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.”

Charles Rhines sits on the South Dakota Death Row waiting to hear if his Petition for Writ will be granted by the U.S. Supreme Court this week (conference of June 14, 2018).

Mr. Rhines seeks review of his capital trial proceedings, arguing that there was an improper refusal  to consider evidence demonstrating that his sexual orientation was a factor in the imposition of the death penalty by the jury.

His petition includes an affidavit from a juror stating the jury “…knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.

Read the briefing here.  

For more analysis, see: Jimmy Hoover, If Jury Racism Isn’t OK, Neither Is Homophobia, Justices Told, Justice 360, May 30, 2018.

This week, the Supreme Court of the United States issued its ruling on the request from Texas Death Row Inmate Carlos Trevino, who asked SCOTUS to review what happened in his criminal trial’s sentencing (penalty) phase and the introduction of mitigating evidence against the death penalty.

SCOTUS declined the request, and will not hear the case.  Justice Sonia Sotomayor dissented, arguing that the High Court should hear Trevino’s arguments. She is joined by Justice Ruth Bader Ginsburg.

Read Justice Sotomayor’s 13-page dissent here

Constitutional Argument:  Ineffective Assistance of Counsel

His argument was based within the constitutional framework of his right to effective assistance of counsel.  By failing to investigate and present evidence at trial of Mr. Trevino’s intellectual disabilities arising out of fetal alcohol syndrome or fetal alcohol spectrum disorder (FASD), he argued that his constitutional rights had been violated.

The only witness presented at the penalty phase of the trial was Carlo’s aunt, who testified Carlos dropped out of high school and that his mother was an alcoholic.

Fetal Alcohol Spectrum Disorder (FASD)

Trevino’s mother drank extensively during her pregnancy.  As a result, Carlos Trevino was born with fetal alcohol spectrum disorder and its accompanying permanent brain damage.

There is no controversy that Carlos Trevino suffers from FASD at this point.

Returned For Mitigating Evidence

The case had been before SCOTUS once before.  In 2013, SCOTUS reversed the Fifth Circuit’s decision not to hear Mr. Trevino’s ineffectiveness of counsel argument.  The case was returned to the appeals court for further consideration. See, Trevino v. Thaler, 133 S. Ct. 1911, 569 U.S. 413, 185 L. Ed. 2d 1044 (2013).

Additional mitigating evidence was provided to the lower federal court.

This included specifics regarding how much his mother drank during the pregnancy (19-24 cans of beer on a daily basis), and that Carlos Trevino was incontinent and wearing diapers until he was 8 years old.  A clinical psychologist testified that Mr. Trevino’s history of FASD “would have impacted any of [his] decisions to participate in or refrain from any activities that resulted in his capital murder charges.”  Dissent, page 5.

Still, the Fifth Circuit failed to find merit in the mitigation evidence.  This week, SCOTUS declined Mr. Trevino’s petition to review that decision.

Justice Sotomayor disagrees with this lower court decision as well as the SCOTUS declining to review Mr. Trevino’s petition.

From her dissent, Justice Sotomayor points out that Trevino’s fetal alcohol spectrum disorder is key to understanding his violent behavior, and this was never presented to the jury during the sentencing phase.

She states (Dissent, page 13)(emphasis added):

The Fifth Circuit majority’s error is glaring, because considering all of the evidence, including that relating to Trevino’s FASD, it is obvious that “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins, 539 U. S., at 537.

The Fifth Circuit majority plainly misapplied our precedents. Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered. That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state. I therefore respectfully dissent from the denial of certiorari.”

___________________

Once again, these tragic results in appellate review demonstrate the incomprehensible importance of experienced and aggressive defense counsel in the initial criminal trial and its penalty phase.

Real People and Real Families: The Reality of Death Row 

 Recently, the Marshall Project published an article written by Death Row inmate Timothy White entitled, "Why We Can’t Have Nice Things on Death Row."  Mr. White resides on the North Carolina Death Row, located in Raleigh, North Carolina’s Central Prison.  

It’s a good read and a well-written piece.  

Documentary Series on Death Row

However, for those interested in more details about how Death Row works, there is also a series of BBC documentary episodes being provided by National Geographic Channel and Fox

Check out the details here.  

These are collected under the name "Life and Death Row," and they delve into different aspects of the realities of Death Row in this country.

For instance, Season One’s Execution is an episode that deals with two of the youngest men living on Death Row in Texas.

Season Two has an episode where Texas Death Row inmate named Daniel Lopez works to stop any attempts to stay or thwart his execution. (Mr. Lopez was executed in 2015).

Season Three devotes one episode to how the impending execution date impacts not only the inmate but their families.  Will the lethal injection work properly, wonders the sister of Jack Jones.  

There are more.  These are well worth your time if you want to understand how Death Row impacts so many people, in so many horrific ways.  

Here’s an excerpt from "The Day Before:" 

http://channel.nationalgeographic.com/u/kcD4jK5JPSw6U_cXREmbHsMBywAEe1LYdj1Zu5l-s2E7QDckDq1fWmjHzHORbZR8HH5LV7iAWKs/

Right now,  17-year-old Dimitrios Pagoutzis sits in the Galveston County Jail after confessing to being the active shooter responsible for last week’s high school shooting in Santa Fe, Texas.

In Florida, 19-year-old Nikolas Cruz sets in jail in Broward County, Florida, facing 17 counts of murder for the high school shooting on Valentine’s Day at Marjory Stoneman Douglas High School in Parkland, Florida.  See, "Terence Lenamon’s Son At Marjory Stoneman Douglas High School Shooting."

In the Cruz case, prosecutors are seeking the death penalty.  In the Pagoutzis case, they don’t have that option.  That’s because the 17-year-old is not a legal adult, and juveniles are treated differently under the law.

1.  Roper v. Simmons – SCOTUS 2005

Fifteen years ago, the Supreme Court of the United States ruled that it is a violation of the Eighth Amendment of the U.S. Constitution to sentence anyone under 18 years of age to death.  It is cruel and unusual punishment to execute a minor.  Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

From Roper (emphasis added):

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

* * *

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed

 

2.  Miller v. Alabama – SCOTUS 2012

Six years ago, the U.S. Supreme Court ruled that defendants under the age of 18 years cannot be sentenced to life in prison without the possiblity for parole, either.  Miller v. Alabama, 132 S. Ct. 2455, 567 U.S. 460, 183 L. Ed. 2d 407 (2012).

From Miller (emphasis added)

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment. 

Maximum Sentences for HIgh School Active Shooters

The rulings of the Supreme Court of the United States are those of the highest criminal court in the country.  They cannot be disregarded or overturned by any state court (or any lower federal court for that matter).

These two opinions are the law of the land.  Which means that while the Parkland, Florida shooter defendant faces the death penalty, the Santa Fe, Texas shooter defendant  cannot be sentenced to life without parole, much less capital punishment.

That’s the law — and all these outcries for the death penalty in the Texas case fly in the face of these constitutional precedents. 

For more information, see the Death Penalty Information Center’s Roper v. Simmons Resource Page

Today, the Supreme Court of the United States delved into the role that the criminal defense lawyer plays in a death penalty trial, where he fights for the life of his client as the state prosecutors demand capital punishment.

Defense is Complex When Death Penalty Is on the Table

It must be understood at the start that the death case is different. There are complex efforts here, where a defense team must strategize in the presentation of evidence and the assertion of argument with not only the (a) guilt phase, but the real possibility of an additional (b) sentencing phase where death is considered.

Often this complexity has the additional burden of budgeting, because more often than not, it’s an indigent defense case. Not so in today’s SCOTUS ruling, where the defendant’s parents had the financial wherewithal to hire a private criminal defense attorney, Larry English.

Of note, Mr. English had no prior experience as a capital lawyer and was not certified to defend death penalty cases.  Not too long after taking the case, Mr. English was seeking indigent status in order to hire needed capital case support, like investigators and mitigation specialists.

The whirlwind of this case only escalated afterwards, and demonstrates the importance of defense counsel in death cases who have experience in dealing with mental illness issues and the unique challenges of death penalty defense.

Now, the case returns to Louisiana for a new trial, where it is assumed experienced death penalty defense counsel will advocate for Robert McCoy.

Read the complete opinion at the SCOTUS website.

McCoy Background

In McCoy v. Louisiana Robert LeRoy McCoy was arrested for killing his estranged wife’s teenaged son alongside his grandparents, at their home in Bossier City, Louisiana. His wife, Yolanda, was in protective custody out of state after separating from Robert McCoy earlier that year. Mr. McCoy was facing an arrest warrant for aggravated battery of Yolanda at the time of the shootings.

In the 911 call made by his mother-in-law, she was recorded saying, “She ain’t here, Robert … I don’t know where she is. The detectives have her. Talk to the detectives. She ain’t in there, Robert.”  State v. McCoy, 218 So.3d 535, 542 (La. 2016).

Police responding to the call knew to look for a white KIA known to be driven by Mr. McCoy, and immediately began a search for him in the area. McCoy was eventually arrested in Idaho. For details on his capture, read the lower state court opinion.

The prosecution sought the death penalty. McCoy pled not guilty to first degree murder.

All along, Robert McCoy denied he shot these people. McCoy argued that he was being framed by law enforcement after he had squealed on local police being corrupt and selling drugs.

Shortly after the Louisiana prosecutors filed notice of intent to seek the death penalty, his defense team moved for an evaluation of his mental capacity. He was found competent to stand trial. State, 218 So.3d at 544.

Within ninety days of his trial setting, McCoy was operating without counsel as his indigent defense counsel had withdrawn based upon a conflict of interest. McCoy had been representing himself when attorney Larry English appeared, asking the court’s permission to enter the case as counsel for the defendant.

At that time, Mr. English admitted he was not certified to try death penalty cases. He told the judge he had contacted board certified lawyers for their assistance. After the judge confirmed that Mr. McCoy understood that Larry English was not certified in death penalty cases, the new lawyer was approved by the court.

His motion for a continuance of the rapidly approaching trial date was not. State 218 So.3d at 545. English appealed that ruling, based upon his need to build a legal team to support him in defending a capital case, and successfully having the trial reset back nine months.

Things moved forward, and there was another appellate skirmish involving a defense motion to have McCoy declared indigent so English could hire a mitigation expert, an investigator, a social worker, and a mental health expert. English argued these experts were needed at this juncture because the defense must prepare both for trial and for a sentencing phase if guilt was found.

English admitted to the court that McCoy was not in agreement with this request, but that this would not be in the defendant’s best interest. English told the court that in his opinion, his client suffered from “severe mental and emotional issues that have an impact upon this case.” Mr. English asked the trial court to “order that Mr. McCoy submit to the experts that are required in a capital murder case.” State 218 So.3d at 546.

McCoy filed his own motions with the court, voicing his disagreement with English’s requests, and then withdrew them.

There were hearings held on McCoy’s defense before the trial. English advised the court that while he had attorney-advisors, he would be trying the case alone. McCoy confirmed to the court that this was okay with him. Another motion for continuance for the defense was denied.

The appeals court voiced its concern that McCoy was going to trial with only one defense lawyer, who was not certified for capital defense. The continuance was granted, with the appeals court instructing the trial court to “ensure that Mr. McCoy is, or has been, fully apprised on the record of the benefits of having two capital-defense qualified attorneys and that McCoy has knowingly and intelligently waived same.”  State, 218 So.3d at 547-8.

Key Considerations: English and McCoy

Ultimately, McCoy was found guilty of the killings and sentenced to death. His appeals based upon ineffective assistance of counsel made their way to the Supreme Court of the United States, where McCoy won his fight to have the death sentence overturned.

He gets a new trial.

From the SCOTUS opinion, the key factors here in the dealings between attorney English and his client McCoy were:

  1. Not that the defense lawyer encouraged McCoy take a guilty plea in exchange for a life sentence, inasmuch as
  2. The defense lawyer telling his client that his trial strategy was to admit McCoy’s guilt to the jury at trial in hopes that he could win against the death penalty during the sentencing phase and ignoring his client’s disagreement with it; and
  3. The defense lawyer going forward with that strategy, urging the jury to consider his client as “crazy” and “living in a fantasy world,” as this would go against the needed intent required to be shown for a first-degree murder conviction.

From SCOTUS, it was recognized that Larry English implemented this trial tactic with the honorable motive of trying to save his client’s life.

Nevertheless, SCOTUS rules that McCoy has a constitutional right to make key decisions about his defense. No matter how well-meaning the lawyer’s motivations, he must not go against his client’s instructions to him on core matters like pleading guilty to the crime.

English could not override McCoy’s right to maintain his innocence, despite overwhelming evidence to the contrary that would be presented to the jury. From SCOTUS:

“The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”

For more on death penalty defense, see:

Do We Remember There is a Federal Death Penalty Statute? 

There is such a focus these days on the various states in discussions on capital punishment, that many may not realize that there is an active federal death penalty process, and that the Department of Justice’s Office of the Attorney General can seek death in federal prosecutions all over the country. 

Federal Death Penalty Law

It will not matter if the state in which the federal court resides does not support capital punishment. Under federal law, if the defendant is being tried at the federal courthouse, then he or she may be sentenced to die.

The federal death penalty statute is found in Chapter 228 of Title 18 of the United States Crimes and Criminal Procedures Code.

Specifically, under 18 USC 3591:

(a)A defendant who has been found guilty of—

(1) an offense described in section 794 or section 2381; or

(2)any other offense for which a sentence of death is provided, if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or

(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act,

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.

(b)A defendant who has been found guilty of—

(1) an offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under the conditions described in subsection (b) of that section which involved not less than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B); or

(2) an offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under that section, where the defendant is a principal administrator, organizer, or leader of such an enterprise, and the defendant, in order to obstruct the investigation or prosecution of the enterprise or an offense involved in the enterprise, attempts to kill or knowingly directs, advises, authorizes, or assists another to attempt to kill any public officer, juror, witness, or members of the family or household of such a person,

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.

A variety of statutes provide for capital punishment in federal cases, from crimes like espionage or the assassination of a federal judge. The Death Penalty Information Center has created a table that lists death penalty references found in various federal statutory codes

Deciding on Death

This does not mean that every federal prosecution eligible for capital punishment will have the defendant facing the possibility of the death penalty. As in Florida state prosecutions, the decision on whether or not to seek death resides with the prosecutor.

For instance, this week it was announced by the Department of Justice that the Office of the Attorney General will not be asking for the death penalty in the case of Esteban Santiago, who pled guilty in a Miami federal courtroom to killing 5 people in the January 2017 shooting at the Fort Lauderdale-Hollywood International Airport.

For details, read “Fort Lauderdale airport shooter will plead guilty in deal to avoid death penalty,” written by Jay Weaver and published in the Miami Herald on May 1, 2018.

Read the Federal Indictment of Esteban Santiago here.