In a capital case, there are two times when the issue of the accused’ mental health must be addressed;  first, at the criminal trial where the individual is facing a prosecutor who is seeking the death penalty as punishment upon conviction.  Second, when the convicted Death Row inmate is scheduled for execution.

Three Distinct Mental Health Issues and the Death Penalty

There are three mental health distinctions in the law:  (1) intellectual disability; (2) mental illness; and (3) insanity.  All three are issues of the person’s mental health.

However, each is considered (and treated) differently in the criminal justice system.  Importantly, mental illness is not the same as “insanity” under the law.

Three Issues: Insanity and the Death Penalty

Insanity is considered in a capital case initially when the crime is committed.  Was the accused insane at the time of the event?  If so, he or she may be found not guilty at the criminal trial by “reason of insanity.”

Once the capital case goes to trial, there will be another consideration of the accused’s sanity.  If the judge over the capital case determines that the accused is legally insane, then the trial cannot proceed.  The accused is held to be incompetent to stand trial and the judge stops the trial proceedings.  If and when the accused regains his or her sanity, the trial may resume.

Finally, when the execution is scheduled by the state, the accused’s sanity will again be considered.  Any Death Row inmate found to be insane cannot be executed.  From SCOTUS in Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S. Ct. 2595, 2602, 91 L. Ed. 2d 335, 346 (1986):

“[T]he natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply offends humanity is evidently shared across this Nation. Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.”

Procedural Example: Markeith Loyd Trial

How this works in a courtroom involves the defense decision to proceed with a mental health defense.  The prosecution does not have the duty here: it is the job of the accused’s defense lawyer to plead and prove the mental health issues that are involved in the case.

As an example. Terry Lenamon has announced to the court in the Markeith Loyd matter that the defense will make these decisions, and institute any necessary filings in the record, on or before March 2020.  For details, read “Markeith Loyd’s attorney says notice of insanity defense could be coming,” written by Adrienne Cutway and published by Click Orlando – WKMG News6 on December 18, 2019.




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:


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:

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.

Justices Alito, Grosuch, and Kavanaugh explain:

[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:


This week, Terence Lenamon and Melissa Ortiz are defending Rod Ferrell in his resentencing hearing in Lake County, Florida.

Rod Ferrell Defense Begins Tomorrow

Today, the State rested. Over the next two days or so, the defense will present their experts and civilian witnesses in the State of Florida vs. Roderick Ferrell, Case No. 1996-CF-1913 in the Circuit Count of the Fifth Judicial Circuit of the State of Florida, Lake County.

For more details, read:

Vampire Clan Movies

Many may recognize the name Rod Ferrell, who was tried and sentenced in the infamous Vampire Clan case as discussed in the above news stories and whose story served as the basis of a 2002 cult-movie favorite, “Vampire Clan” and the 1999 TV movie “The Vampire Murders,” described as a movie… [a]bout a loose-knit gang of teenagers from Murray, Kentucky, known as the “Vampire Clan”. In 1998, the leader Rod Ferrell pleaded guilty to the double slaying becoming the youngest person in the United States on Death Row.”

There is also a documentary, “Devil in Disguise,” based upon the case.


This week, there was an Orlando Sentinel op-ed on police excessive force in the arrest of Markeith Loyd that is of interest.
Entitled “The uncomfortable truth about the capture of Markeith Loyd, it is written by Rhetta Peoples, guest columnist for the Orlando Sentinel,  and a “… journalist for the Black Press, activist and the owner of a boutique marketing firm in Orlando.”

What Do You Think?  Watch the Video that Ms. Peoples Describes as Police Excessive Force

To see the force used by law enforcement on Markeith Loyd, check out the video shown during Terence Lenamon’s interview by the Law & Crime Network, beginning at 11:11 of the 15:11 video as Terry explains things:


Terence Lenamon was victorious in his fight against capital punishment for Markeith Loyd (see our earlier posts for details about the case).  What was the jury thinking when jurors returned to the courtroom, announcing a decision against the death penalty?

Death Penalty Closing Argument by Terence Lenamon (Result: Jury Nixes Death Penalty)

Here’s the defense closing argument, shared by the Law & Crime Network in a live feed saved on its YouTube channel:

Terence Lenamon presented the defense’s opening statement in the death penalty trial of State of Florida v. Markeith Loyd today, and you can watch Terry’s opening via this YouTube capture of the live courtroom proceedings (Terry begins at the 14:33 mark, immediately after the state’s opening statement):

Yesterday, the Law & Crime Network announced on Twitter that it will be covering the Death Penalty Trial of Florida v. Markeith Loyd.

Twitter Announcement of Live Coverage

The October 8, 2019, tweet:

THIRD LIVE TRIAL on Law&Crime: FL v. #MarkeithLoyd. We could see a jury seated on Thursday. Loyd on trial for the murder of his pregnant ex-girlfriend Sade Dixon. He’ll face a separate trial for the murder of Lt. Debra Clayton who was shot & killed while Loyd was on the run.

Where Loyd Trial Can Be Seen Live

Here where the live trial can be seen via the Law&Crime Network — note it’s available on phones (iPhones and android), as well as ROKU, Amazon FireTV, and other streaming devices as well as on Amazon’s Video on Demand and the REV cable network: 


This week, Terry Lenamon continues work in the courtroom as jury selection continues in the Markeith Loyd trial.  It’s reported that picking a jury will take several weeks. Part of the reason it will take so long is because the judge has ruled that the jury will be sequestered during the trial.

What is Jury Sequestration?

Jury sequestration involves the trial judge ordering that the jurors (once selected) be protected from things that might impact their decision-making outside of what they will hear as evidence in the courtroom as the trial proceeds, or after both sides have rested and the case is sent to the jury for deliberations.  The jurors do not pay for this; the government underwrites the expense.  This can involve not only their stay in a private hotel room, but providing protection at all times, and periodic field trips to help morale as time passes.  Jurors are allowed limited visits or conversations with their loved ones, and they do not get unlimited access to the internet since that might reveal something outside of trial evidence which could influence their decision.  Potential jurors who would be harmed by being sequestered (hardship) are not required to be sequestered (this is the judge’s decision).

Examples of Sequestered Juries

Three well-known past criminal cases involving sequestered juries include the O.J. Simpson criminal trial; the Casey Anthony trial; and the Bill Cosby case.  It is said the Simpson trial involved the longest time for a jury to be sequestered, at 265 days.