The jury has found Joshua Fulgham guilty of first degree murder (see earlier posts for details of the case).
Beginning today, Terry Lenamon and the defense team will be arguing Florida mitigating factors and how their application should prevent Fulgham being sentenced to the death penalty.
For details on mitigating factors, see our earlier post here.
The trial is being covered on a daily basis, in detail, at Ocala.com.
For those following the Marion County, Florida trial of Joshua Fulgham, here is the transcript of Terry Lenamon’s opening statement.
Trial continues this week ….
An amicus brief was filed this week in the Evans v. McNeil by amici curiae NACDL, FACDL, and Florida Capital Resource Center. before the United States Court of Appeals for the Eleventh Circuit.
To read the brief in its entirety, please go here.
This is the latest fight in the battle over whether or not the Florida Death Penalty Statute is unconstitutional.
The case, Evans v. McNeil, involves a petition for writ of habeas corpus, filed in the United States District Court for the Southern District of Florida, Miami Division, where that court found the Florida Death Penalty Statute violated Ring v. Arizona, 536 U.S. 584 (2002), and was therefore unconstitutional.
Terry Lenamon is currently in trial defending another high profile defendant, Joshua Fulgham, who is accused of killing his wife Heather Strong (read the Wikipedia article on her murder here). The trial is taking place in Marion County, Florida.
For blog readers who follow Terry’s trial work, here are some links to the day’s activities (as this post is being published, they are still in the middle of jury selection).
Jury Selection Photo Series (Ocala.com)
Joshua Fulgham faces the death penalty for the death of his wife Heather Strong, having been charged with first-degree murder and kidnapping. Fulgham’s girlfriend, Emilia Carr, has already been tried and convicted and is now setting on Florida’s Death Row.
If you are interested in criminal defense / true crime cases, then you might want to read Terry’s memoir or "casebook" that covers almost a dozen of his past defense cases where his clients faced the penalty of death. For more info on the book or to buy it as an ebook or paperback, just click on the link there in the left sidebar.
For those that know Terry or have read his memoir, Heinous, Atrocious and Cruel (see it there in the left sidebar), you know that he is very concerned about mentally challenged individuals being sentenced to death not just in Florida but elsewhere in this country.
Which means we’ll be carefully following two cases that are now pending before the United States Supreme Court – they’ve granted review in both and oral arguments should be happening in the Fall. One comes out of Ohio; the other out of Arizona.
The two cases? Ryan v. Gonzalez (follow online here).and Tibbals v. Carter (follow online here). By granting writ here, the High Court will determine if mentally incompetent individuals who are already on Death Row are entitled under the law to a stay of federal habeas proceedings because they cannot effectively assist their counsel.
In the lower court appellate opinions, both cases held that the individual needs to be mentally competent in order for there to be federal habeas proceedings. In both cases, stays were ordered with no end date. Now, the High Court has responded to requests by the states (prosecutors) that these stays be terminated and the proceedings move forward.
Precedent to consider?
Rees v. Peyton (1966)
Ford v. Wainwright (1986) – insanity means no death penalty
Atkins v. Virginia (2002) – "mental retardation" (phrase from the case itself) means no death penalty
Questions Presented:
Ryan
Several years after Gonzales’s counsel initiated federal habeas proceedings and filed an exhaustive petition seeking relief, counsel asserted that Gonzales was incompetent to communicate rationally and the proceedings should be indefinitely stayed pending possible restoration of competency. Based on 18 U.S.C. § 3599(a)(2), the Ninth Circuit agreed, even though Gonzales’s claims were record-based or purely legal.
Did the Ninth Circuit err when it held that 18 U.S.C. § 3599(a)(2)-which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys"-impliedly entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?
Tibbals
1. Do capital prisoners possess a "right to competence" in federal habeas proceedings under Rees v. Peyton, 384 U.S. 312 (1966)?
2. Can a federal district court order an indefinite stay of a federal habeas proceeding under Rees?
http://www.guardian.co.uk/video/embed
Anthony George of the Guardian wrote Terry and asked if this video could be placed on the blog. Here it is, honored to be asked.
There is an interesting case being played out in Iowa right now – interesting because not only does it involves a woman on Death Row facing the death penalty, but also because it involves the federal death penalty statute.
Here’s what’s going on.
Last week, United States District Judge Mark Bennett, setting on the U.S. District Court Bench for the Northern District of Iowa, removed Angela Johnson – one of the two women setting on federal death row – from a death sentence, and gave a big, basic reason for his action as part of a 448-page ruling (that’s a ream of paper to give his decision, imagine that):
the trial lawyers defending the woman in a trial where she was found guilty of the execution-style murders of five people did not present mitigating evidence about her troubled mental state that could have spared her from capital punishment.
(For more about mitigating evidence, read our earlier post on the subject, or delve into details about how mitgation works by reading Terry’s case book/memoir shown in the left sidebar, where he describes case after case and the realities of mitigation evidence.)
Judge Bennett does not mince words: he tossed out the death penalty sentence finding that her criminal defense attorneys had been "… alarmingly dysfunctional…." during the trial.
Read Judge Bennett’s Ruling – all 448 pages of it — online here.
What happens next?
Angela Johnson made the history books when she was given the death penalty because she was the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the death penalty back in 1976.
She’s still guilty of the crime, that hasn’t changed. Judge Bennett did not erase the conviction — and under the law, Angela Johnson is still – in the words of Judge Bennett – overwhelmingly guilty of going with her then-boyfriend, alleged to be the leading methamphetamine dealer in the Midwest, to kill and then bury the bodies of federal informants (and drug dealers) Terry DeGeus and Greg Nicholson, along with Nicholson’s girlfriend, Lori Duncan and her young daughters, Kandi, 10, and Amber, 6.
Attorney General Eric Holder must make a decision. The U.S. Attorney General has to decide if the federal government will try and get the death penalty again for Angela Johnson, or not. They’ve got a 60 day deadline. They can appeal this judge’s ruling (and with that ream of paper, sounds like the judge is expecting this) or they can go back to trial and there would then be evidence presented once again regarding her sentencing.
If that’s the path that’s taken by the U.S. Attorney, then the mitigating factors that upset Judge Bennett will come before the court … and for the first time, evidence about her mental health will be a consideration in deciding whether or not she should be executed.
One of the great things about the internet is its ability to educate and inform, and here’s yet another example of that: several excellent articles discussing aspects of the death penalty, and specifically, death penalty defense, have appeared this month.
All, available for free, online. Please consider reading the following:
Defendant remorse, need for affect, and juror sentencing decisions
by Emily P. Corwin, BA, Robert J. Cramer, PhD, Desiree A. Griffin, PhD and Stanley L. Brodsky, PhD
Journal of the American Academy of Psychiatry and the Law Online, 2012
Landmarks, Portents, or Just Curves in the Road?
by Carol Nackenoff
Tulsa L. Rev., 2011
But He Knew It Was Wrong: Evaluating Adolescent Culpability
by Peter Ash, M.D.
Journal of the American Academy of Psychiatry and the Law Online 2012
An Alternative to Death-Qualification: The Nonunanimous Penalty Jury
by John Tucker
Yale Law School Legal Scholarship Repository 2012
Commentary: Pursuing Justice in Death Penalty Trials
by Clarence Watson, JD, MD, Spencer Eth, MD and Gregory B. Leong, MD
Journal of the American Academy of Psychiatry and the Law Online 2012
Burden of Proof in Establishing Mental Retardation in Capital Cases
by Alexander Westphal MD and Madelon Baranoski, PhD
Journal of the American Academy of Psychiatry and the Law Online 2012
Written by Terence Lenamon and Reba Kennedy, this short ebook (30,000 word count) is offered to anyone interested in the American criminal justice system, particularly in the areas of capital punishment and the right to counsel provided the poor under federal constitutional mandate as well as various state statutes. It is provided as an economical, hands-on resource written with the non-lawyer reader in mind.
Written by the co-authors of the blog, “Terry Lenamon on the Death Penalty,” in answer to questions from readers about how the system of indigent defense in death penalty cases works in the real world – and why — the books gives a concise overview of the death penalty indigent defense crisis – where it originated, where it is today.
In a skipping stones approach to a complicated subject matter some areas necessarily aren’t addressed here and others are just touched upon. What this work provides is an overview with endnotes, resources lists, and hyperlinks, written to help non-lawyers learn more about indigent defense generally and its impact upon the death penalty today, specifically. Its intent is to provide a practical tool for those working toward finding real solutions to the tragic and mounting crisis of indigent defense funding in death penalty cases today.
1. Larry Ray Swearingen, Texas Death Row
Larry Swearingen maintains his innocence and his attorneys are fighting to have some tribunal hear what they are arguing is new evidence, uncovered since his trial, that proves Larry Swearingen is innocent of the killing of a Texas coed, Melissa Trotter – this includes both DNA evidence and circumstantial evidence. Bottom line, lots of forensic folk opine that Swearingen was in jail at the time of the murder, which seems like a pretty darn good alibi.
Still, he’s remain on Texas’ Death Row for years.
This week, the United States Supreme Court was asked by Swearingen a new question for the High Court: is executing an innocent person a form of "cruel and unusual punishment" under the federal constitution?
On February 27, 2012, the High Court denied Swearingen’s Petition for Writ of Certiorari. Which means they have shown Mr. Swearingen the door without ruling on his case.
His execution date has been stayed. Follow what happens next at his advocate web site.
To read commentary on his situation, check out this recent piece in Bloomberg and an earlier piece by Grits for Breakfast.
2. Thomas Arthur, Alabama Death Row
Thomas Arthur will be executed on March 29, 2012, by the State of Alabama unless something is done to stop the legal process. This, despite the fact that he was also in jail at the time of the murder; another man has confessed to the murder; there is no DNA evidence connecting Arthur to the crime; the list goes on.
Read a summary of the situation here at the New York Times and a great overview of the case here at the Atlantic..
Follow what happens next at his advocate web site.
3. Read How These Two Cases Are Impacted by the AEDPA Here
Yesterday, we posted about the AEDPA and the recent U.S. Supreme Court case that came down with the statement that the federal appellate courts were "overreaching" to try and find a way around this federal statute, and "burdening" the high court. Clearly, SCOTUS wants the federal appellate courts to limit their state court review in these sorts of cases.
The pending executions of Thomas Arthur and Larry Swearingen are two examples of how the implementation of the AEDPA is arguably putting form over substance – especially in death penalty cases – with justice being lost in the process.
For more information: