Indigent Defense in Capital Cases

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.   

Yesterday, without comment, the United States Supreme Court denied the petition filed by Georgia Death Row inmate Jamie Ryan Weis

This is shocking. 

This is very bad news.  We’ve written about the Weis case before, including links to the amicus brief filed by a stellar list of Georgia legal scholars, fighting for justice in the indigent defense crisis facing Georgia (and the country) today – and the spotlight that coverage by the New York Times’ Adam Liptak was providing

A Missed Opportunity or a Dodge?

Bottom line, the Weis petition offered the United States Supreme Court an opportunity to address the basic problem facing states today:  where is justice when there is no money in the coffers to pay for the effective assistance of counsel that is constitutionally required – particularly in a death penalty case?

For Jamie Weis, not only was his constitutional right to a competent defense denied him, but also his constitutional right to a speedy trial — all because Georgia didn’t have the money to pay for what was legally mandated.   Legally mandated by the constitutional precedent established by the United States Supreme Court. 

Georgia’s Mr. Weis, Death Row inmates, and defendants facing the possibility of Capital Punishment across the country, are having rights denied them because of budgets without cash flow.  We can only wonder why the High Court has denied them even an explanation for why the Weis Petition was not considered worthy of review.