The capital murder trial of James Bannister is set to go forward in a little over two weeks.

Bannister Jury Selection Set for August 14 

Terence Lenamon’s motion for a continuance of the August 2017 trial date was denied by the judge after a hearing earlier this month.  It was not his first continuance motion.  The judge appears firm on the Bannister trial beginning with jury selection on August 14th.

Lenamon Comments

For details on that July 2017 hearing read the coverage by Katie Pohlman, "Attorney denied more time for quadruple murder case," published in the Ocala Star Banner.  

Now, here’s the thing.  Terry Lenamon isn’t going to comment here in this blog post about this situation, you can read what he has to say in the Ocala news coverage of the case (quoting his arguments to the bench).  

Why not?  For one thing, it’s a pending case.  For another, he’s busy doing the work of getting ready for this trial as well as juggling his other cases and running a busy law practice.  (That’s why he has a co-author.)

Things to Consider

But there are things to share about this situation.  Answers to some questions that might be asked about what’s going on here.

Here are some things I can share, from my perspective as a lawyer setting over in Texas:

Time and Money

All trials, civil or criminal, boil down to time and money.  It takes time to prepare a case for trial before a jury, no matter what’s in controversy.  And it takes money to do the job.

Nowhere are these two things more critical than in a death penalty case.  Capital cases are by definition going to involve the (1) guilt phase and (2) sentencing phase.  

Two Phases of a Capital Case

If the accused in a death penalty case is found guilty, there’s not a delay before sentencing is considered (which is the case in other jurisdictions).  In Florida, the jury trial will enter the sentencing phase if a guilty verdict is rendered.  Same jury, same courtroom, same trial.  

So the capital defense team has to get ready for both phases in its trial preparation.  Gathering and assembling authenticated, admissible evidence that deals with (1) the facts of the crimes themselves (here, multiple homicides and arson) as well as with (2) the mitigating circumstances that impact upon whether or not capital punishment should be considered for this defendant.  This may include psychological expert testimony, evidence of childhood trauma, etc.  

The evidence in the guilt phase and the evidence in the sentencing phase do not overlap.  So, preparation for the death penalty trial is complex.  It’s a huge undertaking.  And it takes time and money to get it ready to go (along with preparation of opening statements, cross-examination questions, closing arguments, etc.).

Death penalty cases, therefore, will take longer to get to trial than smaller, simpler criminal matters. That’s the nature of this kind of case.  

Indigent Defense

In capital cases, the defendants usually do not have the financial wherewithal to pay for their defense lawyer and his team.  The federal constitution’s right to counsel comes into play.  They have court-appointed lawyers, like Terence Lenamon, that are appointed to defend them.

Court-appointed attorneys don’t get paid the same hourly rate that private practice lawyers demand (and get).  They get paid by a set government schedule.  And they don’t have the client retainers to cover expenses for things like investigators, research costs, etc.  They have to cover those litigation costs from state funds, too.  

Indigent defense in a death penalty case is a cost balancing act.  The representation has to be effective and zealous, but every penny has to be carefully spent.  

Death On the Table

Add to all this the sobering reality that someone’s life is on the line here.  The capital defense lawyer must always have in focus that if there is a guilty verdict, then his (or her) job will be to try and stop an execution from being part of the sentencing.  That’s a huge factor in these cases that simply does not exist in other trials, civil or criminal.

For More Information

Hopefully this provides some background information for our readers on what’s happening here in this particular Florida death penalty trial that’s beginning next month. 

For more details, check out

 

The Florida Execution Schedule is up and running again.  Governor Rick Scott has signed the Death Warrant for an August execution, the first execution for Florida in 18 months.

Mark James Asay is scheduled to be executed by the State of Florida on August 24, 2017, at six o’clock in the afternoon.  

Death Warrant Signed by Florida Governor Rick Scott

You can review the actual Death Warrant below, and it has been stored in the Terence Lenamon Online Library as well.  

Notice that it includes:

  1. the Governor’s letter;
  2. correspondence from Florida Attorney General Pam Bondi;
  3. the Death Warrant; and 
  4. the Judgment and the Sentence of the Duval County trial court. 

Asay Previously Scheduled for Execution in March 2016

This is not the first time that Mark James Asay has sat on Death Row with an execution date looming before him.  He was previously scheduled for death back in March 2016.  

However, the SCOTUS ruling in Hurst v. Florida intervened and the Florida Supreme Court delayed that 2016 execution.  Last December, the Florida Supreme Court lifted its execution stay for Asay. 

Here is a copy of the Death Warrant itself, signed by Governor Rick Scott and published online by the Florida Supreme Court: 

 

 

The Death Penalty Information Center website is a great resource for anyone interested in learning more about capital punishment in the United States.  And the site just keeps getting better.  

They’ve got site-specific pages for each state, for one thing.

DPIC State-Specific Page: Florida

There’s a great deal of Florida Death Penalty information collected on the DPIC Florida page, great info like:

  • Death Sentences List
  • Exonerations List
  • Time Line for Capital Punishment in Florida
  • and links to other resources — among them, the Florida Capital Resource Center (which Terence Lenamon founded several years ago). 

And there’s a specific page dedicated to the impact of Hurst on Florida’s Death Row that is especially informative. 

DPIC Impact of Hurst Page 

The page dedicated to the impact of Hurst provides a complete list of the Florida Death Row Inmates who may be impacted by the SCOTUS ruling in Hurst.  

And at the top, it gives the date of its last update and the status of these prisoners’ cases.

For instance, on July 13, 2017:

  • Total number of prisoners whose cases have been reviewed in light of Hurst:  119 
  • Number of prisoners who have obtained relief under Hurst:  99 (83.19%)
  • Number of prisoners who have been denied relief under Hurst:  20 (16.81%)

Go check it out.  Just more great work by the DPIC.  

 

Last night, Virginia Death Row inmate William Morva was executed by lethal injection.  Morva was sentenced to death for the 2006 killing of a sheriff’s deputy and a hospital security guard while Morva was unsuccessfully trying to escape from a hospital.  

Morva Suffered Severe Mental Impairment

Earlier on the day of the Morva execution, Virginia governor Terry McAuliffe considered and denied a petition for clemency.  The basis of the petition was Morva’s mental state.

William Morva had been evaluated by psychiatric and psychological experts.  It was their opinion that William Morva suffered serious mental illness and that he was mentally ill at the time of the killings for which he was convicted.  That Morva was delusional at the time, and could not comprehend what he was doing at the time.

In his statement released after the denial, Governor McAuliffe gave two reasons for denying clemency:

(1) the opinions of three mental health experts during the capital trial that Morva could understand right from wrong at the time of the killings; and

(2) the files of those monitoring Morva during his nine years of confinement, where "…mental health staff have monitored him weekly and assessed him quarterly for the past nine years and have never reported any evidence of delusional disorder or severe mental illness."

ABA Letter Asking for Clemency 

Many were fighting against this execution.  Among them, the American Bar Association which sent a letter to the governor of Virginia in a last ditch effort to get clemency and stop the execution. 

Read the ABA Letter here. 

Governor’s Letter Affirms The Importance of Defense in Capital Trial

From the Governor’s letter comes the following explanation – which only serves to affirm how very important the work of capital defense lawyers like Terence Lenamon is when it comes to a capital case.  

Terry focuses upon the sentencing phase of these death penalty trials, where the jury is given arguments from both sides on whether or not to sentence the defendant to death.  

The decision of that capital jury is strong — and while it may be overturned upon appeal, the Morva case reminds us all that the jury’s verdict may also remain … and death can be the result.

From the Governor’s statement:

“At the conclusion of that review, I have determined that Mr. Morva was given a fair trial and that the jury heard substantial evidence about his mental health as they prepared to sentence him in accordance with the law of our Commonwealth. In short, the record before me does not contain sufficient evidence to warrant the extraordinary step of overturning the decision of a lawfully empaneled jury following a properly conducted trial.

“I personally oppose the death penalty; however, I took an oath to uphold the laws of this Commonwealth regardless of my personal views of those laws, as long as they are being fairly and justly applied. Thus, after extensive review and deliberation consistent with the process I have applied to previous requests for commutation, I have declined Mr. Morva’s petition. I have and will continue to pray for the families of the victims of these terrible crimes and for all of the people whose lives have been impacted.”

 

As we have discussed earlier, the SCOTUS ruling in Hurst means that almost 400 Florida Death Row inmates may need new sentencing hearings … and that’s happening now.  

Hurst Impact on Current Florida Death Row Inmates — Manatee Example

For details, read the coverage of the recent developments for three Florida Death Row inmates, all from Manatee County, in "Challenges to Florida’s death penalty impact three Manatee death row inmates," written by Jessica DeLeon and published in the Bradenton Herald on July 1, 2017.  

SCOTUS Death Penalty Review

Now that summer is here for the Supreme Court of the United States, we can look back over their actions in the past session to get an idea of where they may rule in future death penalty cases.  As Hurst demonstrates, SCOTUS has great power here — but will it ultimately use that power to outlaw capital punishment in this country?

For a good overview of what happened this year with SCOTUS and some predictions on where the High Court is headed, read the op-ed by Professor Stephen McAllister and published in SCOTUSBlog, "Death-penalty symposium: A court increasingly uncomfortable with the death penalty."

For more, read our past discussion in:

Court Rules on Post-Hurst Sentencing Hearings

How Many Florida Death Row Inmates Will Get Resentencing Hearings?

What Does the New Hurst Decision Mean for Florida Death Penalty?

 

 

 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.

 Here’s a great resource for a quick overview of the death penalty in the United States, state by state, including clemency granted and denied and various issues with execution methods.  

Compiled by CNN, you can read it here as their Death Penalty Fast Facts.

Among the details found there: 

1.  Since 1973, there have been 157 death row exonerations and 26 of those executions have been in Florida.  That’s 17%. 

2.  There are 62 people sitting on the Federal Death Row — no, not any state.  The federal government can execute, too. 

3.  A Florida governor has suspended the death penalty,  Governor Jeb Bush did so after the horrific execution of Angel Diaz back in 2006.

4.  A drug called sodium thiopental was popular in lethal execution methods in several states until the DEA began questioning where the states were getting their supply and seized all of Georgia’s supply of thiopental.  

That led to the only US manufacturer to stop making it, and overseas manufacturers to refuse to sell it to American buyers.  Result?  States began looking for a substitutefor sodium thiopental.  Georgia chose pentobarbital to replace sodium thiopental in its 3-drug cocktail. 

5.  Pentobarbital hasn’t been so easy to find for executions either.  Ohio couldn’t find any pentobarbital to buy, so it substituted midazolam along with hydromorphone in its lethal injection procedure.  This was used on Alan Johnson, who reportedly gasped for air for as long as 13 minutes before passing away 24 minutes after the execution began.

 

 The thing about lethal injection is that it’s an execution method usually built around a combination of drugs.  And those drugs might not be the same.

Indiana 3-Drug Combo Voided by Indiana Court

For example, in Indiana the drug combination protocol established by the Indiana Department of Corrections was: (1) methoexital; (2) pancuronium bromide; and (3) potassium chloride.  The Indiana Court of Appeals nixed the use of this drug cocktail this month.  

For details, read their decision in Ward v. Carter, and the discussion at DeathPenaltyInfo.org. 

SCOTUS Dissent By Sotomayor Questions Use of Midazolam

This month, Justice Sotomayor voiced her concerns over using midazolam in a lethal injection in her dissenting opinion in Arthur v. Dunn, writing:

"I continue to doubt whether midazolam is capable of rendering prisoners insensate to the excruciating pain of lethal injection and thus whether midazolam may be constitutionally used in lethal injection protocols."

Read the full dissent here. 

So, is this a hint that midazolam’s days are numbered as a method of execution?  And if it’s ruled out, then will states simply find another drug to use in its stead?

For more on this issue, check out:

 Last week, the Supreme Court of the United States opted not to review a case dealing with the Florida Supreme Court’s determination that there must be an unanimous jury for the death penalty. 

Which means that it’s clear going forward that in Florida capital cases, the prosecution must convince all twelve jurors that capital punishment is warranted before the death penalty can be imposed.

Jury Instructions in Florida Death Penalty Cases

This changes how the prosecutor and the defense lawyer do things, of course.  Judges, too.  For instance, as Terence Lenamon has discussed in an interview by the Ocala Star Banner, there will be necessary changes to the Jury Instructions that must be given in a capital case.

May 29th Ended Comment Period for Florida Supreme Court

Right now, the Florida Supreme Court is working on amending the Standard Jury Instructions that are to be given in a capital case, in light of the SCOTUS precedent.  

The time period for public commentary on these new instructions ended this week.  

SC17-583 Opinion: Jury Instructions Under Review 

Pursuant to the Florida Supreme Court’s Opinion SC17-583, here are the specific Standard Jury Instructions that are involved:

Two Standard Jury Instructions in Criminal Cases are in the process of being amended:

7.11 (Preliminary Instructions in Penalty Proceedings—Capital Cases) 

7.12 (Dialogue for Polling the Jury (Death Penalty Case).

Two new jury instructions are being proposed:

3.12(e) (Jury Verdict Form— Death Penalty)

7.11(a) (Final Instructions in Penalty Proceedings—Capital Cases).

THE APPENDIX TO SC17-583 CONTAINS THE FULL TEXT OF ALL THE PROPOSED CHANGES. (IT BEGINS ON PAGE 9.)

 

 

 

 Amnesty International has released its annual report on capital punishment around the world.  How does the United States fare in comparison to countries like China, Iran, or Saudi Arabia?  

Death Penalty in the USA Compared to Other Nations

From their report:

For the first time since 2006, and only the second time since 1991, the USA is not among the world’s five biggest executioners.

The number of executions (20) in 2016 reached the lowest level recorded in any year since 1991, half what it was in 1996, and almost five times lower than in 1999. The number of executions has fallen every year since 2009, except 2012 when it stayed the same).

For more detailed information, read the full report as a downloadable pdf here.