Right now, the U.S. Supreme Court is in the process of reviewing a Florida death penalty case that will impact capital punishment cases all across the United States. The High Court has agreed to review the decision made by the Florida Supreme Court in the case of Freddie L. Hall, a man sentenced to die under Florida law for killing a police officer as well as the rape and murder of a young pregnant woman back in 1978.

Attorneys for Mr. Hall are trying to block the State of Florida from executing him on the grounds that Freddie Hall has insufficient intellectual ability to allow for capital punishment under the Constitution. Their arguments are based upon the Eighth Amendment to the U.S. Constitution which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Read the Florida Supreme Court Opinion here.

Follow the U.S. Supreme Court Docket in Hall v. Florida, No. 12-10882, here.

This is a big deal because the Hall case asks a big question: when is someone so mentally challenged that they should not be executed? (The question presented to the Supreme Court reads: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.)

It’s not the first time that the United States Supreme Court has considered this circumstance, but now the Court may give guidance on where the line should be drawn.  In the landmark Atkins v. Virginia case the Court determined that individuals suffering from mental disabilities (low IQ) could not be executed because it would constitute cruel and unusual punishment.  

Deciding what individuals are so limited as to be barred from capital punishment was not answered in Atkins, however.  

In the Hall case, the Supreme Court will be looking at the manner in which the State of Florida determines someone’s mental impairment and if the methods used by Florida (as well as other states, like Texas) are sufficient constitutionally.

Texas and Florida use similar methods: a 3-prong test where the subject must have demonstrated before the age of 18 years old to have a low IQ as well as impaired mental functioning. Florida, unlike Texas, also draws a line at an IQ of 70 or lower.

Freddie Hall has a record of IQ tests ranging from the mid 60s to 80, hence the appellate challenges made on his behalf since Florida prosecutors have argued that Hall can be executed under current Florida standards.

On November 25, 2013, oral arguments were set in the United States Supreme Court for March 3, 2014.

Documentary film maker Andrea (Andy) Scott has a new documentary coming out that may be interesting to those following death penalty issues …. It’s a film covering a local community in Arizona that has an economy revolving around 9 different incarceration spots, be they prisons, jails or immigration detention centers.  

The town is Florence, Arizona, and for those interested in learning more about the town or the film, or both, check out Scott’s kickstarter campaign online here. 

 

http://www.kickstarter.com/projects/1240286094/good-men-bad-men-and-a-few-rowdy-ladies/widget/video.html

Terry Lenamon’s client, Michael Lamar Woods, will not be facing the possibility of being sentenced to death in the murder of Toni Centracco — prosecutors have filed the formal notification that in the new trial of Mr. Woods, the state will no longer seek the death penalty.

As you may recall from our earlier post, after a long courtroom fight and lots of jury deliberation time, the Woods jury was released and Terence Lenamon’s request for a mistrial was granted after one of the jurors used the internet to do research on definitions given to the jury by the judge.  

Terry’s work isn’t done though.  Michael Woods is still facing the death penalty in another murder trial where he is charged with the killings of Toni Centracco’s boyfriend Marshall Pardee and Chyavana Hampton.  

For Terry’s take on the Woods case – and what the dismissed jurors told news media after they were released from the courtroom on how they would have voted if they case had gone to verdict, go here to read the report by April Warren in the Ocala Star Journal.

 

This just in from Terry, who got the heads up from the show’s producer today:

This Sunday, November 17, 2013, the series Snapped: Killer Couples on Oxygen TV will be spotlighting one of Terence Lenamon’s clients, Joshua Fulgham.  

Be sure to watch!!!

For more on Terry’s defense of Joshua Fulgham, check out our past blog posts (here) or read about the case on Wikipedia 

Yesterday at six o’clock in the evening, Darius Kimbrough was executed by the State of Florida Department of Corrections after being sentenced to death in 1994 for the 1991 murder of Denise Collins of Orlando. Once again, Florida execution practices were hampered regarding the method of execution involving a lethal injection cocktail because Florida no longer has any pentobarbital in its inventory to use in these capital punishments.

And once again, that dilemma has been resolved by the authorities by using midazolam hydrochloride in the lethal injection procedure. Kimbrough is the second man executed in Florida using this drug.

As we’ve posted about before, this drug is not tested. William Happ was the first man to be executed in a process where the new untested drug, midazolam hydrochloride, is injected first as a sedative with two other drugs then being injected into the body to paralyze the person and then stop the heart from beating.

This three drug process took 18 minutes for Darius Kimbrough to die. Was he sedated or was his paralysis preventing him from evidencing pain? We don’t know.

Kimbrough was not part of the ongoing appeal from several Florida Death Row inmates arguing that the use of midazolam hydrochloride is cruel and unusual punishment in violation of the U.S. Constitution.

He did write a letter to the Florida Supreme Court to voice his concerns about this controversial drug. It didn’t matter.

 

 Update on Terry Lenamon’s trial this month:  today, the judge declared a mistrial in the Michael Woods case. 

Details in the Ocala Star Banner coverage online.  (This article has been updated – the addition includes an interview with a juror; to see the update, click here.)

You can see Terry in the photographs here, along with quotes from Terry Lenamon on the defense’s motion for mistrial which was granted today.

Earlier news coverage reveals the jury asking for lots of stuff to be sent to them in the deliberation room, i.e., transcripts of five trial witnesses, and yesterday afternoon there was talk of a hung jury.

Now, the judge has granted a mistrial due to juror error, because a juror went online to look up definitions of words like "circumstantial" (see the Ocala Star Banner link above for details).  

This means that this jury will be excused and the three weeks of trial that Terry and the defense team have been fighting for Woods this month will have to be started once again, in a brand new trial.  

Will the prosecution revisit the death penalty it’s seeking?  Stay tuned.

Have a good rest this weekend, Terry!

 

 

 

 

 

 

mugshot Freddie Hall, Florida Death Row Inmate

Image: Florida Death Row Inmate Freddie Hall Goes to U.S. Supreme Court

_____________________
 

The United States Supreme Court will be considering an important Death Penalty case coming out of the State of Florida this term, as writ has been granted in Cause No. 12--10882, Hall v. Florida. (You can follow the Supreme Court docket on the case online here.)

There is only a single question presented:  Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

Florida Statute Sets IQ Score Cutoff – Does This Violate Atkins or Does Bies Allow It? 

The Florida Supreme Court’s decision to allow the execution of Freddie Hall will be reviewed by the United States Supreme Court, bringing more guidance (hopefully) on the execution of persons with very low IQ scores and whether or not people who test at levels like Mr. Hall (71, 73, and 80 on three different occasions) should face execution given their limited intellectual capacity.

In Florida, there is a state statute that provides what has been deemed an “ineffectual bright-line cutoff” by Freddie Hall’s lawyers which sets the determination of whether or not intelligence levels bar capital punishment at a score of 70 or below.

Freddie Hall’s lawyers are arguing that executing Mr. Hall would be in violation of Atkins because of Mr. Hall’s mental challenges.  This mitigating factor should prohibit capital punishment in his case.

Florida is arguing that another Supreme Court case is analogous to Mr. Hall’s situation and decides the issue.  

From the Florida Supreme Court’s opinion in Hall v. Florida (read it online here):

After Atkins v. Virginia, 536 U.S. 304 (2002), was decided, Hall filed a motion to declare section 921.137, Florida Statutes (2004),[1] unconstitutional. While the motion was pending, we adopted Florida Rule of Criminal Procedure 3.203 as a mechanism to file Atkins claims. Hall timely filed such a claim on November 30, 2004. No action was taken on the motion until, on March 27, 2008, Hall filed a motion to prohibit relitigation of the mental retardation issue, which was denied. The court then held an evidentiary hearing on Hall’s successive motion to vacate his sentence.

At the evidentiary hearing held on December 7 and 8, 2009, Hall presented testimony from Dr. Valerie McClain, who testified that she did not obtain Hall’s IQ; Lugene Ellis, Hall’s half-brother, who testified about his recollection of Hall as a child; James Hall, Hall’s brother, who testified regarding Hall’s problems with reading, writing, and caring for himself; Dr. Harry Krop, who testified that Hall’s IQ using the Wechsler Adult Intelligence Scale Revises was 73 and that a prior result on the same test given by Marilyn Feldman resulted in a score of 80; and Dr. Gregory Prichard, who testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall sought to introduce a report compiled by then-deceased Dr. Bill Mosman through Dr. Prichard, but the court denied it and only allowed Hall to proffer the report for the record. After reviewing the evidence presented, the court determined that Hall could not meet the first prong of the mental retardation standard to establish his mental retardation—an IQ below 70. The court denied relief in an order issued May 26, 2010, and entered an amended order on June 16, 2010. …

Hall asserts that the statutorily prescribed cutoff is arbitrary because it does not consider the range of scores mentioned in Atkins. We have previously found this argument to be meritless….

Hall next contends that the lower court improperly limited his introduction of evidence of the second two elements to establish mental retardation. We have recognized that all three elements must be established for a defendant to show that he or she is mentally retarded and thus ineligible for execution….

Third, Hall complains that the trial court abused its discretion in refusing to admit the report prepared by Dr. Mosman through the testimony of Dr. Prichard….

Finally, Hall alleges that the lower court should have been precluded from holding an evidentiary hearing on Hall’s alleged mental retardation and should have entered a life sentence because the court previously found him to be mentally retarded. We disagree….

Here, Hall argues that the issue should be estopped because of the trial court’s finding that Hall was mentally retarded as mitigation. As summarized by the Supreme Court in Bies [ Bobby v. Bies, 129 S. Ct. 2145 (2009)], even if the core requirements for issue preclusion had been met, an exception to the doctrine’s application would be warranted due to this Court’s intervening decision in Atkins. Mental retardation as a mitigator and mental retardation under Atkins . . . are discrete legal issues. The Atkins decision itself highlights one difference: "[R]eliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury." 536 U.S. at 321. This reality explains why prosecutors, pre-Atkins, had little incentive vigorously to contest evidence of retardation. . . . Because the change in law substantially altered the State’s incentive to contest Bies’ mental capacity, applying preclusion would not advance the equitable administration of the law.

Bies, 129 S. Ct. at 2153. Accordingly, we deny relief on this claim.

 

We’ll be monitoring this case — especially since Terry Lenamon’s forte is representing people facing the death penalty in the penalty phase of criminal trials, where he advances various mitigation arguments.  Stay tuned. 

 Right now, Terry Lenamon is defending Michael Woods in a Marion County, Florida, courtroom, with the process of selecting a jury from a panel of 150 potential jurors beginning on Monday morning.

This is a death penalty case (Woods has been charged with first degree murder) where Terry is bringing his expertise and experience in the penalty phase to the Woods defense team.

For those interested in following Terry in trial, the Ocala Star Banner is reporting on the trial and their coverage can be followed online, including:

“From mystery to arrest: How the Centracco murder case unfolded,” by April Warren, published October 14, 2013; and

“Jury selection starts in trial of Michael Woods, charged in Centracco murder,” by April Warren, also published October 14, 2013.

We’ve been monitoring how it’s getting harder and harder to execute people in this country by lethal injection because the lethal drugs for the lethal injection just aren’t available to the states any longer, or at least not much supply is left.

There’s been chatter about returning to earlier forms of execution (like the firing squad or the electric chair), things are getting so bad for the executioners out there.

That’s a big jump for many, though: returning to those old, historic methods when everyone seems to prefer using a syringe and a gurney. So deals have been made for the stuff.

Texas: “Nevermind” Says Pentobarbital Supplier

Recently, over in Texas, a quiet deal was made between a Texas compounding pharmacy and the State of Texas to provide the needed pentobarbital supply for lethal injections; however, as soon as the identity of the supplier was made public, the company wanted to nix the deal and asked the State of Texas to return the pentobarbital it had purchased.

The letter sent by Jasper Lovoi, owner of The Woodlands Compounding Pharmacy, to the Texas Department of Justice can be read in its entirety online, courtesy of Grits for Breakfast.

Here’s the gist of it, quoting from Lovoi’s letter:

… Now that this information has been made public, I find myself in the middle of a firestorm that I was not advised of and did not bargain for. Had I known that this information would be made public, which the State implied it would not, I never would have agreed to provide the drugs to TDCJ…. I must demand that TDCJ immediately return the vials of compounded pentobarbital in exchange for a refund. … Otherwise I may have to ask the Court in the prisoners’ lawsuit to consider my concerns.

Texas’ response? Too bad, so sad, Mr. Lovoi.

The State of Texas has refused his request to return the pentobarbital – and Mr. Lovoi may be stuck here because, as Grits points out, no matter the implications in his phone conversations with agency representatives, the Texas Public Information Act provides for the disclosure of the drug supplier.

Now, Texas has enough pentobarbital to complete its execution schedule for 2013.

Florida: A Whole Different Ballgame

While Texas is satisfied with a compounding pharmacy’s pentobarbital for its lethal injection executions, the State of Florida is opting for another chemical altogether in this Lethal Drug Shortage. This week, the Florida Department of Corrections will be using a brand-new, never before tried execution method in the execution of William Happ, a 27-year resident of Florida’s Death Row.

The Florida alternative is midazolam hydrochloride, sold under the name “Versed.” Versed is a drug used in hospitals as a sedative before someone has surgery; it has never before been used in any execution.

Unless something happens to halt things, which is unlikely since Mr. Happ has waived any additional legal appeals on his behalf to halt the execution, the State of Florida will use this new execution method, midazolam hydrochloride, on Mr. Happ in an execution scheduled for tomorrow (October 15, 2013).

Image:  William Happ is scheduled to die tomorrow through the use of a lethal drug injection using a drug never before used on humans for this purpose.