As Florida deals with the aftermath of the recent Florida Supreme Court decision in Hurst v. Florida (see our last post), media coverage includes considering what this means for the State of Florida and the state of capital punishment now.  In the short term, if not the long run.

What Happens Now?  Miami Herald Asks Terence Lenamon and Other Death Penalty Experts

For instance, Terry Lenamon was among those queried by the Miami Herald in the wake of last week’s decision. 

Read that story by Mary Ellen Klas and David Ovalle, published on October 14, 2016, "Court again tosses state death penalty; ruling raises bar on capital punishment."

Impact Upon Death Row Sentencing Hearings

One thing that is clear — this is the second round.  Florida’s capital punishment statute was ruled unconstitutional once already.  That’s why the Florida Legislature worked fast to pass the new law, the one that has just been ruled to violate the federal constitution, as well.

So, just like before, there’s a lot of talk about those sentencing hearings under the unconstitutional framework.  Some are predicting hundreds of case reviews.  386, to be precise.

For details on that issue, see the October 18, 2016 Miami Herald coverage by Michael Auslen in "Death penalty ruling could mean new sentencing for 386 murderers in Florida."
 

Perry v. Florida in Online Library

Last week, we placed the new Hurst decision in Terry’s online library for ease of access.  Today, we’ve also uploaded the Perry v. Florida decision that was announced the same day. 

In Perry, the Florida Supreme Court ruled that any new statute from the legislature cannot be applied to pending cases where the State is seeking capital punishment.  This halts any sentencing until the legislature finalizes a new statute. 

Read Perry here:

Perry v. Florida 2016 by Reba Kennedy on Scribd

 

 

The Florida Supreme Court has published its opinion in Hurst v. Florida.  You can read the opinion below.

The state supreme court has held that the law passed earlier this year by the Florida Legislature is unconstitutional. 

The law allowed the death penalty if the jury recommendation was 10 to 2 at a minimum.  Two jurors could vote against death and capital punishment could be the sentence anyway, under the law.

This Florida Supreme Court case finds that is wrong.  The jury recommendations to impose the death penalty must be unanimous. 

From the opinion: 

"By requiring unanimity in a recommendation of death in order for death to be considered and imposed, Florida will achieve the important goal of bringing its capital sentencing laws into harmony with the direction of society reflected in all these states and with federal law."

The full Hurst v. Florida opinion has been stored in the Terry Lenamon Online Library.  Here it is for your convenience:

 

Hurst v. Florida, Florida Supreme Court Ruling Released on October 14, 2016 by Reba Kennedy on Scribd

This week, the United States Supreme Court refused to take a case.  The High Court’s refusal to hear arguments and grade the papers of a lower Arizona court decision means that decision stands.  It’s good law.  It’s final.

Sometimes, SCOTUS’s power lies it is decision not to exercise that power. 

The Arizona Case Where Writ Was Denied by SCOTUS

Last fall, the U.S.  Court of Appeals for the Ninth Circuit ruled that James McKinney’s sentence of death by the State of Arizona was unconstitutional.  His capital punishment sentence was overturned, and McKinney’s federal appeal was a victory not only for himself, but for around 25 other people sitting on Arizona’s Death Row.

The Ninth Circuit opinion can be read online here at Google Scholar. 

Mitigation Evidence of Child Abuse Victim and PTSD

In sum, the federal appeals court ruled that the Arizona rule of "causal nexus" had violated the federal constitution by keeping out evidence of McKinney’s being abused as a child and his diagnosis of Post Traumatic Stress Disorder (PTSD).

The abuse McKinney suffered as a child and the resulting psychological trauma is detailed in the Ninth Circuit’s majority opinion.

This is mitigating evidence used by defense lawyers to argue against the sentence of death during the sentencing phase of a capital trial.  (Terry Lenamon is passionate about this issue and the fight for balancing psychological and mental issues of the defendant on the sentencing scale.)

This means that the McKinney opinion can now form the basis of other appeals, seeking review of the mitigation evidence and sentencing trials of other defendants who were sentenced to death in Arizona. 

Heated Dissent in the Ninth Circuit Case

The dissent pulls no punches.  There is strong disagreement about what the majority decides, and the refusal of SCOTUS to grant writ in this case may be a surprise to many.

As the dissent (five justices joining) points out, for one thing this case may well impact every death penalty given in Arizona from 1989 to 2005 and more.  From the Dissent:

"Also quite troubling, the majority wrongly smears the Arizona Supreme Court and calls into question every single death sentence imposed in Arizona between 1989 and 2005 and our cases which have denied habeas relief as to those sentences."

For more, read the Associated Press coverage by Astrid Galvan, "US Supreme Court Won’t Hear Arizona Death Case."

The State of Missouri is buying its lethal injection drugs from a pharmacy.  The identity of that supplier is a secret.

Does Pharmacy Have Constitutionally Protected Speech Over Products It Sells?

The supplier has provided the drugs used in 16 executions in the State of Missouri.

Mississippi Death Row inmates have a court fight going on over Mississippi’s lethal injection methods, and in that suit they have subpoenaed the Missouri Department of Correction’s drug source information.  It’s a part of their arguments regarding Mississippi, and they are comparing what happens in other states, too.

Here’s the question:  is the drug supplier protected by the First Amendment of the U.S. Constitution? Can its identity be kept secret under an argument that it’s related to political speech?

Whattha? 

Read the analysis of this argument by Harvard Law Professor Noah Feldman as published in Bloomberg News here. 

CBS has made not only the video of its 60 Minutes story but the full transcript from “30 Years on Death Row” available online. 

It first aired back in October 2015, but you may have seen it earlier this month, when they shared it a second time.

Wrongful Conviction and 30 Years in Solitary Confinement on Death Row

It’s the story of how a man named Glenn Ford spent 30 years in solitary confinement on Louisana’s Death Row.  He was wrongfully convicted.  An innocent man.

Prosecutor Interview: "I was arrogant, narcissistic, caught up in the culture of winning.."

Key here is the interview the prosecutor in that case, as he explains the trial tactics and perspective of the state’s attorney in a capital case. 

Another vital message here: the fact that the defense attorneys not only had no capital murder defense expense, they did not practice criminal law at ALL.  These were two civil attorneys, going into court against an experienced prosecutor with a man’s life at stake.

Read the Transcript here.

Watch the Video here.

The recent issue of Warrior, the publication of Gerry Spence’s Trial Lawyers’ College, includes an article written by Terence Lenamon and Melissa Ortiz of Lenamon Law — and Laurie D. Goodman,
Executive Director of the TLC, has been gracious to allow us to share the article here on the blog.

We Deserve More: The Story of the Florida Capital Resource Center

This article delves into the Florida Capital Resource Center’s hows and whys — issues of importance to anyone following the issues surrounding the death penalty and capital punishment in the United States. 

Here it is:

We Deserve More: The Story of the Florida Capital Resource Center by Terence Lenamon, Esq. and Melissa Orti…

This article was published by the Trial Lawyer’s College ("TLC") in its Warrior Summer 2016 edition, and the TLC owns the copyrights to the article.

This week in Florida, the Harvard research report into capital punishment in America continues to take on a life of its own. 

We’ve published posts on various aspects of the Harvard study (read them here and here).

Letter Sent to Duval County State Attorney

Now, there’s lots of talk – and news coverage – after two national organizations focused upon the Death Penalty both in the United States and abroad, released a letter that has been sent to the head prosecutor for Duval County, Florida, regarding the state attorney requesting the death penalty in prosecutions here.

The two national organizations are Equal Justice U.S.A. and Murder Victims Families for Reconciliation.

Those signing the letter represent victims from all over the country.  Five of the 55 signatories come from the State of Florida. 

Will this put pressure on the Duval County powers that be?  Should it?  What do you think? 

The full text of the letter sent by the victims to the Duval County State Attorney reads as follows:

All of us have suffered the tragedy of losing a loved one to murder. We intimately understand the deep pain caused by such loss and the challenges that families face in rebuilding their lives. Our criminal justice system must be responsive to the needs of murder victims’ families. Sadly, Duval County’s use of the death penalty has too often caused further pain by forcing murder victims’ families to endure a long, complex, and error-prone legal process.

Prosecutors and other officials need to be honest about the reality of the death penalty: it’s a false promise. A death penalty case drags families through long trials, appeals, and reversals—in short, constant uncertainty that leaves them frustrated and angry. That’s especially true in Florida. In just this year, the state’s death penalty law has been struck down as unconstitutional twice. Officials keep promising that the death penalty works and can deliver justice, but as these promises fall short time and time again, murder victims’ families are the ones left to suffer.

The District Attorney’s Office in Duval County frequently pursues the death penalty with little regard for its potentially harmful impact on murder victims’ families. Duval County is responsible for a quarter of death sentences in Florida, despite being only 5% of the state’s population. Of the over 3,000 counties nationwide, Duval County is an extreme outlier in its use of the death penalty. It is one of only 16 counties that produced five or more death sentences between 2010 and 2015.

The lengths to which Duval County will go in its pursuit of the death penalty has been on display after the 2013 murder of Shelby Farah. Despite her mother’s request that her family be spared a death penalty case and the lengthy process it entails, prosecutors continue to seek it. “Since my daughter’s murder,” Darlene Farah recently wrote, “I have begged and pleaded with the prosecutors to take the death penalty off the table, accept a plea deal and end this painful process for my family. At every step of the process, our wishes have been ignored.”

In pursuing the death penalty, Duval County often has caused additional harm to murder victims’ families. We, the undersigned, therefore call on the State Attorney’s Office for the 4th Judicial Circuit covering Duval County to immediately suspend use of the death penalty.

56 murder victims’ family members, listed below alphabetically, joined the letter.

Mary Ansheles (South Portland, ME)
Uncle Jullius was murdered

Joan Ansheles (Arlington, VA)
Relative G. Grischele was murdered

Kelly Parker Badeau (Tucson, AZ)
Father Julius Frederick Parker Jr. was murdered

Patricia Bane (Atlantic, VA)
Uncle Ambrose Bane was murdered

Henrietta Beckman (Hartford, CT)
Son Randy Beckman was murdered

Ernest Bohn (North Newton, KS)
Sister Helen Bohn Klassen was murdered

SueZann Bosler (Hallandale Beach, FL)
Father Bill Bosler was murdered

Elizabeth Brancato (Torrington, KS)
Sister Barbara O. McKitis was murdered

Kelli Cervantes (Brooklyn, NY)
Mother Noni Cervantes was murdered

Cedric Clarkson (St. Louis, MO)
Son was murdered

Nannetta Cook (Junction City, KS)
Grandmother Mary Mae Johnson was murdered

Madeleine Dewar (San Antonio, TX)
Son Andrew Hughes was murdered

Ursula Douglas (Charlotte, NC)
Relative T.J. Price Jr. was murdered

Nadine Douglas (Rock Hill, SC)
Relative T.J. Price Jr. was murdered

Cousar Douglas (Rock Hill, SC)
Relative Martha Houze was murdered

Deirdre Douglas-Hubbard (Charleston, SC)
Great grandmother and cousin were murdered

Carol Dreiling (Alexander, NC)
Parents Joan and Fred Dreiling were murdered

Judith Elane (Little Rock, AR)
Brother Ronald Eugene Schlatter was murdered

Darlene Farah (Jacksonville, FL)
Daughter Shelby Farah was murdered

Kelly and Celeste Fitzgerald (Chatham, NJ)
Cousin Ann McGovern was murdered

Kristin Froehlich (Wilmington, DE)
Brother David Froehlich was murdered

Joan Gauker (Monroe, NC)
Granddaughter was murdered

Aba Gayle (Silverton, OR)
Daughter Catherine Blount was murdered

McKinley Griffin (Oxford, PA)
Aunt Martha Griffin was murdered

Mary Head (Lawrence, KS)
Sister Patricia Erikson was murdered

Judith Hessman (Dodge City, KS)
Sister Mary Mel Eesa Rains was murdered

Henry Hubbard (Charlotte, NC)
Nephew T.J. Price Jr. was murdered

Marietta Jaeger Lane (Punta Gorda, FL)
Daughter Susan Marie Jaeger was murdered

Laurie Juedes (Redmond, WA)
Brother Ken Juedes was murdered

Miriam Kelle (Beatrice, NE)
Brother was murdered

Carolyn Lee (Pensacola, FL)
Mother Dorothy Edwards was murdered

Wilma Loganbill (Hesston, KS)
Son was murdered

Dawn Mancarella (West Haven, CT)
Mother Joyce Masury was murdered

Deldelp Medina (San Francisco, CA)
Aunt Magali Medina was murdered

Carolyn Metzler (Albuquerque, NM)
Relative Andy Lavern Smith was murdered

Jean Parks (Fletcher, NC)
Sister Elizabeth Parks Rosenberg was murdered

Bill Pelke (Anchorage, AK)
Grandmother Ruth Elizabeth Pelke was murdered

Bill Piper (Pennington, NJ)
Mother Arlene Piper was murdered

Corinne Rhodes (Rutland, MA)
Partner was murdered

Myra Rivera (Caguas, PR)
Daughter was murdered

Carolyn Saenz Zimmerman (Topeka, KS)
Father Lawrence Saenz was murdered

Vicki Schieber (New Market, MD)
Daughter Shannon Schieber was murdered

Judith Scott (Las Cruces, NM)
Aunt Ruth Scott was murdered

Andrew Smith (Raleigh, NC)
Son Daniel was murdered

Mark Soehner (Berkley, MI)
Sister Anne Soehner was murdered

Bonita Spikes (Upper Marlboro, MD)
Husband Michael was murdered

Elizabeth Stein (Houston, TX)
Cousin Gary Stein was murdered

Anne Stone (Farmington, CT)
Son Ralph Stone was murdered

Rev. Jack Sullivan Jr. (Raleigh, NC)
Sister Jennifer McCoy was murdered

Michelle VanDeRee (Columbia, TN)
Relative Edgar Pillow was murdered

Molly Weigel (Pennington, NJ)
Mother-in-law Arlene Piper was murdered

Terry Werner (Lincoln, NE)
Cousin Janet Mesner was murdered

Theresa Westerfield (Redington Shores, FL)
Uncle Charles Westerfield was murdered

Deborah Wiese (Port Townsend, WA)
Sister and Brother-in-law Lynn and Richard Ehlenfeldt were murdered

Hannah Yoo (Chicago, IL)
Father Kenneth Yoo was murdered

 

We’ve discussed the new Harvard Law School report before, insofar as it concerns prosecutors (read our post here). 

However, this week’s New York Times Magazine has taken a different view on that new research report and it’s very interesting.

Read the 55-page report from Harvard’s Fair Punishment Project, entitled "Too Broken to Fix" here.

The New York Times delves into the national map and considers the ramifications of the report’s finding that only 2% (that’s right, two percent) of the counties in the United States are tied to most of the Death Row convictions in this nation.

Sixteen counties specifically, all within 7 states, and all located in the South or on the West Coast.

List of Florida Counties in the Harvard Report’s Death Penalty Two Percent

Included here are the following counties in the State of Florida: 

  • Duval
  • Hillsborough
  • Miami-Dade
  • Pinellas.

 

Last week, New Mexico Governor Susana Martinez ordered that all flags be flown at half-staff in the State of New Mexico to honor Police Officer Jose Chavez who was gunned down during a traffic stop in Hatch, New Mexico.

This week, the news is that Governor Martinez is seeking to have the death penalty re-instated there. 

Governor Martinez is a former prosecutor, and her perspective in the viability and need for capital punishment is shared by most prosecutors, at both the state and federal levels.

But will New Mexico return to executions? 

It was only a few years back that the death penalty was repealed there — see our previous post on that event, which was hard-fought by lots of powers-that-be there, including Albuquerque’s Sheriff Darren White. 

In January, Governor Martinez will go before the state legislature to start the process of getting the death penalty back on the books.

And it looks like she’s got better than even odds of success. 

What about Delaware and New Jersey?

Meanwhile, there are reports of movements in other states to bring back the death penalty:

1.  Delaware has some politicos moving to reinstate capital punishment after the recent state supreme court ruling there that the Delaware Death Penalty statute was unconstitiutional.

2.  New Jersey also has some lawmakers working to have the death penalty reinstated there.  The incentive here, as with New Mexico Governor Martinez, is reported to be in response to the killing of police officers. 

 

As you may know, the focus of Terence Lenamon’s death penalty practice is upon the second trial in a death penalty case, the sentencing phase, where a man (or woman) has been convicted of a capital crime and now, the question is whether or not the state will succeed in their quest for capital punishment.  (See, e.g., this post which includes one of Terry Lenamon’s opening statements.)

Death Penalty Sentencing Phase:  Mental Illness, Mental Disability

Often, the crux of his defense will turn on things like the mental illness or instability of his client.  Things like schizophrenia come into play.  

In some cases, the critical factor will be mental capacity or intellectual disability.  Things like traumatic brain injuries, chromosomal abnormalities, and introduction of toxins (including extended drug use) may be facts to be presented.

Jeff Wood on Texas Death Row

Terry’s not representing Jeff Wood in Texas, but he knows the fight that is being fought right now.  Attorneys for Mr. Wood are trying to stop his execution, scheduled in a matter of days. 

If they don’t succeed, Jeff Wood will die by lethal injection on August 24, 2016.

And Jeff Wood is argued to suffer both intellectual and emotional disabilities — things that his lawyers argue should make him constitutionally ineligible for that execution.

An even bigger argument?  One that goes back to the guilt or innocence phase of a death penalty trial, more than in the sentencing trial. 

Jeff Wood didn’t kill anyone.  He was sentenced to die under a Texas law that is called the "law of parties," where he is held just as liable for the death of the victim as his accomplice in crime, the person who did do the killing.  (That killer was executed back in 2002.)

So, will Texas execute Jeff Wood?