Players in a Death Penalty Case

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:

Of course,Monster is the movie depicting the life of Aileen Carol Wuornos, who was executed by the State of Florida in 2002 for killing six men.  Maybe you’ve seen it. 

Monster Was the Fictional Account of Florida Serial Killer Executed in 2002

Aileen Wuornos, one of the most notorious serial killers in our nation’s history, was portrayed by Charlize Theron.  The actress won an Academy Award for her work in the film, and Monster was named "Best Film of the Year" by the AFI.  

From a death penalty perspective, no matter how good this movie may be, it’s probably better to spend your time watching the excellent 2-part documentary created by director Nick Broomfield.  

Broomfield Documentary on Aileen Wuornos Combines 1992 and 2003 Work

Entitled "Aileen" Life and Death of a Serial Killer," the documentary combines his earlier film, "Selling of a Serial Killer," with his later work.  It’s essentially two films combined into a single 1.5 hour biography.

This is an important film to see if you have any interest in capital punishment in this country.  

  • It sheds light on the process, i.e., what happens during the Penalty Phase of a capital case, the arena that Terry Lenamon defends his clients in so often. 
  • It helps to explain that these are real and very damaged people who are being sentenced to death, and helps in the understanding of why they have ended up in a courtroom with a prosecutor wanting their execution. 

Marion County Hearing 

The documentary deals with a February 2003 hearing in Marion County, Florida, presided over by Judge Victor Musieh, where defense counsel from the Office of Capital Collateral Regional Counsel works to vacate Wuornos’ death sentences.

Life and Death does not debate guilt or innocence.  It focuses on the person, much like the efforts made to build a case for mitigating circumstances in a capital case.

Broomfield educates us on her abusive childhood, complete with interviews of neighbors and her bio-mom.  

We learn the importance of a zealous advocate and wonder about her trial counsel.  The cross-examination of Steven Glazer ("Dr. Legal") is very illuminating on the role of a defense lawyer in a death penalty case.  How often does the public see this sort of cross?  

Finally, watch how Wuornos herself changes from the first film to the second, where she is residing on Florida’s Death Row.  

The documentary ends with an interview with Aileen Wuornos on the day before she was executed.

Consider for yourself whether or not Aileen Wuornos was sane and "of sound mind" at the time — and what the impact of residing on Death Row, awaiting her execution, had upon her mental state.

Watch for Free on Netflix or Amazon Prime

Right now, the Bloomberg Documentary dealing with the Death Sentence and Execution of Aileen Wuornos is available for free on either Netflix or Amazon Prime.  

It’s worth your time to watch.  

Netflix

Amazon Prime

 

 

 Tomorrow morning in Orlando, Terry Lenamon will be joined by his friend Rick Kammen at the Florida Association of Criminal Defense Lawyers’ 24th annual "Death is Different" seminar.

Lenamon and Kammen Speaking at "Death is Different" Seminar

Their presentation, entitled "Psycho Drama," begins at 10:30 a.m and concludes at noon.

Both Terence Lenamon and Rick Kammen are experienced death penalty defense attorneys with national reputations for fighting against capital punishment in this country.  For those unable to attend, FACDL offers recorded seminars for purchase. 

Terrorist Boyz Trial 

Those following this blog are aware that Terry Lenamon is currently involved in jury selection for the Terrorist Boyz capital murder trial of Frantzy Jean-Marie. 

Gitmo USS Cole

Many may also recognize Rick Kammen as a death penalty defense attorney based in Indianapolis who resigned from USS Cole representation due to bugs compromising the criminal defense. 

See today’s Miami Herald article by Carol Rosenberg for details, entitled "Pentagon: Microphone? What microphone?"

Here are their bios as provided in the seminar materials:

Richard Kammen, Esq.

Richard Kammen is a criminal defense lawyer with his office in Indianapolis, Indiana. He concentrates his practice in serious felonies, white-collar defense, complex crimes and death penalty defense. He is a member of the law firm of Kammen and Moudy. 

He graduated from Ripon College cum laude in 1968 and New York University School of Law in 1971.  Admitted to the Bar in 1971, he began his practice after service in the United States Army.

During his professional career, Mr. Kammen has served as a public defender in the Marion County Courts on two occasions, 1972-1974 and 1978-1979.  Mr. Kammen has defended over three hundred homicide cases including approximately forty death penalty cases in both State and Federal courts. No client that Mr. Kammen has represented at trial has been sentenced to death.  

Terence Lenamon, Esq.

Terence M. Lenamon is capital defense attorney in Miami and a Resource Lawyer and Co-Founder of Florida Capital Resource Center, an organization dedicated to training Florida capital attorneys.

Mr. Lenamon is a graduate of Gerry Spence’s Trial Lawyer’s College and has taught numerous training sessions throughout the state on techniques in mitigation investigation, jury selection, the art of the closing argument, and creative brief writing in capital cases. He frequently writes about death penalty issues on his blog at www.deathpenaltyblog.com.

Recently, Scott Glovsky interviewed Terry Lenamon for Trial Lawyer Talk.

Interview of Death Penalty Defense Lawyer Terence Lenamon

Included in the interview is a discussion of Terry’s recent representation of Byron Burch.

Terry’s client faced prosecutors seeking his death based upon a guilty verdict in the particularly violent murder of Brooksville schoolteacher Sarah Davis. 

As described in the Trial Lawyer Talk coverage, you’ll hear Terry discuss things like: 

  • What it feels like to have a mans life in your own hands
  • The synopsis of Terry’s clients’ story (Byron Burch)
  • Childhood, Addictions, & Psychic Problems
  • How Capital Cases are distinctly different from other trial cases
  • Using integrated case approach
  • Florida litigation requirements have changed in the past couple years and will change again
  • Aggregating factors surrounding Terry’s client
  • How Terry uses TLC methods in his cases
  • How the public sees “The Death Penalty”

 

Listen to the Terence Lenamon Interview for more.  It’s thirty minutes long and gives an excellent glimpse into Terry’s calling of representing those whom the government has decided are worthy of execution: 

 

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 Here is the transcript of the closing argument made by Terence Lenamon in the death penalty case of James Edward Bannister.  

Lenamon Closing Argument in Death Penalty Phase:  

The jury did note vote for death after hearing this argument.  Why not?  Read it for yourself.

For more on the James Bannister case, read:

Opening Statements and Closing Arguments in James Bannister Death Penalty Trial (guilt phase)

James Bannister Victory and Florida Death Penalty in 2018

_________________________________________

Death Penalty Closing Arguments in the Penalty Phase of James Bannister 

https://www.scribd.com/embeds/367923052/content?start_page=1&view_mode=scroll&access_key=key-Et16luXzSRUz6DATOAKi&show_recommendations=true

Today, the jury came back with a guilty verdict in the capital murder trial of James Bannister. 

Terence Lenamon is defending in the case with co-counsel Tania Alavi. Of course, this is only the beginning for Terry and Tania: starting on Monday, there will be the fight against the death penalty that is being requested by the State of Florida.

Penalty Phase Starts on Monday

Beginning next week, the focus will be upon arguing to the jury that mitigating circumstances outweigh the aggravating factors urged by the prosecution, and that the sentencing should forego death for LWOP (life sentence without the possibility of parole).

What will Terry argue?  Each case is different. 

However, for those interested in these matters, there is the recent closing that he gave in the Wells case where the jury nixed death after considering Terry’s arguments for mercy.

Read that closing here: 

Penalty Phase Closing Argument in William Wells adv Florida 

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Over in California, lawyer Scott Glovsky creates podcasts of his talks with fellow trial attorneys, those he considers to be the great trial lawyers in the United States today, published on his site as "Trial Lawyer Talk." 

Terry Lenamon Interview: "Trial Lawyer Talk"

This month, he spoke with Terence Lenamon.  It’s a lawyer to lawyer chat.  And it provides fascinating details of how these capital cases are investigated as well as tried. 

It’s a death penalty lawyer going into detail about a specific capital case. 

The interview covers 36 minutes and can be heard here, as episode 38, where Terry discusses (1) facts of the case as well as (2) his experience in defending Byron Burch, who was accused of killing his elderly aunt in a horrific manner.  What about DNA?  What about mental illness?

Burch was convicted of the crime, but Terry successfully blocked the state’s desire for capital punishment in the case.  Instead, Burch was sentenced to life in prison without parole.  

This was a hard-fought victory for Terry, where Florida law at the time allowed a jury to vote 7 to 5 in favor of death for the state to win its desire for capital punishment.  Things have changed since then, of course. 

Opening Statement in Terry Lenamon’s Online Library

What more details?  You can read his opening statement in the Burch case as well as the state’s opening to learn what the jury heard in that case. 

Watch the Burch Penalty Hearing

There is also a YouTube video of the actual penalty hearing if you want to watch how these things progress, and see Terry in action. Watch it here: 

This week, the Marshall Project published an op-ed by Susannah Sheffer entitled "After Executions, Defense Attorneys Have Their Own Grief: a therapist on the emotional price lawyers pay to defend individuals sentenced to death."

 
As she points out so well, things are different for lawyers like Terry Lenamon who have dedicated their legal careers to defending men and women accused of capital crimes and for whom the prosecutor seeks the death penalty.  
 
Emotional Toll
 
There is the emotional toll that must be respected and cannot be underestimated when the death penalty defense attorney and his team does all that they can do, and still their client enters the execution chamber.  
 
From the article:
 
"Defense attorneys are not at the center of the death penalty story, but the penalty’s impact on these unique stakeholders is significant. It demands that we take seriously the wide-ranging implications of each execution."
 
Pressures of the Practicalities of the Practice
 
Another factor that adds more stress to the death penalty defense lawyer’s daily life which is not mentioned in her article is how these lawyers have to be savvy and smart in how they do their job, because they are dealing (for the most part) with indigent clients.  There’s not much money in the budget and there’s a life on the line.  
 
Defending against death in any scenario is emotionally harsh, but consider how difficult it is for the cases where you have to monitor how every single dime is spent and still maintain a standard of excellence?
 
Think about it.  
 
Indigent Defense in Capital Cases: Florida’s JAC
 
For more on this issue, see "Who is the JAC? What is JAC vs. Lenamon? Should You Care?" and read Terry’s amicus brief in Fletcher v. JAC for additional discussion. 

 

 In our last post, we discussed the upcoming August 2017 trial of James Bannister and gave some background information for the continuance motion filed and argued by Terence Lenamon as defense counsel for Mr. Bannister.  

It looked pretty solid then that the trial would begin this month.  

Things have changed.  

Continuance Motion Granted: Bannister Trial Rescheduled

Terry Lenamon filed another motion for continuance, and it has been granted.  Now the trial is scheduled to begin in October.  

For details, read today’s coverage in the Ocala Star Banner in an article written by Katie Pohlman entitled "Quadruple murder trial pushes to October."

Just one more lesson in how complex these capital cases are — not only factually, but procedurally.

What’s happened?  

As you will discover if you read the Ocala article, the Judge announced that there are two reasons for the trial delay.

1.  The Medical Examiner’s Schedule; and 

2.  The 11 Motions to Suppress Evidence filed by Lenamon.

Judge Pope, as quoted in the news piece, stated from the bench that both sides have "put forth a valiant effort" to get the case to trial.  

An Alibi Defense

One other factor here:  the defense’s need for additional time to investigate an alibi defense.  That’s right: an ALIBI.  

 

Update 08/10/2017

 

The Fourth Motion for Continuance (and the earlier motions as well) have been added to the Terence Lenamon Online Library.

For those of you interested in reading the actual filed motion (or to learn what a continuance motion looks like in Florida death penalty cases), here it is:

 

https://www.scribd.com/embeds/356019698/content?start_page=1&view_mode=scroll&access_key=key-ejG5qGrjW7LsBmOdFSRA&show_recommendations=true

 Last week, the Supreme Court of the United States (SCOTUS) published its decision in McWilliams v. Dunn, a capital case coming out of Alabama where Death Row Inmate James McWilliams argued  and won that his sentencing was unconstitutional.  He did not challenge his conviction.

Independent Mental Health Expert for Death Penalty Defendants in Capital Cases

He asserted that he had a right to an independent mental health expert in his defense against the death penalty.  By not having his own psychiatrist or psychologist to investigate his history of neurological issues (including a traumatic brain injury), the defendant could not fully assert mitigating factors going against a death sentence.  

In the majority opinion (written by Justice Breyer, SCOTUS explains:

1.  If the defendant is indigent, then the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense," citing Ake v. Oklahoma.

2.  Ake requires more than just an examination. It requires that the State provide the defense with “access to a competent psychiatrist  who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.”

3. The court is not deciding whether Ake requires a State to provide an indigent defendant with a qualified mental health expert retained specifically for the defense team.

Read the opinion here. 

For more on mitigation in a death penalty case’s sentencing phase, read our earlier posts including discussions on the issues of indigent defense funding; QEEG brain mapping; and the importance of mitigation specialists.