Indigent Defense in Capital Cases

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)

 

Beginning February 5, 2018, Terence Lenamon will be in a Miami Dade courtroom in another fight against the death penalty, this time in a notorious capital case involving a member of the Terrorist Boyz named Frantzy Jean-Marie.

Capital Case Trying Charges From Over a Decade Ago

It’s a complicated defense for many reasons, not the least of which is that Frantzy Jean-Marie was among several men charged with nine different murders in Miami-Dade County over a decade ago. The others, collectively known as “the Terrorist Boyz” in the news coverage, are Benson Cadet, Johnny Charles, Max Daniel, and Robert St. Germaine.

Of note: the Terrorist Boyz’ collective capital defense has gained the reputation as being “Florida’s most expensive death penalty case” as discussed in an article by David Ovalle and Nicholas Nehamas entitled, “The Death-Penalty Cases Rack Up Big Dollars In Miami-Dade,” published by the Miami Herald on October 2, 2016.

Indigent Defense Costs in Death Penalty Cases

In that article, Terry explains: “In many places in Florida, there is very little spent on the death penalty and there is a rush to complete the cases. I have the responsibility to make sure no stone is left unturned. It’s a very expensive proposition, but there is a simple solution: End the death penalty.”

He goes into even more detail about his motivation to represent defendants facing death in capital cases here, specifically referencing Mr. Jean-Marie among others in the post Sometimes You Need To Stop and Survey the Territory When You’re a Criminal Defense Attorney Representing People Facing Death.

It’s an important read when considering next week’s capital case, as well as any death penalty defense matter in Florida (or elsewhere).

For more on indigent defense matters, check out:

1.  our e-book to learn more about the money aspects of capital cases in The Death Penalty Indigent Defense Crisis: Representing the Poor when the State wants to Kill Them and It’s Paying Your Bill and 

2. Terry’s memoir to learn more about Terry’s personal experience in defending those accused of capital crimes and the life of a death penalty defense lawyer in Heinous, Atrocious & Cruel: The Casebook of a Death Penalty Attorney.

 

 

 Terry Lenamon just finished a six week trial in Florida, where state prosecutors were seeking the death penalty for Vernon Dwayne Stevens.  Mr. Stevens, however, will not face capital punishment:  Terence Lenamon’s arguments for mitigation were successful and a life sentence was reached.

For details, check out the following documents in the Terry Lenamon Online Library, from Cause No. 07-00068CF, State of Florida v. Vernon Dwayne Stevens in the Circuit Court of the 20th Judicial District in and for Hendry County, Florida:

1.  Terry Lenamon’s Penalty Phase Opening Statement

2.  Prosecutor’s Closing – Part One

3.  Prosecutor’s Closing – Part Two 

Congratulations to Terry Lenamon on a job well done  – and another victory against the Death Penalty!

Terence Lenamon filed the following motion, his co-counsel David Markus argued the motion, and now Florida Circuit Court Judge Victoria Sigler has granted their motion regarding the unconstitutionality of Florida Statute 27.5304 – striking the law as unconstitutional.

Here is the Order (read the Motion with its briefing online in the Terence Lenamon Online Library):

 

http://www.scribd.com/embeds/111265428/content?start_page=1&view_mode=scroll&access_key=key-ka39u5mzwdbbjgm3yu1

Terry Lenamon is in the news again as he fights to save two men from the death penalty in Florida, filing motions in two separate Marion County death penalty matters, on behalf of James Edward Bannister and Michael Lamar.

He is arguing that the Florida Statute 27.5304 not only establishes how private court-appointed counsel are paid but that the law creates a conflict of interest for judges who are presiding over these indigent cases.  The motions request disqualification of the court, where the judge not only presides over the case itself but also approves the defense expenses including the attorney’s fees for representing the indigent defendant. 

It’s the idea that the judge may short cut in order to save money in an indigent case that is seeking to impose the death penalty that is the crux of Lenamon’s argument. 

Will it succeed?  Stay tuned.

Terry Lenamon is currently in trial defending another high profile defendant, Joshua Fulgham, who is accused of killing his wife Heather Strong (read the Wikipedia article on her murder here).  The trial is taking place in Marion County, Florida.

For blog readers who follow Terry’s trial work, here are some links to the day’s activities (as this post is being published, they are still in the middle of jury selection).

Jury Selection Photo Series (Ocala.com)

Gaineville Sun trial coverage

Joshua Fulgham faces the death penalty for the death of his wife Heather Strong, having been charged with first-degree murder and kidnapping.  Fulgham’s girlfriend, Emilia Carr, has already been tried and convicted and is now setting on Florida’s Death Row. 

If you are interested in criminal defense / true crime cases, then you might want to read Terry’s memoir or "casebook" that covers almost a dozen of his past defense cases where his clients faced the penalty of death.  For more info on the book or to buy it as an ebook or paperback, just click on the link there in the left sidebar. 

We’ve been monitoring the case of  Alabama Death Row Inmate Cory Maples, who had very bad indigent defense counsel even though they were a swanky New York law firm with a prestigious reputation. 

For details, read our earlier post on Mr. Maples and how his mother saved the day – and probably his life.

U.S. Supreme Court Issues Opinion in Maples v. Thomas

This week, the U.S. Supreme Court issued its opinion in Cory Maples’ case, and Mr. Maples has won his new hearing. 

Read the full opinion online here.

Included within this opinion, the Justices’ ruling on what defense counsel did, or most importantly did not do, in this case.  The High Court found that Sullivan and Cromwell "abandoned" their client. 

Abandoned the client.  That’s serious language.

But the High Court doesn’t stop there.  In a majority opinion authored by Justice Ruth Ginsberg, the entire indigent defense system of the State of Alabama is also scruntized and found lacking.

Of note, the fact that Alabama law does not insure that the attorneys who represent indigent capital defendants have any special expertise or training, nor does Alabama guarantee indigent defense representation to poor capital defendants in postconviction proceedings.

The clincher:  in the opinion, Ginsberg also criticizes the pay rate for the indigent defense attorneys who take on these death penalty cases.

Which is pointing at the elephant in the room that we’ve been writing about on this blog for almost three years now. 

 

Cory Maples sits on Death Row over in Alabama, after having obvious and serious errors made by both his trial and appellate counsel which included some pretty big names in the legal industry.

And by "obvious and serious," we really mean blatant, ludicrous, and shameful treatment of an indigent defendant by, among others, one of the purportedly top law firms in the country, Sullivan and Cromwell. 

Maples Argues to the United States Supreme Court This Week

Yesterday, Mr. Maples argued to the highest court in the land for some justice — and now, we must wait and see if the United States Supreme Court will fix a blatant glitch in the system that has allowed Mr. Maples’ case to get as far down the road to execution as it has.

CLICK HERE TO DOWNLOAD THE PDF OF THE ENTIRE OCTOBER 4, 2011, ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT IN THE MATTER OF CORY R. MAPLES V. KIM T. THOMAS, INTERIM COMMISSIONER OF THE ALABAMA DEPARTMENT OF CORRECTIONS. 

Even Business Week reported that oral arguments before the High Court were " lively," and other media sources have gone so far as to characterized what happened on Tuesday as suggesting that the Justices were "unusually sympathetic" toward Maples’ plight. 

One big example, Justice Samuel A. Alito Jr., whose past experience as a federal prosecutor often brings with it a prosecutorial perspective to criminal matters brought before the court (just go read a few, if you’re wondering about this), asked a question that lots of attorneys across the country are asking even now: 

when it was obvious that the ball had been dropped, why didn’t the government agree to waive the deadline and agree to a new hearing?  Or, as Justice Alito asked:

“Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances….Now, when his attorneys moved to file an out-of-time appeal, why wouldn’t you just consent to that?”

Error after Error by Attorneys Appointed to Represent Cory Maples

We’ve been following Mr. Maples case for a long while now; for background, please check out our prior posts "Will A Law Firm Missing a Deadline Fail to Stop the Execution of Alabama Death Row’s Cory R. Maples?" and "Death Penalty Defense: Cory Maples’ Sullivan & Cromwell Representation vs Sakineh Ashtiani’s Mohammed Mostafaei."

Let us all hope and pray that justice is served here. 

To review the United States Supreme Court docket for Cory R. Maples, go here.

 

 

Today, Maura Dolan of the Los Angeles Times provides excellent reporting of the indigent defense crisis as it impacts death penalty appeals in California.  Read the article, "Lack of funding builds death row logjam," in its entirety here.  

It’s a topic that gets covered periodically by the national media: a cruel reality that needs so much more public acknowledgement and awareness.  For example, in 2001, the New York Times covered a similar crisis in Alabama; in 2004, the Washington Post did a story about Robin Maher’s attempts to bring attention to the matter via the American Bar Association’s Death Penalty Representation Project.  However, from our research, most of the discussion of this issue comes not from the main stream media, but from bloggers and non-profit efforts, and the LA Times coverage by Ms. Dolan is most welcome.   

There’s Not Enough Money to Pay Defense Lawyers to Represent Convicted Death Row Inmates

As the LA Times article describes, the problem for those setting on Death Row isn’t that they may or may not have legitimate legal appeals to advance in either state or federal courts, but the reality that there isn’t any money available to pay attorneys to do the work. 

A death penalty case is complicated enough at trial: to appeal one of these cases means going through every detail of the particular matter – from investigation through the sentence of death at the conclusion of the penalty phase.  It’s a time-consuming process to accumulate and digest all the facts. It’s even more time-intensive to take that factual analysis and apply state and federal law, to determine if substantive legal error has occurred.

The Emotional Toll Isn’t Even a Financial Consideration at this Point, but It’s Real

Another excellent point made by this reporting is the LA Times discussion of how defense attorneys face an emotional drain from undertaking the representation of death row inmates.  It is an tremendous challenge to represent defendants at the trial level, when they are facing the possibility of death.  It’s another type of psychological challenge to represent these people when they’ve already been sentenced to die. 

They will be executed unless the appellate process (or technically, clemency) intervenes.  It’s a grueling, cold reality that every death row appellate lawyer must accept – and live with for the rest of their days. 

Another Example of the Real and Growing Indigent Defense Crisis in The United States Today

In California, there is a wait of over a decade (approximately 12 years) for an attorney willing to take on the death row appeal of many inmates.  Yet one more example of the indigent defense crisis in this country for death penalty cases — the emperor without clothes that this blog, and others, keep pointing out as something that must change.  Thanks to the LA Times.

Over in Lee County, Robert Dunn has been arrested for the crime of shooting and killing his wife,  Christine Lozier-Dunn, inside of a Cape Coral, Florida, daycare center, Bobbie Noonan’s Child Care, on January 25, 2008. He’s facing trial for first-degree murder, first-degree armed burglary, and child abuse, and since Mr. Dunn couldn’t afford an attorney he’s been appointed counsel.

Robert Dunn Is Indigent; the Court Has Appointed Dunn’s Defense Counsel

As guaranteed under the federal constitution, Robert Dunn has a legal right to effective counsel, and the State of Florida is legally required to provide him with representation once he’s established himself to be indigent.  (Here’s the hitch: Florida has to pay for this.)

Robert Dunn Faces the Death Penalty – Which Makes for a More Complicated Defense

If Robert Dunn is found guilty of the crime for which he is charged, he could be sentenced to death.  This is a death penalty case, and with it (as we’ve written about previously), a lot more responsibility is placed upon the defense team.  Mitigation specialists, additional investigation, preparation for both a guilt phase and a penalty phase in the trial — Mr. Dunn’s trial team has a huge legal duty here.

New Defense Lawyer David Brener Argues For Need to Re-Do Past Attorney’s Work

Yesterday, Mr. Dunn’s new trial attorney, Fort Myers’ David Brener, appeared before Lee Circuit Judge Margaret Steinbeck to argue that he needs the court’s help in order to fulfill that duty.  Brener is fierce about the lack of effective representation that Robert Dunn has received thus far — and he can tie it directly to state budget concerns.  Once again, it’s all about the money. 

As part of his argument, Mr. Brener called to the witness stand Mr. Dunn’s prior defense counsel, Ita Neymotin, as the duly authorized representative of the five-county Regional Conflict Counsel office (Neymotin ran that shop until just last week).  The RCC is a state agency, and its funding comes from the State of Florida. 

Past Defense Lawyer Testifies to Cost-Cutting Deciding Scope and Length of Depositions

Ms. Neymotin testified under oath that during the Regional Conflict Counsel’s representation of Mr. Dunn from May 2009 until April 2010 (when Brener took over), money talked and because of cost considerations, some witness depositions simply weren’t taken and the length of other witness depositions were set by how much they cost rather than what testimony was needed to be obtained.

Twenty-one depositions are at stake.  The testimony of 21 witnesses is a huge amount of evidence in any trial, but can literally mean the difference between life and death in a capital case. 

21 Depositions at Issue: A Clear Example of Florida’s Indigent Defense Budget Crisis

David Brener has asked Judge Steinbeck to let him retake 21 depositions that were controlled by money, and not by legal concerns.  Brener argues that an effective defense requires that some witnesses be questioned again, because prior defense counsel failed to ask key questions during the prior depositions. 

Answers to these questions are critical to Dunn’s defense.  It’s imperative that the witnesses give those answers, under oath, to give the defense these facts in form that can be used at trial, i.e., as authenticated, admissible evidence.

Right now, the hearing has been continued and we don’t know what Judge Steinbeck will decide.  And her decision is important for us all — since when does a bean counter in a state agency’s bookkeeping department decide what witnesses are important to a case, or how long an attorney can ask questions of a witness (in deposition or at trial)? 

This is a clear example of how injustice has permeated our criminal defense system in this state, and in this country — all because of blind budget concerns.  Something needs to change.