Founded in 2012, the National Registry of Exonerations (NRE) is a joint effort of the (1) Newkirk Center for Science & Society at University of California Irvine, the (2) University of Michigan Law School, (3) Michigan State University College of Law; and (4) the Center on Wrongful Convictions at Northwestern University School of Law.

The NRE keeps track of “every known exoneration in the United States since 1989,” and on September 1, 2020, published its report entitled, “Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police, and Other Law Enforcement.”  (Click on the image of its cover to read the 185 page report online in its entirety.)

 

The study’s introduction explains “[t]he exonerations in which the misconduct occurred run the gamut of crime. At one end of the spectrum, 93 innocent defendants were sentenced to death at least in part because of official misconduct.”

The NRE also found that (emphasis added):

Black exonerees were slightly more likely than whites to have been victims of misconduct (57% to 52%), but this gap is much larger among exonerations for murder (78% to 64%)especially those with death sentences (87% to 68%)—and for drug crimes (47% to 22%).

The new NRE report compliments its earlier work, published in 2017  as “Race and Wrongful Convictions in the United States.”  In that study, the NRE revealed among other things that Black people who were convicted of murder were about 50% more likely to be innocent than other convicted murderers.  Read, Gross, Samuel R., Maurice Possley, and Klara Stephens. “Race and wrongful convictions in the United States.” (2017).

Today’s hearing in the Markeith Loyd death penalty case resulted in the court’s ruling that the Florida capital case will not go to trial until sometime in Spring 2021, at the earliest.

You can watch a video from a part of these proceedings, where Terence Lenamon is in the courtroom (this is not a virtual hearing but actually in the Orange County Courthouse) as shared by Texas’ StarLocalMedia on their website by clicking on the image below.

For more news coverage, read “Accused cop killer Markeith Loyd won’t stand trial this year: Trial was supposed to happen in May,” written by Adrienne Cutway and published by ClickOrlando on September 29, 2020.

 

How the race of the accused impacts not only the likelihood of his or her arrest, but the chance of conviction and the severity of punishment is a critical and vital component to any defense of a death penalty case, as exemplified in the current pre-trial motions being filed in the Markeith Loyd matter by Terence Lenamon we have shared in previous posts.

New DPIC Report on Racial Discrimination in Death Penalty Cases

This month, the Death Penalty Information Center (DPIC) published a new report entitled, “Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty.”  (Click on the image of its cover to read the report online in its entirety.)

It’s a recommended read.

From the DPIC press release the author of the new report, DPIC’s Senior Director of Research and Special Projects Ngozi Ndulue, explains:

“We have seen more explicit reference to the continued racial discrimination in the death penalty in the last few months.  This is a moment that advocates are really looking for concrete changes and what we’re trying to do with this report — the bulk of it was written before the deaths of Ahmaud Arbery, Breonna Taylor, George Floyd — ties really into the moment of reckoning of racial justice the country is having right now.”

Also note the following data from the new DPIC publication (emphasis added):

  • A 2015 meta-analysis of 30 studies showing that the killers of white people were more likely than the killers of Black people to face a capital prosecution.
  • A study in North Carolina showing that qualified Black jurors were struck from juries at more than twice the rate of qualified white jurors. As of 2010, 20 percent of those on the state’s death row were sentenced to death by all-white juries.
  • Data showing that since executions resumed in 1977, 295 African-American defendants have been executed for interracial murders of white victims, while only 21 white defendants have been executed for interracial murders of African Americans.
  • A 2014 mock jury study of more than 500 Californians that found white jurors were more likely to sentence poor Latinx defendants to death than poor white defendants.
  • Data showing that exonerations of African Americans for murder convictions are 22 percent more likely to be linked to police misconduct.

Revisit the Rodney King Case with attorney Milton Grimes

Renowned trial lawyer Milton Grimes is not only a fellow faculty member with Terence Lenamon at the Trial Lawyer’s College, but he is also one of Terry’s friends, who Terry describes as simply a “fabulous attorney.”  Mr. Grimes is doing a free revisit of his representation of Rodney King in the present day in conjunction with the TLC.

There will definitely be some real good stuff on race discussed,” says Terry.

It is free, and registration is limited. If you are interested at all, then don’t wait to sign up.

From the TLC site:

Milton Grimes tried King v. City of Los Angeles in 1994, in the year that Trial Lawyers College was founded and before Milton’s introduction to psychodrama. Milton built his relationship with his client over two years of care and creativity, but had to try the case before a hostile judge who was worried about the 1992 riots. There would be no attorney voir dire. There was no precedent for video evidence of police brutality in civil rights cases in 1994.

Milton will share how “1994 Milton” prepared to try the case… and, with help from TLC alums playing the roles of witnesses and jurors, Milton will show how he might retry the King case today, with the benefit of 25 years of TLC training and in the face of today’s continuing police abuse and homicides of people of color.

Milton will show how he might speak to the jury in voir dire and opening statement; how he might examine critical witnesses; and how he would deliver his final argument for justice for Rodney Glenn King, and for us all.

Wednesday, September 23, 2020  4:00 Pacific Time| 3:00PM Alaska | 5:00PM Mountain | 6:00PM Central | 7:00PM Eastern

Three new motions have been filed in the defense of Markeith Loyd in his death penalty trial by Terence Lenamon. These have all been placed in Terry’s Online Library as a courtesy, as filed of record with the Orange County Clerk’s Office.

Also included in the Online Library update is Amendment Six (6) to the Florida Supreme Court’s Emergency COVID-19 Administrative Order, issued August 12, 2020, by Chief Justice Canady.

These motions, as well as other pending motions filed by the defense in the Loyd Trial, are scheduled to be heard on September 29, 2020.

1.  Motion for Appointment of Expert Statistician to Help Defense Assess Jury Selection Data to Support Constitutional Violations Resulting From Emergency COVID Orders

 

2. Motion to Have Clerk Gather and Share Data Regarding Jurors and Jury Selection Process

3. Motion for Court Order Finding Florida Supreme Court COVID-19 Emergency Administrative Order Re Jury Selection Violates Florida and U.S. Constitutions

 

This past week, Markeith Loyd’s defense attorney Terence Lenamon presented the defense’s Motion to Dismiss with oral arguments being heard in the courtroom of the Honorable Leticia Marques, who is presiding over the murder trial where Mr. Loyd stands accused of the capital crime homicide involving the death of Orlando Police Lt. Debra Clayton.

To watch a portion of the proceedings, including a portion of Terry Lenamon’s arguments to the court, check out the video coverage provided by WFTV-9 here.

Read the entirety of the motion itself, as filed of record on August 13, 2020, here – provided as a part of Terence Lenamon’s Online Library:

 

“We tracked down a broad array of those connected to the event, to present a three-dimensional account of the first federal execution in 17 years.”

That’s how writers Keri Blakiner and Maurice Chammah describe their efforts, as published on July 24, 2020, by The Marshall Project in partnership with Slate Magazine.   Their entire article is entitled “Witnesses to the Execution, an oral history of the first federal execution under Donald Trump, as told by victims’ relatives, prison staff, and others.

It’s a powerful piece, beginning with the reality that while the federal government had executed only 3 men in the past 50 years, things changed in July 2020 when 3 federal executions took place within one week’s time.  The first of these July 2020 federal executions was that of convicted murderer Daniel Lewis Lee.  Mr. Lee was convicted for the deaths of William Mueller, Nancy Mueller, and Sarah Powell, the 8-year-old daughter of Nancy Mueller.

He died from lethal injection on Tuesday, July 14, 2020, at 8:07 am.  His co-defendant Chevie Kehoe was sentenced to life behind bars, not the death penalty.

Reporters witnessing the execution, as well as the lengthy events leading up to it, give their side of things.  Events that included protests by groups on both sides of the Death Penalty argument.  Also, delays while last-minute legal filings were being decided, including those at the U.S.  Supreme Court.

Family members of the victims give their take.  Attorneys, too.  Some witnessed the execution, some did not.

Prisoners at the Terre Haute facility explain what happened within the institution as Lee’s execution date approached.  (Consider one prisoner’s description of a prison administrator giving instructions for everyone to prepare for lockdown in advance of “the festivities.“)

The Bureau of Prisons’ emailed statement is included.  So is a statement issued by Attorney General William Barr.

Ribboning through all these perspectives are the impacts of COVID-19 on the entire process as well as the implications of the federal go-ahead on using the lethal injection despite some concerns that they may have done so without proper legal authority, given the procedural / appellate process that was arguably still in play.

It’s a must read.

 

 

The Death Penalty Information Center (DPIC) has quite a lot of interesting information regarding executions in the United States so far this year, including how the Coronavirus Pandemic has impacted capital punishment in the first half of 2020.  Consider the following:

  1. There have been ten (10) executions in 2020.
  2. One execution has been by electrocution (Tennessee’s execution of Nicholas Todd Sutton in February 2020).
  3. Pentobarbital still predominates in lethal injection protocols as a single-drug fatal dose execution method.
  4. The State of Florida has not executed anyone in 2020.
  5. The federal government resumed executions in 2020 after a 17 year hiatus.
  6. Within one week’s time in July 2020, the federal government executed three men:  Daniel Lewis Lee (July 14, 2020); Wesley Ira Purkey (July 16, 2020); and Dustin Lee Honken (July 17, 2020).
  7. The federal government’s chosen form of execution is lethal injection using single-drug pentobarbital.
  8.  There has been extensive appellate challenge to the federal execution protocol, including this significant amici curiae brief filed by an impressive list of scholars and judges.
  9.  The federal government has set August 26, 2020 as the execution date for the only Native American on its Death Row, Lezmond Mitchell, despite objections from the Navajo Nation (which include the fact that the killing itself occurred on tribal land); and
  10.  The United States Military has five (5) Death Row inmates, with the last military execution occurring on April 13, 1961, when U.S. Army Private John A. Bennett was hanged (conviction: rape and attempted murder).  (That’s right: 1961.  Not a typo.)

 

History buffs may recall King Henry VIII granted Anne Boleyn’s request for a special French executioner who would decapitate her using a sword, rather than the standard beheading method of an ax (which might take several blows before succeeding in severing the head from the neck).  A swift decapitation was considered to be merciful and painless.

Of course, minimizing pain for the condemned has rarely been a concern for the state; consider the horrific execution methods used in the past, which include:

  • Boiling;
  • Burning;
  • Catherine Wheel (limbs slowly broken, left to die);
  • Crucifixion;
  • Hanging;
  • Head Crushed;
  • Hung, Strung, and Quartered;
  • Impaled on Spear or Pole; and being
  • Sawed in Half.

Today, here in the United States, many believe modern times have changed the state’s attitude.  Even if the death penalty is allowed by the government, many people assume it will be undertaken in a merciful and painless manner.  Isn’t this why we’ve evolved to using drugs today – with lethal injections serving as a peaceful and humane execution protocol?

Pain and Execution Protocols in the United States

Currently, twenty-nine (29) states in the United States provide for capital punishment and all of them have lethal injection as the preferred form of execution.  Statutorily, sixteen (16) states also have alternative execution methods on the books. These alternative execution methods are:

  1. Electrocution (electric chair)
  2. Firing Squad
  3. Hanging
  4. Lethal Gas (gas chamber)
  5. Nitrogen Hypoxia / Asphyxiation.

For more detail, read information provided by the National Conference of State Legislatures in “States and Capital Punishment,” published March 24, 2020, and “Using Nitrogen Gas For Executions Is Untested And Poorly Understood. Three States Plan To Do It Anyway,” written by Lauren Gill and published by The Appeal on October 25, 2019.

Of course, each of these execution methods has been developed in an attempt to be merciful and bring upon the death of the condemned individual as painlessly as possible.  Legislation has been passed to provide for new or alternative execution protocols with mercy as a statutory rationale.

However, pain in executions is a reality.  And more and more, we are learning how those who are being executed with a lethal injection may be suffering extreme pain in this procedure.

How Painful is the Lethal Injection Protocol?  It May be Horrific.

For many years, scientists have been warning that lethal injections are far from painless.  A 2005 study opines that 90% of executed prisoners felt pain during the lethal injection execution and that 40% of these condemned may have been aware and conscious as they were dying.  For more, read Motluk, Alison. “Execution by injection far from painless.” New Scientist 14 (2005).

Medical experts, based upon information discovered during autopsies of the executed by lethal injection, describe how drugs like midazolam result in a very painful death.  Witnesses to some executions have eyewitness testimony of the condemned appearing to suffer during a lethal injection execution.  For details, read “Ohio’s Governor Stopped An Execution Over Fears It Would Feel Like Waterboarding,” written by Liliana Segura and published by the Intercept on February 7, 2019.

Which is why in the past year, concerns over pain during a lethal injection have escalated to the point that alternative execution methods are being sought by several states.  Oklahoma, Mississippi, and Alabama have passed legislation for asphyxiation using Nitrogen Hypoxia, for instance.

SCOTUS: No Guarantee of a Painless Execution in the U.S. Constitution

It may be shocking, therefore, for many to learn that pain alone does not equate to “cruel and unusual punishment” forbidden by the United States Constitution.  Specifically, last year the Supreme Court of the United States (SCOTUS) ruled in Bucklew v. Precythe, 139 S. Ct. 1112, 1117 203 L. Ed. 2d 521, 587 U.S. (2019) that there is no constitutional protection against a painlful execution.

In this case, SCOTUS found that the use of pentobarbital in the lethal injection of a condemned man with a medical condition that might increase his pain during the execution did not violate the Eighth Amendment provision against cruel and unusual punishment.

[Of note:  Justices Gorsuch, Roberts, Thomas, Alito, and Kavanaugh joined in the majority opinion with   Thomas and Kavanaugh filing concurring opinions.  Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented with Sotomayor filing a dissenting opinion.]

From Bucklew v. Precythe, 139 S. Ct. at 1117 (emphasis added):

The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless death. See Glossip, 576 U.S., at ___, 135 S.Ct., at 2731-2732.

As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. Baze, 553 U.S. at 52, 128 S.Ct. 1520Glossip, 576 U.S., at ___, 135 S.Ct., at 2732-2738. And Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” Id., at ___, 135 S.Ct., at 2731. Baze and Glossip recognized that the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining `best practices’ for executions.” Baze, 553 U.S. at 51-52, 128 S.Ct. 1520. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available.

The following motions have been filed by Terence Lenamon in the death penalty trial of Markeith Loyd and shared in his online library (full text). Click on the links to read the these motions, all dealing with the circumstances surrounding the apprehension of Markeith Loyd in January 2017 and the injuries he sustained as a result (e.g., loss of eye):

These are not the only pending motions filed by the defense regarding this issue.  Other motions filed of record include the following:

  • Motion to Compel Police Radio Communications During the Operation on January 17, 2017 When The Defendant Was Arrested for the Homicide of Sgt Deborah Clayton and to Provide Unredacted Transcripts and Audio Files on Material Previously Provided by FDLE and Prosecutor Stacy Salmons of the Eighteenth Judicial District (47 pages);
  • Motion to Compel the Names of Orlando Police Department Employees who Identified Sgt James Parker; Sgt Anthony Mongelluzzo and Officer Cedrick Hinkles in a Photograph Created from Helicopter Footage Which Occurred on January 17, 2017 and Obtained from the Florida Department of Law Enforcement Provided by Orlando Police Department (7 pages);
  • Motion to Compel the Names of Orange County Sheriff’s Department Employees who Identified Sgt James Parker and Officer Cedrick Hinkles on Transcripts of Radio Transmissions Which Occurred on January 17, 2017 from the Florida Department of Law Enforcement Provided by Orlando Police Department (22 pages);
  • Motion to Compel Material Relating to Markeith Loyd Obtained by Florida Department of Law Enforcement from Orange County Jail (16 pages);
  • Motion to Compel All Helicopter Reports, the Original Helicopter Video Footage (Entirety) and Name of Pilot and Camera Operator from the Orange County Sheriff’s Office Arising from the Arrest of Markeith Loyd on January 17, 2017 (21 pages);
  • Motion to Compel Notes of Florida Department of Law Enforcement Digital Experts Regarding Analysis of Orange County Sheriff Office Helicopter Footage and Complete Video File Which Orlando Police Department Provided to Them (9 pages);
  • Motion to Compel the Entire Internal Affairs File from the Orlando Police Department Investigation of Sgt James Parker, Sgt Anthony Mogelluzzo, Officer Cedrick Hinkles and Officer Johnathon Cute Involving the Deadly Force Used Against Markeith Loyd on January 17, 2017 (18 pages); and
  • Motion to Compel the Arial Photograph Created from Helicopter Footage Which Occurred on January 17, 2017 and Shown by Sgt Bruce Vail to Deputy Broadwell Requesting Self-Identification and Any Other Photograph with Identification of Other Officers and the Names of Those Officers in the Possession of Orange County Sheriff’s Department or Any Other Law Enforcement Agency (9 pages).

All these motions are filed of public record in the case file regarding State of Florida v. Markeith Loyd, Cause Number 2017-CF-826-A, in the Circuit Court of the Ninth Judicial District in and for Orange County, Florida.  They can be viewed online as part of the Orange County Clerk of Court’s Docket.