Terry Lenamon on the Death Penalty

U.S. Supreme Court Denies Cert in Robbins v. Texas: What Happens When Trial Evidence is Known to be Scientifically Unsound? Apparently, Nothing.

Terry Lenamon / Reba Kennedy — Mon, 14 May 2012 11:24:44 -0500

At its conference last week (on May 10, 2012), the United States Supreme Court did what it always does: confers on petitions placed before it, and decides if they should be granted. If you're interested, you can follow this process week after week as it is live-blogged over at scotusblog.com.

Of particular interest, the case of Robbins v. Texas, where the issue before the High Court is whether a new trial is required for a convicted defendant when scientific evidence is later determined to be unreliable. In Robbins, the doctor who took the stand on behalf of the prosecution in the role of medical examiner, Dr. Patricia Moore, changed her opinion -- after the trial was over and the defendant sentenced to life imprisonment for capital murder of his girlfriend's baby. (Thank God, there was no death sentence here - but this capital case and its due process arguments do impact on death penalty defense.)

Seems there are lots and lots of medical experts that have gone on the record in this case to state that it's not clear how this baby died ... and there may have been no crime here whatsoever. But it's not just experts arguing about causation: here, the medical examiner who took the state for the State of Texas has changed her opinion about cause of death. That's a big deal.

No homicide. Big mistake at trial, right? Another wrongful conviction ....

And yet, the Texas appellate courts haven't fixed this. Here's the opinion from the highest criminal court in the State of Texas regarding Robbins' arguments.

From the amicus brief filed by the Innocence Project: (emphasis added)

First, the Texas appellate court’s decision turns the burden of proof on its head by requiring Petitioner to disprove an element of a crime – that the child’s death was the result of a homicide – in order to receive a new trial. Under this standard, Petitioner can not obtain a new trial because he can not prove that there was no crime, even though the central evidence at Petitioner’s trial that a crime occurred has been refuted by the very expert who originally offered the evidence. The Texas court of appeals has created a standard that is impossible to satisfy where – as here – forensic science can neither support nor disprove the conclusion presented to the
jury.

Second, the Texas appellate court failed to recognize that the conclusion presented to the jury at Petitioner’s trial – that, within a reasonable degree of scientific certainty, the victim had been murdered – was in fact false. Dr. Moore’s retraction of her trial testimony did not signify simply that she was less certain about whether Tristen’s death was a homicide. Instead, it completely refuted the central evidence at trial that a crime occurred by confirming that the results of the autopsy did not support any conclusion as to the cause and manner of Tristen’s death. Therefore, the scientific conclusion that was presented to the jury was, as a matter of science, actually false. The Texas appellate court’s decision requiring Petitioner to prove that homicide was not a possibility in order to show that the conclusion was false fails to account for the nature and role of scientific evidence.

Third, the Texas appellate court’s decision fails to account for the uniquely persuasive impact of scientific evidence in criminal trials. Given jurors’ inclination to assign significant weight to scientific expert testimony, once Dr. Moore testified that Tristen’s death was caused by a criminal act, the jury likely focused on whether it was Petitioner who committed the crime, instead of whether a crime was committed at all.

And just as Dr. Moore’s testimony likely carried significant weight with the jury, so would testimony that the cause and manner of death was “undetermined.” Therefore, if the forensic evidence had been presented to the jury accurately – which would have established that forensic science could not determine how Tristen died – such evidence certainly would have affected how the jury evaluated all of the evidence against Petitioner. If the decision of the Texas Court of Criminal Appeals is allowed to stand, Petitioner will be denied a new trial even though the central scientific evidence supporting his conviction has been shown to be so unreliable that the accuracy of the jury’s guilty verdict has been critically undermined. Such a result does not comport with due process.

CONCLUSION

For the foregoing reasons, and for the reasons stated in the petition, the petition for certiorari should be granted.

This morning, the Supreme Court denied cert in Robbins (read the order here). No explanation given.

Joshua Fulgham Defense - Judge Sentences Fulgham to 2 Consecutive Life Terms

Terry Lenamon / Reba Kennedy — Sun, 29 Apr 2012 16:37:44 -0500

Trial is over and the judge has followed the jury's decision regarding sentencing: Joshua Fulgham will not be sentenced to death but instead will serve life imprisonment (two consecutive terms) for the kidnapping and murder of his wife, Heather Strong.

For details, see the Ocala.com coverage.

Note: My congratulations to Terry Lenamon - a hard fought defense, especially considering the circumstances of the case, the earlier death penalty sentence of Emilia Carr, and the defense's acknowledgement that Fulgham had participated in the killing itself, which brought all the focus of the trial from the guilt phase solely to the penalty phase.

Congrats again to Terry!

- Reba Kennedy

Joshua Fulgham Defense - Jury Says No to Death Penalty: Congrats to Terry Lenamon and the Defense Team

Terry Lenamon / Reba Kennedy — Sat, 21 Apr 2012 08:59:55 -0500

Last night, the jury came back with a decision of life imprisonment for Joshua Fulgham -- nixing the death penalty request by the prosecution.

Under Florida law, the judge will still have the final decision here.

What will the Judge do? We'll know soon.

Meanwhile, congrats to Terry Lenamon for a great job of defending against the death penalty in the Joshua Fulgham trial!!

Fulgham Trial: Jury Finds Joshua Fulgham Guilty in Quick Deliberation, Terry Lenamon Defends in Penalty Phase of Trial, Example of Florida Statute's Mitigating Factors In Application

Terry Lenamon / Reba Kennedy — Mon, 16 Apr 2012 18:15:16 -0500

The jury has found Joshua Fulgham guilty of first degree murder (see earlier posts for details of the case).

Beginning today, Terry Lenamon and the defense team will be arguing Florida mitigating factors and how their application should prevent Fulgham being sentenced to the death penalty.

For details on mitigating factors, see our earlier post here.

The trial is being covered on a daily basis, in detail, at Ocala.com.

Joshua Fulgham Defense - Transcript of Terry Lenamon's Opening Statement

Terry Lenamon / Reba Kennedy — Tue, 10 Apr 2012 18:26:06 -0500

For those following the Marion County, Florida trial of Joshua Fulgham, here is the transcript of Terry Lenamon's opening statement.

Trial continues this week ....

Florida Death Penalty Statute Unconstitutional: 11th Circuit Court of Appeals Reviews Lower Court Ruling

Terry Lenamon / Reba Kennedy — Mon, 09 Apr 2012 09:51:52 -0500

An amicus brief was filed this week in the Evans v. McNeil by amici curiae NACDL, FACDL, and Florida Capital Resource Center. before the United States Court of Appeals for the Eleventh Circuit.

To read the brief in its entirety, please go here.

This is the latest fight in the battle over whether or not the Florida Death Penalty Statute is unconstitutional.

The case, Evans v. McNeil, involves a petition for writ of habeas corpus, filed in the United States District Court for the Southern District of Florida, Miami Division, where that court found the Florida Death Penalty Statute violated Ring v. Arizona, 536 U.S. 584 (2002), and was therefore unconstitutional.

Read the lower court's ruling here.

Terry Lenamon Defends Josh Fulgham who Faces Death Penalty in Heather Strong Murder Case

Terry Lenamon / Reba Kennedy — Wed, 04 Apr 2012 09:27:35 -0500

Terry Lenamon is currently in trial defending another high profile defendant, Joshua Fulgham, who is accused of killing his wife Heather Strong (read the Wikipedia article on her murder here). The trial is taking place in Marion County, Florida.

For blog readers who follow Terry's trial work, here are some links to the day's activities (as this post is being published, they are still in the middle of jury selection).

Jury Selection Photo Series (Ocala.com)

Gaineville Sun trial coverage

Joshua Fulgham faces the death penalty for the death of his wife Heather Strong, having been charged with first-degree murder and kidnapping. Fulgham's girlfriend, Emilia Carr, has already been tried and convicted and is now setting on Florida's Death Row.

If you are interested in criminal defense / true crime cases, then you might want to read Terry's memoir or "casebook" that covers almost a dozen of his past defense cases where his clients faced the penalty of death. For more info on the book or to buy it as an ebook or paperback, just click on the link there in the left sidebar.

US Supreme Court Grants Writ on Two Habeas - Mental Incompetency Cases

Terry Lenamon / Reba Kennedy — Wed, 28 Mar 2012 12:15:02 -0500

For those that know Terry or have read his memoir, Heinous, Atrocious and Cruel (see it there in the left sidebar), you know that he is very concerned about mentally challenged individuals being sentenced to death not just in Florida but elsewhere in this country.

Which means we'll be carefully following two cases that are now pending before the United States Supreme Court - they've granted review in both and oral arguments should be happening in the Fall. One comes out of Ohio; the other out of Arizona.

The two cases? Ryan v. Gonzalez (follow online here).and Tibbals v. Carter (follow online here). By granting writ here, the High Court will determine if mentally incompetent individuals who are already on Death Row are entitled under the law to a stay of federal habeas proceedings because they cannot effectively assist their counsel.

In the lower court appellate opinions, both cases held that the individual needs to be mentally competent in order for there to be federal habeas proceedings. In both cases, stays were ordered with no end date. Now, the High Court has responded to requests by the states (prosecutors) that these stays be terminated and the proceedings move forward.

Precedent to consider?

Rees v. Peyton (1966)

Ford v. Wainwright (1986) - insanity means no death penalty

Atkins v. Virginia (2002) - "mental retardation" (phrase from the case itself) means no death penalty

Questions Presented:

Ryan

Several years after Gonzales's counsel initiated federal habeas proceedings and filed an exhaustive petition seeking relief, counsel asserted that Gonzales was incompetent to communicate rationally and the proceedings should be indefinitely stayed pending possible restoration of competency. Based on 18 U.S.C. § 3599(a)(2), the Ninth Circuit agreed, even though Gonzales's claims were record-based or purely legal.

Did the Ninth Circuit err when it held that 18 U.S.C. § 3599(a)(2)-which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys"-impliedly entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?

Tibbals

1. Do capital prisoners possess a "right to competence" in federal habeas proceedings under Rees v. Peyton, 384 U.S. 312 (1966)?
2. Can a federal district court order an indefinite stay of a federal habeas proceeding under Rees?

The Extraordinary Story of Mohammad Mostafaei and His Fight to Keep Kids From Being Executed in Iran

Terry Lenamon / Reba Kennedy — Tue, 27 Mar 2012 10:42:16 -0500

Anthony George of the Guardian wrote Terry and asked if this video could be placed on the blog. Here it is, honored to be asked.

Female Federal Death Row Inmate Angela Johnson Death Sentence Vacated by Federal Judge: Defense Failure at Trial Held to be "Disfunctional"

Terry Lenamon / Reba Kennedy — Mon, 26 Mar 2012 15:25:02 -0500

There is an interesting case being played out in Iowa right now - interesting because not only does it involves a woman on Death Row facing the death penalty, but also because it involves the federal death penalty statute.

Here's what's going on.

Last week, United States District Judge Mark Bennett, setting on the U.S. District Court Bench for the Northern District of Iowa, removed Angela Johnson - one of the two women setting on federal death row - from a death sentence, and gave a big, basic reason for his action as part of a 448-page ruling (that's a ream of paper to give his decision, imagine that):

the trial lawyers defending the woman in a trial where she was found guilty of the execution-style murders of five people did not present mitigating evidence about her troubled mental state that could have spared her from capital punishment.

(For more about mitigating evidence, read our earlier post on the subject, or delve into details about how mitgation works by reading Terry's case book/memoir shown in the left sidebar, where he describes case after case and the realities of mitigation evidence.)

Judge Bennett does not mince words: he tossed out the death penalty sentence finding that her criminal defense attorneys had been "... alarmingly dysfunctional...." during the trial.

Read Judge Bennett's Ruling - all 448 pages of it -- online here.

What happens next?

Angela Johnson made the history books when she was given the death penalty because she was the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the death penalty back in 1976.

She's still guilty of the crime, that hasn't changed. Judge Bennett did not erase the conviction -- and under the law, Angela Johnson is still - in the words of Judge Bennett - overwhelmingly guilty of going with her then-boyfriend, alleged to be the leading methamphetamine dealer in the Midwest, to kill and then bury the bodies of federal informants (and drug dealers) Terry DeGeus and Greg Nicholson, along with Nicholson's girlfriend, Lori Duncan and her young daughters, Kandi, 10, and Amber, 6.

Attorney General Eric Holder must make a decision. The U.S. Attorney General has to decide if the federal government will try and get the death penalty again for Angela Johnson, or not. They've got a 60 day deadline. They can appeal this judge's ruling (and with that ream of paper, sounds like the judge is expecting this) or they can go back to trial and there would then be evidence presented once again regarding her sentencing.

If that's the path that's taken by the U.S. Attorney, then the mitigating factors that upset Judge Bennett will come before the court ... and for the first time, evidence about her mental health will be a consideration in deciding whether or not she should be executed.

Several New, Excellent Law Review Articles on Death Penalty Issues Available Online For Your Consideration

Terry Lenamon / Reba Kennedy — Thu, 15 Mar 2012 13:47:02 -0500

One of the great things about the internet is its ability to educate and inform, and here's yet another example of that: several excellent articles discussing aspects of the death penalty, and specifically, death penalty defense, have appeared this month.

All, available for free, online. Please consider reading the following:

Defendant remorse, need for affect, and juror sentencing decisions

by Emily P. Corwin, BA, Robert J. Cramer, PhD, Desiree A. Griffin, PhD and Stanley L. Brodsky, PhD

Journal of the American Academy of Psychiatry and the Law Online, 2012

Landmarks, Portents, or Just Curves in the Road?

by Carol Nackenoff

Tulsa L. Rev., 2011

But He Knew It Was Wrong: Evaluating Adolescent Culpability

by Peter Ash, M.D.

Journal of the American Academy of Psychiatry and the Law Online 2012

An Alternative to Death-Qualification: The Nonunanimous Penalty Jury

by John Tucker

Yale Law School Legal Scholarship Repository 2012

Commentary: Pursuing Justice in Death Penalty Trials

by Clarence Watson, JD, MD, Spencer Eth, MD and Gregory B. Leong, MD

Journal of the American Academy of Psychiatry and the Law Online 2012

Burden of Proof in Establishing Mental Retardation in Capital Cases

by Alexander Westphal MD and Madelon Baranoski, PhD

Journal of the American Academy of Psychiatry and the Law Online 2012

New Book: The Death Penalty Indigent Defense Crisis: Representing the Poor When the State Wants to Kill Them and It's Paying Your Bill

Terry Lenamon / Reba Kennedy — Sat, 10 Mar 2012 14:04:12 -0500

Written by Terence Lenamon and Reba Kennedy, this short ebook (30,000 word count) is offered to anyone interested in the American criminal justice system, particularly in the areas of capital punishment and the right to counsel provided the poor under federal constitutional mandate as well as various state statutes. It is provided as an economical, hands-on resource written with the non-lawyer reader in mind.

Written by the co-authors of the blog, “Terry Lenamon on the Death Penalty,” in answer to questions from readers about how the system of indigent defense in death penalty cases works in the real world – and why -- the books gives a concise overview of the death penalty indigent defense crisis – where it originated, where it is today.

In a skipping stones approach to a complicated subject matter some areas necessarily aren’t addressed here and others are just touched upon. What this work provides is an overview with endnotes, resources lists, and hyperlinks, written to help non-lawyers learn more about indigent defense generally and its impact upon the death penalty today, specifically. Its intent is to provide a practical tool for those working toward finding real solutions to the tragic and mounting crisis of indigent defense funding in death penalty cases today.

Death Row Watch: Are These Innocent Men Who Are About to be Executed?

Terry Lenamon / Reba Kennedy — Tue, 28 Feb 2012 13:31:39 -0500

1. Larry Ray Swearingen, Texas Death Row

Larry Swearingen maintains his innocence and his attorneys are fighting to have some tribunal hear what they are arguing is new evidence, uncovered since his trial, that proves Larry Swearingen is innocent of the killing of a Texas coed, Melissa Trotter - this includes both DNA evidence and circumstantial evidence. Bottom line, lots of forensic folk opine that Swearingen was in jail at the time of the murder, which seems like a pretty darn good alibi.

Still, he's remain on Texas' Death Row for years.

This week, the United States Supreme Court was asked by Swearingen a new question for the High Court: is executing an innocent person a form of "cruel and unusual punishment" under the federal constitution?

On February 27, 2012, the High Court denied Swearingen's Petition for Writ of Certiorari. Which means they have shown Mr. Swearingen the door without ruling on his case.

His execution date has been stayed. Follow what happens next at his advocate web site.

To read commentary on his situation, check out this recent piece in Bloomberg and an earlier piece by Grits for Breakfast.

2. Thomas Arthur, Alabama Death Row

Thomas Arthur will be executed on March 29, 2012, by the State of Alabama unless something is done to stop the legal process. This, despite the fact that he was also in jail at the time of the murder; another man has confessed to the murder; there is no DNA evidence connecting Arthur to the crime; the list goes on.

Read a summary of the situation here at the New York Times and a great overview of the case here at the Atlantic..

Follow what happens next at his advocate web site.

3. Read How These Two Cases Are Impacted by the AEDPA Here

Yesterday, we posted about the AEDPA and the recent U.S. Supreme Court case that came down with the statement that the federal appellate courts were "overreaching" to try and find a way around this federal statute, and "burdening" the high court. Clearly, SCOTUS wants the federal appellate courts to limit their state court review in these sorts of cases.

The pending executions of Thomas Arthur and Larry Swearingen are two examples of how the implementation of the AEDPA is arguably putting form over substance - especially in death penalty cases - with justice being lost in the process.

For more information:

AEDPA and Thomas Arthur

AEDPA and Larry Swearingen

Wetzel v. Lambert: Another US Supreme Court Decision on the Frustrating AEDPA

Terry Lenamon / Reba Kennedy — Mon, 27 Feb 2012 12:20:25 -0500

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.

Cantero and Schlakman Op-Ed on Unanimous Juries in Death Penalty Cases - Need for Florida Legislation

Terry Lenamon / Reba Kennedy — Thu, 23 Feb 2012 11:27:57 -0500

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.

Will Florida Execute Robert Brian Waterhouse Tomorrow? Two Men Decide: Scott and Thomas

Terry Lenamon / Reba Kennedy — Tue, 14 Feb 2012 18:35:09 -0500

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.

North Carolina Death Row Inmate's Letter Describing "Life of Leisure" Adding to Death Penalty Debate

Terry Lenamon / Reba Kennedy — Wed, 25 Jan 2012 17:43:48 -0500

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.

2012 Execution Schedule

Terry Lenamon / Reba Kennedy — Tue, 24 Jan 2012 18:10:00 -0500

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

Cory Maples Wins at U.S. Supreme Court: A Lesson in Indigent Defense

Terry Lenamon / Reba Kennedy — Thu, 19 Jan 2012 14:42:34 -0500

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.

New Pew Study Has 62% Americans Favor Death Penalty - While Some See De Facto Abolishing of Capital Punishment Today: Is Cohen Right?

Terry Lenamon / Reba Kennedy — Sat, 07 Jan 2012 13:26:52 -0500

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?