1. Inequality in Results: Unequal Outcomes in Capital Cases
Recently the Orlando Sentinel Editorial Board changed the paper’s official stance on the death penalty in Florida in an editorial entitled “It’s time for Florida to get rid of the death penalty,” and published on November 22, 2019.
Part of their argument includes a comparison of Terry Lenamon’s defense in the recent Markeith Loyd trial, where the defendant was spared death, with the jury recommendation of death for Everett Miller, convicted of killing two Kissimmee police officers. The two jury verdicts came down within weeks of each other.
From the Sentinel editorial:
No law should stand if it consistently produces such unequal outcomes, though there are many other reasons Florida should abolish the death penalty. It does not deter murder. It disproportionately affects the poor and minorities. It drains the state budget. And its haphazard application has resulted in 29 condemned inmates having their death sentences overturned.
Point to Ponder: Not every death penalty defendant is represented by defense counsel of Terry Lenamon’s caliber. What happens when capital punishment does not appear to be evenly applied? How can justice be served?
For more, read:
- Watch TV Interview of Terence Lenamon on Law & Crime Network; Markeith Loyd Trial
- Watch Lenamon’s Closing Argument in Markeith Loyd Trial: Jury Says No to Death Penalty
- Terence Lenamon Teaching at 2019 In Defense of the Damned Seminar at Gerry Spence Trial Lawyers College
- Lenamon Victory in Frantzy Jean-Marie Trial: No Death Penalty in Terrorist Boyz Capital Murder Case
2. Risk of Executing the Innocent
Yesterday, the Miami Herald published an opinion piece written by Harry L. Shorstein, former state attorney for the Fourth Judicial District (5 terms) and now in private practice. Entitled “Don’t let Florida execute James Dailey, Gov. DeSantis. He might be innocent,” Mr. Shorstein argues against the execution of Florida Death Row inmate James Dailey, asking that Governor DeSantis grant clemency.
Shorstein argues against the death penalty in this particular case because Dailey’s conviction was based in large part upon the suspect testimony of a “jailhouse snitch” with a past history as a con artist as well as being a registered child-sex offender.
From the Shorstein piece:
Floridians have differing views about the death penalty. But everyone agrees that if we are to have the death penalty, it must be fair and reliable. The process in Dailey’s case was neither. I believe that police and prosecutors do their very best and, in the majority of cases, they get it right. But human beings are imperfect. Sometimes the system fails. Since 1973, 166 people in the United States have been exonerated and freed from Death Row. Florida has had the most death-penalty exonerations of any state in the nation, with 29. The risk of executing an innocent person is real. There is powerful evidence that Dailey is innocent. There was never any eyewitness or forensic evidence implicating him.
Point to Ponder: Evidentiary hearings at the trial level can make all the difference in a capital case. Innocent defendants without aggressive advocates can end up facing convictions and death sentences that may fail no matter how zealous the advocacy on appeal. In most death penalty cases, defense lawyers are being paid by the state because the defendants are indigent. How do budget constraints impact the death penalty case?
For more, read:
- Loyd Hearing: Defense Seeks to Stop State of Florida’s Use Evidence of Other Crimes, Wrongs, or Acts (Full Text)
- McKinney v. Arizona: What Law Controls Review of Denying Mitigating Evidence in Death Penalty Sentencing Phase?
- SCOTUS Opens Door to PTSD, Child Abuse Mitigation Evidence in 25 Death Penalty Cases
- Will Tainted FBI Crime Lab Evidence Get Death Row Inmate Oscar Bolin a New Trial?
State Execution Methods and Federal Executions
Meanwhile, up in Washington, D.C., the Supreme Court of the United States has denied the federal government’s request for four federal executions to proceed. The SCOTUS Order in Barr v Roane is short, and unsigned, but it is accompanied by a Statement from Justice Alito, who is joined by Justices Grosuch and Kavanaugh.
SCOTUS returns the case to the U.S. Court of Appeals for the D.C. Circuit, where the appeals court is encouraged to rule quickly. SCOTUS refused the Justice Department’s request to overturn a lower court decision blocking these four executions and makes it clear that the federal government’s execution method must be resolved within the courts before federal executions can proceed.
[T]he District Court enjoined the Bureau of Prisons (BOP) from carrying out these executions based on its interpretation of a statute, 18 U. S. C. §3596(a), directing that federal executions be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” This means, the Government contends, that the mode of execution (i.e., by lethal injection, electrocution, etc.) must be the same as that called for under the law of the State in question, but the District Court held instead that a federal execution must follow all the procedures that would be used in an execution in that State— down to the selection of the way a catheter is inserted.
Point to Ponder: Another real concern in death penalty cases is how executions are carried out. State laws vary on the execution methods, from electric chairs to gas chambers to lethal injection. While lethal injection has predominated executions in recent memory, more and more this method of killing is being questioned and challenged. Of note: the lack of certain drugs forcing states to change their “cocktail” protocols. How can an execution ethically and humanely take place? Are the evolving lethal injection protocols cruel and unusual punishment?
For more, read:
- Returning Death Penalty to Other Execution Methods On the Books
- Will Tennessee Electric Chair Be Used Today in Execution of Edmund Zagorski?
- Execution Methods: Will We Return to Gas Chambers, Electric Chairs, and Firing Squads?
- Lethal Injections and Compounding Pharmacies: Why These Are Very Bad Sources of Supply