Clemency,” was inspired by the true story of Troy Davis’ Execution by the State of Georgia in 2011

This month, the U.S. Grand Jury Prize for Drama at the Sundance Film Festival was awarded to the film “Clemency,” directed by Chinonye Chukwu.

Critics and Viewers Rave About Clemency

Clemency is acclaimed at the Rotten Tomatoes movie review site with the rare “100%” score.  Everyone loves this movie.  Moreover, not only are there are an overwhelming number of rave reviews for both the movie itself but also for the performances of its lead actors, Alfre Woodard as prison warden Bernadine Williams, and Aldis Hodge as the condemned man.

Read Variety’s review here.

The Complexities Involved in Sentencing Someone to Death

From a death penalty defense perspective, the film helps to explain the complex realities of the government sentencing someone to die for their actions.  Unlike earlier capital punishment approaches, this one delves into the perspective of someone within the Death Row system itself: the warden who must oversee the executions.

A summary from Film Affinity describes Clemency this way:

Bernadine Williams (Alfre Woodard) is a prison warden who, over the years, has been drifting away from her husband while dutifully carrying out executions in a maximum security prison. When she strikes up a unique bond with death-row inmate Anthony Woods (Aldis Hodge), a layer of emotional skin is peeled back, forcing Bernadine to confront the complex—and often contradictory—relationship between good intentions, unrequited desires, and what it means to be sanctioned to kill.

 

Clemency’s Approach and Death Penalty Defense

This is an important film for those interested in the issues surrounding capital punishment in this country.  Not only is it a stunning success, but it shines a light on the psychological and all too human circumstances that must be considered and addressed by the defense in any death penalty trial’s penalty phase.  Terry Lenamon and Bernadine Williams would have a lot to discuss ….

Be on the lookout for this Must See Movie at your local theater.

For More Capital Punishment Must See Movie Recommendations:

Today, Florida Death Penalty defense strategies are dealing with the aftermath of Hurst v. Florida, where the impact of a jury in a capital punishment case was forever changed by the Supreme Court of the United States.

For details, read our past discussions:

In 2019, the procedural changes mandated by Hurst are not the only consideration that capital case defense lawyers like Terry Lenamon must consider.  There is also the impact of Pope Francis’ declaration upon capital case jury selection in Florida.

See:  Pope Francis Changes Catechism on Death Penalty: What Does This Mean to Capital Cases?

Risks Resulting from Catholic Opposition of Death Penalty

A recent article written by law professor Aliza Plener Cover delves into the impact of Pope Francis’s proclamation and how it might end up with a harder row to hoe for Death Penalty defense teams.

From her position as associate professor at the University of Idaho College of Law, Professor Cover asks excellent questions, including:

  • Can Catholic opposition to the death penalty actually increase the number of death sentences?
  • How does Catholic opposition to the death penalty intensify the risk of minority defendants being sentenced to death?

Read Death Penalty Essay by Professor Cover

Read an excerpt of her article as it appears in the Washington Post, “Could the pope’s call to end the death penalty keep Catholics off juries?

You can also read Professor Cover’s full essay, published in the Yale Law Journal Forum on December 3, 2018.  See: Cover, Aliza. “The Pope and the Capital Juror.” Yale Law Journal Forum (Forthcoming). 2018.

Point to Ponder:  Consider how jury selection in Florida may be impacted by the influences discussed by Professor Cover and how Florida Capital Case Defense Lawyers must include considerations of Catholics being excluded during jury selection.  How might this impact the jury panel who must decide on whether or not the defendant should be sentenced to death?

 

What is a Petition for Writ of Prohibition? Death Penalty Defense and Petitions for Writs

In Florida, several requests can be filed with the appellate court while a death penalty trial is ongoing.  Parties can seek appellate review and issuance of appellate exercises of power that include writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction as well as for review of nonfinal administrative action.  See, Article V, section 4(b)(3) of the Florida Constitution; Florida Rules of Appellate Procedure 9.100 (Original Proceedings).

Lenamon Files Petition for Writ of Prohibition During Loyd Trial

Terence Lenamon recently filed a petition with a Florida appeals court in the Markeith Loyd death penalty case.  The filing is requesting a writ of prohibition restraining the Honorable Frederick Lauten, Chief Judge of the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, from presiding as the judge in this matter.

Petition, page 6.

It is being sought following “the denial of a timely filed motion for disqualification where Mr. Loyd established that he is fearful that he will not receive a fair trial, or that he will suffer prejudice or bias from the court. This petition is premised on the Florida Rules of Judicial Administration, Florida Statutes, and the Florida Code of Judicial Conduct, all of which require that a judge disqualify himself once the defendant has established a reasonable fear that he will not obtain a fair hearing.”

Petition, page 6.

What is a Writ of Prohibition?

Writs are a integral component of our justice system; historically, they originated in the courts of Great Britain (for a history of the use of writs in England, India, etc. go here).

In sum, a writ is an official action taken by a higher court (like the Florida appellate court), ordering a lower court to do something – or to stop doing something.

In Mr. Lenamon’s request, he is seeking the appellate court’s review of the disqualification motion filed in the Markeith Loyd matter, where the defense requested the trial judge recuse himself, which was denied.

What are the details here?  Why ask that the judge not preside over the case?  There are several arguments, which are detailed along with their factual support in the Petition itself.

Full Text of Petition for Writ of Prohibition in Florida’s Markeith Loyd Death Penalty Case

To review a true and correct copy of the Petition for Writ of Prohibition filed by Terry Lenamon in the Markeith Loyd matter, click on the image below.  The court filing has been uploaded into the Terry Lenamon Online Library:

Note: On January 22, 2019, the Petition for Writ of Prohibition was denied by the District Court of Appeal of the State of Florida Fifth District.

How JAC impacts the Florida Death Penalty: Indigent Defense Legal Fees

For over 40 years, Florida’s Justice Administrative Commission (“JAC”) has provided administrative support to the state judicial branch.  Among its managerial tasks is overseeing the payment of court-appointed lawyers who represent defendants unable to afford counsel (indigent defendants).  In 2004, JAC was first given the job of reviewing and approving invoices of private attorneys who had been appointed by the courts to represent indigent defendants.

In 2013, JAC begin its registry for attorneys appointed by the courts in Capital Collateral cases as well as undertaking the task of both contracting with and paying private court-appointed lawyers in their representations in the capital collateral cases.  Florida Capital Collateral cases involve death penalty appeals.

JAC is made up of two State Attorneys and two Public Defenders.  These are appointees; the prosecutors are appointed by the President of the Florida Prosecuting Attorneys Association, and the defense attorneys are appointed by the President of the Florida Public Defender Association.

Death Penalty Defense Attorney Terry Lenamon hard at work in an airport hallway while waiting for his red-eye flight.

Terry Lenamon’s Case against Justice Administrative Commission

In 2009, Terry Lenamon sued JAC over interim compensation and costs in a death penalty defense case out of Lee County.  While his arguments were persuasive at the trial level, and recognized as both fair and reasonable by the appellate court, he was limited to the stated legal rate for death penalty defense in the State of Florida ($100/hour at the time).  Just. Admin. Comm’n v. Lenamon, 19 So.3d 1158 (Fla. 2d DCA 2009)( quoting Florida Statutes § 27.5304(12)(d)(2007)).

Notes the appellate court:

“Mr. Lenamon also argues that the $125 per hour rate was fair and reasonable in light of the exceptional circumstances present in this case. We do not doubt that the $125 per hour rate approved in the circuit court’s order is fair and reasonable. However, the question before us is whether payment at a rate exceeding $100 per hour is authorized by law, not whether it is fair and reasonable.”

JAC v Lenamon, 19 So.3 at 1165, footnote 9.

This case has served as precedent in future matters dealing with indigent defense representation and the need for prompt and proper payment of indigent defense fees and costs.

Point to Ponder: how indigent defense lawyers in Florida capital cases must meet the need for zealous representation of defendants fighting against the death penalty while coping with the financial realities of small hourly rates and staggered payments.

For more, read:

 

This month, the trial of Markeith Loyd continues in an Orlando courtroom with Terry Lenamon at the defense table. While prior Florida state attorney Ayala declined to proceed with the death penalty, it is back on the table.

For more on the Markeith Loyd case, see:

The Death Penalty Information Center has released its annual Year End analysis of the state of capital punishment in this country.  Go here to read the entire report, “The Death Penalty in 2018: Year End Report.”

 

Jurisdictions that imposed the death penalty during the year 2018. Graphic: DPIC

 

2018: Death Penalty in Florida

Of course, the State of Florida is included in this yearly recap on both death sentences and executions, as well as exonerations for those living on Florida’s Death Row.  What were the major events insofar as capital punishment in Florida during the past twelve months?

  1.  Seven Death Sentences

Last year, Florida tied with Texas as having the most death sentences imposed during 2018.  Both states saw seven (7) individuals sentenced to death.  Together with California and Ohio, these four states were responsible for over half of all death sentences last year (57%).

From the DPIC 2018 Report, page 4:

Fourteen states and the federal government imposed death sentences in 2018, but 57% of those sentences came from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). Even as the backlog of cases from two years of uncertainty about the constitutionality of Florida’s sentencing procedures increased the number of capital trials in the state, the new law barring judges from imposing the death penalty without a unanimous jury recommendation for death resulted in at least four life sentences that might previously have produced death verdicts.

2.  One Exoneration: Clemente Javier Aguirre

Florida saw one Florida Death Row Inmate freed during the year 2018.  Mr. Clemente Javier Aguire left prison in November, after being sentenced to death 12 years earlier.  Key appellate arguments  here included challenges to DNA evidence as well as credibility of one of the state’s key witness.

From the DPIC 2018 Report, page 7:

Clemente Javier Aguirre was exonerated from Florida’s death row on November 5, after jury selection for his retrial had already begun. He was the 28th death-row prisoner exonerated in Florida. Aguirre was convicted and sentenced to death in 2006 of the murder of two neighbors–an elderly woman and her adult daughter–in 2004. He steadfastly maintained his innocence, saying he had discovered the women after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. The prosecution’s chief witness against Aguirre was Samantha Williams, the mentally ill daughter and granddaughter of the victims. During the post-conviction process, Aguirre’s lawyers discovered that Williams had confessed to at least five different people that she had killed her relatives. None of the DNA found on the 84 items from the crime scene that were tested matched Aguirre. Most blood samples matched the two victims, and Samantha Williams’s DNA was found on eight bloodstains collected from four different rooms. As with more than 90% of Florida’s death-row exonerees, Aguirre had been sentenced to death by non-unanimous jury recommendations under Florida’s unconstitutional capital sentencing scheme.

3.  Execution of Eric Branch Despite Non-Unanimous Jury and SCOTUS Ruling in Hurst

The Supreme Court of the United States found the Florida statute that allowed for non-unanimous juries to impose death sentences was unconstitutional.  SCOTUS held that every single jury member must agree upon capital punishment before death is imposed.  However, the Florida Supreme Court later ruled that it would draw a line on the calendar insofar as when Hurst would apply to Florida’s Death Row inmates:  if the case was final before June 2002, when the SCOTUS decision in Ring v. Arizona came down, then Hurst would not be applied and the non-unanimous jury death sentence would stand.

The result?  Eric Branch was executed by the State of Florida in 2018, despite his jury voting 10-2 for the death penalty.

From the DPIC Report, page 12:

Two men, Eric Branch in Florida and Walter Moody in Alabama, were executed after non-unanimous juries recommended death sentences. Branch, who was only 21 at the time of his crime, received a 10-2 jury recommendation for death, an outcome that could not produce a death sentence today. In 2016, in Hurst v. Florida, the U.S. Supreme Court struck down the Florida sentencing scheme under which Branch was tried and condemned. Branch was one of 200 prisoners sentenced under Florida’s unconstitutional statute who still face execution as a result of a Florida Supreme Court ruling that it will enforce Hurst only in cases finalized after June 2002, when the U.S. Supreme Court decided a related case, Ring v. Arizona. In 2018, the U.S. Supreme Court declined to review 84 Florida cases in which defendants had been sentenced to death under the unconstitutional statute. Alabama law still allows non-unanimous jury recommendations for death, as long as at least 10 jurors agree, but Moody’s 11-1 jury recommendation would result in a life sentence in nearly every other death-penalty state.

For more on Hurst, see:

Markeith Loyd Trial: Judge Denies Recusal Request

This week, Orange-Osceola Chief Judge Frederick Lauten denied the defense motion seeking his recusal, filed by Terence Lenamon on December 5, 2018.  See, “Chief judge won’t recuse himself in Markeith Loyd case,” written by Gal Tziperman Lotan and published by the Orlando Sentinel on December 10, 2018.

 

Excerpt from the Motion: Fair Trial or Prejudice

The following excerpt explains some of the defense arguments regarding how it is feared that the defendant in this capital case will not get a fair trial or that he will be prejudiced in some way:

First. the   method   in  which    this  Court    stated   that   it  was  appointed   to  the   case   is contradicted  by the  order of appointment.  The  original  order of appointment  states the Court  was  appointed via  a method of judicial  rotation.  Conversely. the  Court  stated he directed  the  Administrative Judge  to  transfer  the case  to  him.  Both  of these  cannot be accurate. and  based  on  that  incongruity,  Defendant fears  that  he  will  not  receive a  fair trial.  or that  he will  suffer  prejudice or bias  from the  Court.

Second. the  Court  ignored  or downplayed   obvious deficits  in the  Defendant’s mental state  that  could   not  pass  muster in  a proper Faretra  hearing,  and  the  Court consequently failed to initially  appoint  standby counsel. This causes  the  Defendant to be fearful  that  he will not  receive a fair trial, or that  he will  suffer prejudice or bias  from the Court.

Third. the  Court  was  significantly  active   in  investigations  concerning  Defendant  both prior  to  his  appointment  and  during  his  initial  period  as the  assigned judge of the  instant cases.  He  signed in  excess of twelve warrants, some  of which  were apparently concealed from  the  Stale and defense  by the  police officers.  One  of the  warrants requested  that  the Court  not  disclose information  because of the  ongoing  nature   of the  investigation. Court’s   intimate   involvement   in   these   investigations.   combined   with   the   fact   that Defendant   only  very   recently   learned   about   such   involvement   in   any   detail.   causes Defendant to  fear  that  he  will  not  receive  a  fair  trial.  or that he  will  suffer  prejudice  or bias  from  the  Court.

Fourth.  the Court did not comply  with  Florida  Statutes  934.09(8)(e),  which  requires that the  issuing  Judge  “shall  cause  to  be  served  on  the  persons  named  in  the  order or the application.  and   such   other   parties  to  intercepted  communications  as  the  judge  ma. determine in  his or her discretion  to be in the  interest  of justice,  an inventory  which  shall  include  notice  of:

  1. The  fact or the entry of the order  or the application
  2. The  date  of the  entry and  the  period   of authorized,  approved. or disapproved  interception. or the denial  of the  application
  3. The  fact  that during the period wire, oral  or electronic communications were  or were  not  intercepted.”

Although the Defendant  was named  in at least one wiretap order.  he was not served  with the  notice  required  under  934.09(8)(c).  The  Court’s   failure  to  provide  the   requisite notice  tu  Defendant on an important issue causes  Defendant  to  be fearful  that he  will not receive  a fair trial. or that he will suffer prejudice or bias  from the Court.

Finally. the  cumulative   impact  of  the  Court’s  actions   (or  inactions)  discussed  herein causes  Defendant  to  be  fearful  that  he will  not  receive  a fair trial.  or that  he  will  suffer prejudice or bias  from the Court.

Click on the image to read the full text of the Motion, as filed of record, which has been placed into the Terence Lenamon Online Library:

 

Every so often, we recommend a good read – usually a single book or novel that deals with capital punishment in some way.

Today, we’re recommending a series of books by a single author: John Grisham.

John Grisham on the Death Penalty

For his personal take on the death penalty, check out Mr. Grisham’s op-ed piece last year in USA Today: “Stop the execution madness in Arkansas: John Grisham,” or watch his interview by Bill Moyers online here: John Grisham on Wrongful Death Penalty Convictions from BillMoyers.com on Vimeo.

Three John Grisham Books Dealing with the Death Penalty

His books dealing with the death penalty include:

1.  The Chamber

From his website comes the following description of The Chamber:

In the corridors of Chicago’s top law firm:Twenty -six-year-old Adam Hall stands on the brink of a brilliant legal career. Now he is risking it all for a death-row killer and an impossible case.Maximum Security Unit, Mississippi State Prison:Sam Cayhall is a former Klansman and unrepentant racist now facing the death penalty for a fatal bombing in 1967….

2.  The Confession

From his website comes the following description of The Confession:

An innocent man is about to be executed. Only a guilty man can save him. For every innocent man sent to prison, there is a guilty one left on the outside. He doesn’t understand how the police and prosecutors got the wrong man, and he certainly doesn’t care. He just can’t believe his good luck. Time passes and he realizes that the mistake….

 

 

 

3.  The Innocent Man: Murder and Injustice in a Small Town (non-fiction)

From his website comes the following description of The Innocent Man:

In the major league draft of 1971, the first player chosen from the State of Oklahoma was Ron Williamson. When he signed with the Oakland A’s, he said goodbye to his hometown of Ada and left to pursue his dreams of big league glory.

Six years later he was back, his dreams broken by a bad arm and bad habits—drinking, drugs, and women. He began to show signs of mental illness. Unable to keep a job, he moved in with his mother and slept twenty hours a day on her sofa.

In 1982, a 21-year-old cocktail waitress in Ada named Debra Sue Carter was raped and murdered, and for five years the police could not solve the crime. For reasons that were never clear, they suspected Ron Williamson and his friend Dennis Fritz. The two were finally arrested in 1987 and charged with capital murder.

With no physical evidence, the prosecution’s case was built on junk science and the testimony of jailhouse snitches and convicts. Dennis Fritz was found guilty and given a life sentence. Ron Williamson was sent to death row.

If you believe that in America you are innocent until proven guilty, this book will shock you. If you believe in the death penalty, this book will disturb you. If you believe the criminal justice system is fair, this book will infuriate you.