As the defense team continues to put on its case for mercy during the penalty phase of Steven J. Hayes’ trial for the murders of Jennifer Hawke-Petit and her two daughters, Michaela and Hayley, more and more media coverage is bringing the aspects of capital punishment advocacy to the public’s attention.  Which is good. 

However, the power of this case isn’t just in educating folk on the death penalty – it’s also become a major player in the political scene. 

Today’s New York Times writes (in an article entitled, "Murder Trial Puts Death Penalty in Spotlight in Connecticut Campaigns") on the intense national coverage brought to the Connecticut courthouse as the defense’s ten (10) days of mitigating evidence and argument is presented: but this isn’t a piece focusing on the intricacies of mercy.  No, the Times focuses upon the political aspects of the Hayes trial — and how it may impact the upcoming November 2010 elections. 

This, of course, is true. 

It is conceivable that this trial may be concluded very, very close to election day — it’s already overlapping absentee voting.  And it’s something that may well decide who is the next governor of Connecticut. 

After all, Dannel Malloy is running for Governor of the State of Connecticut as a Democrat who is opposed to the death penalty.  This, on the heels of the Republican sitting as Governor, M. Jodi Rell, who vetoed the abolishing of the death penalty in that state cited only one reason for her decision: the Cheshire Home Invasion case. 

Another aspect of trial by media to consider:  not only can intense media coverage impact the jury that is empaneled and the verdict (and sentence) that is reached, it can also reach much further — to the determination of who sits in the highest offices in our country ….

Coming as no surprise to anyone following this case, Steven J. Hayes has been found guilty of capital murder in the Cheshire Connecticut home invasion case where Jennifer Hawke-Petit and her two daughters, Michaela and Hayley, died leaving only surviving spouse and father Dr. William Petit to testify. 

(For details on this particular case, check out our post on the trial itself as well as the early media coverage which began long before jury selection.)

Whether or Not Steven Hayes Will Be Given the Death Penalty is Now the Issue

The job of the criminal defense team setting at Mr. Hayes’ table at this point is to fight against the death penatly.  To do that, they must present admissible evidence in support of one or more of the mitigating factors as they are defined by the Connecticut Legislature.  The New York Times reports that defense counsel are expected to take around 10 days to present their arguments during this second phase of the capital murder trial.

In the penalty phase, the state is allowed to present its case for capital punishment first.  In this well-known case of a Cheshire suburbian home invasion gone very wrong, the prosecutors put on only one witness – relying on the evidence already presented during the guilt phase for the majority of their arguments that they had met their burden (see the list of the aggravating factors under Connecticut law, below). 

The New York Times and the Hartford Courant are both following the trial, presumably each bit of the second phase of the trial will also be tweeted, and each day there are media reports summarizing the defense team’s work – witnesses presented, arguments made. 

Defense Strategy Slowly Being Revealed as Penalty Phase Progresses

It has already become apparent that part of the fight will be to explain Hayes as the bumbling follower of his co-defendant, who defense witnesses – including law enforcement officials – describe as controlling and indeed, the evil mastermind of the tragedy.  For instance, just this morning Judge Jon C. Blue granted the defense request to admit into evidence (over the state’s objection) both (1) diary excerpts and (2) certain statements made by Joshua Komisarjevsky which will support the defense’s contention, as they build their case for life and not death in the sentencing of Steven Hayes. 

Connecticut Law Controls Evidence Presented by State and by the Defense

The defense attorneys are controlled not only by evidence law – what will, and what won’t, be presented to the jury, but also by the specific, defined arguments allowed by state law to be urged in a fight against the imposition of the death penalty.  In Connecticut, the mitigation factors control the defense’s presentation just as the defined aggravating circumstances (below) controlled the state’s case. After the evidence is presented by both sides, the case will then go to the jury for consideration.Here are the mitigating and aggravating factors that control the case under Connecticut law:

Continue Reading Cheshire Connecticut Home Invasion Trial Penalty Phase – Demonstration of How Mitigation Factors Play Out Under Connecticut Law

After posting on CNN.com’s interview of Texas Death Row’s Hank Skinner earlier this week, readers wrote to let us know about more television coverage of Death Row and Death Penalty issues this fall.  Which is great news.  The more public awareness is brought to these issues the better,right?

After all, that’s the main purpose of this blog: to shed light in dark corners, making the public aware of things like the indigent defense financial crisis, the complexity of mitigation, the importance of mercy. 

1.  FRONTLINE’S "Death by Fire" and "The Confessions" (10/18/2010 and 11/09/2010)

Jessica Smith, marketing communications manager for the national television series FRONTLINE (see it Tuesday nights on your local PBS station) wrote with two premieres on PBS:  FRONTLINE’s season premiere “Death by Fire,” (see it October 19, 2010) and its report entitled “The Confessions” (mark your calendars for November 9, 2010).

Both FRONTLINE pieces, explains Jessica, "…examine cases at the center of ongoing national debates over the death penalty, the ability of the convicted to access and present new scientific evidence that might prove their innocence, and the issue of false confessions – including how high pressure tactics and the threat of the death penalty can be used to force a confession."

Watch a sneak peak of The Confessions here.  (Couldn’t find an excerpt so you’ll have to jump to their site to see the video; ditto for the link below.)

Watch an excerpt from the first episode of Death by Fire here, which delves into the case of Cameron Todd Willingham who may well have been an innocent man executed for the arson deaths of his young children by the State of Texas. 

2.  Death Row Texas on National Geographic Explorer (this week — check local listings)

Another reader (anonymous) also recommended the recent documentary "Death Row Texas" on National Geographic Explorer.  From the show’s webpage, there has been one episode televised thus far (and it can be seen now at the NGE website), and presumably there are more episodes to come. 

Death Row Texas is a documentary where 3 Texas Death Row inmates whose execution dates are close at hand are interviewed on video from the Walls Unit in Huntsville, Texas.  This is a British production, and it provides the caveat that both sides of the capital punishment debate are presented in the show — promising that even the residents of Huntsville, where the Death House is located, will be interviewed for their perspective. 
 
NGE does provide a short video excerpt, here’s a short take on their documentary series:
 
 

http://c.brightcove.com/services/viewer/federated_f8/1686060896

We’ve posted about the case of Texas Death Row Hank Skinner before: his case is now before the United States Supreme Court, where the High Court is considering if Skinner has a legal right to pursue a case in the civil system, in order to test evidence that was not tested at his criminal trial.

Hank Skinner asserts that DNA evidence left in unknown person’s blood stains on a jacket left at the murder scene, as well as on a kitchen knife, has never been tested — and that since he is innocent, that untested blood should substantiate his continued assertion that he is innocent of the murders for which the State of Texas wants him executed.

However, it’s not often that members of the public get a chance to hear and watch a person living on any Death Row.  These folk are segregated from the public early on – probably soon after their arrest – and it’s easy to turn them into two-dimensional villians on paper.

Hank Skinner is a real, living person who has spent the last 17 years behind bars, proclaiming his innocence. Hank Skinner is a human being asking for lab tests to be done.  Period.  Is he so unreasonable in this request?

Over in Lee County, Robert Dunn has been arrested for the crime of shooting and killing his wife,  Christine Lozier-Dunn, inside of a Cape Coral, Florida, daycare center, Bobbie Noonan’s Child Care, on January 25, 2008. He’s facing trial for first-degree murder, first-degree armed burglary, and child abuse, and since Mr. Dunn couldn’t afford an attorney he’s been appointed counsel.

Robert Dunn Is Indigent; the Court Has Appointed Dunn’s Defense Counsel

As guaranteed under the federal constitution, Robert Dunn has a legal right to effective counsel, and the State of Florida is legally required to provide him with representation once he’s established himself to be indigent.  (Here’s the hitch: Florida has to pay for this.)

Robert Dunn Faces the Death Penalty – Which Makes for a More Complicated Defense

If Robert Dunn is found guilty of the crime for which he is charged, he could be sentenced to death.  This is a death penalty case, and with it (as we’ve written about previously), a lot more responsibility is placed upon the defense team.  Mitigation specialists, additional investigation, preparation for both a guilt phase and a penalty phase in the trial — Mr. Dunn’s trial team has a huge legal duty here.

New Defense Lawyer David Brener Argues For Need to Re-Do Past Attorney’s Work

Yesterday, Mr. Dunn’s new trial attorney, Fort Myers’ David Brener, appeared before Lee Circuit Judge Margaret Steinbeck to argue that he needs the court’s help in order to fulfill that duty.  Brener is fierce about the lack of effective representation that Robert Dunn has received thus far — and he can tie it directly to state budget concerns.  Once again, it’s all about the money. 

As part of his argument, Mr. Brener called to the witness stand Mr. Dunn’s prior defense counsel, Ita Neymotin, as the duly authorized representative of the five-county Regional Conflict Counsel office (Neymotin ran that shop until just last week).  The RCC is a state agency, and its funding comes from the State of Florida. 

Past Defense Lawyer Testifies to Cost-Cutting Deciding Scope and Length of Depositions

Ms. Neymotin testified under oath that during the Regional Conflict Counsel’s representation of Mr. Dunn from May 2009 until April 2010 (when Brener took over), money talked and because of cost considerations, some witness depositions simply weren’t taken and the length of other witness depositions were set by how much they cost rather than what testimony was needed to be obtained.

Twenty-one depositions are at stake.  The testimony of 21 witnesses is a huge amount of evidence in any trial, but can literally mean the difference between life and death in a capital case. 

21 Depositions at Issue: A Clear Example of Florida’s Indigent Defense Budget Crisis

David Brener has asked Judge Steinbeck to let him retake 21 depositions that were controlled by money, and not by legal concerns.  Brener argues that an effective defense requires that some witnesses be questioned again, because prior defense counsel failed to ask key questions during the prior depositions. 

Answers to these questions are critical to Dunn’s defense.  It’s imperative that the witnesses give those answers, under oath, to give the defense these facts in form that can be used at trial, i.e., as authenticated, admissible evidence.

Right now, the hearing has been continued and we don’t know what Judge Steinbeck will decide.  And her decision is important for us all — since when does a bean counter in a state agency’s bookkeeping department decide what witnesses are important to a case, or how long an attorney can ask questions of a witness (in deposition or at trial)? 

This is a clear example of how injustice has permeated our criminal defense system in this state, and in this country — all because of blind budget concerns.  Something needs to change.   

Yesterday, without comment, the United States Supreme Court denied the petition filed by Georgia Death Row inmate Jamie Ryan Weis. 

This is shocking. 

This is very bad news.  We’ve written about the Weis case before, including links to the amicus brief filed by a stellar list of Georgia legal scholars, fighting for justice in the indigent defense crisis facing Georgia (and the country) today – and the spotlight that coverage by the New York Times’ Adam Liptak was providing. 

A Missed Opportunity or a Dodge?

Bottom line, the Weis petition offered the United States Supreme Court an opportunity to address the basic problem facing states today:  where is justice when there is no money in the coffers to pay for the effective assistance of counsel that is constitutionally required – particularly in a death penalty case?

For Jamie Weis, not only was his constitutional right to a competent defense denied him, but also his constitutional right to a speedy trial — all because Georgia didn’t have the money to pay for what was legally mandated.   Legally mandated by the constitutional precedent established by the United States Supreme Court. 

Georgia’s Mr. Weis, Death Row inmates, and defendants facing the possibility of Capital Punishment across the country, are having rights denied them because of budgets without cash flow.  We can only wonder why the High Court has denied them even an explanation for why the Weis Petition was not considered worthy of review. 

Many people believe that if someone is mentally ill, then they cannot be executed for their crimes.  This is not true; an individual suffering from a mental illness can be sentenced to death in the United States.  In fact, the protections against someone being executed due to their psychological impairments is rather limited: many seriously mentally ill individuals set on Death Row in this country today.  

What is "legal insanity" under the law?  It depends upon which jurisdiction applies.

The reality is that a defendant’s mental capacity becomes an issue as early as the initial investigation by law enforcement into the crime, however, it is clearly a major component of any criminal trial of that individual, first addressed in the guilt phase of a capital case.  Legal insanity is an affirmative defense to a crime: it is proven by the defense in the guilt phase of the case where the state is seeking the death penalty, not the penalty phase.

There are two prevailing legal tests to determine whether or not a defendant is legally insane (again, as a defense to be pled and proven by defense counsel at trial).  The first, and most popular, is the “M’Naghten test.”   See, Clark v. Arizona, 548 U.S. 735 (2006).

M’Naghten Test

Under M’Naghten, the determining factor is whether or not the defendant was (1) able to understand what he (or she) was doing at the time of the crime due to some “defect of reason or disease of the mind" or, (2) if he (or she) was aware of what they were doing, that he (or she) nevertheless failed to comprehend or understand that what they were doing was wrong.

ALI – Model Penal Code Test

The alternative test for legal insanity has been provided by the American Law Institute in the Model Penal Code.  Under the ALI test, the key is if  the defendant lacked the substantial capacity, as a result of a mental disease or defect either (1) to appreciate the criminality of his conduct or  (2) to conform his conduct to the requirements of law. 

M’Naghten is considered a much stricter standard than the ALI test.  Under M’Naghten, the two defendants made popular by Truman Capote in the nonfiction novel In Cold Blood were found to be legally sane, convicted of capital murder, and after being sentenced to death, each was hanged by the State of Kansas. 

Using the ALI/Model Penal Code test, John Hinckley was found to be legally insane, therefore not legally culpable for his attempted assassination of President Ronald Reagan, and not subject to capital punishment.  Public outrage at the Hinckley result has forced many jurisdictions to return to the harsher M’Naghten standard.

Next in the series: Mental Illness as a Mitigating Factor

 

Sodium thiopental is a critical component of the three-drug cocktail that makes up the lethal injection procedure for most executions in this country.  It’s the drug that makes the person lose consciousness, before the other two drugs first cause paralysis and then stop the heart.  (We’ve posted about the procedure in detail here.)

Drug Manufacturer Hospira, Inc. is Out of Product

Sodium Thiopental isn’t made by many manufacturers — in fact, there is only one company in the United States that makes the drug, Hospira Inc. of Lake Forest, Illinois.  Hospira doesn’t have any more sodium thiopental to provide:  the company is reporting that it cannot ship out any more of its product until January 2011. 

Why?  Hospira can’t make the drug until its own suppliers can ship Hospira the materials needed to make it.  That’s not going to happen until January at the earliest.  (Sidenote: it’s really eerie to know that Hospira makes this drug of death when you check out their friendly, health-oriented web page — no wonder there’s reports that Hospira isn’t at all happy that its product is being used in killing people.)

Different States Responding Differently to the Shortage

California has decided that it will reschedule all California executions set after September 30, 2010, because of the sodium thiopental shortage. 

Oklahoma and Kentucky are on hold; Arizona is still trying to find some supply before an execution set to occur next month. 

Texas has enough on hand, and the shortage isn’t impacting the Texas Execution Schedule, which has three executions set before the end of the year.  Surprise.

California’s Scheduled Execution of Albert Greenwood Brown on Thursday Has Been Stopped

And, California’s attempt to use the single-drug method in the execution of Albert Greenwood Brown this Thursday – the first execution to occur in California in five years?  Not happening. 

The Ninth Circuit Court of Appeals has ruled against the State of California, and ordered the Albert Greenwood Brown case returned to the lower court judge for procedural errors.  

The federal appellate court’s order came down just after Governor Arnold Schwarzenegger had halted the Brown Execution for one day, apparently to coincide with the state Attorney General of California announcement that the Sodium Thiopental shortage would halt all the state’s recently scheduled executions until sometime in 2011. 

When the drug is back on the market, wonder if California will have the money to pay for it?

Virginia Death Row inmate Teresa Lewis, 41, has ordered her Last Meal:  fried chicken, sweet peas, and either German chocolate cake or apple pie for dessert, along with a Dr.Pepper.  Despite the efforts of lots of folk – including author John Grisham, for example – Teresa Lewis will die by lethal injection at the hands of the State of Virginia tonight unless nothing short of a miracle happens. 

Today, Teresa Lewis May Make History as the 1st Woman Executed by Virginia Since 1912

Lewis’ final appeal was blocked by the United States Supreme Court just last week.  She has no more state appellate avenues to pursue.  Virginia Governor  Bob McDonnell could offer clemency, but he’s already rejected Teresa Lewis’ request once and there’s not much hope that Governor McDonnell will change his mind at the eleventh hour.  

Governor McDonald Follow Ohio Governor Strickland’s Recent Clemency Example? Doubtful.

Even Bianca Jaggar’s plea, published today in the Huffington Post, may not be powerful enough to sway the governor.  Maybe Governor McDonald is remembering how Ohio Governor Ted Strickland granted clemency recently in the Kevin Keith case, and now he’s trailing in the polls. 

My Perspective Was Asked by the Palm Beach Post – Here’s The Gist of It

Given the fact that we don’t often see women executed in this country, I was contacted by the Palm Beach Post to provide my perspective on the Teresa Lewis matter.  You can read the entirety of the article by reporter Daphne Duret online, entitled "Impending execution of Virginia woman brings spotlight to rarity of females on death row " 

As I related to Ms Duret and her readers, it has been my experience that mitigation is a powerful force for female defendants in a trial where the prosecution is seeking the death penalty.   When  a woman is found guilty of murder, juries seldom decide that a death sentence is appropriate.

A wide variety of mitigation factors usually exist in the personal histories of women who are on trial for capital murder, and these circumstances usually help juries to opt for mercy.  Women accused of homicide are always broken in some way — there are histories of abuse, there are mental health issues, there are reasons for why their life path has resulted in their facing the jury in a death case. 

Key Issues in Teresa Lewis’ Case – No Jury, Contributions of Male Co-Defendants

Perhaps the key issue in Teresa Lewis’ case is that there was no jury involvement.  Teresa Lewis forego her right to a jury of her peers, and her criminal trial was in essence a plea of guilty and a sentence by the judge. 

However, another key issue is a point made by my colleague and mitigation expert Rosalie Bolin in the Palm Beach Post article: even when a woman is sentenced to death, they are usually sentences that are reduced later on in the process.  As Ms. Bolin points out, this is especially true when it’s a multi-defendant case like Teresa Lewis’ crime: the men who are co-defendants are usually found to be more responsible for the violence than the female.

There is a lot of mitigating evidence that a jury never heard before Teresa Lewis was sentenced to die for the murders of her husband and stepson (admitted homicides committed for life insurance money proceeds): 

  • the actual murderers, Matthew Shallenberger and Rodney Fuller, received only life sentences.
  • Teresa Lewis never held a weapon
  • Shallenberger, before his suicide, admitted that he – not Lewis – was the mastermind of the two murders-for-money  
  • Both male co-defendants would claim that Teresa Lewis was the follower of Shallenberger, doing as he wanted
  • IQ testing reveals Teresa Lewis (before sentencing) at  full scale IQ of 72, which is borderline mental retardation
  • After sentencing, psychological examination of Teresa Lewis revealed that she has  "multiple functional deficits, " and functions as a 12-14 year old 

Still, Teresa Lewis in all likelihood will die tonight.  Mitigation factors do exist in our statutes, but mercy is something bigger than laws written on books. 

It must exist in the hearts and souls of those setting in judgment — and now, after one man setting in judgment sentenced Teresa Lewis to die, we all await to see how much mercy (or growing public outcry) may now sway another man, the governor of Virginia. 

Awhile back, a reader wrote asking about the blog’s attribution policy.  So better late than never, here it is, and thanks to Kathlb for helping us get this task done.

We will license the work shown on the Death Penalty Blog under the Creative Commons Public License as detailed below, the Attribution Without Derivatives license.  You may download posts from the DPB and share them with others IF you mention the DPB/Terry Lenamon as the source and include a link back to DPB.  The contents of the blog posts cannot be changed.  They cannot be used commercially. 

In other words, please feel free to quote from the DPB as long as you identify the content as a quote, include a hyperlink to the DPB, and don’t try and make money off of it. 

 

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE ("CCPL" OR "LICENSE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED.

BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

(continued)

Continue Reading Attribution Policy for the Blog: Please Review if You Want to Quote from DPB