropriately and placed in slots four (4) and five (5), respectively, on stand “B.” All materials used to prepare these syringes wi11 be removed from the work area and discarded pursuant to state and federal law.

(3) Potassium acetate injection: A sterile, disposable sixty cubic centimeter (60cc) syringe will be used to draw one hundred twenty milliequivalents (120mEq) of potassium acetate injection from one or more vials containing same. The syringe will then be fitted with an eighteen (18) gauge, one (1) inch blunt cannula (tube). This procedure will be repeated until there are four (4) syringes, each containing one hundred twenty milliequivalents (120mEq) of potassium acetate injection, for a total of four hundred eighty ( 480) milliequivalents. Two syringes will be clearly labeled with the numbers seven (7) and eight (8), respectively, and placed into slots seven (7) and eight (8) on stand “A.” This procedure will be repeated with the other two syringes, each of which will be fitted with a blunt cannula, labeled appropriately, and placed in slots seven (7) and eight (8), respectively, on stand “B.” All materials used to prepare these syringes will be removed from the work area and discarded pursuant to state and federal law.

(4) Saline solution: A sterile, disposable twenty cubic centimeter (20cc) syringe will be used to draw twenty milliliters (20ml) of sterile saline solution from one or more vials containing same. This procedure will be repeated until there are four (4) syringes, each containing twenty milliliters (20ml) of sterile saline solution, for a total of eighty (80) milliliters. Each syringe will then be fitted with an
eighteen (18) gauge, one (1) inch, blunt cannula (tube). Two syringes will be clearly labeled with the numbers three (3) and six (6), respectively, and placed into slots three (3) and six (6) on stand “A.” This procedure will be repeated with the other two syringes, each of which will be p1aced in slots three (3) and six (6), respectively, on stand “B.” All materials used to prepare these syringes
will be removed from the work area and discarded pursuant to state and federal law.

Syringes Transported to Executioner’s Room

(g) The execution team member who has prepared the lethal chemicals will transport them personally, in the presence of one or more additional members of  the execution team, to the executioner’s room. Stand “A” will be placed on the worktop for use by the primary executioner, to be used during the execution by lethal injection. Stand “B” will be placed on a shelf underneath the worktop within easy reach of the executioners should they be needed during the execution. Stand “B” will not be used unless expressly ordered to be used by the team warden. The lethal chemicals will remain secure until the executioners arrive. No one other than the executioners will have access to the lethal chemicals, unless a stay is granted, in which case the execution team member who
prepared the lethal chemicals will retrieve them from the locked room and dispose of them according to state and federal law.

Terry Lenamon continues his death penalty defense in the capital case involving Markeith Loyd, a case that is being followed closely by the Florida news media.  Markeith Loyd stands accused of two homicides, one his ex-girlfriend (Sade Dixon) and the other, Orlando police officer Debra Clayton.   The State of Florida is seeking the death penalty in both cases.

It is a case that has been a media focus since December 2016 when there was a nine day “manhunt” by Central Florida law enforcement for Markeith Loyd.  See, “Timeline: How the hunt and capture of Markeith Loyd unfolded: Search began with pregnant woman’s murder,” written by Adrienne Cutway and published by WKMG Click Orlando.

Markeith Loyd Trial Dates

The trial regarding the Sade Dixon homicide is set to begin soon (in September 2019).  The Debra Clayton trial is set for May 2020.

The defense motion that the two trials be combined into a single trial has been denied.  For more, read “Lawyers for Markeith Loyd want to combine killings of Debra Clayton, Sade Dixon into 1 case,” written by Jeff Weiner and published by the Orlando Sentinel on August 5, 2019.

Judge Leticia Marques has set a pre-trial hearing for September 3, 2019, where attorneys for both sides must present a full witness list.

Markeith Loyd Competency Hearing

Terry Lenamon moved for Markeith Loyd to have a mental health evaluation because of concerns regarding his competency to stand trial.  This motion was denied by the trial judge.

For more, see “Judge denies request to combine Markeith Loyd murder trials: Accused killer recently completed mental evaluation” wirtten by Adrienne Cutway and Emilee Speck and published by WKMG ClickOrlando on  August 23, 2019.

Also see:

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: