Florida Supreme Court Chief Justice Charles Canady, 56, began his two-year term on July 1, 2010, and his first order of business was to create the Florida Innocence Commission, which will "conduct a comprehensive study of the causes of wrongful conviction and of measures to prevent such convictions."  (For the complete enacting language, read the Administrative Order here.)

Today, Lester A. Garringer, Jr. was named to act as the Commission’s first Executive Director.  In the Court’s news release detailing the appointment, Garringer’s credentials are detailed – they include serving as a Monroe County judge (1977 – 1980) and for the past 7 years, serving as staff attorney to the Supreme Court Criminal Court Steering Committee and the Supreme Court Committee on Standard Jury Instructions in Criminal Cases.(read the news release here). Conspicuous by its absence in his resume was an extended amount of time spent in the actual defense of criminal defendants facing conviction. 

What Will the Florida Innocence Commission Accomplish?

With a budget of around $300,000, the FIC is charged not with implementing change so much as studying the reasons behind wrongful convictions in the State of Florida.  One can only hope that part of that money will not be a re-hash of the numerous studies already done regarding the lack of funding for indigent defense in Florida. 

The Cost of Indigent Defense Must Be Evaluated as Part of the Wrongful Conviction Research

Of particular importance is the need to acknowledge the studies already undertaken on the state of indigent defense for capital cases in the State of Florida.  Obviously, there is a logical tie between a lack of funding for indigent defense and the likelihood of a wrongful conviction.  Nowhere is there a more critical risk for wrongful conviction than when the death penalty is at issue. 

Prior Studies on the Underlying Issues – Budget, etc. 

It’s not too difficult to look at the current criminal defense system in this country and know that lack of funding for constitutionally-mandated appointed counsel, and budgeting for their corresponding defense expenses, is one of the major factors behind wrongful convictions of innocent men and women.  The American Bar Association, for example, has spent considerable time and expense analyzing these issues on a state by state basis — and continues to do so.   

Cantero & Schlakman’s Fall 2009 Opinion

Just last fall former Florida Supreme Court Justice Raoul Cantero III and Mark Schlakman, former senior program director at the Center for the Advancement of Human Rights at Florida State University, wrote an opinion piece describing how they took an American Bar Association two-year study of Florida’s death penalty system in 2006 and compared it to the realities of the system today. 

Their findings?  The current situation is "abyssmal."

Let us hope that the newly formed Florida Innocence Commission acts in a powerful and purposeful way in proactively instituting positive change in our state’s criminal justice system.  We already are too well aware of the ways in which the system is failing … and how an increased indigent defense budget would help solve so many problems, including the likelihood of wrongful convictions in this state. 

 

California attorney Brad Levenson, a federal public defender, was revealed this week to be the new head of a brand new agency over in Texas: the Office of Capital Writs.  Levenson starts work on September 1st.

Texas’ Office of Capital Writs is an Attempt to Solve the Indigent Defense Crisis – In Part

In 2009, the Texas Legislature created (and by that we mean, of course, set aside money in the budget) for the Office of Capital Writs after things became obvious that the indigent defense being provided appealing defendants convicted of capital crimes was ludicrous. 

Studies were done.  Newspapers like the Dallas Morning News regularly reported on the horrors of death penalty indigent defense in Texas today.  The Texas Legislature reacted. 

Light was shed on some pretty shocking scenarios:  death penalty defendants with appellate lawyers having no death penalty defense experience; some having attorneys who had walked away from the appeal/appointment; others having appellate counsel who had died and were never replaced with a new court appointment.  Appalling in any state, but especially in Texas where capital punishment is so favored.  

The Office of Capital Writs Replaces Court Appointed Appeals Counsel in Death Penalty Cases

Starting this fall, Brad Levenson will be responsible for representing Texas Death Row appellants in state habeas corpus appeals. Proponents argue that this solution will not only provide a higher quality of appellate counsel for those setting on Death Row, but it will cost about the same. 

Believers are also arguing that Texas’ OCW will result in lower caseloads and higher accountability in indigent capital defense appeals. 

This Should Be Interesting ….

One wonders how a man with federal experience in another state — especially California, whose liberal approach to the death penalty in its precedent is almost in direct contrast to the perspective given capital punishment in Texas courts — was determined to be the best fit for this new job.  Interesting.

Also, there’s the idea of costs.  One of the core problems with indigent defense is a lack of funds.  The reason behind those court appointments being downright embarrassing for the State of Texas is the reality that there wasn’t enough funding to pay more experienced or higher quality private appellate attorneys sufficiently to take those Death Penalty appeals. 

It’s a core problem across this country – money for indigent defense.  So, while we all support this new tactic to provide decent appellate representation to defendants who set on Texas Death Row, it’s going to be interesting to watch how the Texas Office of Capital Writs will be doing in the next few years.

Best of luck to Mr. Levenson.  We will watch and pray.

Georgia Defendant Jamie R. Weis is getting lots of media attention today, as an article written by Adam Liptak in yesterday’s New York Time’s Sidebar column is being republished and discussed all over the country. 

What NYT’s Liptak has done is place a spotlight upon a case that has been pending before the U.S. Supreme Court for awhile now.  In Cause No. 09-10715, Jamie R. Weis is petitioning the HIgh Court to review a decision of the Georgia Supreme Court, which voted its 4-3 approval of state prosecutors to seek the death penalty against Mr. Weis — even though he has been incarcerated for two years without an attorney.  (Read the Petition for Writ of Certiorari here.)

That’s right. Jailed. No lawyer. Two years. Georgia. Death Penalty Sought.

Mr. Weis’s petition is based in part on an argument that he has been denied his right to a speedy trial. (A criminal defendant’s right to a speedy trial is guaranteed to him/her under the Sixth Amendment, as well as various statutes such as the federal Speedy Trial Act.) 

Indigent Defense Crisis in Death Penalty Cases: Real Issue Before the U.S. Supreme Court in Weis

However, if you’re wondering about money being the reason behind all of this, you’re right.  Like many death penalty defendants, Mr. Weis cannot afford to hire his own counsel.  Apparently, the State of Georgia has not been able to find the funds to pay for an attorney to represent him. 

Powerful Amicus Brief Brings Capital Defense Indigent Defense Crisis Into Focus

In an amicus curaie brief filed last month, several prominent members of the GeorgiaBar presented their arguments to the Supreme Court, in support of Weis’ petition.  Among them: Norman Fletcher, former Chief Justice of the Georgia Supreme Court.  (Read their amicus brief here.)

Tellingly, and importantly, the friends of the court argue that the Georgia state legislature made a "deliberate choice to not adequately fund indigent defense" — and accordingly, defendants should not suffer — and have their constitutional rights ignored — because of a lack of funding.

New York Times Article Helps Bring Public Awareness to Critical Issue

In the court of public opinion, Adam Liptak dovetails the amicus brief’s overview of the current state of indigent defense within the State of Georgia with a discussion of the right to appointed counsel.  Liptak includes the recent decision by the U.S. Supreme Court in Vermont v. Brillon, where they recognized the possiblity of “a systemic breakdown in the public defender system,” but failed to give any solutions to that situation.

Crisis in Death Penalty Indigent Defense Funding Must Be Addressed

One of the recurring themes of this blog is the crisis facing the criminal justice system today, in every state, because of the lack of funding for indigent defense.  Will the High Court finally address the practical realities of implementing the constitutional rights it has recognized with the correlated budgetary commitments it has created? 

Let’s watch and see.  Fingers crossed? Yes.  Don’t hold your breath, though.

[The following post is being republished here with the permission of its author, James Clark, field organizer for the ACLU, Southern California.  It was previously published on the Huffington Post on June 28, 2010.]

California’s governor has proposed closing the state’s $20 billion budget gap with a drastic cuts-only approach; slashing funding for vital human services without working to increase revenue. Yet one state program seems to be immune from these cuts: the death penalty.

We think the time has come to CUT THIS. (see video below) 

California spends vast amounts of money prosecuting death penalty cases and supporting death row. To avoid executing an innocent person, the death penalty process is long, complicated, and expensive. Each prosecution seeking death costs approximately $1.1 million more than a trial seeking permanent imprisonment, and with more than 700 inmates, California’s death row is by far the largest and most costly in the nation. In total, California’s death penalty system costs taxpayers $137 million per year.

Contrast that with just $11 million per year if we replace the death penalty with permanent imprisonment. Top that off with $400 million saved if we don’t build a new death row, needed because the existing one is so old and overcrowded.

Today, if Gov. Arnold Schwarzenegger were to convert the sentences of all those on death row to permanent imprisonment, the state would save $1 billion over the next five years without releasing a single prisoner.

But the death penalty is not on the chopping block. Rather than cutting the death penalty, the governor has focused on cutting the "rehabilitation" side of the California Department of Corrections and Rehabilitation. Programs emphasizing education, rehabilitation, and addiction treatment have all seen cuts to their budgets, while death penalty prosecutions continue statewide. 

Continue Reading Guest Post: Cut This: The Death Penalty by James Clark

Before I begin to get queries on the recent departure of Andrea Lyons from the Casey Anthony Defense Team (since both Ms. Lyon and I served as death penalty qualified counsel for Casey Anthony at one point), I ask that anyone interested read the quote that I gave to Anthony Colarossi of the Orlando Sentinel:

http://www.orlandosentinel.com/news/local/caylee-anthony/os-casey-anthony-andrea-lyon-20100630,0,2682343.story

 Thanks to all.

Yesterday, former Harvard Law School dean Elena Kagan began answering questions from members of the Senate Judiciary Committee as confirmation hearings started on her nomination to the United States Supreme Court. 

Elena Kagan is young at 50 years old and her presence on the High Court could impact the law of the land for several decades.  Already, there’s rumblings about Kagan never having served as a judge on any court, her scant past experience arguing before an appellate court  — and many are wondering exactly what her stand is on several social issues.  Like the death penalty.

Where does Elena Kagan stand on capital punishment?

Supreme Court justices only have a single vote each – but they can be eloquent and powerful even when outnumbered in the voting.  Interestingly, Elena Kagan once clerked for Justice Thurgood Marshall. 

You’ll remember that Justice Marshall, together with fellow Justice William Brennan, concluded in Furman v. Georgia that the death penalty was unconstitutional — and afterwards, the two men teamed to dissent (one joining the other) in every single death penalty case that came before the U.S. Supreme Court after Furman, Gregg v. Georgia notwithstanding (in Gregg, the majority held that capital punishment was constitutional). 

Thurgood Marshall Questioning of Kagan Begins on the First Day of Confirmation Hearings

It’s no surprise, then, that Elena Kagan is being grilled on her past history with Justice Thurgood Marshall — nor that she got hit with this questioning right out of the gate.  Betcha Kagan wasn’t surprised either.

However, what we’re all still wondering:  what exactly does Elena Kagan think of the death penalty?  Will she take up the reins of Marshall and Brennan? 

The Texas Moratorium Network has collected statements made by Elena Kagan on the subject of capital punishment.  Read them here. 

Meanwhile, questioning of Judge Kagan continues the rest of this week. You can watch them live, and online, at Rod 2.0. 

Troy Davis may well be an innocent man setting on Georgia’s Death Row, and things came closer to Davis proving his innocence as U.S. District Court Judge William T. Moore heard two days of evidence this week. 

Judge Moore did so because the United States Supreme Court mandated that the district judge had to hold an evidentiary hearing.   That’s not something that happens every day. 

Background of the Troy Davis Case

Troy Davis has consistently maintained his innocence (more background here), and at trial, there was no physical evidence connecting him to the murder.  Nine of the ten witnesses who pointed the finger at Mr. Davis have recanted, and over 60,000 people signed a petition demanding that Davis get a new trial.  Among them, the Pope, Desmond Tutu, and former President Jimmy Carter. 

Nineteen at the time of the crime, Troy Davis is now 41 years old.  His entire adult life has been focused on a fight to prove his innocence and avoid the penalty of death by lethal injection that has been imposed upon him.

The Two Day Hearing This Week: What Happened June 23 – 24, 2010

Judge Moore skipped opening statements, and went directly to presentation of evidence.  Troy Davis’s defense attorneys faced a high burden: pursuant to the Supreme Court’s dictate, they had to legally show – "clearly establish" – that Mr. Davis was innocent of the August 19, 1989, shooting of Savannah police officer Mark MacPhail. 

Key to their arguments: the appellate reviews of the first trial consistently dealt with legal technicalities, but never considered evidence that simply was not available at that trial.  They are fierce in their position that this new evidence, once considered, inevitably leads to a determination of innocence.  The State of Georgia, of course, maintains that the new evidence doesn’t change a thing.

If you’re thinking that this seems a bit hinky, the defense having to prove innocence, you’re right.  Usually, defense counsel works in an arena where someone is innocent until proven guilty.  Apparently the Supreme Court was swayed enough to allow Troy Davis a chance to present evidence, but did not go so far as provide him a true, 100% new trial of the matter. 

What Was Presented This Week

The defense team prepared 14 witnesses for testimony, among them several of the first trial’s eyewitnesses who have changed their testimony, blaming coercion by the police for first pointing the finger at Troy Davis.  Davis’ attorneys also presented 24 documentary exhibits to substantiate their argument that this was a case of mistaken identity – the police got the wrong guy at the get-go, mistaking Troy Davis for the true killer. 

Judge Moore did not allow those witnesses prepared to testify that Sylvester "Redd" Coles had confessed to them that he was the man who killed MacPhail. 

The strongest piece of evidence brought by the State?  Among 61 pieces of evidence, documents regarding a pair of black shorts taken from Troy Davis’ mother’s dryer on August 19th, purportedly spotted with human blood. This evidence didn’t make it into the first trial, because the trial judge ruled that the police didn’t have a proper warrant when they searched the dryer. 

Judge Moore did allow closing arguments, although he skipped opening.  Defense attorneys summed up their rush to judgment analysis of the Troy Davis trial long ago.  Prosecutors stuck by their story that there wasn’t enough evidence to change anything.  Troy Davis, they argued, should still die as punishment for the shooting because he had not met the evidentiary burden otherwise. 

What’s Next?  Legal Briefs and a Ruling

This fact-finding phase of this new hearing took two days, but that is not the end of things.  Judge Moore has given each side until July 7, 2010, to file their legal briefs with him.  He promise to rule as soon as possible thereafter. 

Of course, Judge Moore’s determination is probably months and months down the road.  After that, little is left for Troy Davis: he could be found innocent, or he could face execution for the 4th time.

Let us keep watch and pray. 

Last week, the U.S. Supreme Court announced that it will hear Cullen v. Pinholster (09-1088), reviewing California’s federal Court of Appeals for the Ninth Circuit on whether or not the death penalty should be reinstated for convicted murderer Scott Pinholster. 

Importance of mitigating factor was the key to Ninth Circuit’s decision.

The Ninth Circuit nixed capital punishment for Pinholster, opining that Pinholster’s attorney failed to give crucial evidence of mental illness during the penalty phase of Pinholser’s trial for killing two men during a burglary. (Read the Ninth Circuit opinion here.) 

The Ninth Circuit’s reasoning?  If the jury had the chance to hear this mitigating factor, then Pinholser might not have been sentenced to death in the first place. 

Now, the U.S. Supreme Court may reverse the federal appeals court.  

Officially, the High Court will be deciding this single legal issue: [w]hether it is appropriate under 28 USC §2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.

Unofficially, Scott Pinholster may still be punished with death, despite unfairness during his trial that a federal appellate court and countless others see as serious procedural harm.  

Form over Substance?

Mentally ill people have already been protected by the U.S. Supreme Court from the death penalty as being cruel and unusual punishment. Now, will that same High Court allow mental illness bar to be circumvented by a form over substance situation?

It’s a sign that this may well happen – since the High Court has decided to hear the case. Scary, isn’t it?

Last night, Ronnie Lee Gardner died by firing squad.  He was pronounced dead shortly after midnight, but the sound of those four rifle shots are being heard worldwide. (The firing squad was made up of four expert police officers who each shot bullets from a 30 caliber rifle; three of the bullets were metal, one of them was wax.)

In fact, tomorrow at 7:00 EST, I’ll be interviewed by Mike Graham, who hosts the main news and current affairs spot on England’s national talk radio.  If you’re interested, those of us on this side of the pond can listen via the web at www.talksport.net. 

 

Today, the Board of Pardons and Parole for the State of Utah denied Ronnie Lee Gardner’s Commutation Petition (opinion here). 

Which means that one more door has closed on Mr. Gardner’s attempts to avoid the execution currently scheduled to take place this Friday, June 18, 2010, at midnight. 

Appeal Still Pending Before the Utah Supreme Court

The process of trying to stop Friday’s execution of Ronnie Lee Gardner by the State of Utah continues, of course – we’ve been following the case for awhile now. Right now, he still has an appeal pending before the Supreme Court of Utah regarding his sentencing hearing and that Court has yet to rule. 

June 18, 2010: Death by Firing Squad Still Scheduled

Ronnie Lee Gardner’s decision to die by firing squad – an execution method offered to him under the laws of the State of Utah – has brought his case to national media scrutiny. 

 

Barring a last minute stay of execution, Mr. Gardner has opted to be shot by a squad of men who will aim at a target placed over his heart. This has proven shocking to many, and his choice is bringing lots of attention to the state of capital punishment in the United States today.

 

For example, CBS News reports on the Gardner case under the headline, “Slow Death of the Death Penalty?” – giving statistics that include over 60% of Americans still support capital punishment even though overall, the death penalty has been declining in use over the past few decades.

 

As Friday approaches, the impending execution of Ronnie Lee Gardner should be receiving more and more media attention – as well it should. 

 

Let us all keep watch and pray.