Players in a Death Penalty Case

 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.

Over in Texas, the worst nightmare for any death penalty defense attorney is being played out in real life:  the allegations that a prosecutor committed serious misconduct during the capital trial, which resulted not only in the conviction of an innocent man, but his execution.

Cameron Todd Willingham was executed in 2004 for the arson deaths of his three young daughters.  He maintained his innocence always.

The Innocence Project began investigating claims of prosecutorial misconduct several years ago.  That led to a grievance being filed before the State Bar of Texas which included supporting evidence to allegations that the prosecutor that include:

1.  he made a deal with a jailhouse snitch to testify against Mr. Willingham in exchange for favorable treatment of the snitch; and 

2.  used various kinds of junk science to argue that the father had set fire to the home, killing his children.

Read the details in the Washington Post piece, " A Texas prosecutor is on trial for alleged misconduct," by Radley Balko published on May 3, 2017.  

Today, shocking many, the jury returned without any punishment for the prosecutor.  

Which makes the efforts of capital defense lawyers like Terence Lenamon all that more important and vital….

 Markieth Lloyd wants Terence Lenamon as his defense counsel – and only Terry Lenamon. 

Terence Lenamon is not discussing this issue with the media and he’s not issuing any kind of news release here. 

This post shares this current development with the blog’s readers and refers them to the following news stories for details:

"Markeith Loyd asks Miami capital punishment lawyer to represent him," by Emilee Speck, published April 3, 2017, on ClickOrlando.com. (Also published by Local10.com); and

" Markeith Loyd Told A Judge He Wants A Specific Lawyer," published April 3, 2017, at NewsTalkFlorida.com. .

The court will rule on this matter on April 12, 2017.

 

With all the hoopla surrounding the Florida death penalty statute (see our prior posts), some may be wondering what capital defense lawyers in Florida are doing right now.  Well, there are those sentencing hearings, right? 

Lenamon is Defending a Murder Case in Miami

And there are still murder trials.  The prosecutors are still busy trying homicide cases in Florida, no matter what controversy surrounds seeking the death penalty right now. 

Like the one that Terence Lenamon is involved in this month over in Miami. 

Back in 2008, a North Miami pawn shop owner named Marty Sprung was shot and killed.  Check out the 2008 Spot Crime report here.

Last Thursday trial began in the murder trial where Stevenson Charles is being accused of killing the pawn shop owner.  The District Attorney’s Office is seeking life imprisonment for the crime.

Terry Lenamon is defense counsel in the murder mystery case. 

Read the details of the story here in the Miami Herald coverage, "Who killed pawnshop owner? Miami jury to decide identity of killer."  It’s a real life whodunit in the article by David Ovalle, published on January 19, 2017.

 

CBS has made not only the video of its 60 Minutes story but the full transcript from “30 Years on Death Row” available online. 

It first aired back in October 2015, but you may have seen it earlier this month, when they shared it a second time.

Wrongful Conviction and 30 Years in Solitary Confinement on Death Row

It’s the story of how a man named Glenn Ford spent 30 years in solitary confinement on Louisana’s Death Row.  He was wrongfully convicted.  An innocent man.

Prosecutor Interview: "I was arrogant, narcissistic, caught up in the culture of winning.."

Key here is the interview the prosecutor in that case, as he explains the trial tactics and perspective of the state’s attorney in a capital case. 

Another vital message here: the fact that the defense attorneys not only had no capital murder defense expense, they did not practice criminal law at ALL.  These were two civil attorneys, going into court against an experienced prosecutor with a man’s life at stake.

Read the Transcript here.

Watch the Video here.

A new report has been published by Harvard Law School, and it should give anyone concerned about capital punishment in this country some food for thought.

As part of its "Fair Punishment Project," Harvard Law studied all those prosecutors in offices all across the country who prosecute capital crimes and have the power to seek the death penalty in these cases. 

It’s only when a Notice of Intent to Seek the Death Penalty is filed that capital punishment and killing the accused for his alleged crime becomes an issue.  If the prosecutor doesn’t decide to ask for death, then it’s not on the table.

Harvard Report: Five Deadliest Prosecutors

The results of the Harvard study?  They found that FIVE people tally up putting 440 individuals on Death Row.  That’s right.  Just 5 state attorneys — and they are spotlighted in this new report, "America’s Top Five Deadliest Prosecutors."

Read the report online here. 

Four Men and One Woman and 440 Death Sentences

In case you’re wondering, none are from Florida; one is from Texas.  The five are:

  1. Joe Freeman Britt — Robeson County, North Carolina (Lumberton);
  2. Donnie Myers — Lexington County, South Carolina (Lexington);
  3. Bob Macy — Oklahoma County, Oklahoma (Oklahoma City);
  4. Lynne Abraham of Philadelphia County, Pennsylvania (Philadelphia); and
  5. Johnny Holmes of Harris County, Texas (Houston).

Three More Prosecutors With High Death Penalty Conviction Rates

The report also offers the names of three more prosecutors who "… if they continue on their current trajectories, may soon join the ranks of the deadliest prosecutors in America."  They are:

  1. Bernie De La Rionda — Duval County, Florida (Jacksonville);
  2. Jeannette Gallagher – Maricopa County, Arizona (Phoenix);
  3. Paul Ebert, Prince William County, Virginia (Manassas).

 

 

 

When I asked Terry what he thought about the recent Slate article, “ The Worst Lawyers: Death sentences are down across the country—except for where one of these guys is the defense attorney,” he said that what law professor Stephen Bright wrote twenty years ago is still true today: all too often, the death penalty is handed down not “for the worst crime, but for the worst lawyer.” (Bright is quoted in the Slate article).

It goes without saying that capital punishment is sought in cases where all too often, the defendant is indigent. That means that they are appointed counsel as their constitutional right.

In what situation can you imagine where it’s more important to have a dedicated, compassionate, experienced, and smart lawyer than in a case where the prosecution is seeking the death penalty?

Yet all too often, as Terry pointed out, there are some very bad (I won’t use his exact adjectives; explicatives deleted) lawyers out there who are all too happy to take on capital punishment representations.

That’s one end of the continuum. But there IS a continuum.

Some of the Best and the Brightest Defend Capital Cases

There are lawyers in this country who are dedicated to representing people who are facing death penalty convictions (or are trying to have death penalty sentences reversed on appeal). They are not choosing this practice area because they want money or glory — if they were, there are plenty of other areas of the law that are better suited to those goals.  

They made a choice.  Or maybe their hearts made the decision for them.  

These are top-notch lawyers who enter a courtroom where the battle isn’t for money or years behind bars: it’s life versus death. They are passionate — and very good at what they do.

Yes, the Slate article is right. But it’s not the whole story.

Good lawyering is paramount in capital cases; and while there are bad lawyers representing defendants in capital cases, you will find some of the most honorable and (yes) noble of our profession are doing the same thing.

Do You Know About the Florida Capital Resource Center?

Like Terence Lenamon.  Like those that work for and/or support the non-profit organization Terry co-founded, the Florida Capital Resource Center.

Maybe you know a few names to add to that list; feel free to share them in the comments. 

From the Florida Capital Resource Center website:

History & Overview | Where we began & where we are going…

Florida Capital Resource Center was founded in 2009 by Terence "Terry" Lenamon, a renowned capital defense attorney in Miami, Florida, and Cynthia "Cindy" O’Shea, a talented defense attorney-turned-mitigation specialist who works with Terry on many of his capital cases.

Terry and Cindy believed that Florida’s capital justice system was (and still is) in a state of emergency because capital defense attorneys are often underfunded, under-qualified, or simply unmotivated to provide effective representation, particularly in cases involving indigent defendants.

Though vast amounts of taxpayer dollars are spent on the administration of Florida’s death penalty, budget cuts and poor legislation have reduced critical public defender resources and act to discourage talented private attorneys from registering for court-appointment.

To help counter that growing and alarming problem, Terry and Cindy decided to create a nonprofit organization that would provide a place where capital defense attorneys could find death penalty-related information and trial materials. They commissioned a website designed to house a clearinghouse of materials, and those materials are constantly expanding.

Since its inception in 2009, FCRC’s mission has expanded and its goals have broadened. Today, the mission of Florida Capital Resource Center is to assist indigent defendants facing the death penalty by providing consultation, research, training, advocacy, and other necessary resources to capital defenders state-wide.

Recognizing the "uneven playing field" inherent in the defense of impoverished individuals on trial for their lives (and the gross limitations of post-conviction remedies, even in the most constitutionally-violative cases), FCRC attempts to ensure that long-standing inequities are mitigated or abolished.

FCRC operates in multiple venues, including standing with those seeking statutory and rule changes intended to remove injustice from all relevant aspects of death penalty law and practice.

Working with other organizations (both local and national), FCRC seeks to protect the constitutional rights of Florida’s capital defendants by increasing access to critical resources, thereby improving the level of representation provided by Florida’s capital defense bar.

It’s only on television that the Federal Bureau of Investigation is always honorable and crime lab evidence is beyond reproach. 

In reality, FBI agents and especially the FBI Crime Lab, and evidence coming out of that FBI lab, have been brought into question — and even more, discredited by experts. 

That’s right:  FBI evidence has been wrong.  Even more scary, FBI evidence has been used to put people behind bars that prosecutors should have known better than to trust and to use.

FBI Evidence Not to Be Trusted 

For more on this scandal, check out:

“FBI admits flaws in hair analysis over decades,” published in the Washington Post on April 18, 2015

“CSI Is a Lie: America’s forensic-investigation system is overdue for sweeping reform," published in The Atlantic on April 20, 2015.

Pseudoscience in the Witness Box: the FBI faked an entire field of forensic science,” published in Slate on April 22, 2015.

Attorneys Move for New Trial for Florida Death Row Inmate Oscar Bolin

Those who have lived in Florida for awhile may well recognize the name of Oscar Ray Bolin and the horrendous murders of three women (Natalie Holly, Terri Lynn Mathews and Stephanie Collins) that he has been convicted of committing, and for which he has been sentenced to death. 

Others may recognize his name because of the media coverage that has been given to his marriage to Rosalie Bolin, a noted mitigation specialist in death penalty cases. 

Note:  Rosalie Bolin is a friend and colleague of Terence Lenamon.  If you want to learn more about her love story with Oscar Bolin, check out the piece done by ABC’s 20/20 earlier this month, “How a Florida Woman and Convicted Serial Killer on Death Row Met and Fell in Love.”

 
Here’s the thing.  

Over in Hillsborough County, Oscar Bolin’s lawyers have brought forward a request for a new trial based upon an investigation done by the Office of the Inspector General. 

The basis of that request?  

The Inspector General’s report reveals thirteen (13) FBI agents working in the crime lab not only falsified evidence in the lab but they also took the witness stand and lied about it under oath.  One of those bad apples is an agent named Michael Malone.

This same FBI agent, Michael Malone, was the federal agent in charge of the evidence in Oscar Bolin’s case.  It was this agent, Michael Malone, who asserted that black fiber evidence connected Oscar Bolin to the murders of the three women for which he now sets on Death Row. 

At the Hillsborough County hearing, a whistleblower from the FBI, agent Fred Whitehurst, took the stand on Bolin’s behalf and not only described a “culture of corruption” at the FBI, but that the evidence provided by Michael Malone and his accompanying testimony about that evidence should not be considered in any trial because it is “unreliable.”

For more, watch the video here. 

Terry’s friend Rosalie Bolin and her husband, Oscar.

 

The jury in the Colorado Death Penalty trial of James Holmes came back against capital punishment this week, and news reports are that the reason Holmes was spared the death penalty was due to a single juror who stood firm against it. 

In Colorado, that single juror has big power.  Not so in Florida. 

For instance, here in Florida, Byron Burch was recently spared the death penalty in a case where Terence Lenamon argued to the jury that he should be spared.  The jury agreed, and came back with a recommendation of life without parole.

To read Terry Lenamon’s Opening in the Burch Penalty Phase, as well as the one given by the state’s attorney, check out our earlier post of visit Terence Lenamon’s Online Library (see the left sidebar link). 

Florida Jury Difference in Death Penalty Cases

Many people assume that for someone to get the death penalty, there has to be 100% agreement among the jurors, or at least a majority of 10 to 2.  Colorado requires an unanimous agreement, which is why that sole juror was able to thwart the state’s desire for capital punishment.

However, in Florida, things are different.  Here, in a death penalty case, there needs to be a mere 7 to 5 jury vote in favor of the death penalty for a Florida jury to recommend capital punishment for someone. 

Which means that it’s much easier to get the death penalty in Florida than in other states and why Terry’s victory last week is so impressive.

Note:  Right now, the United States Supreme Court has a case pending before it that challenges Florida’s current death penalty jury process.  See our earlier post for details.