Players in a Death Penalty Case

When considering the contributions of capital defense lawyers like Terry Lenamon to the fight against the death penalty in this country, most people think of their advocacy in a particular case, particularly the more publicized trials.

However, it is the strategies and skills of death penalty defense lawyers that are being recognized as a more systemic contribution to the declining use of capital punishment in this country.

The following efforts by death penalty defense lawyers are discussed as factors in the reduction of capital sentences imposed in the past decade:

  1. dedicating time and energy into the investigation and presentation of mitigating circumstances for the accused, including family history of childhood deprivation and abuse; mental health patterns over the life of the defendant; and other mitigating factors against a capital sentence;
  2. working with prosecutors with zealous plea bargaining strategies to avoid death; and
  3. focus upon jury selection in capital cases.

From the ABA Publication:

“Mitigating is not offering an excuse or justification for the crime, but instead placing the crime in the context of a whole life. This book offer specific steps and strategies that lawyers and others can use in the course of their work.”

For more on how mitigation is vital in a death penalty defense, see:

The website WildAboutTrial.com promotes itself as providing “the nation’s hottest criminal trial coverage.”   Not only does the site provide background information regarding pending criminal proceedings, it often provides live coverage from the courtroom as things are happening.

Site Shares Live Courtroom Coverage

Today, for instance, they are sharing coverage of the sentencing hearing for Bill Cosby (details provided here).  The hearing is not live but the site is tweeting as things are happening in the Cosby case up in Pennsylvania.

Meanwhile, the site is providing live coverage of the courtroom proceedings in the Illinois trial of Jason Van Dyke.  Watch the live stream.

Markeith Loyd Hearings on WildAboutTrial.com

For those following Terry Lenamon’s defense in the Markeith Loyd trial — including (1) his arguments regarding race and the death penalty and (2) the notice that the defense intends to call former state prosecutor Aramis Ayala as a mitigation witness, if necessary, this site may be of interest.

WildAboutTrial.com has a dedicated web page for the Markeith Loyd proceedings.

While the most recent hearing has yet to be uploaded into their archives, you can watch the June 12, 2018 proceedings.

Read Court Filings in Defense of Markeith Loyd

For more on the Markeith Loyd’s defense, read:

Defense To Call State Attorney Ayala as Mitigation Witness Against Death Penalty in Markeith Loyd Case

 

Death Row: The Final Minutes by Michelle Lyons  is a book that you may want to read, no matter your position on the death penalty.  It’s a well-written memoir (consistent 4.5 and 5 star reviews, if that’s important to you).

Lyons Witnessed Hundreds of Executions

Michelle Lyons was an eyewitness to almost 300 executions by lethal injection by the State of Texas.  Part of the time, she did so as a reporter.  For the rest of the deaths, she was there as the media representative (spokesperson) for the Texas Department of Criminal Justice.

She watched the inmates die, time and time again.  She also grew to know many of these men and women, as well as the staff who had the horrific responsibility of carrying out the execution.  (As did her friend and predecessor Larry Fitzgerald, who figures prominently in the book).

For those interested in capital punishment, reading what Michelle Lyons has to tell us about her knowledge and perspective regarding the death penalty, the lethal injection method of execution, and how it impacts so many people is important.  

 

Book Description From Amazon

First as a reporter and then as a spokesperson for the Texas Department of Criminal Justice, Michelle was a frequent visitor to Huntsville’s Walls Unit, where she recorded and relayed the final moments of death row inmates’ lives before they were put to death by the state.
Michelle was in the death chamber as some of the United States’ most notorious criminals, including serial killers, child murderers and rapists, spoke their last words on earth, while a cocktail of lethal drugs surged through their veins.
Michelle supported the death penalty, before misgivings began to set in as the executions mounted. During her time in the prison system, and together with her dear friend and colleague, Larry Fitzgerald, she came to know and like some of the condemned men and women she saw die. She began to query the arbitrary nature of the death penalty and ask the question: do executions make victims of all of us?
An incredibly powerful and unique look at the complex story of capital punishment, as told by those whose lives have been shaped by it, Death Row: The Final Minutes is an important take on crime and punishment at a fascinating point in America’s political history.

 

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: