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).

 

In 2012, the Supreme Court of the United States published its opinion in Miller v. Alabama, 132 S. Ct. 2455, 567 U.S. 460, 183 L. Ed. 2d 407 (2012).  It is a landmark case dealing with juvenile offenders in the criminal justice system.

 

Miller: Rare Juvenile Offender Whose Crime Reflects Irreparable Corruption

Under Miller,   SCOTUS held a juvenile convicted of a homicide offense cannot be sentenced to life in prison without the possibility of parole (LWOP) without judicial consideration of his or her “special circumstances in light of the principles and purposes of juvenile sentencing.”  Montgomery v. Louisiana, 136 S. Ct. 718, 725, 577 U.S. 460, 193 L. Ed. 2d 599 (2016). 

To do so is a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishment.” From the Miller opinion:

But given all we have said …  about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S., at 573, 125 S.Ct. 1183; Graham, 560 U.S., at ___, 130 S.Ct., at 2026-2027.

“Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Miller, 132 S.Ct. at 2469.

The cornerstone of the Miller decision is clear:  no matter how horrific the crimes they have committed, children can change.  In the aftermath of this SCOTUS opinion, it is considered to be a “Miller violation” of constitutional implications if the juvenile offender is sentenced to life without the possibility of parole absent evaluation of the particular circumstances and the likelihood of “irreparable corruption.”

Lenamon Argues Miller Applies to Vampire Clan Leader Rod Ferrell

Terence Lenamon currently argues the application of the Miller case to Florida inmate Rod Ferrell, who was convicted of a 1996 homicide known to the public through the media coverage of the “Vampire Cult Killings.” The case has also been the subject of both movies, TV shows, and several books.

For more, read: Terence Lenamon Defends Rod Ferrell in Resentencing Hearing: the Vampire Clan Case.

Rod Ferrell is now 39 years old and serving a sentence of life without the possibility of parole.  He was convicted and sentenced as a juvenile to the death penalty back in 1998.  In 2005, SCOTUS held it is a violation of the Eighth Amendment to execute offenders under the age of 18 years, resulting in the change of his sentence.  Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

Now, Terry is appealing Mr. Ferrell’s life sentence in a Lake County courtroom, arguing that Rod Ferrell is not one of the “rarest” children who are irreparably corrupt and accordingly, his sentencing should be revisited.

From Terry’s briefing: “Mr. Ferrell has clearly demonstrated he is far from irreparably corrupt,” including demonstrating the ability to change by continuing his education and earning a wastewater-management license while behind bars.

For more about the resentencing hearing and background on the case, read: “Vampire killer Rod Ferrell should get a shot at parole, attorney argues,” written by Stephen Hudak and published by the Orlando Sentinel on February 4, 2020.

Yesterday, in an article entitled “Florida Death Penalty Experts Concerned About Court Ruling,” written by Tamara Lush and published by the Associated Press and shared in the New York Times, Terence Lenamon explained his take on the curveball ruling in Poole.

  • Terry points to his own docket as an example, where he has represented several clients who were granted re-sentencing hearings post-Hurst. (We’ve discussed a few of these cases here on the blog.)
  • He explains how everything is in flux for those who have been successful in seeking re-sentencing under what was considered dependable law as laid down in Hurst.

Read the full AP article, which includes opinions and thoughts from other nationally-known death penalty experts including Robert Dunham of the DPIC (Death Penalty Information Center) here.   

Bad, Bad News

As Terry told me yesterday, as well as when he was interviewed by the AP yesterday, Poole is “bad, bad news” from a death penalty defense perspective.  It remains to be seen how serious its full impact will be upon both present and future death penalty defense cases.

Procedurally, the ball is in the prosecutors’ court.  Across the State of Florida, each state attorney will have to draft and file a formal motion in any re-sentencing hearing that removed the death penalty based upon the Hurst precedent.

For details on the new Florida Supreme Court decision, read our discussion (which includes a link to the full opinion) in yesterday’s post.

For more on Hurst, see:

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.