The State of Tennessee has the execution of Tennessee Death Row inmate Billy Ray Irick scheduled for August 9, 2018.  Irick’s defense lawyers are working very hard to stop this from happening.

This case is yet another example of the importance of zealous, aggressive, and experienced Death Penalty Defense attorneys during the investigation and initial trial of someone for whom the state is seeking capital punishment.  When the defendant suffers from mental illness, there must be an extensive effort made to delve into his childhood (from his earliest days forward), as well as gathering expert analysis of his mental state at the time of the alleged capital crime.

Terry Lenamon is not involved in this Tennessee case.  For more regarding the issues including investigation and presentation of mitigating factors involving psychological issues in:

Battleground No. 1: Method of Execution

Irick’s lawyers are arguing against the method of execution on one battleground.  This week, they filed arguments against the lethal injection method of execution that Tennessee is planning on using in Irick’s execution.  For details, read “Attorneys Seek Stay of Execution for Billy Ray Irick,” written by Steven Hale and published on July 30, 2018, in the Nashville Scene.

Read the full 110 page Motion to Vacate Execution Date filed with the Tennessee Supreme Court here.

Battleground No. 2:  Mental Illness and Assistance of Counsel

There is no controversy regarding whether or not Billy Ray Irick raped and murdered 7 year old Paula Dyer in 1986, a crime for which he was convicted and sentenced to death.  He confessed shortly after he was arrested.

The issue today is the longstanding mental illness suffered by Billy Ray Irick, and the questionable actions of his lawyers during both the guilt and sentencing phases of his criminal trial.  For instance, no defense witnesses were called during the trial phase.  None.

From the Appellant’s Brief filed in 2010 on behalf if Billy Ray Irick we know that while some factual evidence was presented during the trial of Billy Ray Irick’s mental state, it was not entered during the trial phase but during sentencing.  This consisted of testimony provided by or through Nina BraswellLunn, a clinical social worker at the Knoxville Mental Health Center.  It covered the limited time period between Irick being six and eight years old.  That is it.

It was not until after Billy Ray Irick was sentenced to die and the appellate process began that evidence of Irick’s hallucinations and recurring psychosis was discovered.  Indeed, at the time of the crime itself, witnesses provided sworn testimony that Irick was “hearing voices” and obviously mentally ill.

None of this was presented to the jury given the responsibility of deciding between life and death in sentencing.

Accordingly, based upon the evidence of his continuing and severe mental illness, including his mental state on the day of the crime, his defense team continues their fight to stop the execution of Billy Ray Irick.

From their 2010 brief, page 56-57:

Though great deal of time has elapsed since Irick’s original trial and even since the discovery of the Jeffers information, as explained above, Irick and his attorneys were in no position to file petition for writ of error coram nobis for the reasons stated above. Therefore, due process requires that the facts presented herein be considered on their merits. When his case is considered on the merits in light of the newly discovered evidence and the opinions of mental health experts, Irick is confident that the only just sentence is one other than death. Therefore, Irick respectfully requests that this court reverse the trial court and enter such order as will relieve him of the sentence of death.

Note:  For an excellent analysis of the current Tennessee situation, read “TENNESSEE PLANS TO RESTART EXECUTIONS BY KILLING A MAN WITH MENTAL ILLNESS,” written by Liliana Segura and published by The Intercept on July 15, 2018.

Defense Succeeds in Avoiding Death Penalty; What is Life Sentence in Florida Capital Case?

Terence Lenamon was victorious this week, as a Florida jury refused to sentence Frantzy Jean-Marie to death for the murders of Armstrong Rivere and his girlfriend Stephanie Adams back in March 2013.  For details, read the article written by Charles Rabin and published on July 25, 2018, by the Miami Herald, entitled “Jurors spare life of gang member. He didn’t pull trigger, but will spend life in prison.”

Of note, the description Rabin gives of Terry’s “fiery defense” during the prosecution’s closing arguments, where he “continually lashed out” at statements made by ASA Joshua Weintraub during closing argument.

Terrorist Boyz Trial Ends With Life Sentence

Jean-Marie was found guilty during the first phase of his capital trial that ended last month.  That part of the trial took around four months to complete.  At its conclusion, Jean-Marie was convicted of two counts of first-degree murder; four counts of attempted murder; and the crimes of conspiracy and racketeering.  He was not found guilty by the jury of two murder allegations involving a Terrorist Boyz shooting at a Jumbo’s Restaurant in October 2002.

This week’s decision by the jury concludes the second phase of the capital trial, where the jury decides on sentencing.  As we’ve discussed earlier, Florida law has changed.  Now, the jury must unanimously agree on capital punishment before the death penalty can be sentenced by the judge.  See, Florida Has New Death Penalty Law in March 2017.

What is a Life Sentence in Florida Capital Case?

Now that the jury has made its decision, what does this mean insofar as punishment?  The victory here is that the state’s request for death was not granted.  There will be no death penalty in this case.

However, as Terry explains in the Miami Herald piece, Frantzy Jean-Marie will never be free from incarceration.  He will serve a life sentence, which means spending the rest of his days behind bars in a Florida correctional facility.

As explained by the Florida Department of Corrections, “Persons receiving a life sentence for crimes committed on or after October 1, 1995, will serve a life sentence.” More specifically, from their site:

Parole in Florida was eliminated for non-capital felonies committed on or after July 1, 1984. Capital felonies resulting in a life sentence (instead of the death penalty) remained eligible for parole after serving a mandatory 25-year term. Legislative action taken May 24, 1994, and October 1, 1995, effectively eliminated parole for all capital offenses as well…. 

For more discussion on Life Sentences, read the Marshall Project’s July 2015 piece entitled “Life Without Parole.”

Last month, the American Bar Association released a new report as part of its Death Penalty Due Process Review Project.  The research study is entitled “Potential Cost-Savings of a Severe Mental Illness Exclusion from the Death Penalty: An Analysis of Tennessee Data,” and is available for free online.

ABA Stand Against Death Penalty for Mentally Ill Defendants Goes Back to 2006

The ABA has taken the position for many years that there should be a nationwide exemption from capital punishment for any defendant who suffers from serious mental illness at the time he or she allegedly committed the capital crime.  See, AM. BAR ASS’N RECOMMENDATION 122-A (Aug. 2006).  From the 2006 ABA Recommendation:
Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision.

New 2018 Argument Appeals to Fiscal Concerns and State Tax Dollars

This new report supports that position with numbers, specifically a budget analysis for the State of Tennessee if that state  would implement this policy.  According to the ABA, the state would save between $14-19 Million each year if mentally ill defendants were exempted from a death penalty sentence.
In conclusion, our analysis shows that, if a severe mental illness exclusion were to be implemented in Tennessee, it would lead to a saving of $1.4 million to $1.9 million a year. According to our estimate, the state of Tennessee would have saved between $57 and $78 million dollars if this exclusion had been implemented in 1977, when the death penalty was reinstated in the state. While there are limits to this analysis, and an in-depth, scholarly study would need to be conducted to confirm and refine the above findings, our analysis shows that Tennessee could obtain significant cost savings if the bills created a severe mental illness exclusion from the death penalty were to pass and become law.

For more on the money argument regarding the death penalty, read our discussion back in 2010:  “Growing Trend for States to Stop Death Penalty as a Budget Cut – Let’s Watch California.”

The State of Nevada has scheduled the execution of Scott Dozier for July 11, 2018.  The execution method will be lethal injection.  It is the state’s first execution in 12 years.

On Tuesday, the Nevada Department of Corrections announced that the Dozier Execution will involve the use of the following three drugs:

There are many reasons to be concerned about this particular execution cocktail.  Among them:

  1.  Cisatracuriam was enough of a concern that Nevada’s Eighth Judicial District Court blocked Mr. Dozier’s execution last fall because of this drug.  (Read the Nevada Supreme Court’s overturning of that decision in its May 2018 Order, which allows the execution to proceed.)
  2.  Midazolam has been approved for use in executions by the Supreme Court of the United States (see Glossip v. Gross).  However, that does not mean it is not worrisome:  it took two hours for Joseph Wood to die during his execution by the State of Arizona.  (Read the eyewitness account by reporter Michael Kiefer here.) Arizona refuses to use midazolam in any future executions.
  3. Fentanyl has never been used in an execution.

For more, read “Nevada execution plan sedative blamed for troubles elsewhere,” written by Ken Ritter for the Associated Press and published in the Miami Herald on July 5, 2018.

Our past discussions regarding lethal injection drugs include:

This week, Terence Lenamon returns to teach at the annual “In Defense of the Damned” seminar presented by Gerry Spence’s Trial Lawyers College.  

Terry Lenamon Teaching This Week at Thunderhead Ranch

Those attending are promised “an opportunity to step back, take a break from your busy life, and reconnect with the land and yourself” at the Thunderhead Ranch.

For Longmire fans (either the TV show or the series of books by Craig Johnson), you might recognize its location as bordering the Absaroka mountains in Wyoming.

Thunderhead Ranch is also 100 miles east of Yellowstone National Park, with the East Fork River flowing through the ranch / campus.

Other facuity members include: KO Berger, Keeley Blanchard, Sean Brown, Maren Chaloupka, Eric Davis, Paco Duarte, Rafe Foreman, Milton Grimes, Don Malarcik, Marj Russell, David Smith, Colby Vokey, Zaki Zehawi, Rick Kammen, Gerry Spence

Sold Out: Information For Next Year’s Seminar

It’s sold out this year.

If you are an attorney interested in attending next year’s presentations, check out the Facebook page for details.

Note the following from the site“Because of high demand for this course, attendees will be chosen based on caseload and other factors determined by faculty. Early registration does not guarantee a seat in this course.”

Charles Rhines sits on the South Dakota Death Row waiting to hear if his Petition for Writ will be granted by the U.S. Supreme Court this week (conference of June 14, 2018).

Mr. Rhines seeks review of his capital trial proceedings, arguing that there was an improper refusal  to consider evidence demonstrating that his sexual orientation was a factor in the imposition of the death penalty by the jury.

His petition includes an affidavit from a juror stating the jury “…knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.

Read the briefing here.  

For more analysis, see: Jimmy Hoover, If Jury Racism Isn’t OK, Neither Is Homophobia, Justices Told, Justice 360, May 30, 2018.

This week, the Supreme Court of the United States issued its ruling on the request from Texas Death Row Inmate Carlos Trevino, who asked SCOTUS to review what happened in his criminal trial’s sentencing (penalty) phase and the introduction of mitigating evidence against the death penalty.

SCOTUS declined the request, and will not hear the case.  Justice Sonia Sotomayor dissented, arguing that the High Court should hear Trevino’s arguments. She is joined by Justice Ruth Bader Ginsburg.

Read Justice Sotomayor’s 13-page dissent here

Constitutional Argument:  Ineffective Assistance of Counsel

His argument was based within the constitutional framework of his right to effective assistance of counsel.  By failing to investigate and present evidence at trial of Mr. Trevino’s intellectual disabilities arising out of fetal alcohol syndrome or fetal alcohol spectrum disorder (FASD), he argued that his constitutional rights had been violated.

The only witness presented at the penalty phase of the trial was Carlo’s aunt, who testified Carlos dropped out of high school and that his mother was an alcoholic.

Fetal Alcohol Spectrum Disorder (FASD)

Trevino’s mother drank extensively during her pregnancy.  As a result, Carlos Trevino was born with fetal alcohol spectrum disorder and its accompanying permanent brain damage.

There is no controversy that Carlos Trevino suffers from FASD at this point.

Returned For Mitigating Evidence

The case had been before SCOTUS once before.  In 2013, SCOTUS reversed the Fifth Circuit’s decision not to hear Mr. Trevino’s ineffectiveness of counsel argument.  The case was returned to the appeals court for further consideration. See, Trevino v. Thaler, 133 S. Ct. 1911, 569 U.S. 413, 185 L. Ed. 2d 1044 (2013).

Additional mitigating evidence was provided to the lower federal court.

This included specifics regarding how much his mother drank during the pregnancy (19-24 cans of beer on a daily basis), and that Carlos Trevino was incontinent and wearing diapers until he was 8 years old.  A clinical psychologist testified that Mr. Trevino’s history of FASD “would have impacted any of [his] decisions to participate in or refrain from any activities that resulted in his capital murder charges.”  Dissent, page 5.

Still, the Fifth Circuit failed to find merit in the mitigation evidence.  This week, SCOTUS declined Mr. Trevino’s petition to review that decision.

Justice Sotomayor disagrees with this lower court decision as well as the SCOTUS declining to review Mr. Trevino’s petition.

From her dissent, Justice Sotomayor points out that Trevino’s fetal alcohol spectrum disorder is key to understanding his violent behavior, and this was never presented to the jury during the sentencing phase.

She states (Dissent, page 13)(emphasis added):

The Fifth Circuit majority’s error is glaring, because considering all of the evidence, including that relating to Trevino’s FASD, it is obvious that “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins, 539 U. S., at 537.

The Fifth Circuit majority plainly misapplied our precedents. Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered. That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state. I therefore respectfully dissent from the denial of certiorari.”

___________________

Once again, these tragic results in appellate review demonstrate the incomprehensible importance of experienced and aggressive defense counsel in the initial criminal trial and its penalty phase.

Real People and Real Families: The Reality of Death Row 

 Recently, the Marshall Project published an article written by Death Row inmate Timothy White entitled, "Why We Can’t Have Nice Things on Death Row."  Mr. White resides on the North Carolina Death Row, located in Raleigh, North Carolina’s Central Prison.  

It’s a good read and a well-written piece.  

Documentary Series on Death Row

However, for those interested in more details about how Death Row works, there is also a series of BBC documentary episodes being provided by National Geographic Channel and Fox

Check out the details here.  

These are collected under the name "Life and Death Row," and they delve into different aspects of the realities of Death Row in this country.

For instance, Season One’s Execution is an episode that deals with two of the youngest men living on Death Row in Texas.

Season Two has an episode where Texas Death Row inmate named Daniel Lopez works to stop any attempts to stay or thwart his execution. (Mr. Lopez was executed in 2015).

Season Three devotes one episode to how the impending execution date impacts not only the inmate but their families.  Will the lethal injection work properly, wonders the sister of Jack Jones.  

There are more.  These are well worth your time if you want to understand how Death Row impacts so many people, in so many horrific ways.  

Here’s an excerpt from "The Day Before:" 

http://channel.nationalgeographic.com/u/kcD4jK5JPSw6U_cXREmbHsMBywAEe1LYdj1Zu5l-s2E7QDckDq1fWmjHzHORbZR8HH5LV7iAWKs/

Right now,  17-year-old Dimitrios Pagoutzis sits in the Galveston County Jail after confessing to being the active shooter responsible for last week’s high school shooting in Santa Fe, Texas.

In Florida, 19-year-old Nikolas Cruz sets in jail in Broward County, Florida, facing 17 counts of murder for the high school shooting on Valentine’s Day at Marjory Stoneman Douglas High School in Parkland, Florida.  See, "Terence Lenamon’s Son At Marjory Stoneman Douglas High School Shooting."

In the Cruz case, prosecutors are seeking the death penalty.  In the Pagoutzis case, they don’t have that option.  That’s because the 17-year-old is not a legal adult, and juveniles are treated differently under the law.

1.  Roper v. Simmons – SCOTUS 2005

Fifteen years ago, the Supreme Court of the United States ruled that it is a violation of the Eighth Amendment of the U.S. Constitution to sentence anyone under 18 years of age to death.  It is cruel and unusual punishment to execute a minor.  Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

From Roper (emphasis added):

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

* * *

The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed

 

2.  Miller v. Alabama – SCOTUS 2012

Six years ago, the U.S. Supreme Court ruled that defendants under the age of 18 years cannot be sentenced to life in prison without the possiblity for parole, either.  Miller v. Alabama, 132 S. Ct. 2455, 567 U.S. 460, 183 L. Ed. 2d 407 (2012).

From Miller (emphasis added)

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment. 

Maximum Sentences for HIgh School Active Shooters

The rulings of the Supreme Court of the United States are those of the highest criminal court in the country.  They cannot be disregarded or overturned by any state court (or any lower federal court for that matter).

These two opinions are the law of the land.  Which means that while the Parkland, Florida shooter defendant faces the death penalty, the Santa Fe, Texas shooter defendant  cannot be sentenced to life without parole, much less capital punishment.

That’s the law — and all these outcries for the death penalty in the Texas case fly in the face of these constitutional precedents. 

For more information, see the Death Penalty Information Center’s Roper v. Simmons Resource Page