Many have come to know about the AEDPA (Anti-terrorism and Effective Death Penalty Act of 1996 ) because of the Troy Davis case (read our earlier post here).  The AEDPA, however, impacts many, many capital punishment cases here in the United States, since it ties the hands of federal court judges to act in reviewing death penalty cases coming out of state courts. 

What the AEDPA Does

What the AEDPA does is limit the ability or power of habeas corpus laws.  For many, this translates to risking innocent men and women being executed in this country. 

This month, another AEDPA ruling has come down from the United States Supreme Court.  The matter involved the highest court in the country reviewing the determinations of the highest court for the State of Pennyslvania as well as the U.S. Third Circuit Court of Appeals.

The Story of Wetzel v Lambert

The case of Wetzel v Lambert was decided by the U.S. Supreme Court per curiam on February 21, 2012, with three justices dissenting (Breyer; Ginsburg; Kagan).  You can read the opinion and follow its aftermath here. 

Here’s the backstory:  in Pennsylvania back in 1984, a man named James Lambert was convicted and sentenced to death for the murder of two bar patrons during a robbery of a place called Prince’s Lounge in Philadelphia.  At the murder trial, one of the robbers took the stand for the prosecution and pointed the finger at Mr. Lambert along with another man, Bruce Reese, as being in cahoots with him in robbing the bar. 

Lambert is convicted, the death penalty is imposed, and the appellate process begins.  Twenty years later, Lambert’s attorneys advance an argument that error has occurred because the prosecution never disclosed to the defense at trial of the "police activity sheet."  It’s a big deal. 

If the state attorneys had done this, then this would fly in the face of longstanding Supreme Court precedent, Brady v. Maryland, 373 U. S. 83 (1963). 

What’s in the "police activity sheet"?  In that sheet, a photo of a man named Lawrence Woodlock was shown to two people who were at the bar during the robbery.  Woodlock was named as a co-defendant by the state attorneys on the sheet in the Prince’s Lounge robbery.  Woodlock had a record of over 13 armed robberies of bars.  Woodlock was already in custody at the time of trial on other charges.

It also had the names of two police investigators in the Lambert case and the names of those who died during the robbery with their corresponding case numbers.  Finally, it had Jackson – Lambert’s buddy who took the stand against him – as stating that Woodlock had been involved in the Prince’s Lounge job. 

For all these years, much less during the trial, the Commonwealth of Pennsylvania had not notified the defense of this document much less provided it to Lambert.  Lambert’s counsel was never notified that known armed robber Larry Woodlock had ever been investigated, or had his photo shown to a Prince’s Lounge witness. 

Why did this matter now?

It matters because if that police activity sheet were available at trial, Lambert’s attorneys could have argued that someone other than Lambert committed the armed robbery at Prince’s Lounge – or that there were more people involved in the robbery that the state had been suggesting. 

Additionally, Lambert argued that his trial counsel could have used the sheet in their examination of the finger-pointing Jackson when he was on the witness stand.  Why wasn’t Jackson mentioning Woodlock in his trial testimony? 

In sum, the police document is argued to be "exculpatory evidence" under federal law and accordingly, pursuant to Brady v. Maryland, the state prosecutor must provide material exculpatory information that it has in its possession, custody, or control to the defense attorneys.

How the AEDPA Comes In – Frustrations of the Federal Courts

The AEDPA limits the power of the federal courts – even the United States Supreme Court (outside of de novo cert) – to review state court decisions.   Federal appellate courts, faced with clear injustice and with hands tied by the AEDPA, will push the edge of the envelope to try and do the right thing – particularly when a death penalty case comes before them.

However, the United States Supreme Court writes in Wetzel that this is "overreaching" that "…continues to occupy an undue portion of the Supreme Court’s docket."

What Happens Now in Wetzel v. Lambert

On this issue of the unshared police document, the Pennsylvania Supreme Court unanimously decided in favor of the state attorneys:  (1) the ambiguous notation on a police activity sheet regarding a suspect’s identification of a "co-defendant" was not material and (2) using the sheet to impeach Jackson’s testimony would have been cumulative, no big addition to the case.

The issue was then taken to the federal courts, since the state high court had ruled and state remedies were exhausted.  The Federal District Court agreed with the Pennsylvania Supreme Court.   Habeas request denied. 

The Third Circuit Court of Appeals did not.  It found that the state court’s second ground for its decision,  the cumulative nature of the impeachment, was unreasonable.  The appellate court did not voice an opinion on the other ground.  

The United States Supreme Court has now found that the Third Circuit Court of Appeals has to rule on both grounds, and has sent the case back to the lower federal appellate court for additional work.  With its reversal, this caveat:

Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prosecution. That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.  

This week, the Miami Herald published the opinion piece written by Raoul Cantero, former Florida Supreme Court justice, and Mark R. Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University. 

Mr Schlakman also participated in the American Bar Association’s Florida Death Penalty Assessment. You can read that report in its entirety online in pdf format.

It’s worth your time to read their article entitled " Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril."

Here’s why: 

Florida allows death penalty juries to recommend the death penalty by a majority vote.  Every other state in the country that allows for capital punishment requires a jury to be unianimous in their decision to punish with death.

The Florida Supreme Court doesn’t like this and back in 2005, it asked the Florida Legislature to change Florida law and require juries to be unanimous in their death penalty recommendations. 

Nothing happened in the statehouse. Although last year, State Senator Thad Altman (a Republican representing the Melbourne area) drafted legislation that would change Florida law and require juries to be unanimous in their recommendations of the death penalty.  You can follow that bill online here – it died in committee.

Over in the Florida House of Representatives, State Representative John Patrick Julien (a Democrat out of North Miami Beach), introduced a similar bill for the House’s consideration in tandem with Altman’s bill. Follow it here – it didn’t survive committee either.

Cantero and Schlakman go into detail on the hows and whys of this situation. Whether or not they have any impact up in Tallahassee, time will tell. 

Florida’s Execution Schedule has tomorrow, February 15, 2012, as the day that Robert Brian Waterhouse will die for the murder of Deborah Kammerer back in September 1980.  Yes, if you do the math you’ll find that it has been over 30 years since Waterhouse was convicted of this crime and this latest execution date.

Will Waterhouse be executed by lethal injection this week? 

Right now, as this post is being typed, we can imagine that he is in the process of meeting his fate on that table, after living year after year after year, mostly alone, in a small cell (six by nine) at Starke’s Florida State Prison.

He’s now 65 years old.  Decades, literally, in a room smaller than most of our bathrooms and maybe around the same size as many walk-in closets.  Six by nine isn’t a big space.  So much for all that chatter about the cushy life on a state death row – Florida isn’t California. 

He’s already a footnote in Florida criminal history, since he’s been on Florida’s Death Row longer than anyone else who has been executed by the state (though there are others who have resided on Death Row longer than Waterhouse). 

It’s All Up To Governor Scott and Justice Thomas

Last month, Governor Rick Scott signed the death warrant for Robert Brian Waterhouse, setting the execution in motion.  Now,  a group of Catholic Bishops have written Governor Scott asking for clemency.

It’s Tuesday evening and no clemency so far.  The execution is scheduled for six o’clock on the evening of February 15, 2012. 

Last Friday, Waterhouse’s lawyers filed a last minute request for stay with the United States Supreme Court.   You can watch that docket online, the decision rests with Justice Clarence Thomas.

The prison already has media updates scheduled for tomorrow afternoon, before and after the execution. It’s not looking good. 

We’ve written about the conditions over on California’s Death Row and how at least one inmate has made the news requesting the death penalty because life would be better for him on Death Row rather than serving life imprisonment at another California facility.  (Read our posts about Billy Joe Johnson here.)

Now, a North Carolina Death Row inmate is sharing that spotlight as he writes of how he gets three good meals, naps when he wants, top-notch medical care 24/7, and TV access, in his "life of leisure" on North Carolina’s Death Row.

Here is the full text of his letter (no changes have been made to the original handwritten text although we’ve added breaks to make it easier to read):

My name is Danny Hembree. I was tried in Gaston Co. by twelve of its fine citizens. I was found guilty of 1st degree capital murder and sentenced to death by Judge Beverly Beal on Nov. 18, 2011.

The Great State of North Carolina’s Dept. of Corr. was ordered to carry out my murder, or was it, or is it just another piece of the politition political money pie. I wonder if the public is aware that the cost of my first trial was a half a million dollars. Are they aware that the State has in place a system that automatically delays my lawful murder for years so that pieces of the money pie can continue to be passed around. Is the public aware that the chances of my lawful murder taking place in the next 20 years if even are very slim.

Is the public aware that I am a gentleman of lesiure, watching color tv in the A.C., reading, takeing naps at will, eating three well balanced hot meals a day. I’m housed in a building that connects to the new 55 million dollar hospital with round the clock free medical care 24/7. There are a lot of good citizens who bloged on various web sites stating their opinions about me and the punishment that I deserve.

Most of these blogs were made by anonymous cowards, but not all. I laugh at you self righteous clowns and I spit in the face of your so called justice system. The State of North Carolina has sentenced me to death but it’s not real. You citizens of Gaston Co. should petition the State and force them to carry out my murder sentence instead of blindly taking it up the XXX from the State or are you to stupid to proceed.

I am a man who is ready to except his unjust punishment and face God almighty with a clear consceince unlike you cowards and your cowardly system. Kill me if you can suckers.

Ha! Ha! Ha!

Sincerely,

Danny Hembree

Death Row Conditions Depend Upon the State

As this letter stirs more controversy and brings a national focus on Death Row conditions in North Carolina, one would hope that the American Public would also be reminded of the Death Row conditions in other states.  States where Mr. Hembree’s "life of leisure" does not exist.

Reminds us of the 2002 letter that a Texas Death Row inmate sent to an anti-death penalty advocate about the conditions there: solitary confinement, rotten food, etc. 

And of the 2006 description of his time on Florida’s Death Row by Juan Roberto Melendez – who was exonerated after serving 17 years in a Death Row Cell at Raiford. 

Perhaps we need to consider the source and not only his motivations but also his possible mental perspective before any assumptions are made that any state’s Death Row is a cushy spot to spend your life. 

So far, only one execution has occurred in 2012 in the United States:  the January 6, 2012, execution of Gary Welch by a three-drug lethal injection (using phenobarbital) by the State of Oklahoma.

2012 US Execution Schedule

The Death Penalty Information Center updated its 2012 Execution Schedule on January 23, 2012, and it’s pretty amazing to see how short that list is, right now:

January

17 PA Ralph Birdsong – Stayed
18 PA Kenneth Hairston – Stayed
18 OH Charles Lorraine – Stayed
19 KY Michael St. Clair – Stayed
20 DE Robert Gattis – Granted Clemency
26 TX Rodrigo Hernandez
31 GA Nicholas Tate – Voluntarily Waived His Rights to Appeal
 

February
1 TX Donald Newbury
15 FL Robert Waterhouse
16 OK Garry Allen
22 OH Michael Webb
28 TX Anthony Bartee
29 TX George Rivas
29 AZ Robert Moormann
 

March
6 NE Michael Ryan
7 TX Keith Thurmond
8 AZ Robert Towery
8 PA Dustin Briggs – (Stay Likely)
15 OK Timothy Stemple
18 SD Briley Piper – (Stay Likely)
28 TX Jesse Hernandez
 

April
18 OH Mark Wiles
26 TX Beunka Adams
 

May
13-19 SD Eric Roberts
 

June
12 OH Abdul Awkal
 

July
26 OH John Eley
 

September
20 OH Donald Palmer
 

November
13 OH Brett Hartmann

 

We’ve been monitoring the case of  Alabama Death Row Inmate Cory Maples, who had very bad indigent defense counsel even though they were a swanky New York law firm with a prestigious reputation. 

For details, read our earlier post on Mr. Maples and how his mother saved the day – and probably his life.

U.S. Supreme Court Issues Opinion in Maples v. Thomas

This week, the U.S. Supreme Court issued its opinion in Cory Maples’ case, and Mr. Maples has won his new hearing. 

Read the full opinion online here.

Included within this opinion, the Justices’ ruling on what defense counsel did, or most importantly did not do, in this case.  The High Court found that Sullivan and Cromwell "abandoned" their client. 

Abandoned the client.  That’s serious language.

But the High Court doesn’t stop there.  In a majority opinion authored by Justice Ruth Ginsberg, the entire indigent defense system of the State of Alabama is also scruntized and found lacking.

Of note, the fact that Alabama law does not insure that the attorneys who represent indigent capital defendants have any special expertise or training, nor does Alabama guarantee indigent defense representation to poor capital defendants in postconviction proceedings.

The clincher:  in the opinion, Ginsberg also criticizes the pay rate for the indigent defense attorneys who take on these death penalty cases.

Which is pointing at the elephant in the room that we’ve been writing about on this blog for almost three years now. 

 

The Pew Research Center has just released its latest study, and it’s making the media rounds today.  Seems their study finds that a solid majority of Americans – sixty-two percent (62%) — are in favor of the death penalty. 

Read the Pew report online here, entitled "Continued Support for the Death Penalty."

Which makes it interesting to consider the opinion voiced by New York Law Professor Cohen over at TIME Magazine this week, where Professor Cohen argues that there is a growing "de facto" abolishing of capital punishment in this country.  In his article, "Why the Death Penalty is Slowly Dying," Cohen opines that this is due to three reasons:

  • the increase in Death Row exonerations;
  • the cost to take a case from trial to execution – capital cases are expensive; and
  • what he calls the "ick factor," where he posits that citizens are more squeamish about executions than they were historically.

Is Cohen Right?

Out of the three reasons listed above, money sure does seem like a motivating factor in states that are broke, like California (as we have posted about before).  However, there’s a big, big factor in the absence of executions to tally in 2011:  lack of supply for one of the needed drugs in the three-drug lethal injection cocktail that had been pretty much accepted procedure in all U.S. Death Chambers.

In the past year, the inability to buy domestic sodium thiopental has sent execution schedules into chaos – as we’ve been following along in our posts.

One has to ask:  if states had not lost their steady supply of sodium thiopental, would the execution numbers have gone down?

 

Admist the Orlando Sentinel’s column covering television – with the series finales of The Closer and the continued success of NCIS, TV Guy Hal Boedeker took the time to talk with Terry Lenamon about one chapter of his new book (see it there in the left sidebar).

Interestingly, Hal Boedeker was focused on one chapter of Terry’s many different stories of death penalty cases in his book: the Casey Anthony representation.  (Terry covers many different instances where he represented people facing capital punishment; the Anthony case is just one section of this book.)

As those who follow this blog will recall, Terence Lenamon was the first death penalty qualified attorney who represented Casey Anthony after she was arrested and jailed.  What happened there?

Terry gives some information in the Orlando Sentinel interview.  For the full story, check out the book. 

 

 

 

 

 

Heinous, atrocious and cruel – these words describe the crimes that Terence ("Terry") Lenamon defends on a daily basis as one of Florida’s select group of death-qualified attorneys.

Terry achieved national recognition as a death-qualified defense trial lawyer with his representation of some of Florida’s most well-known and most reviled defendants. His cases have aired on the First 48, Caso Cerrado, Issues with Jane Velasuez Mitchell, and Nancy Grace.  His clients have included Casey Anthony, Yvette Yallico, Cesar Mena, and Harrell Brady, the infamous "Miami Strangler."

In this book, he has chronicled some of his most challenging cases.

These cases offer a fascinating insider’s look at the workings of a death penalty prosecution. This is a world that most people never get to see, and a world that most people would like to pretend does not exist. Terry and his team take the reader on journeys to discover how their clients ended up facing death row.

These cases explore the much deeper issues of compassion, forgiveness, retribution, and revenge. The defense of people accused of horrific crimes often requires a deeply critical look at how we as a society treat some of our most damaged and weakest members. As their defender, Terry does not attempt to justify or excuse their crimes, but to offer sometimes disturbing insights into how these fellow human beings came to his figurative doorstep. No matter what your stance is on the death penalty, this book is a must read for those interested in the workings of our criminal justice system and capital crimes defense. These stories represent a fraction of his cases.

Terry is a Board Certified criminal defense attorney practicing in Miami, Florida. Terry has first-chaired over 100 jury trials in his 17 years practicing law. Terry Lenamon is also founder and the former Executive Director of the Florida Capital Resource Center, a non-profit organization that provides support to Florida death penalty attorneys.

For a looksie, please check out the preview made available at the Amazon website.  

Fascinating news out of the Death Penalty Information Center:  in 2011, there were only 43 executions after 2010’s 46 and 78 new death sentences were given to defendants in 2011 after 112 in 2010.  That’s the big news: 112 down to 78 new sentences of death is record-breaking. 

Read the DPIC Report online here (or download the pdf).

Right now, lots of discussion is taking place as to the reasons why this is happening. 

  • It means that capital punishment is not being given to those defendants found guilty of crimes. 
  • It means that there may be less prosecutions seeking the death penalty in their cases, too. 
  • And, hat tip to the defense bar, it may also mean that defense attorneys are doing an excellent job of convincing juries of the mitigating circumstances that exist in cases that should thwart a sentence of death. 

So, what is going on?

The DPIC points out that Gallup Polls have a falling number of Americans that support the death penalty, too.  Gallup shows 61% support the death penalty now; that’s down from 68% in 2001.

A Fordham law professor opines that media coverage plays a factor here: not only are folk more aware of the reality that innocents do get convicted (and sentenced to death) but that capital cases are much more expensive for state budgets. She also explained to USA Today that the U.S.Supreme Court has issued opinions that have narrowed when the death penalty can be used (i.e., limiting it regarding minors or the mentally challenged). 

This is a hot topic and lots of discussion is going to be had on 2011 as the Year We Went Under 100 Death Sentences for a long while.  There’s obviously a number of factors at play. 

One thing that might need to be discussed more: the fact that the states are in a quandary about how to kill, what with all the constitutional issues involved in lethal injection these days and the relunctance to return to old standbys like firing squads or electric chairs.