Here’s the status of the pending challenge to the Timely Justice Act as passed by the Florida Legislature and signed into law by Florida Governor Rick Scott, as of July 25:

From the Florida Supreme Court’s online docket:

1.  On July 16, 2013, the Florida Supreme Court granted the Motion for Leave to File Amicus Curiae Brief filed by the Florida State Committee of the American College Trial Lawyers but struck its accompanying brief because the two documents were filed together as one, single filing.  The movants were directed to re-file their brief as a separate document on or before July 19.  

2.  This was done on July 16. Read the Amicus brief filed by the ACTL here.

3.  On July 18, The Attorney General for the State of Florida, Pam Bondi, filed the State’s Response to the  Emergency Petition to Invoke all Writs Jurisdiction, to Declare Unconstitutional Provisions of the Timely Justice Act of 2013, and for Immediate Temporary Injunctive Relief.  

Bondi is arguing that there is a lack of jurisdiction and that the arguments advanced in the Emergency Petition are "meritless,"  with lots of argument based upon the separation of powers doctrine (no surprise there).

4.  On July 19, 2013, the pro se motion of Charles Finney to Join the Emergency Petition was granted. Read his motion online here.

 

 Forensic evidence gets lots of respect from juries — some call it "the CSI effect" after the popular TV show (in all its spin-offs).  However, this month we have even more news that justifies a less trusting view of evidence coming from a lab and being used to put someone behind bars — or on Death Row.

The Washington Post has reported that there may be up to 27 Death Penalty convictions in this country where the forensic experts from the Federal Bureau of Investigation (FBI) made mistakes.

Big mistakes.  Twenty-seven Death Row sentences.  

Apparently, these FBI lab experts may have tied defendant to crimes that they did not commit using puffed-up scientific testimony.

We’ll know more later this summer when the FBI is going to release its tally with all the details of what cases, what experts, what testimony.  Meanwhile, these Death Penalty cases are part of a larger group of 120 convictions that may be wrongful convictions based upon bad FBI forensic evidence.

What’s this review all about?  It’s a review being done of FBI Lab files by the Department of Justice and the FBI with the National Association fo Criminal Defense Lawyers (NACDL) and the Innocence Project watching what’s happening.

The review sprang out of earlier Washington Post investigations, where it was reported that the federal government had known for a very, very long time that its hair experts may have provided bad forensic evidence that had led to wrongful convictions – and that no one had done much to investigate these hair experts or to stop bad convictions from happening.

If you think this is just a FBI Lab glitch, think again.  

Over in Texas, one single Houston Crime Lab technician named Jonathan Salvador has become infamous in some circles because his work has put literally THOUSANDS of criminal convictions in the State of Texas in question – read the final report on how bad this is from the Texas Forensic Science Commission.

 The ACLU has a slideshow of various photographs demonstrating the horror of living on Texas’ Death Row.  Check it out here.

One example — this photo of one man’s cell on Texas Death Row — here is where the inmate must eat, sleep, read, etc.

No wonder the ACLU has entitled their piece "a Death before Dying."

 

On June 26, 2013, a formal challenge to the new Timely Justice Act (read about this new law here) was filed before the Florida Supreme Court.  The image above is the acknowledgment by the state High Court — and with it, an online notice that 

Because of significant public and media interest in this matter, this case has been designated as a high profile case and all material must be filed through the Florida Courts eFiling Portal. All documents filed will be posted on the Supreme Court web page. Parties are directed to ensure that all documents filed are in compliance with rules 2.420, 2.425 and 2.526 of the Florida Rules of Judicial Administration.

 

Emergency Petition to Florida Supreme Court to Stop Timely Justice Act

This filing is a joint effort to stop the impending Timely Justice Act from becoming Florida law because of its myriad of constitutional violations.  Given that the Florida Legislature passed this thing and Governor Rick Scott signed it into law, this emergency motion is an effort to stop some very, very bad things from happening in Florida courtrooms and on Florida’s death row. 

From the Motion:

The Timely Justice Act violates the doctrine of Separation of Powers by requiring that constitutional officers of the judicial and executive branches of government take immediate actions upon the effective date of the Act, in accordance with a strict statutory time schedule, and by creating obligations on attorneys that conflict with preexisting, judicially-determined rules.

It also unconstitutionally suspends the writ of habeas corpus, violates due process by interfering with judicial resolution of constitutional claims, violates equal protection by limiting the successive claims of capital but not non-capital defendants, and will result in cruel and unusual punishments contrary to evolving standards of decency.

 

Will the Florida Supreme Court take action to block the Timely Justice Act? Stay tuned.

 For those of you who saw Terry Lenamon during one of his many visits to Nancy Grace several weeks ago, to discuss the Jodi Arias sentencing phase, you may have heard some questions raised on the death penalty application to women as opposed to men.  

Do juries really sentence women to die?  Are women really executed in this country?  

Well, today’s there is an example of a woman not only been sentenced to death but who will be executed for her punishment.  It’s happening today, in Texas.

Kimberly McCarthy was convicted of killing her neighbor during a 1997 robbery where McCarthy was allegedly looking for cash and things to sell to support her drug habit.  McCarthy was tried and convicted and the appellate process went into action.  

However, it appears that all legal avenues have run their course and McCarthy will be executed at six o’clock today by lethal injection.  When this happens, she will make history.

Why?  Today’s execution in Texas will be the 500th execution in the State of Texas since the death penalty was reinstated back in 1982.  

 Edith Jones is a Justice and the former Chief Justice of the United States Court of Appeals for the Fifth Circuit – and as appellate lawyers will tell you, there’s so much power to be found in federal appellate courts.  Not many cases make it past that level of review to the United States Supreme Court; accordingly, in many situations, the federal appellate court is the last word in the federal appeals process.

Which sorta explains why last week Terry Lenamon asked "whattha??" after reading coverage of a complaint being filed against Justice Edith Jones for comments she made in a speech entitled “Federal Death Penalty Review” at the University of Pennsylvania School of Law on February 20, 2013.

That was six days ago, and the controversy continues.  

Seems that the former chief justice gave a speech for lots of lawyers and judges up at the University of Pennsylvania which was not recorded.  However, so many people were outraged at what she had to say from the podium that seven people drafted affidavits swearing to what they heard, and they’ve been attached to a formal complaint.

One of the allegations, as described in the Complaint, is that she said:

  • The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;
  • Certain “racial groups like African Americans and Hispanics are predisposed to crime, are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous”crimes than people of other ethnicities;
  • Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;
  • Capital defendants who raise claims of “mental retardation” abuse the system;
  • The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope";
  • Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;
  • The country of Mexico does not provide and would not provide the legal protections that a Mexican National facing a death sentence in the United States would receive.

Read the Complaint here.

Read Jonathan Turley’s take on things here.  

Meanwhile, today the news is spreading that a motion to keep Justice Edith Jones from reviewing a death penalty case has been granted.  Jones will not be a part of the three member panel that hears Texas Death Row inmate Elroy Chambers’ federal appellate arguments.  

 

 

 Liz Green is the brainchild behind a new BBC Radio documentary dealing with capital punishment, it’s entitled "Death Row, A Journey From West Yorkshire to The Execution Chambers Of America."

It’s worth your time: of note, this documentary is a finalist in the New York International Radio Festival Awards.

Conceived, written, produced and presented by Liz Green.Technical production by Dan Dan Purvis , music consultant Dave Spice , production administration Liz Newman .

You can listen to it now by downloading the mp3 via Dropbox here, and after June 17, 2013, a link will be available as a winner’s link at the Radio Festival site.  

Florida Governor Rick Scott has signed the death warrant for Florida Death Row inmate William Van Poyck and right now Mr. Van Poyck’s execution is scheduled for June 12, 2013.

However, whether or not that Execution will happen is an open question.  On May 24, 2013, a formal motion to stay the execution was filed before the Florida Supreme Court.

Read the Motion for the Execution of William Van Poyck to be stayed here.

Reason for all the hoopla over this request for stay?  It’s not for the usual reasons.  This argument is causing all sorts of controversy.  Here’s why.

Capital lawyer Mark Olive and two other death penalty defense attorneys have been appointed to represent Mr. Van Poyck – but there wasn’t much time for these new lawyers to get up to speed, so they asked the court for more time to do their job.

They were told no.  No more time.

The Florida High Court also denied attorney (and former ABA president) Sandy D’Alemberte motion to intervene in the case on behalf of attorney Olive’s behalf.  To argue that as it stood, the appointment and the denial of more time to do the job worked together to force the appointed lawyers into a Catch 22 where they were in the role of lawyer but unable to do their job for their client.

Olive, D’Alemberte, and the other capital lawyers newly appointed to represent a man literally days away from the needle have been quick to act.

Go here to read the Notice filed by Attorney Olive regarding his eleventh hour appointment to represent the convicted man:

Notice Inability to Satisfy Schedule filed by Attorney Olive Appointed to Represent William Van Poyck

 As readers know, Terry Lenamon is a nationally known expert in mitigation trial work on death penalty cases.  For those watching the media coverage of the Arias’ case, the work to which Terry has dedicated his life is exemplified in the stage that this trial entered when the jury verdict returned with a guilty verdict.  

Here are some reference materials that those following the Jodi Arias’ trial as it enters the sentencing phase may find helpful.

Jodi Arias is scheduled to take the stand on Monday as her mitigation counsel puts on their case for why the jury should exclude capital punishment for her in the death of Travis Alexander 

For those following along with the media coverage next week:

The Arizona Legislature has passed legislation (A.R.S. § 13-751) that requires two things to be found by the jury before a person can be sentenced to death in that state:

1.  proof beyond a reasonable doubt of at least one aggravating circumstance as set forth in Arizona law (A.R.S. § 13-751(F): read that law here) and

2.  finding that there are "no mitigating circumstances sufficiently substantial to call for leniency.” Mitigation is defined as evidence relevant to “any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense."  (A.R.S. § 13-751(E): read that law here.).

The Arizona Supreme Court has published its Capital Sentencing Guide online and further information is provided there, including a discussion of case law pertaining to mitigating circumstances in death penalty sentencing trials.

Both the statute and the court opinions discussing and ruling upon mitigation will be applicable to the mitigation case presented by the defense team.