Florida prosecutor Aramis Ayala took a stand against the death penalty which resulted in Florida Governor Scott removing two dozen cases from her docket. For details, read the media coverage published by the Miami Herald on June 28, 2017, written by Steve Bousquet: “Orlando prosecutor defends stance against death penalty.”

One of the cases in which Ayala served as prosecutor was the homicide case of State of Florida vs. Markeith Loyd.

Lenamon Files Notice: Will Call State Prosecutor Ayala as Defense Mitigation Witness in any Penalty Phase

Now, as part of the defense of Markeith Loyd, Terry Lenamon has filed a motion with the court that announces the intent of the defense to call State Attorney Ayala as a defense witness in the penalty phase so she may testify in the event that Markeith Loyd is convicted of a capital offense. 

State Attorney Ayala, as the elected prosecutor for the Ninth Judicial District, represented the state’s interests from the seeking of the initial grand jury indictments against Markeith Loyd to her determination that the death penalty would not be sought in this case.  (See Motion, page 4).

For details, read:

Full Text of Lenamon’s Motion to Call State Attorney Ayala in Loyd Case

A true and correct copy of the Motion to Call Ayala has been provided as part of the Terence Lenamon Online Library. 

Lenamon Motion Arguing Discrimination Based Upon Race in Florida Death Penalty / Homicide Cases

Another motion of importance was also filed yesterday by Terry Lenamon.  This one, an argument regarding constitutional violations across the State of Florida in death penalty cases based upon racial discrimination.

A true and correct copy of the Motion to Preclude is also available in the Terence Lenamon Online Library.

 

Death Row: The Final Minutes by Michelle Lyons  is a book that you may want to read, no matter your position on the death penalty.  It’s a well-written memoir (consistent 4.5 and 5 star reviews, if that’s important to you).

Lyons Witnessed Hundreds of Executions

Michelle Lyons was an eyewitness to almost 300 executions by lethal injection by the State of Texas.  Part of the time, she did so as a reporter.  For the rest of the deaths, she was there as the media representative (spokesperson) for the Texas Department of Criminal Justice.

She watched the inmates die, time and time again.  She also grew to know many of these men and women, as well as the staff who had the horrific responsibility of carrying out the execution.  (As did her friend and predecessor Larry Fitzgerald, who figures prominently in the book).

For those interested in capital punishment, reading what Michelle Lyons has to tell us about her knowledge and perspective regarding the death penalty, the lethal injection method of execution, and how it impacts so many people is important.  

 

Book Description From Amazon

First as a reporter and then as a spokesperson for the Texas Department of Criminal Justice, Michelle was a frequent visitor to Huntsville’s Walls Unit, where she recorded and relayed the final moments of death row inmates’ lives before they were put to death by the state.
Michelle was in the death chamber as some of the United States’ most notorious criminals, including serial killers, child murderers and rapists, spoke their last words on earth, while a cocktail of lethal drugs surged through their veins.
Michelle supported the death penalty, before misgivings began to set in as the executions mounted. During her time in the prison system, and together with her dear friend and colleague, Larry Fitzgerald, she came to know and like some of the condemned men and women she saw die. She began to query the arbitrary nature of the death penalty and ask the question: do executions make victims of all of us?
An incredibly powerful and unique look at the complex story of capital punishment, as told by those whose lives have been shaped by it, Death Row: The Final Minutes is an important take on crime and punishment at a fascinating point in America’s political history.

 

This week, Amnesty International released its findings regarding capital punishment in the State of Florida.

From their press release:

“While several US states have embraced abolition in recent years, Florida remains a diehard proponent of the death penalty and one of a handful of states that account for the bulk of executions in the USA,” said Erika Guevara-Rosas, Americas Director at Amnesty International.

“Despite its capital sentencing law being found unconstitutional two years ago, Florida still has the second largest death row in the country. Its response to that ruling has been to dig in and defend the indefensible, including the execution of people with mental and intellectual disabilities.”

Amnesty International goes on to explain:

Florida shows few signs of joining the USA’s 19 states that have already abolished the death penalty or the others that are rethinking it. It is ranked fourth in the number of executions carried out in the USA since 1976, when the US Supreme Court approved new capital laws.

Darkness visible in the Sunshine State: The death penalty in Florida examines how many death row inmates have been denied the chance of a review of their death sentences by the state’s response to the Hurst v. Florida ruling in 2016, in which the US Supreme Court overturned the state’s capital sentencing statute because it gave juries only an advisory role in death sentencing.

Click on the image below to read the full 74 page Death Penalty in Florida report in its entirety:

 

Last week, the Pew Research Center released research findings in an article written by John Gramlich, entitled “11 states that have the death penalty haven’t used it in more than a decade.”  It’s an interesting read, considering that two states recently geared up their Execution Calendars again:

Until this month, Nebraska had not executed a Death Row Inmate in 21 years.  Tennessee’s August 2018 execution was its first in almost nine years.

Execution Schedule Versus Death Row Sentence

Once someone is sentenced to death, he resides on Death Row in the jurisdiction of his conviction.  Whether or not the death sentence is carried out is a different matter from being sentenced to die.

For instance, the federal government also allows for capital punishment, but no one has been executed under federal law since 2003.  California’s Death Row is notorious for holding a growing population, while no one has been executed in California since 2006.

Consider this Pew Research Center graphic:  those in the darker brown are jurisdictions with Death Rows but no executions carried out for 15 years or more:

 

Most states have the death penalty, but significantly fewer use it regularly

There are several reasons for these growing Death Row populations; we’ve delved into California before, for instance.

However, there appears to be a growing return to active execution schedules in the United States, in what Justice Sotomayor deems a “rush to execute.”  These two August 2018 deaths involved very controversial lethal injection protocols, and there is a concern that using drugs like fentanyl or midazolam is cruel and unusual punishment.

Untested Drugs in Execution Procedures: The “Rush to Execute”

While Tennessee was allowed to proceed, it was not without warning.  Ponder Justice Sotomayor’s dissent in SCOTUS’s denial of a stay of execution for Billy Ray Irick (emphasis added):

As to the prediction that this Court would deem up to 18 minutes of needless torture anything less than cruel, unusual, and unconstitutional, I fervently hope the state courts were mistaken. At a minimum, their conclusion that the Constitution tolerates what the State plans to do to Irick is not compelled by Glossip, which did not categorically determine whether a lethal injection protocol using midazolam is a constitutional method of execution. See Arthur, 580 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 12). Glossip’s majority concluded only that, based on the evidence presented in that case, there was no clear error in the District Court’s factual finding that midazolam was highly likely to prevent a person from feeling pain. Ibid. (citing Glossip, 576 U. S., at ___ (slip op., at 16)).

As noted, the trial court here came to a different factual conclusion based on a different factual record, as have others. See McGehee, 581 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 2) (noting a district court’s “well-supported finding that midazolam creates a substantial risk of severe pain”); Otte v. Morgan, 582 U. S. ___ (2017) (SOTOMAYOR, J., dissenting from denial of application for a stay and denial of certiorari) (similar).

If it turns out upon more sober appellate review that this case presents the question, I would grant certiorari to decide the important question whether the Constitution truly tolerates executions carried out by such quite possibly torturous means. 

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1.

If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

Pope Francis has officially changed the Catechism of the Catholic Church this month to condemn capital punishment as “inadmissible” and that the Church will work for “its abolition worldwide.”

The Pope has announced a major change in the position of the Catholic Church to the death penalty.  The Catholic Catechism has been formally amended.  From the August 2, 2018 Vatican Press Release, here is the translation provided from Rome:

Traduzione in lingua inglese

The death penalty

2267. Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”,[1] and she works with determination for its abolition worldwide.

What is the Catechism?

From USCatholic.org, the Catechism of the Catholic Church is explained as a reference for all Catholic doctrine published by Pope John Paul II in 1992 as part of the 30th anniversary of the opening of the Second Vatican Council.  Historically, the compilation goes back to 1566 when the first Roman Catechism was published as a result of the Council of Trent.  For details, visit the site as it discusses the history of the Catechism, including various national catechisms (for example, the 2006 United States Catholic Catechism for Adults (USCCA)).

Read the complete text of the Catechism of the Catholic Church, translated into English, at the Vatican’s site. 

This Corresponds to Pope Francis’ Previous Statements Regarding the Death Penalty

The amendment is not a huge surprise.  Pope Francis has been vocal about his position on the death penalty before.  As an example, Sister Helen Prejean shares Pope Francis’ statements before the International Association of Criminal Law, here is the [translated] excerpt dealing with the death penalty:

I. In regard to the primacy of life and the dignity of the human person. Primatus principii pro homine

a) In regard to the Death Penalty

It is impossible to think that today States do not have at their disposal means other than capital punishment to defend the life of other persons from unjust aggression.

Saint John Paul II condemned the death penalty (cf. Encyclical Letter Evangelium Vitae, 56), as does also the Catechism of the Catholic Church (N. 2267).

However, it can be verified that States take life not only with the death penalty and with wars, but also when public officials take refuge in the shadow of State powers to justify their crimes. The so-called extra-judicial or extra-legal executions are deliberate homicides committed by some States and their agents, often making it appear as clashes with delinquents or presented as the undesired consequence of a reasonable, necessary and proportional use of force to have the law applied. In this way, even if among the 60 countries that keep the death penalty, 35 have not applied it in the last [ten] years, the death penalty is applied, illegally and in different degrees, across the whole planet.

The same extra-judicial executions are perpetrated in a systematic way not only by States of the International Community, but also by entities not recognized as such, and they represent genuine crimes.

The arguments opposed to the death penalty are many and well known. The Church stressed some of them opportunely, such as the possibility of the existence of judicial error and the use that totalitarian and dictatorial regimes make of it, which use it as an instrument of suppression of political dissidence or of persecution of religious and cultural minorities, all victims that, for their respective legislations, are “delinquents.”

Therefore, all Christians and men of good will are called today to fight not only for the abolition of the death penalty, whether legal or illegal, and in all its forms, but also in order to improve the prison conditions, in respect of the human dignity of the persons deprived of freedom. And I link this with a life sentence. In the Vatican, since a short time ago, there is no longer a life sentence in the Penal Code. A life sentence is a hidden death sentence.

Catholic Theologians Discuss What This Means to Capital Punishment

From the Catholic News Agency comes an excellent piece written by Ed Condon and entitled “Pope Francis and the death penalty: a change in doctrine or circumstances?”  In the article, Condon delves into the confusion some may have regarding whether or not this announcement is “the development of doctrine”or if it is an outright change in position on the issue of the death penalty.  Several respected theologians debate the issue.

Meanwhile, in the Catholic World Report comes an article by entitled “Why the Church Cannot Reverse Past Teaching on Capital Punishment.”  It delves into the power of Pope Francis “… to change the Catechism of the Catholic Church so that it will “absolutely” forbid capital punishment [because] … Does Catholic doctrine permit a pope to make such a change? It very clearly does not,” pointing to teachings of both the First Vatican Council and the Second Vatican Council.

Finally, there is an op-ed by Jesuit Fr. Thomas Reese, columnist for Religion News Service and author of Inside the Vatican: The Politics and Organization of the Catholic Church, published on August 7, 2018 by the National Catholic Reporter and entitled “Pope Francis pushes Catholics to actively oppose the death penalty.

Reese looks at the practicalities facing Bishops in the United States now that the Catechism has been officially amended, given that statistics show that the majority of Americans are in favor of the death penalty (emphasis added):

The U.S. bishops will now add opposition to the death penalty to their other lobbying issues. This list already includes controversial positions such as their support for comprehensive immigration reform, universal health care and programs to help the poor and their opposition to the Muslim ban, abortion and gay marriage.

Just as some Catholic politicians have parted from the bishops on these issues, there will certainly be some who oppose the bishops’ call for eliminating the death penalty. One of the things I like about the bishops is that they make both political parties uncomfortable.

As long as the discussion of the death penalty is conducted in the abstract, it can remain rather academic. But once it becomes focused on an individual criminal, passions will flare up. If the criminal is a serial killer, a rapist-murderer or someone who has shot schoolchildren, the bishops’ call for clemency will meet fierce opposition.

In the past, some bishops have opposed the execution of specific criminals in their states and called on governors to commute their sentences to life imprisonment. Now we can expect all the bishops to join in these efforts, and we can also expect vocal opposition. This is a fight the bishops will not win unless their people join them.

 

Will This End Prosecutors Seeking the Death Penalty?  No.

This news from Rome will not stop prosecutors across the United States, as well as the rest of the world, from seeking the death penalty.  For the position of the prosecutor on Pope Francis’ amendment to the Catholic Catechism, read “Prosecutor disagrees with Pope Francis’s death penalty ruling,” where Ohio’s Hamilton County Prosecutor Joe Deters explains the prosecutorial stance.

As for what it will mean for individual jurors, and jury selection, that is a different and difficult issue.  Will prosecutors try and find ways to keep Catholics off their juries?  What do you think?

 

The State of Tennessee has the execution of Tennessee Death Row inmate Billy Ray Irick scheduled for August 9, 2018.  Irick’s defense lawyers are working very hard to stop this from happening.

This case is yet another example of the importance of zealous, aggressive, and experienced Death Penalty Defense attorneys during the investigation and initial trial of someone for whom the state is seeking capital punishment.  When the defendant suffers from mental illness, there must be an extensive effort made to delve into his childhood (from his earliest days forward), as well as gathering expert analysis of his mental state at the time of the alleged capital crime.

Terry Lenamon is not involved in this Tennessee case.  For more regarding the issues including investigation and presentation of mitigating factors involving psychological issues in:

Battleground No. 1: Method of Execution

Irick’s lawyers are arguing against the method of execution on one battleground.  This week, they filed arguments against the lethal injection method of execution that Tennessee is planning on using in Irick’s execution.  For details, read “Attorneys Seek Stay of Execution for Billy Ray Irick,” written by Steven Hale and published on July 30, 2018, in the Nashville Scene.

Read the full 110 page Motion to Vacate Execution Date filed with the Tennessee Supreme Court here.

Battleground No. 2:  Mental Illness and Assistance of Counsel

There is no controversy regarding whether or not Billy Ray Irick raped and murdered 7 year old Paula Dyer in 1986, a crime for which he was convicted and sentenced to death.  He confessed shortly after he was arrested.

The issue today is the longstanding mental illness suffered by Billy Ray Irick, and the questionable actions of his lawyers during both the guilt and sentencing phases of his criminal trial.  For instance, no defense witnesses were called during the trial phase.  None.

From the Appellant’s Brief filed in 2010 on behalf if Billy Ray Irick we know that while some factual evidence was presented during the trial of Billy Ray Irick’s mental state, it was not entered during the trial phase but during sentencing.  This consisted of testimony provided by or through Nina BraswellLunn, a clinical social worker at the Knoxville Mental Health Center.  It covered the limited time period between Irick being six and eight years old.  That is it.

It was not until after Billy Ray Irick was sentenced to die and the appellate process began that evidence of Irick’s hallucinations and recurring psychosis was discovered.  Indeed, at the time of the crime itself, witnesses provided sworn testimony that Irick was “hearing voices” and obviously mentally ill.

None of this was presented to the jury given the responsibility of deciding between life and death in sentencing.

Accordingly, based upon the evidence of his continuing and severe mental illness, including his mental state on the day of the crime, his defense team continues their fight to stop the execution of Billy Ray Irick.

From their 2010 brief, page 56-57:

Though great deal of time has elapsed since Irick’s original trial and even since the discovery of the Jeffers information, as explained above, Irick and his attorneys were in no position to file petition for writ of error coram nobis for the reasons stated above. Therefore, due process requires that the facts presented herein be considered on their merits. When his case is considered on the merits in light of the newly discovered evidence and the opinions of mental health experts, Irick is confident that the only just sentence is one other than death. Therefore, Irick respectfully requests that this court reverse the trial court and enter such order as will relieve him of the sentence of death.

Note:  For an excellent analysis of the current Tennessee situation, read “TENNESSEE PLANS TO RESTART EXECUTIONS BY KILLING A MAN WITH MENTAL ILLNESS,” written by Liliana Segura and published by The Intercept on July 15, 2018.

Defense Succeeds in Avoiding Death Penalty; What is Life Sentence in Florida Capital Case?

Terence Lenamon was victorious this week, as a Florida jury refused to sentence Frantzy Jean-Marie to death for the murders of Armstrong Rivere and his girlfriend Stephanie Adams back in March 2013.  For details, read the article written by Charles Rabin and published on July 25, 2018, by the Miami Herald, entitled “Jurors spare life of gang member. He didn’t pull trigger, but will spend life in prison.”

Of note, the description Rabin gives of Terry’s “fiery defense” during the prosecution’s closing arguments, where he “continually lashed out” at statements made by ASA Joshua Weintraub during closing argument.

Terrorist Boyz Trial Ends With Life Sentence

Jean-Marie was found guilty during the first phase of his capital trial that ended last month.  That part of the trial took around four months to complete.  At its conclusion, Jean-Marie was convicted of two counts of first-degree murder; four counts of attempted murder; and the crimes of conspiracy and racketeering.  He was not found guilty by the jury of two murder allegations involving a Terrorist Boyz shooting at a Jumbo’s Restaurant in October 2002.

This week’s decision by the jury concludes the second phase of the capital trial, where the jury decides on sentencing.  As we’ve discussed earlier, Florida law has changed.  Now, the jury must unanimously agree on capital punishment before the death penalty can be sentenced by the judge.  See, Florida Has New Death Penalty Law in March 2017.

What is a Life Sentence in Florida Capital Case?

Now that the jury has made its decision, what does this mean insofar as punishment?  The victory here is that the state’s request for death was not granted.  There will be no death penalty in this case.

However, as Terry explains in the Miami Herald piece, Frantzy Jean-Marie will never be free from incarceration.  He will serve a life sentence, which means spending the rest of his days behind bars in a Florida correctional facility.

As explained by the Florida Department of Corrections, “Persons receiving a life sentence for crimes committed on or after October 1, 1995, will serve a life sentence.” More specifically, from their site:

Parole in Florida was eliminated for non-capital felonies committed on or after July 1, 1984. Capital felonies resulting in a life sentence (instead of the death penalty) remained eligible for parole after serving a mandatory 25-year term. Legislative action taken May 24, 1994, and October 1, 1995, effectively eliminated parole for all capital offenses as well…. 

For more discussion on Life Sentences, read the Marshall Project’s July 2015 piece entitled “Life Without Parole.”

Last month, the American Bar Association released a new report as part of its Death Penalty Due Process Review Project.  The research study is entitled “Potential Cost-Savings of a Severe Mental Illness Exclusion from the Death Penalty: An Analysis of Tennessee Data,” and is available for free online.

ABA Stand Against Death Penalty for Mentally Ill Defendants Goes Back to 2006

The ABA has taken the position for many years that there should be a nationwide exemption from capital punishment for any defendant who suffers from serious mental illness at the time he or she allegedly committed the capital crime.  See, AM. BAR ASS’N RECOMMENDATION 122-A (Aug. 2006).  From the 2006 ABA Recommendation:
Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision.

New 2018 Argument Appeals to Fiscal Concerns and State Tax Dollars

This new report supports that position with numbers, specifically a budget analysis for the State of Tennessee if that state  would implement this policy.  According to the ABA, the state would save between $14-19 Million each year if mentally ill defendants were exempted from a death penalty sentence.
In conclusion, our analysis shows that, if a severe mental illness exclusion were to be implemented in Tennessee, it would lead to a saving of $1.4 million to $1.9 million a year. According to our estimate, the state of Tennessee would have saved between $57 and $78 million dollars if this exclusion had been implemented in 1977, when the death penalty was reinstated in the state. While there are limits to this analysis, and an in-depth, scholarly study would need to be conducted to confirm and refine the above findings, our analysis shows that Tennessee could obtain significant cost savings if the bills created a severe mental illness exclusion from the death penalty were to pass and become law.

For more on the money argument regarding the death penalty, read our discussion back in 2010:  “Growing Trend for States to Stop Death Penalty as a Budget Cut – Let’s Watch California.”

The State of Nevada has scheduled the execution of Scott Dozier for July 11, 2018.  The execution method will be lethal injection.  It is the state’s first execution in 12 years.

On Tuesday, the Nevada Department of Corrections announced that the Dozier Execution will involve the use of the following three drugs:

There are many reasons to be concerned about this particular execution cocktail.  Among them:

  1.  Cisatracuriam was enough of a concern that Nevada’s Eighth Judicial District Court blocked Mr. Dozier’s execution last fall because of this drug.  (Read the Nevada Supreme Court’s overturning of that decision in its May 2018 Order, which allows the execution to proceed.)
  2.  Midazolam has been approved for use in executions by the Supreme Court of the United States (see Glossip v. Gross).  However, that does not mean it is not worrisome:  it took two hours for Joseph Wood to die during his execution by the State of Arizona.  (Read the eyewitness account by reporter Michael Kiefer here.) Arizona refuses to use midazolam in any future executions.
  3. Fentanyl has never been used in an execution.

For more, read “Nevada execution plan sedative blamed for troubles elsewhere,” written by Ken Ritter for the Associated Press and published in the Miami Herald on July 5, 2018.

Our past discussions regarding lethal injection drugs include:

This week, Terence Lenamon returns to teach at the annual “In Defense of the Damned” seminar presented by Gerry Spence’s Trial Lawyers College.  

Terry Lenamon Teaching This Week at Thunderhead Ranch

Those attending are promised “an opportunity to step back, take a break from your busy life, and reconnect with the land and yourself” at the Thunderhead Ranch.

For Longmire fans (either the TV show or the series of books by Craig Johnson), you might recognize its location as bordering the Absaroka mountains in Wyoming.

Thunderhead Ranch is also 100 miles east of Yellowstone National Park, with the East Fork River flowing through the ranch / campus.

Other facuity members include: KO Berger, Keeley Blanchard, Sean Brown, Maren Chaloupka, Eric Davis, Paco Duarte, Rafe Foreman, Milton Grimes, Don Malarcik, Marj Russell, David Smith, Colby Vokey, Zaki Zehawi, Rick Kammen, Gerry Spence

Sold Out: Information For Next Year’s Seminar

It’s sold out this year.

If you are an attorney interested in attending next year’s presentations, check out the Facebook page for details.

Note the following from the site“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.”