Fact Issues - Death Penalty

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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.

 Defending those facing the death penalty brings Terry Lenamon into the heart of the issue of mental illness in this country and how that does (as opposed to should) impact the imposing of capital punishment on those convicted of serious crimes.

Mental Illness is an Issue in All Death Penalty Cases

We discuss aspects of mental illness and the death penalty regularly on this blog, because it is key to both the determination of guilt as well as the sentencing phase of any death penalty case and goes to mitigation issues. 

See:

SCOTUS REFUSES TO STAY EXECUTIONS EVEN IF MENTAL ILLNESS UNDISPUTED

U.S. Supreme Court Deciding Major Death Penalty Case Regarding Intellectual Ability and Capital Punishment: the Case of Freddie L. Hall

Schizophrenia Doesn’t Stop Execution of Mentally Ill Florida Death Row Inmate John Errol Ferguson This Week

SCOTUS on Mentally Ill and Death Penalty 

The Supreme Court of the United States has considered the issue of execution for those convicted of capital crimes but who are mentally ill either at the time the crime was committed or at the time of the scheduled execution. 

See:

Ford v. Wainwright 

SCOTUS ruled it is unconstitutional to execute someone who suffers from a mental illness and cannot understand that they are facing death or the reasons why the government seeks to execute them.

Atkins v. Virginia 

SCOTUS held the government cannot execute someone with severe mental disability.

 

For legal analysis, see Schaaf, Rosalind. "The Death Penalty and Wrongful Convictions of the Mentally Disabled in America." Legal Studies Master’s Degree: Criminal Law.(2017). 

 

Resources for Study of Mental Illness and Capital Punishment

However, for those wanting to educate themselves with an overview of how mental illness does and does not impact the ability of the prosecutor to seek the death penalty as well as the power of the state to execute those who are clearly mentally ill, we offer the following for study:

1 Death Penalty Information Center on Mental Illness and the US Death Penalty

Collection of resources discussing various aspects of this issue, including case examples of the mentally ill who faced execution in this country.  

2.  Amnesty International Article "Death Penalty and Mental Illness"

Discussion of how mentally ill are executed in the United States with a link to Amnesty International’s full report.  

3.  Mental Health America’s Position Paper on Mental Illness and the Death Penalty

Position given on why capital punishment is not appropriate for those suffering from mental illness. 

4.  National Alliance on Mental Illness Position Policy on Death Penalty for Mentally Ill

Policy paper on why the death penalty is not appropriate for those who are mentally ill. 

 

 The Death Penalty Info Center just updated its Death Penalty Fact Sheet.  You can download the pdf by clicking on the image:

 

Lots of information here regarding capital punishment in the United States today. From the DPIC statistics, consider the following:

  • Since 1973, more than 155 people have been released from death row with evidence of their innocence.
  • Florida had the second highest death row population in the country, exceeded only by California, in October 2016.
  • Enforcing the death penalty costs Florida $51,000,000 MORE each year than if these 1st degree murder convictions had been given a sentence of with life without parole.
  • The South has the highest murder rate and over 80% of executions are performed in the South.
  • As of January 1, 2015, there were 56 women on death row in the United States.  No juveniles are on death row because capital crimes committed by juveniles cannot be given the death penalty according to a 2005 SCOTUS decision.

 

The American Bar Association Death Penalty Due Process Review Project has published its report, "Severe Mental Illness and the Death Penalty."

You can read it online here. 

ABA Report To Be Tool For Change

From its Executive Summary (emphasis added):

Despite broader efforts to reform the criminal justice system’s approach to mental illness, individuals with these types of conditions can still be sentenced to death and executed. It is, therefore, now time to convert the ABA’s policy into a meaningful tool to help states pass laws that will establish clear standards and processes to prevent the execution of those with severe mental illness.

Focusing on Four Areas in Capital Case

It includes discussion of the following areas of a capital case where mental illness is an issue that is not provided "complete or sufficient protection":

  1. Competency to Stand Trial
  2. The Insanity Defense
  3. Mitigating Factors
  4. Competency to be Executed.

It’s less than 50 pages long.  Definitely worth your time to read. 

A new study has been released that argues that how someone looks has a great impact upon how they are perceived insofar as being sentenced for a crime. 

According to this new research, someone whose face gives them an untrustworthy appearance is more like to get more years behind bars and harsher sentences.

The study was done by comparing faces of those who had been sentenced for crimes and the sentence that they received.  The death penalty was included here.  According to these researchers from the University of Toronto, mugshots of folk were used. 

First, participants in the study were asked to look at the mugshots and rate them.  The photos were rated on a “trustworthiness scale” (1 being very untrustworthy and 8 being extremely trustworthy).

All the mugshots came from prisoners in Florida prisons who had been convicted of murder. 

Over 700 mugshots were used.

After the mugshots had been rated, the researchers compared the ratings to the sentences handed down.  They found that the lower the ranking on the “trustworthiness scale,” the harsher the sentence.

Facial Trustworthiness and Death Penalty Study Results

Of particular note (quoting from the abstract)(emphasis added):

“Untrustworthy faces incur negative judgments across numerous domains. Existing work in this area has focused on situations in which the target’s trustworthiness is relevant to the judgment (e.g., criminal verdicts and economic games). Yet in the present studies, we found that people also overgeneralized trustworthiness in criminal-sentencing decisions when trustworthiness should not be judicially relevant, and they did so even for the most extreme sentencing decision: condemning someone to death.…

“In Study 1, we found that perceptions of untrustworthiness predicted death sentences (vs. life sentences) for convicted murderers in Florida (N = 742).

“Moreover, in Study 2, we found that the link between trustworthiness and the death sentence occurred even when participants viewed innocent people who had been exonerated after originally being sentenced to death. These results highlight the power of facial appearance to prejudice perceivers and affect life outcomes even to the point of execution, which suggests an alarming bias in the criminal-justice system.”

– J. Wilson, N. Rule, "Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes," Psychological Science, July 15, 2015.

An alarming bias, indeed. 

Read the full report here. 

 


 

Paul Hildwin resides on Florida’s Death Row, having been sentenced to death for the 1985 killing of Vronzettie Cox who had been raped before she was strangled to death and her body left to be found in the trunk of a car.

 
For three decades, Mr. Hildwin has lived behind bars as a man awaiting execution — until now.
 
The Florida Supreme Court has ordered a new trial for Paul Hildwin and it’s not clear if the Florida prosecutor is going to re-try the case, given the language of the High Court’s opinion.  
 
 
 
 
DNA Evidence and FBI Expert’s Flawed Trial Testimony
 
What’s happened here?  New DNA evidence has been presented that absolutely guts the evidence that was presented by the state’s prosecutors at Hildwin’s criminal trial.  
 
During his 1985 trial, an FBI expert testified that fluids collected at the Hernando County crime scene matched with Mr. Hildwin  — and he also testified that these fluids could not have come from the victim’s boyfriend.  
 
Now, DNA evidence establishes the exact opposite is true.  The fluids could not have originated with Paul Hildwin:  they match the boyfriend, a man already behind bars on two sexual assault convictions.
 
 
In light of the evidence presented at trial, and considering the cumulative effect of all evidence that has been developed through Hildwin’s postconviction proceedings, we conclude that the totality of the evidence is of “such nature that it would probably produce an acquittal on retrial” because the newly discovered DNA evidence “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.

In sum, newly discovered evidence now establishes that the DNA found on the victim’s underwear and on the washcloth at the crime scene belong to Haverty.  The fact that the DNA on the washcloth was saliva that matches Haverty is significant because it supports Hildwin’s story that he saw the killer wipe his face with a “white rag.”  In other words, the jury had to decide between two suspicious  people—both of whom had a motive.  
 
Erroneous scientific evidence presented at  trial, in addition to the newly discovered evidence identifying the DNA on both items as Haverty’s, is significant evidence.
 
In considering the evidence at trial, the newly discovered evidence at issue now, as well as admissible evidence previously  discovered in prior postconviction proceedings, we conclude that this newly  discovered evidence “weakens the case against [the defendant] so as to give rise to  a reasonable doubt as to his culpability.”  Jones II, 709 So. 2d at 526.”
 
 
 
  
 

 Forensic evidence gets lots of respect from juries — some call it "the CSI effect" after the popular TV show (in all its spin-offs).  However, this month we have even more news that justifies a less trusting view of evidence coming from a lab and being used to put someone behind bars — or on Death Row.

The Washington Post has reported that there may be up to 27 Death Penalty convictions in this country where the forensic experts from the Federal Bureau of Investigation (FBI) made mistakes.

Big mistakes.  Twenty-seven Death Row sentences.  

Apparently, these FBI lab experts may have tied defendant to crimes that they did not commit using puffed-up scientific testimony.

We’ll know more later this summer when the FBI is going to release its tally with all the details of what cases, what experts, what testimony.  Meanwhile, these Death Penalty cases are part of a larger group of 120 convictions that may be wrongful convictions based upon bad FBI forensic evidence.

What’s this review all about?  It’s a review being done of FBI Lab files by the Department of Justice and the FBI with the National Association fo Criminal Defense Lawyers (NACDL) and the Innocence Project watching what’s happening.

The review sprang out of earlier Washington Post investigations, where it was reported that the federal government had known for a very, very long time that its hair experts may have provided bad forensic evidence that had led to wrongful convictions – and that no one had done much to investigate these hair experts or to stop bad convictions from happening.

If you think this is just a FBI Lab glitch, think again.  

Over in Texas, one single Houston Crime Lab technician named Jonathan Salvador has become infamous in some circles because his work has put literally THOUSANDS of criminal convictions in the State of Texas in question – read the final report on how bad this is from the Texas Forensic Science Commission.

 This week, the Miami Herald ran an article discussing the current state of QEEG technology as a means to study the human brain and understand how the brain works and how it can be permanently damaged.  

However, the article was more than a dry discussion of scientific methodology.  Reporter David Ovalle wrote about how QEEG brain mapping was successfully presented by Terry Lenamon in the Grady Nelson death penalty trial, having been approved for use by the jury by the Honorable Jacqueline Hogan-Scola.

You can read the article, "Use of controversial ‘brain-mapping’ technology stymied in Florida courts," online for free at the Miami Herald web site.  

Here’s the thing:  QEEG brain mapping is still controversial and prosecutors are still fighting hard against its admission by death penalty defense attorneys who are wanting to use the brain mapping technique in mitigation evidence.  

While Terry Lenamon was successful in getting the brain mapping of Grady Nelson as a factor for consideration in his trial, other defendants have not been able to use QEEG in their trials.

Meanwhile, QEEG brain mapping continues to garner respect in the medical community.  Consider this video (it’s long, almost an hour – be forwarned here!) where Retired Brigadier General Dr. Stephen Xenakis discusses uses of QEEG brain mapping in the treatment of several conditions suffered by post-combat servicepersons.

https://youtube.com/watch?v=2nWr2HC1-Po%3Frel%3D0

 Last night, the jury came back with a decision of life imprisonment for Joshua Fulgham — nixing the death penalty request by the prosecution.

Under Florida law, the judge will still have the final decision here.

What will the Judge do?  We’ll know soon.

Meanwhile, congrats to Terry Lenamon for a great job of defending against the death penalty in the Joshua Fulgham trial!!