Yesterday, the Florida Supreme Court reversed its opinion in Hurst v. State ruling that Florida does not require a jury to be unanimous when someone is being sentenced to death.  You can read the per curiam opinion in the case of State of Florida v. Poole by clicking on the image shown below:


Reasons for Hurst Reversal: Florida Supreme Court Opinion

Why is the state supreme court reversing itself on requiring the jury to be unanimous before someone is sentenced to death? From the opinion:

“This Court clearly erred in Hurst v. State by requiring that the jury make any finding beyond the section 921.141(3)(a) eligibility finding of one or more statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or Eighth Amendment, nor the Florida Constitution mandates that the jury make the section 941.121(3)(b) selection finding or that the jury recommend a sentence of death.” Poole, p. 28.

“It is no small matter for one Court to conclude that a predecessor Court has clearly erred. The later Court must approach precedent presuming that the earlier Court faithfully and competently carried out its duty. A conclusion that the earlier Court erred must be based on a searching inquiry, conducted with minds open to the possibility of reasonable differences of opinion. “[T]here is room for honest disagreement, even as we endeavor to find the correct answer.” Gamble v. United States, 139 S. Ct. 1960, 1986 (2019) (Thomas, J., concurring).

“In this case we cannot escape the conclusion that, to the extent it went beyond what a correct interpretation of Hurst v. Florida required, our Court in Hurst v. State got it wrong. We say that based on our thorough review of Hurst v. Florida, of the Supreme Court’s Sixth and Eighth Amendment precedents, and of our own state’s laws, constitution, and judicial precedents. Without legal justification, this Court used Hurst v. Florida—a narrow and predictable ruling that should have had limited practical effect on the administration of the death penalty in our state as an occasion to disregard decades of settled Supreme Court and Florida precedent.

“Under these circumstances, it would be unreasonable for us not to recede from Hurst v. State’s erroneous holdings.”

Poole, pp. 35-36.

Poole Dissent by Justice LaBarga: Death is Different

In  a dissent worthy of reading in its entirety, Justice LaBarga writes (emphasis added):

“I strongly object to the characterization of this Court’s decision in Hurst v. State as one where this Court ‘wrongly took [discretion] from the political branches.’ Majority op. at 39. As the court of last resort in Florida’s third and co-equal branch of government—whose responsibility it is to interpret the law— that is what this Court did in Hurst v. State. The constitutionality of a provision of Florida’s death penalty law is uniquely this Court’s to interpret. Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. Florida’s former bare majority requirement permitted a jury, with little more than a preponderance of the jurors, to recommend that a person be put to death.

This Court correctly decided that in Florida, the state and federal constitutions require much more and, until today, for a “brief and shining moment,” it did just that.

“Sadly, this Court has retreated from the overwhelming majority of jurisdictions in the United States that require a unanimous jury recommendation of death. In so doing, this Court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida.”

Poole, pp.51-57.

Curveball Case:  What Happens Now?

Before Hurst v. State came down in 2016, Florida death sentences needed only a recommendation for capital punishment from a majority of the jury before the death penalty could be imposed by the judge at sentencing.  Afterwards, the Florida Legislature acted, and passed a law requiring unanimous juries in capital cases.

This opinion throws a curveball that raises all sorts of questions about what happens in its aftermath.  For instance:

  • One result of Poole is the chance that Tallahassee legislators may decide to change their post-Hurst statute that establishes unanimous juries for death penalty sentences in Florida.
  • Another repercussion from Poole is Mark Anthony Poole will now be sentenced to the death penalty.
  • And of course, the obvious result: once Poole is final (e.g., there’s the limited time period where a motion for reconsideration can be filed), there are all those post-Hurst resentencing hearings which may be in limbo or reversed, returning them to death row.

Finally, there is the very real likelihood that in the future, an innocent person will be sentenced to death in the State of Florida.  As Justice LaBarga notes in his dissent, Florida “… holds the shameful national title as the state with the most death row exonerations.” Without the protection of a jury voting unanimously for death, this risk can only increase.

This week, Terry continues to be in trial as defense counsel for Captain John Nettleton.  News coverage of the trial (expected to conclude this week) includes the following:


The Death Penalty Information Center (DPIC) has released its annual summary of how the death penalty fared in this country during the preceding year.  The full report is available online here.

Hallmarks from 2019 include the following:

  • New Hampshire became the 21st state to abolish capital punishment.
  • California put all executions on hold.
  • Indiana reached its ten-year mark since its last execution.
  • As of 2019, 32 U.S. states have now either abolished the death penalty or not carried out an execution in more than a decade.
  • Capital punishment was at “near historic lows” in 2019 with 22 executions and a current count of 33 new death sentences,
  • The federal government attempted to resume executions after a 16-year hiatus.
  • Seven states carried out executions:  Texas (9); Tennessee (3); Alabama (3); Georgia (3); Florida (2); South Dakota (1); and Missouri (1).
  • Eight states imposed more than one death sentence: Florida (6); Ohio (6); Texas (4); Alabama (3); California (3); North Carolina (3);Pennsylvania (2); and South Carolina (2).
  • Georgia imposed a death sentence for the first time in five years in the Tiffany Moss case, where as a defendant with brain damage she was allowed to represent herself, presenting no defense at either the guilt or penalty phases of her trial.
  • At least 19 of the 22 prisoners executed in 2019 suffered from one or more of the following impairments: (1) significant evidence of mental illness (9); (2) evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range (8); or (3) chronic serious childhood trauma, neglect, and/or abuse (13).  For more, read the DPIC Report section “Problematic Executions” by clicking on the image below.


Today, Terry Lenamon is setting in a courtroom in the Jacksonville federal courthouse as one of the defense attorneys representing John Nettleton, who was once the Gitmo Naval Base commander and now sets accused of 10 felony counts involving lying to investigators and obstruction of justice.  Captain Nettleton is retired from active military service.

Jury selection began today, is predicted to finish up today or tomorrow, with opening statements by both the AUSA and Nettleton’s defense team sometime tomorrow afternoon.

See, “Jury selection begins in trial of Jacksonville Navy captain accused of obstructing death investigation,” published by FirstCoastNews on January 6, 2020.

National Media Coverage for Former Guantanamo Bay Commander Nettleton

The Justice Department filed its case against Captain Nettleton last January, and the case has been followed closely in the national media due in no small part to the fact that Nettleton was the man in charge of things at the Guantanamo Bay military base in Cuba.  See, e.g., “Justice Dept. charges former Guantanamo chief with obstructing death probe,”  written by Devlin Barrett and pubished by the Washington Post on January 9, 2019.

Nettleton Indictment by DOJ

The federal prosecutors must proceed with care here because this case does not involve allegations of Nettleton having a part in the death of Christopher M. Tur.

Read the complete federal indictment here.

From the indictment, the government’s case focuses solely upon allegations that Captain Nettleton when questioned after a fight with Tur, allegedly concealed evidence and fabricated facts that the DOJ posits stymied law enforcement’s ability to determine what happened to cause Tur’s death.

Lenamon at the Defense Table But This Is Not a Murder Trial

Nettleton’s defense team voiced their concerns to the judge last month that there be no suggestion whatsoever in the trial that Captain Nettleton was involved in the death of Tur.  The case is limited only to allegations that the Commander obstructed the investigation into Tur’s death some way.

It is important to remember that Terry’s client does not stand accused of murder and is far from facing the death penalty.  Instead, this matter serves to demonstrate  Terence Lenamon’s recognized skill as a defense trial lawyer (for instance, he’s on the faculty of Gerry Spence’s Trial Lawyers College) and that his practice does extend past death penalty cases.

Of particular importance to death penalty defense attorneys are the capital punishment issues pending before the Supreme Court of the United States (SCOTUS).  As we enter the new year, the capital defense bar watches and waits for SCOTUS to decide on four different matters, arising out of Arizona, Kansas, Louisiana, and Virginia.

Questions Presented to SCOTUS

The core issues presented by these four cases are (hat tip to SCOTUSBlog for these summaries of the Questions Presented):

  • Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense. (Kahler)
  • Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question. (Mathena)
  • Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.  (McKinney)
  • Whether the correction of error under Eddings v. Oklahoma requires resentencing. (McKinney)
  • Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict. (Ramos).

SCOTUS Docket Details (Links to Briefing, Orders, etc.)

For more detail on these four cases, read both the party briefing as well as the amici contributions, found on each case’s SCOTUS online docket:

  1. Mathena v. Malvo, No. 18-217
  2. McKinney v. Arizona, No. 18-1109
  3. Kahler v. Kansas, No. 18-6135.
  4. Ramos v. Louisiana, No. 18-5924.

ABA Analysis of the Four Death Penalty Cases Pending Before SCOTUS

The American Bar Association has compiled its annual year in review for capital punishment in this country.  The ABA Death Penalty Representation Project’s 2019 Year in Review can be reviewed here, where topics include brief discussions of these four pending cases and their import, in “SCOTUS Fall 2019: Pending Cases.”

SCOTUS Blog: Additional Coverage

The public service SCOTUSBlog has even more discussion on these four matters, including expert analysis of each case provided by a variety of legal experts:

  1. Mathena v. Malvo, No. 18-217
  2. McKinney v. Arizona, No. 18-1109
  3. Kahler v. Kansas, No. 18-6135.
  4. Ramos v. Louisiana, No. 18-5924.

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: