The Coronavirus Pandemic has caused trials to be put on hold in Florida and elsewhere in the country, as efforts to “slow the spread” prohibit groups of people to enter courthouses either as jurors, defense attorneys, prosecutors, or judges.

For the Florida Supreme Court Order suspending criminal proceedings beginning March 16, 2020, including Terry Lenamon’s capital defense of Markeith Loyd, read our earlier discussion in “Coronavirus Continuances: Florida Supreme Court COVID-19 Emergency Order.

COVID-19 and Execution Schedules

Across the country, COVID-19 is also working to give more time to those facing execution as defense lawyers successfully argue that execution dates be pushed back.

 Courts are acknowledging that the risk of those involved in the execution process (participants and witnesses) would be at risk of exposure to the Coronavirus, and as a result delaying scheduled executions.

One example out of Texas is the delay of the March 25, 2020, execution of Texas Death Row inmate Tracy Beatty, because of Coronavirus exposure concerns.  This was the second execution rescheduled by the Texas Court of Criminal Appeals because of COVID-19.  Read, “Texas Court Stays Execution of 2nd Inmate over Coronavirus,” written by Danielle Haynes and published by UPI on March 19, 2020.

Yesterday, the Tennessee Supreme Court rescheduled the execution date for Tennessee Death Row inmate Oscar Smith from June 4, 2020, to February 4, 2021.  See, “Tennessee Supreme Court Reschedules Oscar Smith Execution Due to COVID-19,” written by Steven Hale and published by the Nashville Scene on April 17, 2020.

For more, read:  “How Coronavirus is Disrupting the Death Penalty,” written by Keri Blakinger and Maurice Chammah and published by the Marshall Project on March 23, 2020, and “Prisoner Executions Are Put Off Because of Pandemic,” written by Jess Bravin and published by the Wall Street Journal on March 26, 2020.

Coronavirus and Prosecutors Seeking the Death Penalty

Of course, execution schedules and trial dockets are two different things.  Capital defense lawyers are well aware that in states where the death penalty can be sought in sentencing, prosecutors are free to file their notices of intent to pursue capital punishment in pending matters.

There is no barrier to the prosecution deciding to seek the death penalty because of the Coronavirus Pandemic, other than potential delays in investigation and preparation due to current quarantines, lockdowns, and/or stay-at-home orders.

For details here, read “Executions are on Hold, But States are Still Pushing for Death Amid the Coronavirus Pandemic,” written by Liliana Segura and Jordan Smith and published in the Intercept on April 5, 2020.

 

Lethal injection is the most common method of execution in the United States, albeit more and more alternative methods are being used as concerns grow over the use of intravenous drugs as a killing tool.

The Coronavirus Pandemic has shed a different kind of light on these lethal injection drugs, particularly the following:  midazolam; vecuronium bromide; rocuronium bromide; fentanyl; cisatracurium besylate; and etomidate.

University of Miami Professor Joins Doctors’ Request for Execution Drugs

On April 6, 2020, a joint letter signed by Kenneth W. Goodman, PhD, FACMI, FACE, University of Miami Institute for Bioethics and Health Policy, and six fellow renowned medical professionals was sent to every state with a lethal injection drug inventory, asking for the release of the drugs for use in the care and treatment of COVID-19 victims.

Dr. Goodman is both (1) founder and director of the University of Miami Miller School of Medicine’s Institute for Bioethics and Health Policy and (2) co-director of the University’s Ethics Programs. The Miller School of Medicine’s Institute for Bioethics and Health Policy is designated one of the ten (10) worldwide World Health Organization (WHO) Collaborating Centers in Ethics and Global Health Policy.

Joining University of Miami Professor Goodman as signatories are:

  • Joel B. Zivot, MD, FRCP(C), MA, Associate Professor of Anesthesiology and Surgery, Emory University, Atlanta, Georgia, USA;
  • Joshua M. Sharfstein, M.D., Professor of the Practice, Johns Hopkins Bloomberg School of Public Health;
  • Prashant Yadav, Ph.D., Lecturer, Harvard Medical School & Fellow, Center for Global Development;
  • Donald F. Downing, Clinical Professor of Pharmacy at the University of Washington;
  • Robert B. Greifinger, MD, Consultant on Public Health in Corrections; and
  • Leonidas George Koniaris, MD, Professor of Surgery, Indiana University School of Medicine.

Letter Urges That Execution Drugs Can Save Coronavirus Victims’ Lives

The full text of their letter can be read online here. Here is an excerpt (footnotes omitted):

“In this pandemic, it is increasingly clear that hundreds of thousands of people in the United States will die. Yet personal experience and medical knowledge demonstrate that patients in the ICU sickened by COVID‐19 are still able to survive this infection with proper medical care. Your stockpile could save the lives of hundreds of people; though this may be a small fraction of the total anticipated deaths, it is a central ethical directive that medicine values every life. Those who might be saved could include a colleague, a loved one, or even you.

“For years, pharmaceutical companies and health experts have warned that states’ pursuit of execution drugs create public health risks and “could result in the denial of medicines from patients who need them most.” In this time of crisis, these risks have never been more acute, and our health system has never more desperately needed the medicines you currently hold for use in executions. Every last vial of medicine could mean the difference between life and death.  

“We urgently ask you to send any execution drug supplies in your storerooms to hospitals where they are needed to treat critically ill COVID‐19 patients. At this crucial moment for our country, we must prioritize the needs and lives of patients above ending the lives of prisoners.”

For more, read “Death Penalty States Urged to Release Stockpiled Drugs for Covid-19 Patients,” written by Ed Pilkington and published by The Guardian on April 13, 2020.

Will the execution drugs be released for use in treating Coronavirus patients?

Each state must make its own decision in response to this request.  Of note, the letter references the Florida Department of Corrections has having rocuronium bromide inventories which the physicians opine could be used to intubate approximately 100 COVID‐19 patients.

For more about lethal injection method of execution, read:

Famed Wyoming attorney Gerry Spence founded the Trial Lawyers College several years ago, “… to help attorneys stand up for the rights of ordinary people and develop their skills as trial lawyers.”  The TLCis dedicated to training a new kind of attorney—one who is courageous enough to develop his or her own character first, and who then has the heart to seek justice on behalf of those who cannot seek it themselves.

Terence Lenamon has been sharing his knowledge and expertise as a member of the faculty at the Trial Lawyers College for awhile now.  We’ve shared more details in past posts, see:

This week, a new TLC podcast has been published where Rafe Foreman interviews Terry Lenamon, in a discussion focusing upon various aspects of death penalty defense and Terry’s approach to capital cases.

Click on the image below to listen (it’s 34 minutes long):

Mannie Ponoc of UK’s Alamo Pictures shared this recent documentary podcast with us where Professor Vivien Miller of the University of Nottingham discusses the history of capital punishment in America, using visuals from the BBC’s “Life and Death Row – The Mass Execution” as she delves into various aspects of the death penalty in our country today.

The British Perspective on US Death Penalty: UK Professor Documentary Podcast

For an idea of what is discussed here,  check out the list of time stamps provided by Alamo Pictures:

00:54 – The topic we are looking at today: capital punishment.
01:25 – Meeting our guest Dr Vivien Miller.
03:21 – The documentary that we are looking at today.
04:08 – Why Vivien chose this film.
05:08 – What the film is about.
07:22 – Our first clip, featuring Jeff Rosenzweig, the lawyer for three of the convicted inmates
10:40 – Why the death penalty is still prevalent in the US.
13:40 – Our second clip, where different people say why they support death penalty
15:58 – The reason some people stay on death row for such a long period of time.
18:37 – The issues with some of the inmates’ original trials.
20:55 – The racial discrimination that’s prevalent in death penalty sentencing.
22:22 – Why the death penalty is so prevalent in the South.
26:52 – The supply problems with some of the lethal injection drugs over the last 10 years.
29:53 – When lethal injections don’t work.
30:45 – The argument that lethal injections are a cruel and unusual punishment.
31:27 – Our final clip, showing the advocacy group for abolition of capital punishment.
35:02 – What the future of capital punishment will look like in the US.
37:55 – Why capital punishment increased so much at the beginning of the 20th century.
40:25 – Why the use of the death penalty decreased after 1940.

Watch the full podcast here:

 

On Friday, March 13, 2020, the Florida Supreme Court ordered “… [a]ll grand jury proceedings, jury selection proceedings, and criminal and civil jury trials are suspended during the period beginning Monday, March 16, 2020, through Friday, March 27, 2020, or as provided by subsequent order.”

  • Terry Lenamon reports there has been a continuance of the May 2020 trial setting in the Markieth Loyd case.  No new trial date as yet.

Other actions in response to the Coronavirus Outbreak are also included in the Order, addressing such issues as speedy trial time limits.

Click on the image below to read the Administrative Order of the Florida Supreme Court:

 

 

The Nation describes itself as “progressive” while the National Review claims to “define the modern conservative movement” in this country.  In the past few weeks, both have published articles discussing executions and how the death penalty is being carried out in this country.

The two publications do not discuss the same execution.  However, the cornerstone of both articles is the same: something is wrong with the death penalty in the United States today.  Consider the following:

1. Nathaniel Woods Execution: The Nation

On March 10, 2020, The Nation published an article entitled “Take Action Now: End the Death Penalty,” focusing upon the execution of Nathaniel Woods by the State of Alabama for the 2004 killing of three police officers.

Those seeking to prevent this execution included Martin Luther King III and Kim Kardashian West based upon circumstances that suggested his innocence, including the man who killed the officers confirming Woods was “100% innocent.”

The method of execution: lethal injection.

Key here, according to The Nation was a growing challenge to Woods’ execution based not only upon “a case rife with flaws” but Alabama’s system which allows a sentence of death without jury unanimity.

From The Nation:

As mass incarceration continues to end lives, tear families apart, and tarnish our democracy, now’s the time to take action against this unjust system.”

2.  Nick Sutton Execution: National Review

In an article written by Kathryn Jean Lopez entitled “Stop the Death Penalty,” published by the National Review (“NR”) on February 24, 2020, the execution of Nick Sutton by the State of Tennessee is discussed.

Nick Sutton lived on Tennessee’s Death Row for 34 years before he was executed.   The method of execution:  electric chair.

Since his incarceration Nick Sutton had also been a hero to correction officers, saving lives on more than one occasion.  Three guards’ lives are said to have been saved by the actions taken by inmate Sutton.

Additional details on Nick Sutton’s life include a history of childhood abuse and neglect and resulting “neuropsychological impairments,” according to a noted forensic neuropsychologist.  For details, read his Clemency Application, pages 18-21.

Nevertheless, clemency was denied by the state governor, with the NR positing the denial being influenced not only by the cruelty in the manner of death for Sutton’s grandmother but also for three other killings, including an inmate after Sutton was incarcerated.  It was the stabbing death of the inmate (38 stab wounds) that resulted in Sutton being sentenced to death.

From the National Review piece:

“Mercy is for the guilty. We can’t be callous in these circumstances, or our arguments about the life of the most innocent might not be heard. I understand why the governor did what he did, but the death penalty should prompt more of a cultural examination of conscience. It could bring a lot of people of good will — those “pro-life” and “social justice” groups that seem strangely divided — together.”

Mercy After Judgment: Terry’s Goal in Every Sentencing Trial

Terence Lenamon has built a national reputation defending those who are accused of such serious crimes that the government seeks to take their life. His specific focus at the defense table is more than the adjudication of guilt or innocence; Terry’s acumen is widely known for his work during the sentencing phase of the capital case.

Specifically, he fights for the light of the accused after a guilty verdict has been reached.  He fights for mercy.

Death Penalty Lawyer Terence Lenamon on Capital Punishment

Several years ago, he was asked to give his take on his work and his stance on capital punishment.  We published it here, back in 2016.  It’s worth sharing again, in its entirety.

From Terence Lenamon: My Stance on Capital Punishment

“You cannot make the death penalty more ethical. Look at the data.

“Not only is it disproportionate to minorities, innocent people have been sentenced to death and executed.

“I won’t even touch on my moral opposition to the death penalty, although I will say it’s based in the New Testament. (Surprising how many religious zealots support killing another human being.)

“Bad lawyers, overzealous prosecutors, mistaken witnesses, flawed forensic testing. Anger, hate ……..The list goes on and on in what fuels an imperfect “punishment.”

“If your goal is to find ways to correct flaws within the death penalty you may want to change your paradigm to something like:

      1. Finding ways to protect our children from being abused and growing up exposed to violence.
      2. Finding ways to successfully treat mental illness before violence occurs.
      3. Finding ways to educate our children and protect them from the violence and exposure to drugs in our community.
      4. Finding ways to help parents raise their children in a safe and loving environment.

“The list can go on and on …. I can’t change your belief system but I certainly hope you take a look your goal and redefine in a way that changes things for the better.”

 

 

 

This week, Terence Lenamon was scheduled to begin a two-to-three week trial in the capital defense case of Paul Hildwin, having been appointed to handle the penalty phase of the retrial back in 2017.

However, things changed early this morning when Paul Hildwin was set free after spending 28 years on Florida’s Death Row.

Today, a plea agreement was accepted by the court and Mr. Hildwin was ordered released with time served.  In the plea, he pled no contest to second degree murder.  This allowed Terry’s client to avoid another death penalty trial and gain his freedom.

No Trial Today: Paul Hildwin Is a Free Man

For details, read “He spent 28 years on death row for a Florida murder. Now, he’s free,” written by Jack Evans and published by the Tampa Bay Times on March 9, 2020.

And for more on the case and Mr. Hildwin’s long journey to freedom after being convicted and sentenced to death by the State of Florida, read the Innocence Project’s “Paul Hildwin Set Free After 35-Year Struggle for Justice,” published earlier this morning and last year’s coverage of the case in Slate magazine, written by Andrew Cohen and entitled, “DNA Evidence Freed Him From Prison. Florida Is Retrying Him Anyway.”

 

 

On March 2, 2020, Terence Lenamon filed a Rule 3.216 Notice of Intent to Rely on Insanity  in the Markeith Loyd death penalty case.  A pdf of this filing is shared in Terry’s Online Library as a public service.

Markeith Loyd Insanity Defense

From the Notice:

“Defendant, Markeith Loyd, by and through the undersigned attorney, pursuant to Fla. R.Crim. P. 3.216, files this Notice of Intent to Rely on Insanity at the time of the events that transpired involving the shooting of Officer Deborah Clayton in that the Defendant suffered from a mental infirmity, disease or defect and because of this condition did not know what he was doing or its consequences or although he knew what he was doing and its consequences he did not know it was wrong. Dr. Jethro Toomer, 15715 S. Dixie Hwy, Suite 417 Miami, FL 33157 is a witness in which the Defendant expects to show insanity.”

Also filed on March 2, 2020, were (1) the corresponding Motion Requesting Individual Voir Dire on the Issue of the Insanity Defense and the Use of Proposed Jury Questionaire; and (2) an Amended Motion for Extension of Time to Comply with Case Management Order.

 

 

Terence Lenamon continued his capital defense of Markeith Loyd this week with motions dealing with the circumstances surrounding when shots were fired, and by who, in the WalMart encounter between defendant Markeith Loyd and police officer Debra Clayton, a lieutenant with the Orlando Police Department.  Markeith Loyd is being tried for the killing of Officer Clayton on January 9, 2017, with the State of Florida seeking the death penalty in the case.  Trial is currently set for May 2020.

Markeith Loyd Defense Motion Asks Who Shot First?

Details from the latest media coverage:

“Markeith Loyd attorneys say new evidence suggests Orlando officer fired first,” published by WKMG ClickOrlando on February 29, 2020;

Orlando officer’s accused killer readies defense: Slain cop shot first, police chief showed ‘animus and prejudice’,” written by Monivette Cordeiro and published by the Orlando Sentinel on February 28, 2020; and

“Markeith Loyd attorneys allowed extra 2 weeks to prepare for Debra Clayton murder trial,” published by WKMG ClickOrlando on February 7, 2020.

 

 

Capital punishment is available under federal law as well as various state statutes.  For more, read:

Recent news coverage of the federal death penalty has focused upon the Trump Administration’s desire to re-institute federal executions.  For details, read the Washington Post article by Mark Berman and Ann E. Marimow entitled, “Trump administration’s plans to resume federal executions debated at appeals court,” published on January 15, 2020.

SCOTUS and the Federal Death Penalty

This week SCOTUSBlog published a great overview of federal death penalty in SCOTUS precedent, written by Kalvis Golde.  Given that many cases involving the federal death penalty have not reached the High Court, it is interesting to consider the inevitable increase in capital appeals by federal Death Row inmates given the White House’s encouragement of federal prosecution in seeking the death penalty and its planned resumption of federal executions.

Read it here:  The federal death penalty at the Supreme Court, SCOTUSblog (Feb. 14, 2020, 1:00 PM).