Terence Lenamon’s upcoming capital case docket involves the death penalty defense of Michael James Jackson.   Jackson is currently a resident of Florida’s Death Row.

Continuing Impact of Hurst on Florida Death Penalty

This case is one of the many Florida death penalty cases that have gone under review in the aftermath of Hurst v. Florida.  For details on the Supreme Court of the United States’ ruling in Hurst, see:

For a complete listing of the cases impacted by Hurst, see the ongoing online reporting table provided by the Death Penalty Information Center, which explains that Michael James Jackson was granted a new sentencing hearing in June 2017 by the Florida Supreme Court.

The table also lists those who have been denied re-hearings, or new sentencing trials, as well as those Death Row inmates that have been executed since the Hurst considerations began.

Lenamon Defense Begins on June 10, 2019

Terry is scheduled to be in the courtroom at the defense table, arguing on behalf of Michael Jackson, beginning in Jacksonville, Florida, on June 10, 2019.

“A tough one,” says Terry.  Why?

Well, for one thing, the Florida Supreme Court has already heard Mr. Jackson’s arguments and opined that “… Jackson’s death sentences are proportionate punishment for his capital offenses.”

Read the complete 2009 Florida Supreme Court Opinion here, now part of the Terry Lenamon Online Library:

 

California Governor Gavin Newsom Blocks Capital Punishment Throughout the State, Ending Death Penalty in a Single Order

In Florida, Texas, and most other states where prosecutors are given the option of seeking the death penalty (as are federal prosecutors under federal law), the focus is upon the individual case.  Will the state ask for death?  Will it file its Notice of Intent to Seek the Death Penalty?  If so, then the defense team responds.  Both in the guilt phase and the sentencing trial, the capital defense lawyers fight to stop the death penalty from being imposed upon the defendant.

Note: for details on how the state can move back and forth on seeking the death penalty, read Terry Lenamon’s experiences as a defense lawyer in the Casey Anthony case in his memoir, Heinous, Atrocious and Cruel: Casebook of a Death Penalty Attorney. 

This month, the State of California reminds us that the ability to stop the death penalty can and does lie with one person, whose executive decisions are powerful enough to block executions as well as prosecutorial requests for capital punishment.  By one signature, the death penalty is off the table in pending cases (and future ones) and Death Row residents have hope restored.

Here is how that happens; see the Executive Order signed by California Governor Gavin Newsom on March 13, 2019 (full text below).  The Newsom Order does three huge things, as it:

  1. declares a moratorium on executions of California’s 737 inmates on death row;
  2.  orders a withdrawal of California’s lethal injection protocol; and
  3.  calls for the immediate closure of the execution chamber at San Quentin State Prison.

 The only thing we don’t see here is the Governor ordering a Death Row resident to be freed outright, or for the change of any existing Death Row sentence.

This is Not Permanent: The Order Will Expire

Many hail this as a tremendous victory for those who oppose the death penalty.  And it is.

However, we all have to remember that this is not a permanent change.  The Executive Order lives for the term of the current governor’s time in office.  New election with a new person in that office?  Things can change.

Full Text of Governor Newsom’s Order Ending California’s Death Penalty

Here is the full text of the Governor’s Order: 

EXECUTIVE DEPARTMENT STATE OF CALIFORNIA

Executive Order N-09-19

WHEREAS, California’s death penalty system is unfair, unjust, wasteful, protracted and does not make our state safer.

WHEREAS, the state’s bedrock responsibility to ensure equal justice under the law applies to all people no matter their race, mental ability, where they live, or how much money they have.

WHEREAS, death sentences are unevenly and unfairly applied to people of color, people with mental disabilities. and people who cannot afford costly legal representation.

WHEREAS. innocent people have been sentenced to death in California. Moreover, the National Academy of Sciences estimates that as many as one in 25 people sentenced to death in the United States is likely innocent.

WHEREAS, since 1978, California has spent $5 billion on a death penalty system that has executed 13 people.

WHEREAS, no person has been executed since 2006 because California’s execution protocols have not been lawful. Yet today, 25 California death row inmates have exhausted all of their state and federal appeals and could be eligible for an execution date.

WHEREAS, I will not oversee execution of any person while Governor.

NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the Constitution and statutes of the State of California, do hereby issue the following order to become effective immediately:

IT IS HEREBY ORDERED THAT:

1 . An executive moratorium on the death penalty shall be instituted in the form of a reprieve for all people sentenced to death in California. This moratorium does not provide for the release of any person from prison or otherwise alter any current conviction or sentence.

2. California’s lethal injection protocol shall be repealed.

3. The Death Chamber at San Quentin shall be immediately closed in light of the foregoing.

IT IS FURTHER ORDERED that as soon as hereafter possible, this Order shall be filed with the Office of the Secretary of State and that widespread publicity and notice shall be given to this Order.
This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its departments, agencies, or other entities, its officers or employees or any other person.

 

Governor of California

ATTEST:

ALEX PADILLA Secretary of State

 

 

 

 

Over in Alabama, Death Row Inmate Vernon Madison was found guilty of capital murder several years ago.  He was sentenced to death.

As he lived his live on Death Row and waited to die at the hands of the State of Alabama, Mr. Madison’s health declined.  He suffered several strokes.  His doctors determined that he suffered from  vascular dementia.

This led to his defense lawyers to file for a stay of his execution.  The reason being that now, given his current condition, he was mentally incompetent.  A key point to their argument:  Vernon Madison can not remember committing the crime for which he had been sentenced to death.

Alabama brought forth two SCOTUS decisions: Ford and Panetti, arguing that they were based upon the convicted individual suffering from gross delusions.  It is not contested that Vernon Madison does not experience delusions.

Read Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986).

Read Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

The case wound its way through to the Supreme Court of the United States, which issued its opinion (over a vigorous dissent by Justices Alito, Thomas, and Gorsuch), making things clear for Death Row inmates who have lived so long under the threat of execution that they now suffer from aging issues like dementia.

Dementia and the Death Penalty

From the majority opinion in Madison v. Alabama:

[T]wo matters disputed below should now be clear.  First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remember committing his crime.

Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions.

The sole question on which Madison’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. Panetti, 551 U. S., at 958.

While those who argue in support of capital punishment suggest that it helps keep police officers safer on the streets — the idea being that the death penalty is a deterrent here — research undertaken by the Death Penalty Information Center suggests otherwise.

After reviewing 31 years of FBI research on the murders of police officers across the country, and comparing the results between states with death penalty laws and those without capital punishment, the DPIC discovered the murder rate for police officers is HIGHER in most of the states WITH the death penalty.

From DPIC’s overview, Executive Director Robert Dunham explains:

“There’s no evidence that the death penalty deters murder and there’s no evidence that it protects the police.  Murder rates may be affected by many things, but the death penalty doesn’t appear to be one of them.” 

DPIC Study Details: Death Penalty and Protecting Police

For more, check out the powerpoint presentation given by DPIC’s Robert Dunham’s on this DPIC study, “Life After the Death Penalty: What Happens in States that Abolish the Death Penalty?,” which he presented at the Joint Meeting of the American Bar Association and New York City Bar Association, August 14, 2017.  For the underlying research supporting the DPIC’s findings, go here.

Click the image:

Clemency,” was inspired by the true story of Troy Davis’ Execution by the State of Georgia in 2011

This month, the U.S. Grand Jury Prize for Drama at the Sundance Film Festival was awarded to the film “Clemency,” directed by Chinonye Chukwu.

Critics and Viewers Rave About Clemency

Clemency is acclaimed at the Rotten Tomatoes movie review site with the rare “100%” score.  Everyone loves this movie.  Moreover, not only are there are an overwhelming number of rave reviews for both the movie itself but also for the performances of its lead actors, Alfre Woodard as prison warden Bernadine Williams, and Aldis Hodge as the condemned man.

Read Variety’s review here.

The Complexities Involved in Sentencing Someone to Death

From a death penalty defense perspective, the film helps to explain the complex realities of the government sentencing someone to die for their actions.  Unlike earlier capital punishment approaches, this one delves into the perspective of someone within the Death Row system itself: the warden who must oversee the executions.

A summary from Film Affinity describes Clemency this way:

Bernadine Williams (Alfre Woodard) is a prison warden who, over the years, has been drifting away from her husband while dutifully carrying out executions in a maximum security prison. When she strikes up a unique bond with death-row inmate Anthony Woods (Aldis Hodge), a layer of emotional skin is peeled back, forcing Bernadine to confront the complex—and often contradictory—relationship between good intentions, unrequited desires, and what it means to be sanctioned to kill.

 

Clemency’s Approach and Death Penalty Defense

This is an important film for those interested in the issues surrounding capital punishment in this country.  Not only is it a stunning success, but it shines a light on the psychological and all too human circumstances that must be considered and addressed by the defense in any death penalty trial’s penalty phase.  Terry Lenamon and Bernadine Williams would have a lot to discuss ….

Be on the lookout for this Must See Movie at your local theater.

For More Capital Punishment Must See Movie Recommendations:

Today, Florida Death Penalty defense strategies are dealing with the aftermath of Hurst v. Florida, where the impact of a jury in a capital punishment case was forever changed by the Supreme Court of the United States.

For details, read our past discussions:

In 2019, the procedural changes mandated by Hurst are not the only consideration that capital case defense lawyers like Terry Lenamon must consider.  There is also the impact of Pope Francis’ declaration upon capital case jury selection in Florida.

See:  Pope Francis Changes Catechism on Death Penalty: What Does This Mean to Capital Cases?

Risks Resulting from Catholic Opposition of Death Penalty

A recent article written by law professor Aliza Plener Cover delves into the impact of Pope Francis’s proclamation and how it might end up with a harder row to hoe for Death Penalty defense teams.

From her position as associate professor at the University of Idaho College of Law, Professor Cover asks excellent questions, including:

  • Can Catholic opposition to the death penalty actually increase the number of death sentences?
  • How does Catholic opposition to the death penalty intensify the risk of minority defendants being sentenced to death?

Read Death Penalty Essay by Professor Cover

Read an excerpt of her article as it appears in the Washington Post, “Could the pope’s call to end the death penalty keep Catholics off juries?

You can also read Professor Cover’s full essay, published in the Yale Law Journal Forum on December 3, 2018.  See: Cover, Aliza. “The Pope and the Capital Juror.” Yale Law Journal Forum (Forthcoming). 2018.

Point to Ponder:  Consider how jury selection in Florida may be impacted by the influences discussed by Professor Cover and how Florida Capital Case Defense Lawyers must include considerations of Catholics being excluded during jury selection.  How might this impact the jury panel who must decide on whether or not the defendant should be sentenced to death?

 

What is a Petition for Writ of Prohibition? Death Penalty Defense and Petitions for Writs

In Florida, several requests can be filed with the appellate court while a death penalty trial is ongoing.  Parties can seek appellate review and issuance of appellate exercises of power that include writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction as well as for review of nonfinal administrative action.  See, Article V, section 4(b)(3) of the Florida Constitution; Florida Rules of Appellate Procedure 9.100 (Original Proceedings).

Lenamon Files Petition for Writ of Prohibition During Loyd Trial

Terence Lenamon recently filed a petition with a Florida appeals court in the Markeith Loyd death penalty case.  The filing is requesting a writ of prohibition restraining the Honorable Frederick Lauten, Chief Judge of the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, from presiding as the judge in this matter.

Petition, page 6.

It is being sought following “the denial of a timely filed motion for disqualification where Mr. Loyd established that he is fearful that he will not receive a fair trial, or that he will suffer prejudice or bias from the court. This petition is premised on the Florida Rules of Judicial Administration, Florida Statutes, and the Florida Code of Judicial Conduct, all of which require that a judge disqualify himself once the defendant has established a reasonable fear that he will not obtain a fair hearing.”

Petition, page 6.

What is a Writ of Prohibition?

Writs are a integral component of our justice system; historically, they originated in the courts of Great Britain (for a history of the use of writs in England, India, etc. go here).

In sum, a writ is an official action taken by a higher court (like the Florida appellate court), ordering a lower court to do something – or to stop doing something.

In Mr. Lenamon’s request, he is seeking the appellate court’s review of the disqualification motion filed in the Markeith Loyd matter, where the defense requested the trial judge recuse himself, which was denied.

What are the details here?  Why ask that the judge not preside over the case?  There are several arguments, which are detailed along with their factual support in the Petition itself.

Full Text of Petition for Writ of Prohibition in Florida’s Markeith Loyd Death Penalty Case

To review a true and correct copy of the Petition for Writ of Prohibition filed by Terry Lenamon in the Markeith Loyd matter, click on the image below.  The court filing has been uploaded into the Terry Lenamon Online Library:

Note: On January 22, 2019, the Petition for Writ of Prohibition was denied by the District Court of Appeal of the State of Florida Fifth District.

How JAC impacts the Florida Death Penalty: Indigent Defense Legal Fees

For over 40 years, Florida’s Justice Administrative Commission (“JAC”) has provided administrative support to the state judicial branch.  Among its managerial tasks is overseeing the payment of court-appointed lawyers who represent defendants unable to afford counsel (indigent defendants).  In 2004, JAC was first given the job of reviewing and approving invoices of private attorneys who had been appointed by the courts to represent indigent defendants.

In 2013, JAC begin its registry for attorneys appointed by the courts in Capital Collateral cases as well as undertaking the task of both contracting with and paying private court-appointed lawyers in their representations in the capital collateral cases.  Florida Capital Collateral cases involve death penalty appeals.

JAC is made up of two State Attorneys and two Public Defenders.  These are appointees; the prosecutors are appointed by the President of the Florida Prosecuting Attorneys Association, and the defense attorneys are appointed by the President of the Florida Public Defender Association.

Death Penalty Defense Attorney Terry Lenamon hard at work in an airport hallway while waiting for his red-eye flight.

Terry Lenamon’s Case against Justice Administrative Commission

In 2009, Terry Lenamon sued JAC over interim compensation and costs in a death penalty defense case out of Lee County.  While his arguments were persuasive at the trial level, and recognized as both fair and reasonable by the appellate court, he was limited to the stated legal rate for death penalty defense in the State of Florida ($100/hour at the time).  Just. Admin. Comm’n v. Lenamon, 19 So.3d 1158 (Fla. 2d DCA 2009)( quoting Florida Statutes § 27.5304(12)(d)(2007)).

Notes the appellate court:

“Mr. Lenamon also argues that the $125 per hour rate was fair and reasonable in light of the exceptional circumstances present in this case. We do not doubt that the $125 per hour rate approved in the circuit court’s order is fair and reasonable. However, the question before us is whether payment at a rate exceeding $100 per hour is authorized by law, not whether it is fair and reasonable.”

JAC v Lenamon, 19 So.3 at 1165, footnote 9.

This case has served as precedent in future matters dealing with indigent defense representation and the need for prompt and proper payment of indigent defense fees and costs.

Point to Ponder: how indigent defense lawyers in Florida capital cases must meet the need for zealous representation of defendants fighting against the death penalty while coping with the financial realities of small hourly rates and staggered payments.

For more, read:

 

This month, the trial of Markeith Loyd continues in an Orlando courtroom with Terry Lenamon at the defense table. While prior Florida state attorney Ayala declined to proceed with the death penalty, it is back on the table.

For more on the Markeith Loyd case, see:

The Death Penalty Information Center has released its annual Year End analysis of the state of capital punishment in this country.  Go here to read the entire report, “The Death Penalty in 2018: Year End Report.”

 

Jurisdictions that imposed the death penalty during the year 2018. Graphic: DPIC

 

2018: Death Penalty in Florida

Of course, the State of Florida is included in this yearly recap on both death sentences and executions, as well as exonerations for those living on Florida’s Death Row.  What were the major events insofar as capital punishment in Florida during the past twelve months?

  1.  Seven Death Sentences

Last year, Florida tied with Texas as having the most death sentences imposed during 2018.  Both states saw seven (7) individuals sentenced to death.  Together with California and Ohio, these four states were responsible for over half of all death sentences last year (57%).

From the DPIC 2018 Report, page 4:

Fourteen states and the federal government imposed death sentences in 2018, but 57% of those sentences came from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). Even as the backlog of cases from two years of uncertainty about the constitutionality of Florida’s sentencing procedures increased the number of capital trials in the state, the new law barring judges from imposing the death penalty without a unanimous jury recommendation for death resulted in at least four life sentences that might previously have produced death verdicts.

2.  One Exoneration: Clemente Javier Aguirre

Florida saw one Florida Death Row Inmate freed during the year 2018.  Mr. Clemente Javier Aguire left prison in November, after being sentenced to death 12 years earlier.  Key appellate arguments  here included challenges to DNA evidence as well as credibility of one of the state’s key witness.

From the DPIC 2018 Report, page 7:

Clemente Javier Aguirre was exonerated from Florida’s death row on November 5, after jury selection for his retrial had already begun. He was the 28th death-row prisoner exonerated in Florida. Aguirre was convicted and sentenced to death in 2006 of the murder of two neighbors–an elderly woman and her adult daughter–in 2004. He steadfastly maintained his innocence, saying he had discovered the women after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. The prosecution’s chief witness against Aguirre was Samantha Williams, the mentally ill daughter and granddaughter of the victims. During the post-conviction process, Aguirre’s lawyers discovered that Williams had confessed to at least five different people that she had killed her relatives. None of the DNA found on the 84 items from the crime scene that were tested matched Aguirre. Most blood samples matched the two victims, and Samantha Williams’s DNA was found on eight bloodstains collected from four different rooms. As with more than 90% of Florida’s death-row exonerees, Aguirre had been sentenced to death by non-unanimous jury recommendations under Florida’s unconstitutional capital sentencing scheme.

3.  Execution of Eric Branch Despite Non-Unanimous Jury and SCOTUS Ruling in Hurst

The Supreme Court of the United States found the Florida statute that allowed for non-unanimous juries to impose death sentences was unconstitutional.  SCOTUS held that every single jury member must agree upon capital punishment before death is imposed.  However, the Florida Supreme Court later ruled that it would draw a line on the calendar insofar as when Hurst would apply to Florida’s Death Row inmates:  if the case was final before June 2002, when the SCOTUS decision in Ring v. Arizona came down, then Hurst would not be applied and the non-unanimous jury death sentence would stand.

The result?  Eric Branch was executed by the State of Florida in 2018, despite his jury voting 10-2 for the death penalty.

From the DPIC Report, page 12:

Two men, Eric Branch in Florida and Walter Moody in Alabama, were executed after non-unanimous juries recommended death sentences. Branch, who was only 21 at the time of his crime, received a 10-2 jury recommendation for death, an outcome that could not produce a death sentence today. In 2016, in Hurst v. Florida, the U.S. Supreme Court struck down the Florida sentencing scheme under which Branch was tried and condemned. Branch was one of 200 prisoners sentenced under Florida’s unconstitutional statute who still face execution as a result of a Florida Supreme Court ruling that it will enforce Hurst only in cases finalized after June 2002, when the U.S. Supreme Court decided a related case, Ring v. Arizona. In 2018, the U.S. Supreme Court declined to review 84 Florida cases in which defendants had been sentenced to death under the unconstitutional statute. Alabama law still allows non-unanimous jury recommendations for death, as long as at least 10 jurors agree, but Moody’s 11-1 jury recommendation would result in a life sentence in nearly every other death-penalty state.

For more on Hurst, see: