Players in a Death Penalty Case

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. 

 

 

For Terry Lenamon, it happens almost every day: getting asked why he does what he does — defending people in criminal cases where they are facing the death penalty in some of the most horrific and troubling crimes imaginable. 

Byron Burch Case: State Wanted Death Penalty

Take for example his recent trial over in Tampa, Florida, where Byron Burch was facing the death penalty after being found guilty of killing 80 year old Sarah Davis after he broke into her home to steal things. They knew each other: she had hired him to do some handyman chores. She was found in her bathroom, with over 25 knife wounds.

It was a horrific bloody crime and a sad and tragic story. Sarah Davis didn’t deserve to end her days this way.

So how can Terence Lenamon take on the job of arguing that Byron Bunch shouldn’t pay in kind and get capital punishment for this crime?

It’s a balance. It’s looking at the mitigating factors found in the Florida statutes as they compare to the aggravating factors the state argues in its quest for death.

Read Terry’s Arguments on Why Byron Bunch Shouldn’t Be Executed Here

To hear Terry’s own arguments here, and the state’s as well, we provide the Opening Arguments in the Byron Bunch case so you can read exactly what Terry’s position was in this case — one that rang true with the jury here, because they came back with a recommendation that Byron Bunch be spared the death penalty and be given life without the possibility of parole as his punishment.

Read the State’s opening here.

Terence Lenamon’s Arguments to the Jury against the Death Penalty

Read Death Penalty Defense Attorney Terence Lenamon’s opening statement in the Byron Bunch case here:

 

https://www.scribd.com/embeds/273735125/content?start_page=1&view_mode=scroll&show_recommendations=true

 

 Watch the verdict being read here:

 

 

 

 

Right now, the Supreme Court of the United States has agreed to review (”granted writ”) the decision by the Florida Supreme Court in a case brought by a Florida Death Row inmate. (For details, check our recent post on this pending appeal.)

This decision by the nation’s High Court may well decide if the State of Florida’s “death penalty scheme” should include an unanimous decision by jurors in deciding on the death penalty in a case.

Right now Florida does NOT require 100% agreement of the jury before capital punishment can be sentenced in a case.

Will this change? Should it?

Well, consider the recent decision in the Jodi Arias matter. After all the time and money spent on not one but TWO juries hearing arguments over whether or not Jodi Arias should be sentenced to death, one single individual held out against the death penalty and the result?

Arias escaped the death penalty even though most of the jurors who reviewed her case were in favor of it.

The public was not happy with this result and there were death threats against that single juror. It was the requirement of an unanimous jury that saved Jodi Arias from the death penalty.

Trial By Media Impact? 

NOTE: as for trial by media, it’s interesting to consider the reasoning of that holdout juror: it’s reported that the Lifetime TV Movie that portrayed the Jodi Arias case through her meeting with murder victim Travis Alexander through her trial and conviction was a great influence on the juror’s stubborn resolve not to vote for death.

Up in Tallahassee, there’s a new bill that will be considered in the 2015 session of the Florida House:  if it is passed into law, it will force the State of Florida to reveal the names of those people who act as executioners in Florida death penalty executions.

Right now, no one knows who these people are. This is not traditional, historically.

While there were those black-hooded executioners, the identity of most executioners over time has been known to the public. The man who beheaded Lady Jane Grey, for instance, was not secret (read an eyewitness account of that execution, where her last conversation was with her executioner).

Ditto those who took Marie Antoinette to the French Guillotine (her execution seen in the image below)

 

Florida Bill HB 4003

If HB 4003 is passed, then those who want to do away with capital punishment think that they will be one step closer to ending the death penalty in Florida. Why? Well, for one thing, Florida executes with lethal injection and we would all know the amount of medical training (or lack thereof) of the state executioners.

Remember Oklahoma’s botched lethal injection execution? It’s a big question now in that state — what training or expertise did that executioner have?

Here is the synopsis of the proposed law to reveal the name and identity of Florida executioners (for the full 36 page text of the proposed law go here):

HB 4003 — Death Penalty

Death Penalty: Deletes provisions providing for death penalty for capital felonies; deletes associated provisions, including provisions relating to representation in death penalty cases, capital collateral representation, jurors in capital cases, prohibiting imposition of death sentence on defendant with mental retardation, determination of whether to impose sentence of death or life imprisonment for capital felony or capital drug trafficking felony, issuance of warrant of execution, stay of execution of death sentence, proceedings when person under sentence of death appears to be insane, proceedings when person under sentence of death appears to be pregnant, grounds for death warrant, execution of death sentence, prohibition against reduction of death sentence as result of determination that method of execution is unconstitutional, sentencing orders in capital cases, regulation of execution, transfer to state prison for safekeeping before death warrant issued, return of warrant of execution issued by Governor, sentence of death unexecuted for unjustifiable reasons, & return of warrant of execution issued by Supreme Court.

 

 

The Discovery Channel has dramatized the Escoto case (see our earlier posts for Terence Lenamon’s defense of Michel Escoto and background on the case).  

It’s called "I’ll Have What She’s Having."

(You may recall that Dateline also did an episode on this murder trial, entitled "Mystery in South Beach"  earlier this year. 

Check it out! 

From the Discovery Channel, this description:

Charming Michel is living a cozy family life with loyal girlfriend Yolanda. When he starts classes at beauty school, he also launches into a steamy relationship with a younger woman. It’s a three way love affair that will have fatal consequences.

 

 

Terry Lenamon Joins Sister Helen Prejean and Others To Discuss Death Penalty 

Mark your calendars for November 8, 2014, when Terence Lenamon will be joined by Sister Helen Prejean and Herman Lindsey (played by Susan Sarandon and Sean Penn, respectively, in the movie, "Dead Man Walking"); along with Broward Public Defender Howard Finkelstein and Melisa McNeill and Betsy Benson, Assistant Public Defenders Homicide Division to discuss issues surrounding capital punishment and the growing problem of innocents facing the death penalty.  

Where:  The Sanctuary Church, Ft. Lauderdale, Florida, 33304

When:  November 8, 2014, at 6 pm

 

 

Several years ago, Dr. Marc Stern resigned from the Department of Corrections for Washington State, where he worked as its chief medical officer, because he could not jive his professional ethics as a physician with the state’s use of capital punishment.  
 
It’s a big dilemma in the use of lethal injections, particularly, as a means of execution since physicians are committed to health and saving lives, not ending them.  
 
 
 
Image:  States in red have had an execution since 1976.
 
Doctors are against the death penalty, and as Dr. Stern personifies, many also stand against physicians being involved in the supervision of others in any form of execution process (not just lethal injections). 
 
Dr. Stern Explains The Doctor’s Dilemma Regarding the Death Penalty
 
 
You can read about Dr. Stern’s resignation in an 2008 piece written by Adam Wilson for the Seattle Times here.
 
To learn more about Dr. Stern’s position on the Death Penalty, particularly in light of recent botched executions, read his Op-Ed piece published last month in the Guardian, “I was told to approve a lethal injection, but it violates my basic medical ethics.”