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.

 

 

Terence Lenamon is in trial today defending Markeith Loyd in what appears to be a day-long proceeding involving dozens of motions.  Watch it live at Wild About Trials (or view it in the archive).

In two of Terry Lenamon’s capital cases, he has filed motions for continuance of the trial dates because of funding issues.  The motions have been filed in the Loyd proceeding as well as in State of Florida v. Paul Hildwin. Full copies of these motions, together with the State’s Response and the Notice of Discovery in Hildwin, have been placed in Terry’s online library.

Impending Trial Dates in Both Death Penalty Cases

In both these matters, Terry and the criminal defense team face preparing for major death penalty trials in short order:

  • Loyd is set for trial on May 9, 2019.  That is 163 days from today (November 27, 2018).
  • Hildwin is set for trial on April 1, 2019.  That is 125 days from today (November 27, 2018).

 

 

Requests for Continuing Trials Because of Florida Justice Administrative Commission (JAC) Shortfall

However, there is an issue with funding for these indigent cases. 

From the Motions (pp 2- 4)(emphasis added):

In Arbelaez v. Butterworth, 738 So.2d 326 (Fla. 1999), Capital Collateral Regional Counsel (CCRC) for the northern and southern regions of Florida asked the Florida Supreme Court to “exercise its all writs jurisdiction to stay all applicable time limits, court proceedings, and executions until adequate funding was provided to CCRC or until July 1, 1998, the start of the next fiscal year.” Before the Court could decide the issue directly, the funding in question “significantly changed and increased” causing a substantial change in circumstances, thus depriving the Court of a case or controversy to rule on. Id. at 326-327. Nearly 20 years later, the State of Florida is once again facing a significant shortfall in funds that have been made available for representation of defendants in capital cases.

On October 2, 2018, Cris Martinez, General Counsel to the JAC, issued a memorandum (attached hereto) to the JAC Commissioners projecting an approximate $16.4 million shortfall for the fiscal year. Nearly $10 million of that shortfall is connected to Criminal Conflict case costs, which includes all due process providers (experts, investigators, etc.) and related expenses. The original appropriation for Criminal Conflict case costs for the fiscal year was set at $25,484,827.00. The estimated expenditure for the same period is $35,459,523.00. Based on these estimates, JAC will run out of money for due process providers by late February to mid-March 2019.

As of today, JAC is taking in excess of 4 weeks to process due process provider payments. At that rate, those due process provider bills filed beginning in late January 2019 will not be paid until the new fiscal year (which begins on July 1, 2019). Thus, there will be an approximate 5-month window where due process providers will not be receiving any payment for their services.

“An invoice submitted to an agency of the state or the judicial branch, required by law to be filed with the Chief Financial Officer, shall be recorded in the financial systems of the state, approved for payment by the agency or the judicial branch, and filed with the Chief Financial Officer not later than 20 days after receipt of the invoice and receipt, inspection, and approval of the goods or services, except that in the case of a bona fide dispute the invoice recorded in the financial systems of the state shall contain a statement of the dispute and authorize payment only in the amount not disputed.” Fla. Stat. § 215.422(1). This 20-day requirement may be waived by the Department of Financial Services (DFS) “on a showing of exceptional circumstances in accordance with rules and regulations of the department.” Ibid. The DFS must approve payment of the invoice within 10 days after the agency’s filing, but this requirement may also be waived by the DFS “on a showing of exceptional circumstances in accordance with rules and regulations of the department.” Fla. Stat. § 215.422(2). The failure to issue a warrant of payment for undisputed amounts “within 40 days after receipt of the invoice and receipt, inspection, and approval of the goods and services” results in the State of Florida incurring an interest penalty. Fla. Stat. § 215.422(3)(b).

“Prompt payment is the terminology used to describe the statutory requirement to pay obligations of the state within a period of 40 calendar days from the date the obligation is eligible to be paid.” Justice Administrative Commission, JAC Disbursements Accounting “Hot Topics,” May 16, 2017. Starting in February 2019, the State of Florida will not live up to its obligation to provide prompt payment to due process providers in Criminal Conflict capital cases. Once the JAC runs out of money, there will be no other legally available sources to make these payments until the new fiscal year.

Constitutional Rights of Defendants Must Control Over Financial Concerns of the State

Constitutional due process issues and the realities of state budget shortfalls have resulted in issues of payment for experts, mitigation specialists, investigators, and more.

From the Motions (pp 10 – 12)(emphasis added):

The Florida Supreme Court has also issued a number of rulings explaining the primacy of a defendant’s constitutional rights over the state’s financial concerns. “In order to safeguard [a criminal defendant’s] rights, it is our duty to firmly and unhesitatingly resolve any conflicts between the treasury and fundamental constitutional rights in favor of the latter.” Makemson v. Martin County, 491 So.2d 1109, 1113 (Fla. 1986) (holding that absolute fee maximums are “unconstitutional when applied to cases involving extraordinary circumstances and unusual representation.”); see also White v. Board of County Commissioners, 537 So.2d at 1379 (concluding that the statute setting a cap on attorney’s fees in a first-degree murder case “is unconstitutional when applied in such a manner that curtails the court’s inherent power to secure effective, experienced counsel for the representation of indigent defendants in capital cases”); Remeta v. State, 559 So.2d 1132, 1135 (Fla. 1990) (“courts have the authority to exceed statutory fee caps to compensate court-appointed counsel for the representation of indigent, death-sentenced prisoners in executive clemency proceedings when necessary to ensure effective representation”); Maas v. Olive, 992 So.2d 196, 202-203 (Fla. 2008) (“Overall, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates and economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court.”) (citations and quotations omitted).

Over the last three decades, the Florida Supreme Court has time and again emphasized that a defendant’s constitutional rights in criminal cases trump the State of Florida’s financial shortcomings. Nonetheless, these very shortcomings are on full display in the JAC’s warning that it will run out of money for Criminal Conflict cases by late-February 2019. …

“[S]ince the State of Florida enforces the death penalty, its primary obligation is to ensure that indigents are provided competent, effective counsel in capital cases.” White v. Board of County Commissioners, 537 So.2d at 1379. Yet, he anticipated lack of funding for due process providers will substantially undermine Defendant’s constitutional right to meaningful and effective representation in the instant cases.

In White, the Florida Supreme Court explained that “all capital cases by their very nature can be considered extraordinary and unusual” Id. at 1378. This is certainly true of Defendant’s two cases pending before this Court.   There are thousands and thousands of pages of discovery to review, hundreds of witnesses to depose and interview, and countless audio and video clips to view. In addition, defense counsel are being forced to deal with an extraordinary amount of negative pre-trial publicity. In particular, certain law enforcement officials have made numerous comments to the press that may harmfully influence potential jurors.

Counsel can only effectively represent Defendant here with ongoing assistance of due process providers. But this assistance is put at risk by the State of Florida’s failure to adequately provide sufficient funding for these providers. “[C]ompensation of counsel and the effectiveness of counsel are inextricably intertwined.” Florida Dept. of Financial Services v. Freeman, 921 So.2d 598, 600 (2006). “The relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may not be reasonably compensated for the legal services provided due to the statutory fee limit. As a result, there is a risk that the attorney may spend fewer hours than required representing the defendant or may prematurely accept a negotiated plea that is not in the best interests of the defendant. A spectre is then raised that the defendant received less than the adequate, effective representation to which he or she is entitled, the very injustice appointed counsel was intended to remedy.” White v. Board of County Commissioners, 537 So.2d at 1380.

The exact same thing can be said regarding compensation for due process providers. Without adequate and reasonably assured compensation for investigators, forensic and mental health experts, and mitigation specialists, there’s no way to ensure that these persons will continue to effectively provide their necessary services to defense counsel. Without a guarantee of ongoing assistance of due process providers, capital counsel cannot guarantee their ability to provide adequate representation to Defendant in the instant cases. This creates an untenable situation that significantly risks undermining Defendant’s Sixth Amendment right to counsel. This can only be remedied by continuing the trial in these cases until such a time as JAC will have sufficient funds for all due process providers in these cases. “A reliable system of justice depends on adequate funding at all levels. Obviously, this means adequate funding for competent counsel during trial … including access to thorough investigators and expert witnesses.” Allen v. Butterworth, 756 So.2d 52, 67 (Fla. 2000).

For your consideration, copies of these filings have been placed in the Terence Lenamon Online Library:

Filings in Florida v. Loyd

Filings in Florida v. Hildwin (hearing set for December 11, 2018)

 

This week, seven Florida capital cases were decided by the United States Supreme Court (SCOTUS) as the High Court issued its orders denying future consideration of requests made by Florida Death Row inmates.

All of these cases ask SCOTUS to review decisions made by the Florida Supreme Court as it applies the SCOTUS decision in Hurst v. Florida.

We’ve discussed Hurst before; in sum, SCOTUS found the Florida death penalty statute was unconstitutional because juries did not decide whether or not there were sufficient aggravating factors to impose death (under the law, the judge decided on capital punishment).  When Hurst came down, it meant that Florida Death Row inmates who were sentenced to death under an unconstitutional process were due new sentencing trials.  They began filing appeals, among them these seven whose writs were denied this Tuesday.

See:

Seven Florida Petitions Based Upon Hurst Denied by SCOTUS This Week

Specifically, the seven Florida capital cases are as follows (linked to their respective SCOTUS Docket pages):

Franklin v. Florida, 18-5228

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Grim v. Florida, 18-5518

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Guardado v. Florida, 17-9284

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Johnston v. Florida, 18-5793

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Philmore v. Florida, 17-9556

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Reynolds v. Florida, 18-5181

11-13-18 Order:  Petition DENIED. Statement of Justice Breyer respecting the denial of certiorari. (Detached). Justice Thomas, concurring in the denial of certiorari. (Detached Opinion). Justice Sotomayor, dissenting from denial of certiorari. (Detached Opinion).

Tanzi v. Florida, 18-5160

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Revelation of Three Justices’ Viewpoints on Death Penalty

Most of the Justices simply agreed with the order denying writ; however, three felt passionately enough about the issue to write on the subject.  Sotomayor dissented; both Thomas and Breyer concurred.

1.  Sotomayor Dissent

Once again, Justice Sotomayor dissented in these death penalty cases arguing that the petitions for writ of certiorari should have been granted.  She writes that while each of the seven petitions deal with “gruesome crimes” there should be consideration of the constitutional issues raised by the Death Row Inmates.

From  Justice Sotomayor’s Dissent in Reynolds:

“Today, this Court denies the petitions of seven capital defendants, each of whom was sentenced to death under a capital sentencing scheme that this Court has since declared unconstitutional.  The Florida Supreme Court has left the petitioners’ death sentences undisturbed, reasoning that any sentencing error in their cases was harmless. Petitioners challenge the Florida Supreme Court’s analysis because it treats the fact of unanimous jury recommendations in their cases as highly significant, or legally dispositive, even though those juries were told repeatedly that their verdicts were merely advisory. I have dissented before from this Court’s failure to intervene on this issue. Petitioners’ constitutional claim is substantial and affects numerous capital defendants. The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.

“[T]his Court’s Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State.” Caldwell, 472 U. S., at 329. The jurors in petitioners’ cases were repeatedly instructed that their role was merely advisory, yet the Florida Supreme Court has treated their recommendations as legally binding by way of its harmlesserror analysis. This approach raises substantial Eighth Amendment concerns. As I continue to believe that “the stakes in capital cases are too high to ignore such constitutional challenges,” Truehill v. Florida, 583 U. S. ___, ___ (2017) (slip op., at 2), I would grant review to decide whether the Florida Supreme Court’s harmless-error approach is valid in light of Caldwell. This Court’s refusal to address petitioners’ challenges signals that it is unwilling to decide this issue. I respectfully dissent from the denial of certiorari, and I will continue to note my dissent in future cases raising the Caldwell question.”

2.  Thomas Concurrence

Justice Thomas concurred with the decision to deny these petitions; he is clear it has already been decided the Eighth Amendment (against cruel and unusual punishment) is not violated by the death penalty.

From the Reynolds concurrence by Justice Thomas:

“JUSTICE BREYER’s final (and actual) concern is with the “‘death penalty itself.’” Ante, at 4. As I have elsewhere explained, “it is clear that the Eighth Amendment does not prohibit the death penalty.” Baze v. Rees, 553 U. S 35, 94 (2008) (opinion concurring in judgment); see Glossip, supra, at ___–___, and n. 1 (THOMAS, J., concurring) (slip op., at 1–2, and n. 1). The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.”

3. Breyer Concurrence

There is also a concurrence from Justice Breyer, where he explains his position on these denials. He does express concerns about capital punishment in this country – not on the act itself, but in how long it is taking to execute those sentenced to death.  He calls the delays “unconscionable.”  He also has concerns about the retroactive application of Hurst and how judges and juries make the decision to sentence the accused to death (in Florida and elsewhere).

From  Justice Breyer’s concurrence:

“It seems to me that the jurors in at least some of these cases might not have made a “community-based judgment” that a death sentence was “proper retribution” had they known at the time of sentencing (1) that the death penalty might not be administered for another 40 years or more; (2) that other defendants who were sentenced years later would be entitled to resentencing based on a later-discovered error, but that the defendants in question would not be entitled to the same remedy for roughly the same error; or (3) that the jury’s death recommendation would be treated as if it were decisive, despite the judge’s instruction that the jury’s recommendation was merely advisory. Had jurors known about these issues at the time of sentencing, some might have hesitated before recommending a death sentence. At least a few might have recommended a life sentence instead. The result is that some defendants who have lived under threat of execution for decades might never have been sentenced to death in the first place.

“The flaws in the current practice of capital punishment could often cast serious doubt on the death sentences imposed in these and other capital cases. Rather than attempting to address the flaws in piecemeal fashion, however, I remain of the view that “it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.”

The execution of Tennessee Death Row inmate Edmund Zagorski is scheduled to take place today at seven o’clock this evening.  This morning, his defense team filed a petition with the Supreme Court of the United States to try and halt the proceedings.

Follow that SCOTUS docket here.

 

Florida’ Electric Chair: Constructed in oak by Department of Corrections in 1999.

Zagorski Chose Electric Chair Over Lethal Injection as Method of Execution

Tennessee has two legal methods of execution:  the electric chair and lethal injection.  Zagorski chose to avoid lethal injection because of the fear that he would experience 10-18 minutes of “utter terror and agony” as compared to electrocution, which would kill him in less than a minute.

Legally, Tennessee’s condemned to die before January 1, 1999, have the legal right to choose their execution method; Zagorski was sentenced to death in 1984.

After Zagorski chose electrocution, Tennessee proceeded to prepare for its first electric chair execution since 1960, except for the 2007 electric chair execution of Daryl Holton in 2007.

SCOTUS Petition to Halt Electric Chair Execution Today

Today, Edmund Zagorski is petitioning SCOTUS to stop the electric chair execution, arguing that it is unconstitutional.

He argues for a stay based upon several reasons, including the following (emphasis added):

  1. Mr. Zagorski initially attempted to litigate the unconstitutionality of the electric chair in 2015 and was prevented from doing so by the state’s claim that the issue was not ripe. West v. Schofield, 468 S.W.3d 482, 485 fn. 2 (Tenn. 2015).
  2. He brought this challenge immediately when it became ripe. Nelson v. Campell, 541 U.S. 637 (2004)); Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam)).
  3. Mr. Zagorski has shown a significant possibility of success on the merits. See  Barefoot v. Estelle, 463 U.S. 880, 895–896 (1983). See also Mazurek v. Armstrong, 520 U.S.968, 972 (1997) (per curiam) (preliminary injunction not granted unless the movant, by a clear showing, carries the burden of persuasion).
  4. The threat of irreparable harm weighs heavily in his favor where absent a stay he will be electrocuted – a method that this Court was on the brink of declaring unconstitutional in Bryan before the state of Florida mooted the question. 
  5. The public interest also weighs in favor of a stay as this issue is likely to repeat in light of the growing trend of death row inmates who face death  insurmountable challenges to barbaric methods of execution because of the lower court’s (mis)application of the alternative-method-of-execution pleading requirement of Glossip.
  6. The state’s interest in carrying out this capital sentence against this inmate – who has been a model prisoner for 34 years, who save the life of a prison guard, and who 6 of the original jurors support a sentence of life without parole is — not great….
  7. The state coerced Mr. Zagorski’s election of an unconstitutional method of execution. … Equity demands a stay of execution.

Application for Stay, pp. 14-15. 

Read the complete 17 page application with its briefing here.  

Note:  the Application is presented to Justice Sonia Sotomayor but the SCOTUS docket states that the request for the stay is being heard by Justice Kagan.

Florida Also Has Electric Chair for Electrocution

Along with several other states, like Tennessee, the State of Florida recognizes electrocution as an alternative method for execution other than lethal injection.  For information on Florida’s electric chair, see:

 

 

When considering the contributions of capital defense lawyers like Terry Lenamon to the fight against the death penalty in this country, most people think of their advocacy in a particular case, particularly the more publicized trials.

However, it is the strategies and skills of death penalty defense lawyers that are being recognized as a more systemic contribution to the declining use of capital punishment in this country.

The following efforts by death penalty defense lawyers are discussed as factors in the reduction of capital sentences imposed in the past decade:

  1. dedicating time and energy into the investigation and presentation of mitigating circumstances for the accused, including family history of childhood deprivation and abuse; mental health patterns over the life of the defendant; and other mitigating factors against a capital sentence;
  2. working with prosecutors with zealous plea bargaining strategies to avoid death; and
  3. focus upon jury selection in capital cases.

From the ABA Publication:

“Mitigating is not offering an excuse or justification for the crime, but instead placing the crime in the context of a whole life. This book offer specific steps and strategies that lawyers and others can use in the course of their work.”

For more on how mitigation is vital in a death penalty defense, see:

The Washington Supreme Court has found the death penalty to be unconstitutional because it violates the state constitution, specifically Article 1, Section 14, which states, “[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.”

State v. Gregory

From the opinion in State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018):

“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered.  As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.”

Before this fuels great excitement regarding abolishing capital punishment in this country, it’s important to note that Gregory starts off with the following caveat:

Washington’s death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972)State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979)State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981).[1] And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we. The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. 

The Washington Supreme Court is not holding the death penalty “per se unconstitutional.”  Instead, it rules based upon how the state’s capital punishment law is carried out, and finds it is being “imposed in an arbitrary and racially biased manner.”

The administration of the state law by the state violates the state constitution, according to the state supreme court.

State Constitutional Holding Independent From Federal Constitution Application

The Washington Court takes great care to make sure that its ruling is clearly based solely upon its state constitution:

At the very least, article I, section 14 cannot provide for less protection than the Eighth Amendment, and in this case, we interpret it independently from the federal counterpart. Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles. See Long, 463 U.S. at 1041-42.

 

State Constitution vs. Federal Constitution

Some may be surprised that a state supreme court can make a ruling that can withstand United State Supreme Court scrutiny.  Well, aside from some procedural arguments there is the overall reality that state governments do exist independently from the federal government.  As long as a state supreme court reads its state constitution to be more protective than the federal counterpart, its ruling will hold.

This is discussed in its cited case of  Michigan v. Long,463 U.S. 1032, 1041-1042, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), where SCOTUS states:

The principle that we will not review judgments of state courts that rest on adequate and independent state grounds is based, in part, on “the limitations of our own jurisdiction.”  Herb v. Pitcairn, 324 U. S. 117, 125 (1945).

Will Gregory result in more capital punishment challenges being filed before state supreme courts, arguing against their death penalty laws on “adequate and independent state grounds” and not federal constitutional arguments?

Perhaps.  Of some interest, let’s not forget that this month marks the October 2016 anniversary of Hurst and Perry opinions by the Florida Supreme Court insofar as the Florida Death Penalty Law.  Something to ponder.

 

In Fall 2018, SCOTUS will consider two cases that deal with the death penalty:

1. Bucklew v. Precythe

Bucklew v. Precythe, SCOTUS Docket No. 17-8151, asks SCOTUS to consider if the medical condition of a Death Row Inmate can cause the lethal injection method of execution to be “cruel and unusual” punishment in violation of the Eighth Amendment.

Issues Presented

  1. Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended?
  2. Must evidence comparing a state’s proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate?
  3. Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition?

Read the Petition for Writ of Certiorari.

Read the Amicus Curaie Brief filed by the American Civil Liberties Union.

Underlying Facts

Russell Bucklew suffers from a congenital medical condition that may well cause him to hemorrhage during any execution involving lethal injection where he would potentially choke on his own blood.

Mr. Bucklew offers the alternative execution method of death by nitrogen hypoxia.

He also requests that to be informed of the medical qualifications of two executioners (members of the Missouri lethal injection team).  Bucklew alleges they may not have the qualifications necessary for the position of lethal injection executioner.

Oral Argument

Bucklew is scheduled for oral argument on November 6, 2018.

 

 

2.  Madison v. Alabama

Madison v. Alabama, SCOTUS Docket No. 17-7505, asks the Supreme Court to consider whether or not it violates the federal constitution to allow an individual to be executed when he or she cannot remember the crime for which they have been sentenced to death.

Issues Presented

  1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, 138 S. Ct. 9, 12 (Nov. 6, 2017) (Ginsburg, J., with Breyer, J., and Sotomayor, J., concurring).
  2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution?

Underlying Facts

During the 30 years that Vernon Madison has spent on Alabama’s Death Row, he has had several strokes and now suffers from dementia.  Mr. Madison cannot remember his arrest, his trial, much less the underlying crime for which he was convicted.

Read the Petition for Writ of Certiorari.

Read the Amicus Curaie Brief submitted by the American Psychological Association.

Oral Argument

Madison was argued on October 2, 2018.  Read the oral argument transcript here.

The website WildAboutTrial.com promotes itself as providing “the nation’s hottest criminal trial coverage.”   Not only does the site provide background information regarding pending criminal proceedings, it often provides live coverage from the courtroom as things are happening.

Site Shares Live Courtroom Coverage

Today, for instance, they are sharing coverage of the sentencing hearing for Bill Cosby (details provided here).  The hearing is not live but the site is tweeting as things are happening in the Cosby case up in Pennsylvania.

Meanwhile, the site is providing live coverage of the courtroom proceedings in the Illinois trial of Jason Van Dyke.  Watch the live stream.

Markeith Loyd Hearings on WildAboutTrial.com

For those following Terry Lenamon’s defense in the Markeith Loyd trial — including (1) his arguments regarding race and the death penalty and (2) the notice that the defense intends to call former state prosecutor Aramis Ayala as a mitigation witness, if necessary, this site may be of interest.

WildAboutTrial.com has a dedicated web page for the Markeith Loyd proceedings.

While the most recent hearing has yet to be uploaded into their archives, you can watch the June 12, 2018 proceedings.

Read Court Filings in Defense of Markeith Loyd

For more on the Markeith Loyd’s defense, read:

Defense To Call State Attorney Ayala as Mitigation Witness Against Death Penalty in Markeith Loyd Case