The United State Supreme Court has just stayed the execution of Duane Edward Buck, and an excellent article providing the details of Mr. Buck’s case – from crime to stay – can be found at The Texas Tribune, in a piece written by Brandi Grissom entitled "Supreme Court Grants Stay of Duane Buck Execution."

No one is arguing that Duane Edward Buck is not guilty of the homicides for which he was charged and convicted.  The controversy surrounding his case revolves entirely around that second phase of a death penalty case: the sentencing phase (the forte of Terry Lenamon, fyi). 

In Buck’s sentencing phase, a defense expert named Dr. Walter Quijano took the stand in his capacity as a psychologist and told the jury that Mr. Buck likely would not be a danger to society in the future — but (and here’s the Big Issue) when he was cross-examined by the prosecution, Dr. Quijano testified that yes, he did believe that because Buck was black, there was an  increased risk that he would pose a threat to society.

Prosecution: "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

Dr. Quijano: "Yes."

Now, the United States Supreme Court will consider the events during that long ago sentencing phase of Duane Edward Buck’s trial and decide whether or not the psychologist’s answer of "yes" to the prosecution’s question means Buck was denied his constitutional rights in that proceeding and that a new trial should be had.

 

Worth your time to read, this law review article just published by the Virginia Law Review in a continuing discussion of the Eighth Amendment to the U.S. Constitution as it relates to "cruel and unusual" punishment and the death penalty — was the Cruel and Unusual Punishments Clause originally meant to prohibit excessive punishments as well as barbaric ones and that proportionality review is therefore unquestionably legitimate, as Florida’s Professor Stinneford suggests?

SEPARATING RETRIBUTION FROM PROPORTIONALITY: A RESPONSE TO STINNEFORD

by William T. Berry III, assistant professor of law at the University of Mississippi where Professor Berry responds to an earlier article written by John F. Stinneford, Assistant Professor of Law, University of Florida Levin College of Law, Gainesville, Florida:

Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899
(2011).
 

Berry argues that there are perhaps two weaknesses in Professor Stinneford’s arguments – see where you stand. 

Back in February 2010, we pondered the case of the West Memphis Three in a post entitled, "Johnny Depp on 48 Hours Today Fighting 4 West Memphis 3, Will He Help the Dubose Brothers?"

Eighteen months later, and the West Memphis Three are free men.  It’s a big deal and a big story in more ways than one — here are some of the various online sources that provide various takes on what has happened here:

1. The Power of the Media in Freeing the West Memphis Three.

  "How Rockers Helped Free the West Memphis Three" – Rolling Stone delves into the contribution made by public figures shedding light on the case, here discussing musicians (from Henry Rollins to Ozzy Osborne) though other popular figures also made contributions (such as Johnny Depp, mentioned above, and film director Oliver Stone, among others).

2.  The Psychological Lessons to be Learned from the West Memphis Three.

In an op-ed piece published in the Los Angeles Times, Jennifer L. Mnookin discusses psychological lessons to be learned in "[t]he ‘West Memphis Three’ and combating cognitive biases."

3. What Public Service Can Really Do —  Who Did What in the case of the West Memphis Three.

The University of Arkansas’ Clinton School for Public Service held a program to discuss the case, where more than 1100 people attended to hear the discussion, ask questions, and learn things like panel participant and West Memphis 3 prosecutor Scott Ellington telling the crowd that the state lab would look at the DNA evidence after the private lab in Virginia (hired by the defense) was done; the video is available online here.

4. The Defense Team’s First Hand Revelations About Representing the West Memphis Three

AmLawDaily interviewed the white collar defense attorney considered key to the West Memphis Three being freed: Ropes & Gray partner Stephen Braga on the defense lawyer’s perspective of the case – Braga took the case pro bono.

5.  The Legal Analysis of the Case of the West Memphis Three (and Can It Apply to Others?)

Lawyer and law professor Gerald L. Shargel gives a legal analysis of what went down – including the use of the Alford Plea in a piece he writes for the Daily Beast, "How the West Memphis Three Got Out."

 

Mike Thomas of the Orlando Sentinel wrote an editorial earlier this month that gives a good overview on where the State of Florida is (and was) in its methods of executing inmates on Death Row.  In "The death penalty: A dead end in Florida,"  Thomas discusses the various methods that the state has used to kill those deemed worthy of capital punishment and the conundrum that Governor Rick Scott faces now, what with all this controversy over using pentobarbital as part of the lethal injection three drug cocktail. 

Pentobarbital – The Drug Used by Vets to Put Down Pets

As we’ve discussed here earlier, the use of pentobarbital in killing living things isn’t new;  vets use this drug to euthanize beloved pets.   They’ve done this for years.  The question is whether or not it should be used on humans – especially. as Thomas points out, when a recent pentobarbital execution had the inmate in obvious distress.  (For details on that distress, read about the anesthesiologist’s opinion on suffering in Roy Blankenship’s execution.) 

Status of Pentobarbital in Florida Executions Now

Earlier this month, Florida CIrcuit Court Judge Jacqueline Hogan Scola found that the usage of the drug pentobarbital in a Florida execution "… does not create an objectively reasonable risk of suffering."   Her determination may lead the way for prosecutors to move forward with another Florida execution (of convicted murderer Manuel Valle, 61).

However, the manufacturer of the drug, a company in Denmark named Lundbeck, is not happy that its product is being used by Americans for executions.  This month, Lundbeck issued a news release that pentobarbital is untested and unsafe for use on human beings in lethal injections, and Lundbeck has stop selling pentobarbital to anyone buying it for resell as a lethal injection component.

Which leaves the Florida executioner in a difficult spot, as Thomas’ editorial points out so well.

 

Long ago, just like in the movies, executions were public.  Watch a Western, and you’ll see the hangings in the public square.  Watch a film about the French Revolution, and there are the masses watching executions on the guillotine. 

Should there be Public Executions in America?

Today, there is talk of making modern-day executions public again.  Of course, this comes with lots of discussion, since many do not agree with the idea of public executions. 

Consider the following discussions:

New York Times, "Capital Punishment: A Public or Private Death?"

Daily Kos, "Televise Executions? Riiiiight."

Law and Conversation, "Making Executions Public"

And consider this, there are public executions today.  Go to You Tube and you can watch executions in North Korea (hanging) and Iran (hanging, beheading).  We’re not posting links to them, however.

Last month, as the Casey Anthony trial was underway, a federal district court judge issued an opinion that has longreaching implications (and caused Anthony’s defense attorneys to immediately move, albeit unsuccessfully, for a mistrial):  the federal judge ruled that Florida’s death penalty statute was in violation of the U.S. Constitution.

Federal Judge Finds Florida Death Penalty Statute Violates U.S. Constitution

The case, Evans v. McNeil, involved a petition for writ of habeas corpus, filed as Case No. 08-14402 in the United States District Court for the Southern District of Florida, Miami Division.  The full text of the ruling can be downloaded here. 

In sum, the court found that the Florida Death Penalty Statute violated Ring v. Arizona, 536 U.S. 584 (2002), and was therefore unconstitutional. 

Terry Gives His Opinion to the Media Regarding the Ruling that the Florida Statute Is Unconstitutional

When Terry Lenamon was contacted by the media on this development, he explained to the Miami Herald and others that "If the case survives appeal, the Florida Legislature is going to have to modify the law to allow jurors to explain why someone deserves the death penalty."

As previously discussed here on the blog, the role of the judge vs the jury in Florida during the sentencing phase in a Florida death penalty trial is somewhat different than it may be in other states.  The Evans opinion means that jurors would take on a greater responsibility than they currently have under Florida law. 

Lenamon Moves for Stay in Joshua Fulgham Case Based on Need for Appeals Court Review

Later, Terry Lenamon made news when he filed a motion on behalf of his client,  Joshua Fulgham, who is facing the death penalty as the State pursues its case against Mr. Fulgham for the kidnapping and murder of his estranged wife, Heather Strong. 

The motion asked the Florida trial court to stay the case — put it on hold — until the federal appeals court grades the papers of the federal judge and either agrees with him, that the Florida death penalty statute is unconstitutional, or that the judge was wrong in his assessment and the law, as written, is legally sound.  

"It would be costly and fruitless for us to proceed to trial based on the fact the 11th Circuit has not ruled," Terence Lenamon argued during a status conference before the judge as reported by the Ocala media. "Our position is that we should stay these proceedings until a decision has been made."

 

Terry Lenamon has been extremely busy the past few months, juggling things like:

  1. finalizing his new memoir/ebook – which is being published in a matter of weeks by Telemachus Press;
  2. representing clients facing the death penalty;
  3. speaking with the press as founder of the Florida Capital Resource Center on the recent federal court ruling that the Florida death penalty law is unconstitutional; and
  4. giving his opinion both to the print media and on television as a featured expert on shows like Nancy Grace and Issues with Jane Velez Mitchell on the Casey Anthony trial and its aftermath.

Soon, we’ll be posting details about these developments (we need the okay before uploading the TV videos, for example) as well as the final information on Terry’s new book.

Stay tuned!  It’s a busy (and hot!) summer!

– Reba Kennedy

 

For the month of June (and maybe longer), there will be no new posts here and we won’t be responding to comments, because Terry and I will be busy finalizing books for publication and there’s only so much time in the schedule ….

Perhaps this is the 21st Century version of hanging out a "Gone Fishin’" sign on the front door?

We’ll be back and thank you for your patience,

Reba Kennedy, Esq.

 

 

 

 

As part of our invitation to other bloggers to guest here on the Death Penalty Blog, Terry and I are happy to publish the following article sent to us by Charles Sipe of the career-advice website, Criminal Justice Degrees Schools. Here, without edit or change, is James Madieros’ article for your consideration. Thanks, Charles and James! — Reba Kennedy, Esq.

_____________________________

Rising costs, a national recession and a broader global financial crisis are taking its toll on individuals as well as institutions at every level; a ripple effect of fiscal turmoil that is felt in private and public sectors alike. And, state budgets are not immune.

The nation has watched as cash-strapped states have turned to moneymaking schemes that would have once been unthinkable, like flouting federal law to legalize marijuana. So, it should be no surprise that these shifts in moral and political thinking may also extend to death penalty cases.

Of course, death penalty abolitionists are quick to point out the cost of a death penalty case as a reason to reform capital punishment. That it is expensive is not an argument in and of itself, but when the costs potentially puts other state programs at risk by draining taxpayer dollars the numbers gain more force.

Many states are examining the books for ways to cut costs, and death penalty cases are a glaring entry in the margin. According to research conducted by the non-partisan Death Penalty Information Center in 2010, the average death penalty case costs $1 million more than a case that seeks life imprisonment without parole, and it’s safe to assume the cost hasn’t gone down since then.

The reason for this is fairly simple: no stone is left unturned when a person’s life is at stake, and the fallout for executing an innocent person is the stuff of any politician’s nightmares (not to mention the bad dreams of detectives, crime scene investigators, jury members, the prosecuting attorney and the judge).

Strangely, the argument that a person’s life is at stake in some fashion in a life-without-parole case never makes news, and may be a product of the emphasis placed on the death penalty. Nevertheless, the difference in costs make it clear that mistakes at this level are not as much of an issue, and that the outcome is more morally digestible for death penalty opponents.

And, it’s more digestible for state budget auditors as well. Of the 34 states that still practice capital punishment, several are finding it financially unfeasible to continue supporting it. Setting aside the unsettling reality that financial considerations may have the power to influence the moral imperative, states are becoming more vocal about cutting costs in the courtroom.

So, are state budget concerns shaping policy regarding death penalty reform? The answer is a resounding “yes.” In the end, though, a vote for or against capital punishment will decide the fate of a state budget. In financially troubled states like Mississippi, where the cost of each death sentence rendered is estimated to cost $3 million, voters may decide that money talking is more important than a dead man walking.

James Madeiros is a recent law school grad and staff writer at Criminal Justice Degree Schools, a resource site providing information on criminal justice education including paralegal degree programs in each state.

 

 

Now, not only is the U.S. Department of Justice going state-by-state and scooping up any remaining supplies of sodium thiopental (see our earlier post for details), it has informed the State of Arizona that Arizona cannot legally use its sodium thiopental supply because it is the opinion of the Justice Department that Arizona got that drug illegally when it bought some from a British supplier.

Now, this happened within hours of Arizona’s scheduled execution of Donald Beaty.  Not that Beaty or his lawyers were surprised at this position — this is EXACTLY what they were arguing all along.

However, this wasn’t akin to a stay by the governor.  The Arizona Supreme Court just held up things for a bit and then the execution was back on schedule — yesterday, at 7:30 p.m., Donald Beaty died.  

How could they go ahead?  Well, they used the lethal injection method with pentobarbital in the stead of the British-bought sodium thiopental.

That’s right.  Arizona cannot legally use sodium thiopental bought in England, but it can use a drug never tested on humans for this purpose and never okayed for executions by the U.S. Supreme Court (or medical researchers). 

Pentobarbital: the drug that vets use to put pets down.  That’s assumedly okay with the Justice Department.