Death Penalty - Federal

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As I’m sure you know, Sonia Sotomayor has been nominated by President Obama to replace retiring Supreme Court Justice David Souter. For those concerned about capital punishment, it hasn’t been that easy to determine exactly what the nominee’s position is on the death penalty.

The Elusive Sotomayor Memo.

Judge Sotomayor did not include something she…

Omar Loureiro will be tried a second time for the murder of a Lighthouse Point man who he had gone home with from a local bar: right now, he’s setting on Death Row for this crime.

In 2007, Loureiro was tried for first degree murder in the case, found guilty, and sentenced to death. Two…

I have real concerns about the constitutionality of the current means of capital punishment here in Florida – and really, in most of the country today. And it’s not just me – many Death Penalty Qualified Defense attorneys here in Florida share the same concern regarding execution by lethal injection.

Why?

There is a strong argument that execution by lethal injection violates both the Florida Constitution and the U.S. Constitution. In the next series of scholarly posts that appear here on the blog every Friday, we’ll be looking at this issue.

The State and Federal Constitutions forbid foreseeable and unnecessary pain in the execution of an individual.

Much of the language that you will be seeing here is language that commonly appears in motions filed by counsel representing defendants who have been sentenced to death by the State of Florida. It’s a solid and sturdy argument against the use of lethal injection, and there are many attorneys, legal scholars, professors, sociologists, and other professionals, who stand on this position:

Both the Florida and the U.S. Constitutions forbid the infliction of unnecessary pain — that is, any pain that could reasonably be avoided — in the execution of a sentence of death. The courts have ruled that the infliction of a severe punishment by the state cannot comport with human dignity when it is unnecessary and nothing more than the pointless infliction of suffering. Furthermore, [p]unishments are held to be cruel when they involve . . . a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890); see also Nelson v. Campbell, 541 U.S. 637, 125 S.Ct. 2117, 2122,158 L.Ed. 2d 924 (2004).

A punishment is particularly constitutionally offensive – and therefore, illegal — if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973). Such things as (1) the probable length of time the condemned remains conscious of the process; (2) the physical or psychological pain he or she suffers during this period; and (3) the time it takes for death to occur must all be taken into consideration in determining whether a means of execution violates the constitution. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994), aff’d, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).
Continue Reading In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution?

Monday, the Supreme Court heard argument in the Bies case (see 04/27/09 post), and the very next day issued its opinion in Cone v. Bell, 555 U.S. ___ (2009), both capital punishment cases where the defendant argued a diminished capacity of some sort. In today’s case, there was an intentional hiding of the ball by the State and a definite due process problem.

Gary Cone was a known drug addict who murdered two people.

It is undisputed that Gary Cone was a Vietnam veteran who returned home to Memphis, Tennessee, and failed to cope well with civilian life. One Saturday morning in 1980, Gary Cone robbed a jewelry store – obviously, not very well – and was promptly pursued by local police in what turned into a high speed chase.

Veering into a residential neighborhood, Cone abandoned his car and shot both a police officer and a Good Samaritan who tried to stop him as Cone fled on foot. On the hunt for another getaway car, Cone tried to carjack someone and when they refused to give them the keys, he tried to shoot them, too, only to find he was out of bullets. By this time, helicopters were flying overhead and the scene was escalating to a frantic pace. (You’ve seen the reality TV shows like COPS, you can visualize these events.)

Somehow that Saturday afternoon, Cone got away. No one could find him. However, early the next morning, Gary Cone was still in the neighborhood – knocking on the door of an elderly couple, Shipley and Cleopatra Todd. He asked to use their phone; Cleo Todd refused and slammed the door on Cone. Cleo called the cops, and still Cone could not be found.

The tragedy occurred later that same day. Cone returned to the Todd home, forced himself into their house, and beat the two senior citizens to death before tearing their house apart. He shaved there, got himself to the Memphis airport, and was busted while robbing a drug store in Pompano Beach, Florida a couple of days later.

Vietnam Vet Cone Asserted an Insanity Defense – He Didn’t Contest His Actions

Vietnam vet Gary Cone was arrested, tried, and convicted of the Todds’ murder. He never challenged evidence that showed he committed these horrific acts. What he asserted as his defense was his mental illness: Cone’s defense team brought forth evidence to show that Cone suffered from chronic amphetamine psychosis, a mental disorder caused by excessive drug abuse.

Experts testified that the drug use began while Cone was serving in Vietnam, where he was using “horrific” quantities of drugs while dealing with the bodies of dead soldiers. The mental illness caused by this drug use created a level of paranoia and a disorder including hallucinations that would keep Cone from understanding or being able to conform to everyday life and the boundaries imposed by Tennessee law.

In sum, the entirety of Cone’s defense was mental illness. He was legally insane when the crimes were committed.
Continue Reading US Supreme Court Finds Prosecution Intentionally Violated Due Process in 20 Yr Old Death Penalty Case

Last week, over in a Chicago courtroom, Nathan Fields stood to hear Circuit Judge Vincent Gardenia find him not guilty of murder. Nathan Fields is 55 years old, and he’s finally been cleared 23 years after he was sentenced to death by a notoriously corrupt Illinois judge.

What happened in Nathan Fields’ case?

The truth has come to light, and it has been shown that the trial court judge in Fields’ initial trial accepted a $10,000 bribe in the case. Judge Tom Mahoney actually took the money to find Fields and his codefendant not guilty, but apparently Mahoney got nervous that he was about to be caught. So, he returned the bribe to its source, went ahead and found both men guilty of a double murder, and sentenced them both to death.

Nathan Fields Spent 7 Years on Death Row and Awaited Retrial for 11 Years

Nathan Fields was granted a new trial in 1998, and he was released pending retrial in 2003 when a fellow Death Row inmate put up his bail. That Death Row inmate who put up the money for Fields to walk free pending full exoneration is a man named Aaron Patterson. He’s still on Death Row.

Patterson’s generosity allowed Fields to be free in Chicago, with his family, after serving seven years on Illinois’ Death Row. Still, it was over ten years before Fields’ case came before another judge and his name was cleared of the murder charge.

What are his plans now?

Nathan Fields plans on taking a vacation with his family – he’s never seen the ocean or the mountains, he’s told reporters. He also plans on opening a construction company with his friend Aaron Patterson – although right now, Aaron Patterson remains behind bars.

Judge Tom Mahoney Fixed Murder Trials for Money

These are all facts that have been established. Judge Mahoney was caught for his evildoing, tried, and found guilty of conspiracy, racketeering, extortion, and obstructing justice in April 1993. Thomas Mahoney spent over 12 years behind bars before he died at the age of 83.
Continue Reading 23 Years After Being Sentenced to Die, 55 Year Old Nathan Fields Finally Exonerated

Due process under the law has been constitutionally protected since our nation began, although the phrase gets tossed around quite a bit these days without much concern as to its real importance.

Due process is protected by the 5th (federal) and 14th (state) Amendments to the U.S. Constitution, although it is a principle with origins in the Magna Carta. In that historic document, England’s King John promised that “…[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

King John signed the Magna Carta over 790 years ago. You’d think that due process of law would be pretty much settled into a traditional, solid role in our society by now. Particularly so, when it comes to those officials in positions of authority. But if you think that, you’d be wrong.

Due Process of Law is endangered in this country.

Never has our sacred right to due process under the law been more endangered than it is today. And no – I’m not about to delve into the current Florida case concerning a young woman awaiting trial for the murder of her child.

Instead, I’m looking over at our sister state, Texas, and what’s been going on over there since the afternoon of September 26, 2007.

Texas Chief Justice Faces Criminal Charges, Civil Trial, and Impeachment Arising From Death Penalty Case

Criminal charges were recently filed against Sharon Keller, the Chief Justice of the Texas Court of Criminal Appeals, by Texans for Public Justice for her actions on the day that Michael Richard was executed by lethal injection. (In Texas, the Court of Criminal Appeals is the highest court for all criminal matters; the state divides its civil and criminal caseloads, and has a separate high court, the Texas Supreme Court, which hears all civil matters as the state court of last resort.)
Continue Reading Texas Chief Justice Sharon Keller’s Lesson to Us All About Due Process

There is a federal death penalty, just like there is the option of capital punishment in the majority of states, and Oklahoma City bomber Timothy McVeigh comes to mind as a well-recognized example of the federal death penalty statute in action. (McVeigh’s 2001 execution was the first exercise of federal capital punishment since 1963.)

However, this week was the first time since federal capital punishment was authorized once again by Congress, over twenty years ago, that a Florida jury actually voted to put someone to death as punishment for their crime.

Perhaps you’ve heard of the Turnpike Killings.

On March 31, 2009, defendants Daniel Troya and Ricardo Sanchez, Jr. stood to hear an unanimous jury verdict that condemned the two men to death for the killing of Luis Julian Escobedo, 4, and Luis Damian Escobedo, 3, back in October 2006, while voting that the two defendants should receive life sentences for the killings of Luis and Yessica Escobedo. The jury deliberated almost four days before returning with their decision.

Of course, this is a drug-related crime. The Escobedo couple was involved with a drug cartel run by Daniel Varela, who has been sentenced to life in prison on drug trafficking charges, and it is undisputed that the deaths were related to the distribution and sale of cocaine in South Florida.

This is far from over.
Continue Reading Jury Votes Federal Death Penalty for Florida Turnpike Killings

This month, the United States Supreme Court declined to hear a well-watched Florida case, Thompson v. McNeil (08-7369), where William Lee Thompson, sentenced to death in a Florida court back in 1976, requested their consideration of the question: does extended delay of the sentence of death amount to cruel (if not unusual) punishment and therefore violate the 8th Amendment?

Well, the High Court did fail to grant writ (opinion), but that doesn’t mean we don’t have a lot to consider from the opinion that did spring forth. Let’s ponder the following:

Justice John Paul Stevens’ Statement

First, I’ve read that Justice John Paul Stevens issued a dissent in this case; however, technically it was not a dissent but a statement. And, a statement that conforms to his longstanding position that the the death penalty is wrong. (Stevens already called for an end to the death penalty.)

In it, Stevens wrote, “[o]ur experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel,” to which Justice Stephen Breyer gave his support in a formal dissent from the denial of certiorari.

Justice Stephen Breyer’s Dissent

In his dissent, Breyer went into the appellate pathways that the Williamson case has taken over the past 30+ years, including such considerations as the fact that Williamson’s spent over half his life on Death Row while the appeals have taken a life all their own, and the reality that Williamson’s accomplice – who might have been more culpable than Williamson in the underlying crime – was not sentenced to death. Interesting point.

Justice Clarence Thomas’ Concurrence

Justice Clarence Thomas, meanwhile, wrote his own concurrence to the Court’s denial of certiorari. In it, Thomas opined “”[i]t is the crime and not the punishment imposed by the jury or the delay in execution that was ‘unacceptably cruel, …” and thereafter provided extensive details on the underlying crime for which Thompson was convicted to support his position. (It is not disputed that the crime for which Thompson was convicted was shocking.)

Why Isn’t This Cruel – If Not Unusual? Oh, and What About the Budget?
Continue Reading U.S. Supreme Court nixes hearing Thompson v. McNeil (08-7369) – but does 32 years in a Death Row cell amount to cruel and unusual punishment?