Terry’s busy with trial stuff right now, but took the time to send over a quick email about sharing the latest news story about what snitches do in the justice system (as in, throwing a big, fat wrench in the works).

Maybe you’ve already heard about the case.

If not, check out the Miami Herald article here, “Charges dropped in 1999 murder of retired Miami-Dade cop,” for which Terry Lenamon was interviewed and where Lenamon opines about how dangerous using snitch testimony in criminal cases can be.

FYI, Terence Lenamon represents Shannon Dawson, one of the defendants indicted for the murder of Raymond Stanisky based upon testimony given by a snitch who has now recanted his testimony, admitted he lied, and who now faces perjury charges. 

For more on the unreliability of snitch testimony, check out:

"Unreliable Informant Testimony" by Nicholaos Jonas, et al (Chapter 10 of Conviction of the Innocent: Lessons from Psychological Research, edited by Brian L. Cutler, PhD.)

Campbell, Erreka, Ditch the Snitch: Why State and Federal Governments Should Limit the Use and Admissibility of Informant Testimony (December 9, 2010). Available at SSRN:  http://ssrn.com/abstract=1884468 or http://dx.doi.org/10.2139/ssrn.1884468

 

 

Terence Lenamon is one busy trial lawyer; right now, he defending a man named Michael Woods who faces the death penalty in a trial that is set to begin on October 14, 2013 for the murder of Toni Centracco in a killing that prosecutors charge occurred during the commission of a burglary of a home in Ocala, Florida.

 
To see Terry and his co-defense counsel James Reich on the job, check out the photo here, during a hearing on Monday. (Reich is the defense lawyer for the guilt phase; Lenamon is the defense lawyer for the penalty phase (if the trial goes that far).)
 
Challenge to Constitutionality of Death Penalty
 
Terry is arguing that the death penalty is unconstitutional as it is applied in the 5th Judicial District of the State of Florida based on racial discrimination.  
 
The motion filed in support of this position (soon to be in the Online Library) argues that in this jurisdiction (the 5th Judicial District), statistics are that capital punishment is sought 4 times more often if the defendant is non-white and charged with killing a single white female than any other racial combination of defendant/victim.
 
The entire Motion (with its Supporting Affidavit) will be published in the Terence Lenamon Online Library at no charge as a public service to those interested in death penalty issues.  
 
Stay tuned to learn the judge’s decision on this motion, it’s expected within the week.

 Florida Governor Rick Scott delayed the execution of Marshall Lee Gore back in mid-August, writing a letter to the Florida State Prison warden with a re-set of the execution day to October 1, 2013.

Gore Gets 20 More Days of Life In Controversial Circumstance

This happened shortly after the Florida Supreme Court ruling that considered the mental illness arguments of Gore’s defense team and decided that Marshall Lee Gore did not meet the mental illness standards needed to avoid the death penalty.

Which meant that the Execution was back on the Florida Death Row Calendar, initially being set for September 10, 2013, until Governor Scott wrote the warden and moved the date.

Attorney General Request for Rescheduling and the Timely Justice Act

Meanwhile, news right now isn’t about mental illness and the ethical issues of executing someone with mental illness: it’s about the reasons why Mr. Gore has been given another few weeks of life to live by Governor Scott.

According to the news media, it’s because Pam Bondi, the Florida Attorney General, requested the extension. Not for any legal issues regarding Mr. Gore; sources like the Huffington Post are reporting that Ms. Bondi asked for the date to be changed because she had a scheduling conflict: there was a fundraiser scheduled and Bondi couldn’t be in two places at the same time.

Some folk aren’t thrilled about this: some are pointing to the Timely Justice Act (see our earlier posts on this law here) and suggesting that the rescheduling of Gore’s execution to accommodate a fundraising event doesn’t jive with the rationale and passionate push all those proponents gave to the passage of the Timely Justice Act.

Result? Governor Scott told the media that he rescheduled at Bondi’s request but he didn’t know the reason for her request. And Bondi has issued a statement to the press, mea culpa:

"As a prosecutor, there was nothing more important than seeing justice done, especially when it came to the unconscionable act of murder. I personally put two people on death row and, as Attorney General, have already participated in eight executions since I took office, a role I take very seriously.

"The planned execution of Marshall Lee Gore had already been stayed twice by the courts, and we absolutely should not have requested that the date of the execution be moved."

Meanwhile, what’s the latest with the Timely Justice Act review over at the Florida Supreme Court?

Nothing new has happened on the Supreme Court’s Docket for the Case (SC13-1123) since our last post discussing the filing of the reply brief by the Petitioners (replying to the response filed by Bondi’s Office).  

Presumably, the High Court is working on things, like reading all that research and argument in those filings and working toward a decision about what to do next.  Stay tuned. 

 

 As executioners are finding it more and more difficult to find drugs to use in lethal injections (see our prior post on this), discussion has begun on an alternative to injection as a way of killing for capital punishment.

Recently, an opinion piece on CNN.com written by Robert Blecker, a law professor at New York Law School, has gained lots of attention.

Grits For Breakfast, a noted criminal justice blog based in Austin, Texas, supports his suggestion that firing squads be the alternative chosen by states for future executions.

Sentencing Law and Policy, another well-respected blog published by Ohio Law Professor Douglas Berman, also points to Blecker’s article favorably.  (Comments here are very interesting.)

Firing squads instead of lethal injection?  Guess it would be a lot easier to find enough bullets.  

And, history shows firing squads are fast, cheap, and effective as shown in the photograph below from the National Archives, where  "...German General Anton Dostler’s body slumps toward the ground after being executed by a firing squad at Aversa, Italy. The general was convicted and sentenced to death by an American Military Tribunal."

 

German General Anton Dostler's body slumps toward the ground after being executed by a firing squad at Aversa, Italy. The general was convicted and sentenced to death by an American Military Tribunal.

 

 

 

Two years has passed since we posted about the shortage of sodium thiopental in Florida and Texas and elsewhere, and how this necessary component of the three-drug "cocktail" used in death penalty executions was causing all sorts of problems with criminal justice officials in different parts of the country.

See:  Pentobarbital in Florida Executions: What’s Next and Tennessee is Considering Using Pentobarbital in Its Executions, the Drug Used to Put Down Pets for more details.

Now, pentobarbital is back in the news as media reports in the New York Times, the National Journal, and lots of other national medical sources are reporting that this drug isn’t going to be available to executioners here in the United States.  

It’s a big problem that still hasn’t found a solution for those seeking to enforce capital punishment: having a ready supply of lethal drugs to execute people with lethal drug injections. 

Propofol To Be Used by Missouri

On Monday, the New York Times reported that some states are considering their options, suggesting that states may follow Missouri’s lead and substitute propofol for the missing pentobarbital in their lethal drug cocktails.  

Yes, propofol is the drug administered to Michael Jackson, causing his death.

Will States Revert to Gas Chambers, Electric Chairs, Firing Squads, or Hangings?

There are some who are suggesting that lethal injections be halted as an execution method, reverting to other forms of execution which are still legal under many state laws, just not used since injections have been the preferred method for many years.

In Florida, the movement to return to the electric chair of the firing squad has been moving around the Florida Legislature for a couple of years now.  

For a list of alternative execution methods by state, see our post on the five current options for execution:

  • lethal injection
  • electric chair
  • hanging
  • firing squad
  • gas chamber.

And before people consider these archaic methods of execution as alternatives to the lethal injection, perhaps they would be well served to read the dissenting opinion of Florida Supreme Court Justice Leander J. Shaw, Jr. in the 1999 challenge to the use of Old Sparky on constitutional grounds. 

Justice Shaw attached 3 color photographs of the bloody body of Allen Lee Davis taken by a prison official shortly after he was executed by electric chair, as support for his dissenting opinion where he found the method to be unconstitutional insofar as it was cruel and unusual.   Justice Shaw’s attachments caused a worldwide clamor against this form of execution and are still used today by those fighting against capital punishment.  

Warning: don’t hit that link and go to the dissenting opinion if you find graphic images like this disturbing.  

 The Reply brief, responding to the briefing of the Attorney General for the State of Florida in her Response, was filed on July 29, 2013.  Click on the image below to read the brief (or download the pdf):

From the Reply Brief (pp. 43-44) , this Conclusion:

There is an inexplicable disconnect between what the Timely Justice Act is intended to do, the terms of the Act, and what the State contends the Act will actually do. The Legislature’s purpose has been clearly expressed over and over: the judicial system is failing to properly administer capital postconviction litigation so the Legislature must step in to fix the system. Equally clear and repeatedly expressed is the State’s view of what the Act will actually do: nothing. And that disconnect is not important merely because it demonstrates the irrationality and disingenuousness surrounding the unthinking manner in which the Act was passed and justified, it also demonstrates that the State’s arguments are unrelated to the Act’s constitutionality.

Nowhere does the law say that Separation of Powers violations are allowable as long as there is no great harm done, such that the State’s primary defense of the Act—that it will do nothing—is utterly irrelevant to the primary claims of the Petition. Article II § 3 of the Florida Constitution states that “[n]o person belonging to one branch [of government] shall exercise any powers appertaining to either of the other branches . . . .” The State is unable to point to any authority which interprets that provision tn to apply only where a harm is demonstrated. Thus, even though Petitioners describe numerous, practical and realistic harms that will result from the Act, the State’s primary defense of the Act is no defense at all. 

The Act is about rulemaking, expressed as rulemaking, described by its  drafters as rulemaking, but rhetorically defended by the State as being about substantive policy. Petitioners urge that this Court should not permit its capital postconviction system to be, to any extent, supplanted by such measures.

 

Today is August 12: nothing else has happened on the docket since July 30th – two weeks of silence. 

We’ll keep you posted.  

 On Monday, the State of Florida executed John Errol Ferguson, a 35 year resident of Florida’s Death Row. It was a very controversial case and many believed that Mr. Ferguson should have been spared capital punishment because he suffered from severe mental illness. Ferguson was diagnosed as being schizophrenic – his schizophrenia isn’t disputed.

Indeed, Ferguson proclaimed himself to be the “Prince of God” and his mental illness was readily apparent long before the murders were committed upon which his death sentence was based. (His last words, according to the Miami Herald, were “I just want everyone to know that I am a Prince of God and I will rise again.”)

Still, the Eleventh Circuit upheld the death penalty for John Errol Ferguson and outcries from the public (like this Palm Beach Post editorial) and briefing from the American Bar Association (see the July 26, 2013 brief, where inconsistencies under state application of the Panetti v. Quarterman standard were argued for a stay) were unsuccessful.

Read the ABA Amicus Brief here by clicking on this image:

 

For more on schizophrenia, check out The National Institute of Mental Health’s explanation (”a chronic, severe, and disabling brain disorder….") or the information provided by the Mayo Clinic (”a group of severe brain disorders in which people interpret reality abnormally. Schizophrenia may result in some combination of hallucinations, delusions, and disordered thinking and behavior….”).