Terry Lenamon on the Death Penalty

Rasheem Dubose Sentencing Trial in Jacksonville: Jury Expected to Decide Very Soon

Terry Lenamon — Thu, 11 Mar 2010 12:13:16 -0500

It's been a long week for everyone. The younger Dubose Brothers were given life sentences by another jury last week, and this week all eyes have been upon the men and women setting in a Jacksonville, Florida, courtroom who are hearing evidence as part of Rasheem Dubose's sentencing phase.

Will Rasheem Dubose be given the death penalty?

The jury may give their recommendation to the judge as soon as today. Yesterday, jurors heard testimony about how Rasheem Dubose saved the life of another young girl -- the girl's mother recounted how Rasheem dove into a swimming pool, saving her daughter, who was drowning.

If you are interested in the death penalty issue, or in the Dubose Brothers' case in particular, you can follow the events via video feed at The Florida Time Union's Jacksonville.com.

Florida Capital Resource Center Is Supporting the Dubose Brothers' Defense Team

The Florida Capital Resource Center, my non-profit organization, has been providing support to the Dubose Brothers defense team. The costs of defending indigent individuals who are facing the possibility of capital punishment are simply out of control. This isn't new to regular readers here, it's a theme that ribbons through this blog.

Indigent defense is in severe crisis in this country, and particularly in Florida.

Recent news on the Casey Anthony motion for financial assistance as an indigent in that death penalty case has shed some light on the need; however, there has not been nearly enough light shed on the lack of support given to the death penalty defense lawyers of folk who cannot afford to pay for legal services.

It does not look like the Dubose Brothers case will garner much media exposure of the indigent defense financial crisis, either. The public is simply not aware of the injustice and chaos that exists.

This needs to change.

Dubose Brothers Sentencing Continues in Jacksonville - No Death Penalty So Far

Terry Lenamon — Mon, 08 Mar 2010 11:16:29 -0500

On Friday, Tajuane Dubose, 23, escaped the penalty of death. Today, Florida Judge Page Haddock will sentence his brother Terrell Dubose, 21, -- but the judge has already stated from the bench that Terrell will also be spared death, and likewise sentenced to life in prison.

The Jury Said No to the Death Penalty for these two boys

Tajuane and Terrell, with their brother Rasheem Dubose, 25, have been found guilty of first degree murder in the death of 8 year old DreShawna Davis, who died during a drive-by shooting in her grandmother's home back in 2006. Evidence during the guilt phase of the trial revealed that the bullets were meant for her uncle, who had robbed Rasheem earlier in the day and forced him to drop his pants.

Rasheem will hear the jury's decision on whether or not Rasheem should receive the death penalty tomorrow. Under Florida law, Judge Haddock will then sentence Rasheem based upon the jury's recommendations.

A separate jury is deciding Rasheem Dubose's fate. One jury made the sentencing decisions for both Tajuane Dubose and Terrell Dubose -- and that jury has already revealed that mitigating factors in its decision included (1) these two didn't fire the fatal shots and (2) the details regarding the brothers' childhood and background -- resulting in an almost unanimous jury decision that these two boys should not be subjected to death at the hands of the State of Florida.

Now, we await the decision of another jury about another Dubose brother. May they be merciful, as well.

Death Penalty Cases: U.S. Supreme Court - Furman thru 2009

Terry Lenamon — Thu, 04 Mar 2010 17:49:11 -0500

Late last month, we published a list of Supreme Court precedent over at JD Supra, in a .pdf format (Terry Lenamon’s List of Major United States Supreme Court Death Penalty Cases:Furman v. Georgia (1972) to Harbison v. Bell (2009)).

Suddenly, over at Twitter, my fellow Tweeters @Joachim65 (aka Joachim Kubler of Germany, blogging at Todesstrafe USA (use GoogleTranslate!)) and @TheOptimistClub (founded by Kathy Brown, blogging at The Optimist Club) had already found the list, and were spreading the word in the Twitter Universe. @OdellaWilson was giving @TerryLenamon praise (wow) and things were getting Retweeted ... which was all very amazing and complimentary and wonderful.

So, looks like this list may be helpful, right? Good! Here it is again, placed here in the blog, where it's searchable and NOT in a .pdf format, however helpful that might be. For instance, the links to the full opinions show up in the .pdf format, but maybe they are easier to use in the blog site (maybe?).

For a full search on all things death penalty by the U.S. Supreme Court (or any other topic, for that matter), Cornell University provides a great search tool with its online library. Cases are even divided into majority opinion vs dissents, etc. Very handy.

Now, here's the list. Caveat: it's not every case where the High Court deals with capital punishment, nor is it the only list that deals with US Supreme Court cases on the death penalty. What is hopefully helpful here is that this list: (1) culls out the overturned cases and (2) provides the links to the full opinions so you can jump there to read the case itself.

Terry Lenamon’s List of Major United States Supreme Court Death Penalty Cases:Furman v. Georgia (1972) to Harbison v. Bell (2009)

In 1972, the United States Supreme Court effectively halted the death penalty in this country with its opinion in Furman v. Georgia. However, the moratorium was short-lived and four years later, the government was again free to kill its citizens as punishment for certain crimes.

For easy reference, here are the major High Court’s decisions dealing with the death penalty from Furman forward (excluding those that have been overruled by later precedent), hyperlinked to the full opinion:

1972

Furman v. Georgia

Requires consistency in execution, i.e., consistency in the states’ application of death.

1976

Gregg v. Georgia

Reaffirmed use of the death penalty after the states had passed legislation that met the Furman requirements.

1977

Coker v. Georgia

Under 8th Amendment, death penalty is not acceptable (i.e., constitutional) punishment for crime of rape of an adult woman when murder not involved, i.e., the victim is not killed. Effectively set the standard that capital punishment should only be imposed when the underlying crime involved the death of another.

1978

Lockett v. Ohio

Sentencing authorities cannot be limited to a list of factors when deciding on imposing capital punishment; constitutionally, they are to have the ability to consider all mitigating factors.

1982

Enmund v. Florida

No death penalty for someone who does participate in a felony but not involved in killing – no intent to kill, no attempt (successful or not) to do so.

1985

Glass v. Louisiana

Death penalty by electric chair (electrocution) is constitutionally acceptable.

1986

Ford v. Wainwright

No death penalty for insane persons.

1987

Tison v. Arizona

Death penalty acceptable for defendant convicted of felony murder, who was a major participant and who shows an “extreme indifference to human life.”

1988

Lowenfield v. Phelps

State’s determination of which individuals are eligible for the death penalty can be done by statute (legislature decision) or by findings of aggravating circumstances (courtroom decision).

1988

Thompson v. Oklahoma

No Death Penalty for children who are 15 years old or younger at the time that the crime is committed.

1992

Morgan v. Illinois

In jury selection, the defense can challenge for cause anyone in the jury pool who says they would vote for death penalty in every case.

2002

Ring v. Arizona

Death Penalty cannot be imposed unless there is a jury (not judge) determination of the necessary aggravating factors because this is a part of the defendant’s constitutional right to a jury trial. (In 2004, Schriro v. Summerlin refused to apply this retroactively.)

2002

Atkins v. Virginia

No Death Penalty of mentally retarded defendants.

2004

Tennard v. Dretke

In capital punishment case, all mitigating factors must be considered in both the guilt phase and the penalty (sentencing) phase.

2005

Roper v. Simmons

No death penalty for anyone who was under 18 years old when the crime was committed, i.e., juvenile offenders.

2006

Oregon v. Guzek

It is constitutional for a judge to limit the sentencing phase evidence of a defendant’s innocence to that which was presented in the trial phase.

2006

Kansas v. Marsh

Death penalty can be imposed even though both mitigating and aggravating factors exist.

2006

House v. Bell

On appeal, post-conviction DNA forensic evidence can be presented in death penalty cases.

2008

Baze v. Rees

Lethal injection (three drug) method acceptable form of execution.

2008

Kennedy v. Louisiana

No death penalty for any crime "where the victim's life was not taken."

2009

Harbison v. Bell

When the state refuses to provide habeas counsel in post-conviction clemency proceedings, the constitutional right to counsel mandates that federally-funded legal counsel be provided to indigent death row inmates.

Follow the Trial Via LiveBlog - Dubose Brothers in Jacksonville Fight Against the Death Penalty

Terry Lenamon — Tue, 02 Mar 2010 11:24:35 -0500

The Dubose Brothers death penalty trial continues this week in Jacksonville, and the liveblog has survived a legal challenge.

As posted last week, the Times-Union and Jacksonville.com are live-blogging the trial as it happens. This is a great thing -- a phenomenal way for those interested in death penalty matters to follow the case online when it's not being telecast.

Benefits of the Live Blogging

In fact, there is something unique about following the reporter's blogging -- you see things through the blogger's vision, learning things that you might have otherwise not noticed. The grandfather's work uniform as he comes into the courtroom to take a seat in the back. Things like that, things that bring home that human lives are on the line here.

Additionally, there is the opportunity to make comments to the blog as things are occurring. You can ask questions, make commentary, read other folk's contributions. Participate with the reporter as the trial moves along.

LiveBlogging Ordered to Stop When Cameras in the Courtroom

Judge Haddock has set limits on live blogging by the media. Blogging from the courtroom can happen only when the media isn't using a camera (still or video). Judge Haddock doesn't like the blogging, the blogger is reporting that word from the bench is that the judge and the jurors are finding the reporter's typing on a laptop "distracting."

Distraction vs Intrusion

Distracting for some -- but a great window into the proceedings that are going to decide whether or not these three young men will be sentenced with death for so many others. Distraction and intrusion are not synonimous terms, and having the eyes of the world (via the WWW) on a room where the government is asking to kill three of its citizens is very important.

Johnny Depp on 48 Hours Today Fighting 4 West Memphis 3, Will He Help the Dubose Brothers?

Terry Lenamon — Sat, 27 Feb 2010 12:04:16 -0500

Johnny Depp will appear this evening on CBS-TV's 48 Hours, bringing attention to the West Memphis 3, fighting against the execution of Damion Echols.

Please watch - it's a major event for Mr. Depp to bring his celebrity power to this Death Penalty case, especially when everyone would expect Johnny Depp to be on a standard publicity campaign for his new Disney movie, "Alice in Wonderland" by Tim Burton. I'm sure that all opponents to the death penalty are excited that a major celebrity like Johnny Depp has become involved here -- and are respectful not only of his artistic abilities but his moral commitment, as well.

The Dubose Brothers of Jacksonville - Similar Situation as the West Memphis 3

Meanwhile, here in Florida, the Dubose Brothers are in a similar situation as the West Memphis 3 with these three African-American brothers all facing the death penalty in the murder of an 8 year old in a drive-by shooting. It is undisputed that the drive-by was intended for a drug dealer who had robbed the oldest brother. It is also clear that these three brothers have suffered a lifetime of abuse and neglect.

The State's zealous prosecutor is aggressively fighting for all three brothers to be put to death. The penalty phases of their trials will continue through the next two weeks, and is being live-blogged in a joint effort of the Times-Union and Jacksonville.com.

This case is being tried in Jacksonville, and my non-profit defense support organization, Florida Capital Resource Center, is providing whatever assistance we can to the defense attorneys in this case. (For details on how burdensome it is to represent indigent defendants in death penalty cases here in Florida, please read the assorted posts here on this topic, as well as my ongoing series of articles published at JD Supra and elsewhere.)

E-mailed Johnny Depp's agent asking for help with the Dubose boys

Last week, Mr. Depp's agent also got an email written by Terry Lenamon, personally, not officially from the FCRC nor from the law firm, asking for his help in the Dubose Brothers case, if he could he see his way clear to do so.

Sure, sure -- IT IS a lot to ask a celebrity who's already filming a movie (the Tourist) with Angelina Jolie, promoting a major film like Alice in Wonderland, and already taking a stand with the West Memphis 3, but Johnny Depp is known to march to a different drummer, and go his own way.

Couldn't hurt to ask, you don't ask, you don't get ...and when you're a death-penalty criminal defense attorney, one thing you have to have a whole heck of a lotta HOPE. Hope in justice, hope in mercy, hope in the compassion of men's souls ... because sometimes, setting in that chair in the courtroom, hanging onto HOPE is all you've got.

Sincerest thanks to Mr. Depp for his efforts today. We'll be watching CBS tonight, hope you will be, too.

New York Times Exposing Love Affair Between Texas Judge and State Attorney During Death Penalty Trial

Terry Lenamon — Thu, 25 Feb 2010 08:30:42 -0500

This week, Adam LIptak of the New York Times has taken the great light that is the New York Times, using it to shine into dark corners of corruption, and revealed as story that's been talked about in defense circles are awhile. And his efforts can't be noticed without also pointing out the efforts of Texas Monthly's editor Michael Hall, who started receiving letters from a Death Row inmate named Hood and took notice of them.

However, it's the New York Times that's really helping spread this shocking story, better late than never. We all need to know about this evildoing.

Seems that over in Texas (yes, Texas), during a trial where a man was facing the sentence of death, the judge (Verna Sue Holland) was having an affair with the prosecutor (Thomas S. O'Connell, Jr.). This love affair apparently went on for years, and was the subject of much courthouse gossip.

Imagine the stress this placed upon defense counsel for Charles Dean Hood, who was being tried in Judge Holland's court for a capital offense. Imagine their feelings now, since the United States Supreme Court has his petition for writ of cert before it, with the amicus brief of "former judges, state officials and prosecutors" numbering 21 in all, filing their support of his petition as friends of the court.

Charles Dean Hood sits today on Texas' Death Row, having facing more than one last minute stay of execution already. Judge Holland has retired. The U.S. Supreme Court has yet to rule.

Here's a curious fact: Judge Verna Sue Holland served for 16 years as a justice on the highest criminal court in Texas, their Court of Criminal Appeals. You know the one. That's the same court that Sharon Keller presides over as Chief Justice today (at least for now).

Mad Hatter Johnny Depp Interrupts Promotion of Alice to Fight Against Execution and Free the West Memphis 3

Terry Lenamon — Tue, 23 Feb 2010 12:42:27 -0500

Johnny Depp is getting lots of media play due to his upcoming debut as the beloved Mad Hatter in Tim Burton's version of "Alice in Wonderland" next month.

However, Johnny Depp won't be talking movies this Saturday when he appears on CBS-TV's "48 Hours. " Instead, he'll be adding the power of his fame to the fight to stop the execution of Damien Echols and to free the West Memphis 3.

Good for Johnny Depp.

There are those, like Depp, who believe the three boys (now men - it's been 17 years) are innocent of the crimes. There are others that argue it's not a matter of guilt, it's a matter of the system failing to follow proper protocols, and the need to correct improprieties that cannot be ignored.

The "West Memphis 3" are Damion Echols, Jessie Misskelley, Jr., and Jason Baldwin, who were convicted of murdering three 8-year-old boys in West Memphis, Arkansas, back in 1993. Only Echols was sentenced to death; Baldwin got life imprisonment and Misskelley was sentenced to life in prison plus 40 years.

Other celebrities lending their support to the West Memphis 3 campaign include Wynona Ryder and Demi Lovato.

Can celebrities really impact executions in this country? Of course they can.

We can all look to the case of Georgia's Troy Davis as an example. Famous names lending their clout to the Free Troy Davis campaign include The Pope, Desmond Tutu of South Africa, and former President Jimmy Carter.

Right now, a federal hearing is pending in the Troy Davis case, and there's a big fight between the attorneys on why all the witnesses have recanted. The state is implying witness tampering, and the defense lawyers have taken to the media, incensed at the implication. Meanwhile, Davis's execution by the State of Georgia remains stayed by federal order.

Kemar Johnston - Excellent Article by Fort Myers' Sam Cook

Terry Lenamon — Sun, 21 Feb 2010 11:43:50 -0500

Columnist Sam Cook wrote an excellent article that appears at Fort Myer's News-Press web site.

It provides a perspective that isn't seen enough in death penalty coverage, and I'm hopeful that you'll find the time to read it.

Kemar Johnston Jury Verdict - No to the Death Penalty

Terry Lenamon — Sat, 20 Feb 2010 12:41:41 -0500

Yesterday, the jury came back in the Kemar Johnston case. They had already found Mr. Johnston guilty of murder, now they were deliberating whether or not Kemar Johnston should die as punishment for the crime.

The jury recommended life in prison for Kemar Johnston. In doing so, the jury voted AGAINST the death penalty in this case.

Mercy over judgment. Mercy -- it's one of the clear themes of this blog, as is bringing attention to the variety of mitigating factors that come into play in every case where the sentence of death is at issue.

We argued that there were mitigating factors in Kemar Johnston's situation where it would be unjust to impose the death penalty. Among the evidence presented, clinical psychologist Hyman Eisenstein testified that he found Kemar to suffer from brain damage. Specifically, permanent damage to the frontal lobe had occurred which compromised Kemar's ability to make decisions as well as his ability to grasp the consequences of what he might choose to do, or not do.

Mitigating Factors and Aggravating Circumstances. We've discussed the process of capital punishment imposition before, generally describing the prosecutor's advancing of circumstances and the defense's propounding of mitigation issues. The sentencing phase of any capital trial follows set protocols established by statute.

The trial of Kemar Johnston brings this home as a prime example of how the sentencing phase works. State attorneys argued four aggravating circumstances. We argued 100 mitigating factors that should form a barrier between Kemar Johnston and execution by the State of Florida for the crimes of which he had been found guilty.

There are those that are all too ready to say that when one citizen takes a life, he should give his own in return. However, an eye for an eye is not what our society considers as justice.

This was a 20 year old boy whose birthday celebration - fueled with drugs and alcohol -- went horribly wrong and now, he will spend the rest of his life behind bars. Judgment was had: the jury found him guilty of murder.

Mercy was then imposed. A mentally challenged young man who is loved by many --so loved, that his sister, sobbing on the stand during the sentencing phase brought the entire courtroom to a halt as Kemar broke down, too -- was spared from the penalty of death.

A victory in this case, yes - but it's also a victory in the fight against Capital Punishment.

This is a victory for us all, not just for LenamonLaw (though we are celebrating this weekend). Until the death penalty is removed as a legal alternative, the fight to keep the government from killing its citizens must be fought a case at a time, in courtrooms across the country, just like we did this month for Kemar Johnston.

We can only hope that our spouses, and our children, understand the contributions that they make to this fight in their sacrifices -- and now, we'll be taking a bit of time to focus upon them, sharing our appreciation for their efforts as part of this team.

Texas Chief Justice Keller - Finally, Clear Charges On Violation of Execution Day Protocols

Terry Lenamon — Thu, 18 Feb 2010 14:19:37 -0500

We've been following the melodrama surrounding Sharon Keller, Chief Justice of Texas' highest criminal court since allegations that her acts caused the execution of Michael Richard to go forward back in 2007. For background, here are some of our posts giving the details on this horrifiic story:

Sept 2009 - Texas' Chief Justice Keller's Trial - Shocking Report from FactFinder

August 2009 - In Texas Justice Keller's Trial, What if the US Supreme Court had ruled the other way?

April 2009 - Texas Chief Justice Sharon Keller's Lesson to Us All About Due Process

Well, yesterday was the deadline for the Examiner (read that, "prosecutor") to file objections to the fact findings that a state district judge (Judge David Berchelmann of San Antonio) issued recently after a week long trial in August. That judge simply didn't find that she did anything that bad - that the public ridicule of Justice Keller was more than enough punishment.

Lots of folk (including us) were SHOCKED at this response. Now, thankfully, a clear and solid voice has come forth in the public record, as the Examiner files its case before the Texas Commission on Judicial Conduct (which has the power to remove her from the bench). The entire filing is important reading, and we're hopeful that you'll take the time to go through the 38 pages that explains everything so well.

And to be fair, Justice Keller has filed her formal response to this filing, and you might want to read that, too. It's the right thing to do, something that you'll recall wasn't allowed to Michael Richard on that fateful day he died at the hands of the State of Texas.

China Death Penalty - New Guidelines But What About Human Organ Harvesting?

Terry Lenamon — Tue, 16 Feb 2010 13:10:15 -0500

The death vans that cruise around China, killing people for all sorts of crimes and then harvesting their organs for sale on the human organ black market, was so shocking to us when intern Sin-Ting Mary Liu described the efforts, that we posted a long series here, excerpts from her excellent work - complete with the footnotes -- giving all the details on what was going on over there.

Here are the links:

In Depth Look at the Law: China's Death Penalty - 1: The Death Vans and Black Market Organ Trade

In Depth Look at the Law: China's Death Penalty -2: Truly Inhumane Killings Are Happening in China Under the Guise of Capital Punishment

In Depth Look at the Law: China's Death Penalty - 3: Who are the Falun Gong? Why are they targeted for execution and organ harvesting?

Found: One Recent In-depth Article on the China Death Vans. Who's Covering the Story? Tibet. And They've Researched Death Vans Back to the Nazis.

In Depth Look at the Law: China Death Vans and Harvesting Prisoner Organs for Profit

In Depth Look at the Law: China Death Vans and China's Widespread Corruption - There is No Fairness in China's Criminal Justice System

In Depth Look at the Law: Secrecy in China - Successfully Hiding the Truth About Executions for Profit from the World

Suddenly, News that China's High Court is Setting Death Penalty Guidelines

Now, there's news that China's high court has called for mercy in death penalty cases -- in fact, the Supreme People's Court has issued guidelines for lower courts to follow. They include instructions that the death penalty should be reserved for cases with "valid and ample evidence" of the particular crime committed. And only crimes that are "extremely serious" should warrant the penalty of death. Minors and elders should not be executed.

Here's Our Question: What's Been Done About the Human Organ Harvesting?

We welcome the news that China's highest judicial body is implementing guidelines for capital punishment and that MERCY is being recognized. However, the hidden agenda in all the Chinese executions didn't appear to be the legal boundaries set by Chinese law so much as the tremendous amount of PROFIT that was available in the sale of human organs for transplant in the black market.

What's being done about that horror? And, without cutting the head off that snake, aren't the sinister death vans just going to impose whatever crimes are within the guidelines to get the product that they've found so lucrative to sell worldwide?

Read Our Closing Arguments in the Kemar Johnston Trial

Terry Lenamon — Thu, 11 Feb 2010 14:25:16 -0500

Kemar Johnston has been found guilty by a jury after a month long trial for the murders of Alexis and Jeffrey Sosa.

Since this is a case where the State of Florida is seeking the Death Penalty, a second trial will began next month. Jurors will return to the courtroom of Judge Tom Reese in this sentencing phase of the proceedings to decide whether or not Johnston should receive life imprisonment or the penalty of death.

For those interested in the actual proceedings of a death penalty case, I am attaching here, from the public record, a transcript (.pdf) of the closing arguments in this case, given just before the jury began its deliberations.

State of Florida v. Kemar Manley Johnston, Case No. 06-019906 B in the Circuit Court of the 20th Judicial Circuit in and for Lee County, Florida

Closing Arguments before the Hon. Thomas S. Reese, Circuit Judge, on January 28, 2010,

Arguing for the State

Marie E. Doerr, Ass't State Attorney

Robert Lee, Ass't State Attorney (rebuttal)

Arguing for the Defendant

Terry Lenamon, Esq.

The IQ of Florida's D'Andre Bannister - Death Penalty Now After 7 Years W/O Trial?

Terry Lenamon — Tue, 09 Feb 2010 14:20:33 -0500

For over seven (7) years, D'Andre Bannister has sat behind the bars of a Florida jail cell, awaiting trial on the charges that he murdered his stepson. That's right. He's never been tried.

This week, an evidentiary courtroom battle began on whether or not the State of Florida can now -- today -- seek the death penalty against D'Andre Bannister. And whether or not Florida can seek capital punishment in this or any other case hinges upon one fact: the score that the defendant achieves on a standardized IQ test.

An IQ test score of 70 or less, and capital punishment is not an option.

The United States Supreme Court ruled in 2002 (Atkins v. Virginia) that those deemed "mentally retarded" cannot be executed, because this would be cruel and unusual punishment and therefore, unconstitutional. Florida statutes have defined that circumstance to exist when IQ scores hit a maximum of 70.

Mr. Bannister's fight this week, however, is not whether or not he's had a speedy trial, but whether or not he's eligible under the Atkins protection from a death penalty sentence. Because what score D'Andre Bannister receives depends not only upon which test he's taken, but also the year in which it was administered.

Experts are testifying regarding intelligence fluctuations over time, the accuracy of one test over another, and how the rigid structure and educational efforts of Mr. Bannister may have impacted his intelligence level over the past seven years.

Media reports are that D'Andre Bannister does not want to be considered "mentally retarded" (a label given in the language of the Atkins decision). Whether or not he understands that his life is on the line based upon a test score is not so clear.

The judge has spoken from the bench, however, and whatever the outcome of this fight -- the case will be set for trial sometime this summer. It's already made the record books as being the longest delayed death penalty trial in Florida's history.

Will Kansas be the Next State to Kill the Death Penalty?

Terry Lenamon — Thu, 04 Feb 2010 11:06:53 -0500

Before he was governor of the Great State of Kansas, Mark Parkinson worked in the state senate as a legislator, helping to draft the current law approving of capital punishment in that state. Kansas' death penalty statute was passed into law back in 1994.

However, it's a new day and last Friday, another piece of legislation started making its way through the Kansas legislature -- a law that would repeal the death penalty, and replace it with a crime of capital murder with aggravation, punishable by life without parole.

Right now, this fledging has jumped its first hurdle. The Kansas Senate's Judiciary Committee endorsed the bill, and now it faces a vote by the entirety of the Kansas Senate. Once that is achieved, it goes before the Kansas House -- and assuming that it meets approval there, too, it goes over to the Governor's desk.

That's right: Mark Parkinson, who helped write the death penalty law that is currently in effect, will have the final say on this recall of capital punishment.

What are its chances? Well, there's some chatter that this proposal won't make it through the House this year, because the Kansas House is dealing with a budget crisis where they're short $400 million - and their new fiscal year starts July 1st.

Here's a question for Kansas: if you're interested in budgeting, then why aren't you connecting the COSTS of the death penalty with your budgetary crisis?

According to the Death Penalty Information Center, a study was done in the early 2000s regarding the cost of the death penalty in Kansas. While it might need to be updated, it's important to note that it's a definite budget issue here -- and since Kansas has not executed anyone since the 1994 re-enactment of its death penalty law, all those appellate costs are ongoing. (Ten men currently sit on Kansas' Death Row.)

According to the DPIC, summarizing the Kansas budgetary report:

... the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases. The study counted death penalty case costs through to execution and found that the median death penalty case costs $1.26 million. Non-death penalty cases were counted through to the end of incarceration and were found to have a median cost of $740,000. For death penalty cases, the pre-trial and trial level expenses were the most expensive part, 49% of the total cost. The costs of appeals were 29% of the total expense, and the incarceration and execution costs accounted for the remaining 22%. In comparison to non-death penalty cases.

In fact, costs is one of the main concerns of the state senator that drafted this bill and introduced it to the Kansas Judiciary Committee. State Senator Carolyn McGinn used dollars and cents as one of her major arguments in repeal of the Kansas Death Penalty.

Let's hope the Kansas House isn't too busy panicing over a $400 million budget crisis that they don't stop to consider Senator McGinn's wisdom -- and let's hope that the Governor isn't too set in his ways.

The Expansion of Constitutional Right to Counsel by the US Supreme Court - Who Pays?

Terry Lenamon — Tue, 02 Feb 2010 16:09:06 -0500

According to the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." What isn’t provided in this constitutional mandate is how the defense lawyer’s fees and expenses are to be paid. The result of this financial myopia is a deepening financial crisis in Florida and across the country today.

Applying the Constitutional Right to Counsel

Over time, the constitutional right to counsel provision has been reviewed and applied by both legislatures and courts – always with a resulting expansion of its application. For instance, a citizen’s right to legal representation in federal proceedings was initially set by statute and then approved by the U.S. Supreme Court in Johnson v. Zerbst, 304 U.S. 658 (1938), when our country was still suffering through the Great Depression. State courts were a different story, however.

Until the early twentieth century, those who could not afford to pay for their own criminal defense attorneys in state matters were dependent upon the local bar’s pro bono efforts. Individual attorneys made their own personal decisions on their commitments of time and expense in representing the poor. Legal Aid? Public Defender? These terms were not known in this country before World War II (unless you looked at a select few metropolises like New York City, where a legal aid organization had been in operation since the late 1800s).

Of course, historically this dovetails with an attitude that the practice of law was a “profession” not a “business,” where it was part of the profession’s honor and duty to undertake pro bono cases in their local area. Today, we no longer turn a blind eye to the realities of a law practice operating as a business concern. What was at one time a stigma – that lawyers work for a profit -- is an attitude that has not stood the test of time.

Expansion of the Right to Counsel into State Courts – first, the felonies

As the highest court in the land, the U.S. Supreme Court slowly began to hear cases coming before it that dealt with these state court situations, where state statutes did not require the particular state to provide a criminal defense counsel for the defendant. While the nation was still reeling in the Great Depression, the High Court heard Powell v. Alabama, 287 U.S. 45 (1932) and held that states had to provide legal counsel to indigents in all state cases where capital punishment was at issue.

It took almost 30 years for the 6^th Amendment to be applied to state felonies that did not involve the death penalty. With Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court found that an indigent defendant, accused of a serious crime, was constitutionally protected and entitled to a lawyer, who would be appointed and paid for by the state. With Gideon, the High Court had spread the shade of the 6^th Amendment umbrella to cover all accused of felonies in either federal or state courts, regardless of whether or not the death penalty was at issue.

Horizontal Expansion of Right to Counsel – Particular Types of Indigent Defendants

Within a short amount of time, the U.S. Supreme Court would take review of a number of other right to counsel situations, and continue widening its application to (1) children in juvenile delinquency proceedings (In re Gault, 387 U.S. 1 (1967))and (2) indigent defendants facing misdemeanor charges in state courts that involved possible loss of freedom (jail time) (Argersinger v. Hamlin, 402 U.S. 25, (1972)).

Vertical Expansion of Right to Counsel – Stages of the Criminal Justice Process

Having defined who would be covered by the right to counsel, the High Court also considered cases that delved into the issue of when the right to counsel would start to apply in a particular case. Seeing justice as a poor person having the right to a lawyer long before he came before a judge, the U.S. Supreme Court issued a series of opinions in the mid-twentieth century that covered the indigent citizen almost from the moment that he or she first came into contact with law enforcement authorities, all the way to the point that he or she might theoretically be setting before the U.S. Supreme Court itself. .

For example, the Sixth Amendment right to counsel was held to apply in:

arraignments (Hamilton v. Alabama, 368 U.S. 52 (1961));
appeals of right (Douglas v. California, 372 U.S. 353 (1963));
post-arrest interrogation (Miranda v. Arizona, 384 U.S. 436 (1966));
line-ups (US v. Wade, 388 U.S. 218 (1967)) ;
probation and parole proceedings (sometimes)(Mempa v. Rhay, 389 U.S. 128 (1967));
preliminary hearings (Coleman v. Alabama, 399 U.S. 1 (1970));
sentencing (US v. Tucker, 404 U.S. 443 (1972));

More Expansion – Into Quasi-Criminal Proceedings

Like kudzu in the South, the reach of the 6^th Amendment right to counsel continues to grow, moving past boundaries of the past. Today, indigent defendants in a range of proceedings that are not within the criminal justice arena proper are nevertheless within constitutional mandate. For example, indigent citizens alleged to be mentally incompetent and facing commitment proceedings are entitled by law to legal counsel. Indigent parents facing the loss of their paternal rights due to allegations of child abuse or child neglect are also entitled to state-funded legal counsel. There are many more.

Show Us the Money

Awareness of the need to fund all these appointments of counsel has not gone totally unnoticed by the U.S. Supreme Court. For example, Justice Powell pointed out that “available funding” was an acute problem back in 1972, when he concurred in Argersinger and its expansion of the right to misdemeanor cases carrying the possibility of jail time. Argersinger, 407 U.S. at 59. And, the Argersinger majority did tip its hat to the money issue when it opined that lawyers be provided when only fines where at issue would “impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.” Id., at 373.

Still, the economic realities of how lawyers are to be paid – and the expenses of litigation are to be covered – by states who are also responsible for paying the legal fees and costs of prosecuting the exact same case have not been a bull’s eye topic of the United States Supreme Court. State legislatures and the federal government are left with the implementation, and things are not going well.

Aside from their personal determination to do their best for their clients, defense attorneys are constitutionally mandated to provide “effective assistance,” and their failure to do so in any criminal proceeding in which counsel appears can be the basis for appellate reversal of any conviction. Strickland v. Washington, 466 U.S. 688 (1984). Financially, the indigent defense matter may not be profitable – it may well be a loss leader on the firm’s docket – but legally and ethically, the case is not to be viewed any differently than any other case undertaken by the firm.

This is particularly difficult conundrum for Florida criminal defense attorneys who are death penalty qualified. The expansion of the right to counsel in this country has grown to stretch beyond all reason the monies available for indigent defense in this state. Some defense attorneys have faced bankruptcy, and some judges have started making involuntary appointments (ignoring the attorney’s needs or desire to decline the case) in their frustration.

And no where is this financial crisis more grave than in the circumstance where an indigent defendant (sometimes suffering severe mental illness, mental retardation, or other significant handicap) is facing the possibility of death at the hands of the state for a charged capital offense. Particularly in these capital cases, the roar of injustice sounds most loudly.

Anatomy of an Execution -- a Must Read Memoir for all Death Penalty Opponents

Terry Lenamon — Tue, 02 Feb 2010 13:27:57 -0500

You have to read this book.

That's all I really need to write here, but it's impossible to stop typing about how David Dow's memoir is so important for anyone connected with capital punishment to read -- and why this is so.

First, he provides a clear and unique perspective. David Dow is not only a professor at the University of Houston Law Center, he's also the head of litigation at the Texas Defender Service. Professor Dow has been in the trenches of death penalty defense for years, and knows of what he speaks.

Second, he's writing a memoir this time. Professor Dow has been published before, but his previous works were more analytical in nature. Works like Machinery of Death: The Reality of America's Death Penalty Regime (Taylor & Francis 2002), and Executed on a Technicality (Beacon 2005). This book gives an inside view of what it's like to represent clients who are facing death by execution. Intersecting in these pages are Dow's dealings with his young son and how appellate demands (particularly in death penalty cases) collide with family time and parenting needs. It's something that all capital litigators can truly understand, and it's rare that someone reveals the razor's edge we sometimes walk.

Third, Professor Dow gives us reality that is perhaps easier revealed via this personal perspective. In Anatomy of an Execution, David Dow doesn't pull any punches. He's showing you the underbelly of capital punishment in this country today, from the standpoint of an expert defense counsel. From the book, you find out things such as:

There was a time that he was in favor of capital punishment. He understands the arguments of death penalty proponents.
Sometimes, he's hasn't liked his client -- and it's brave of him to admit this. Of course, that hasn't stopped his calling to stand against a client's execution.
Money -- and budgeting -- are just as much a concern of the defense as it is for the prosecution. David Dow's story, covering a select number of representations as they dovetailed with his personal life, actually brings home the financial realities of capital punishment defense in this country: Administrative matters and an analysis of cost vs benefit do happen in death penalty cases, and hat's off to Professor Dow for shedding some light on the elephant in the room.

For more, check out a post written by David Dow, discussing how he came to write this book, over at the Huffington Post.

US Death Penalty Execution Schedule February - June 2010

Terry Lenamon — Thu, 28 Jan 2010 14:29:07 -0500

With thanks to the recordkeeping of NCADP, here is a list of those doomed to die at the hands of the State between now and the first of July of this year. Notice how many are set in Texas - and Ohio:

Feb 4: Mark Brown, OH

Feb 16: Martin Grossman, FL

Feb 18: Robert Melson, AL

Feb 24: Hank Skinner, TX

Mar 2: Michael Sigala, TX

Mar 9: Lawrence Reynolds, OH

Mar 11: Joshua Maxwell, TX

Mar 16: Jack Jones Jr., AL

Mar 30: Franklin Alix, TX

Apr 20: Daryl Durr, OH

Apr 20: Samuel Bustamante, AL

May 13: Michael Beuke, OH

Jun 10: Richard Nields, OH

Jun 30: Jonathan Green, TX

Texas' Chief Justice Keller Trial - Shocking Report From FactFinder

Terry Lenamon — Tue, 26 Jan 2010 12:36:21 -0500

As you'll recall, the Chief Justice for the highest criminal court in the State of Texas was on trial in August 2009 for her alleged bad acts on the day that Michael Richard was executed.

The same day that the United States Supreme Court issued a ruling that Richard's attorneys argued should have stayed that execution, but whose motion to stay never made it to the court for consideration because of some logistical problems that afternoon. Logistics that revolved around Justice Keller, who was at home meeting with repairmen that fateful day.

You'll remember -- when the attorneys got to the high court, the doors were locked. It was 20 minutes after 5. When they called the lackey inside, who then called Chief Justice Keller at home for guidance, she said the clerk's office always closes at 5 pm. Nevermind that Justices were on stand-by for this motion. Everyone knew it was coming, including Justice Cheryl Johnson, the justice on call that day for emergency motions.

Michael Richard was executed by lethal injection within hours of Chief Justice Keller's dismissive phone response.

So, a trial was had and a state district judge, David Berchelmann, was assigned to act as fact-finder in the trial of Justice Keller, His findings then go to the state's Judicial Commission for final disposition (removal, etc.).

The fact-finding judge issued his report last week. And he's apparently so sympathetic with the "public humiliation" that the Chief Justice has already experienced that he thinks she's suffered enough. However, if you actually READ his opinion, it's very curious.

Substantively, he's arguing that the Chief Justice didn't violate any rule, and then he explains (on page seven) that the "tradition" or "rule" of having a justice on duty to answer queries like the ones made by Richard's attorneys may have been ignored. Like maybe ignoring having Justice Johnson take the call, having Justice Johnson run with the ball, instead of shutting things down with "the clerk's office closes at five"?

Experienced jurists and experienced criminal defense appellate attorneys know that there are occasions when filings are placed before the court after the standard close of business. Especially on days when the United States Supreme Court makes rulings that impact the possibility of stay in death penalty cases.

This fact finding report is shocking. One can only wonder what the State of Texas will do next.

For other responses to Judge Berchelmann's report:

Gamso for the Defense

Grits for Breakfast

Dallas Morning News

Houston Chronicle (great headline here, "Keller is lucky judge wasn't just like her.")

The Cost of a Life: Representing the Indigent Accused of Crimes in Florida Courts Today

Terry Lenamon — Sat, 23 Jan 2010 16:25:47 -0500

Faced with the problem of how to provide legal counsel to those who cannot afford to hire their own attorney after Gideon v. Wainwright, states have found three different approaches to meeting this constitutional mandate: (1) public defender programs (nonprofit organizations with staff attorneys assigned to the indigent); (2) contract counsel (the contracting firm or entity agrees to take all indigent representations for a set time period); and (3) assigned, court-appointed private practice lawyers.

They are not mutually exclusive models; for example, a state can have a public defender system as well as having court appointments of attorneys in private practice. Sometimes, things are so varied within a state that the method of providing lawyers to the indigent will depend upon the county. No one single answer to the problem of providing legal counsel to the poor has proven efficient or cost-effective since Gideon came down.

Indigent Defense in Florida

In Florida, every county with a population of 35,000 or more must have a public defender program. However, as the 2009 Justice Denied report by the Constitution Project revealed, county budgets across Florida have been slashed steadily over the years, and public defender programs have lost millions of dollars in these budget cuts. Some Florida counties today actually charge indigent convicts fees to cover litigation costs. Others are refusing to take on new indigent defense cases, telling the courts that to do so will be unethical (and unconstitutional) as they simply cannot provide effective counsel given their limited resources.

The financial challenges of providing indigent defense have been serious for over a decade. They have only been exacerbated by continuing judicial expansion of the constitutional right to counsel for the indigent defendant, e.g., to include juveniles (In re Gault, 387 U.S. 1, 1967); those charged with misdemeanor crimes that carry jail sentences (Argersinger v. Hamlin, 407 U.S. 25 (1972)); and indigent defendants in misdemeanor cases resulting in suspended or probated sentences ( Alabama v. Shelton, 535 U.S. 654 (2002)).

Combine the expansion of the right with the fact that the right to counsel begins the minute that an individual invokes that right, Edwards v. Arizona, 451 U.S. 477 (1981) (which most criminal defendants know is the wise thing to do before answering any questions from the police), and you have a lot of demand for effective legal counsel without enough supply.

Dire Straits of Florida Indigent Defense

In 2008, Public Defender Bennett Brummer, head of Miami-Dade County’s Public Defender’s Office, took the witness stand and testified before Circuit Judge Stanford Blake that the Miami Public Defender’s office did not have the funds it needed, and its attorneys were being forced to turn down hundreds of cases. He asked for court approval to refuse every case except those involving the death penalty – there just wasn’t the money to do anything more.

Supporting his position was the formal opinion of the American Bar Association, issued in 2006. Formal ABA Opinion 06-441 advises public defenders to refuse to accept new clients or to withdraw from existing client relationships when excessive caseloads interfere with their ability to provide all of their clients with the high standard of representation provided in the ABA's Model Rules of Professional Conduct (Rules 1.1, 1.3, and 1.4). These Rules direct that a lawyer shall provide competent, diligent representation to a client, and shall consult with the client and keep the client properly informed about the case.

Similar cries were heard from other public defenders through out Florida, and courts – faced with a constitutional command – have found the answer in appointing more and more private practice attorneys to provide legal representation to indigent defendants. Even in death penalty cases, where the defense counsel must meet certain legal prerequisites before representing someone facing capital punishment, more private practice appointments are being seen as a viable alternative.

However, this has not proven to be a solution to the overloaded and underfunded public defender system. Instead, it has merely endangered attorneys already dedicated to providing legal representation for those accused of committing crimes. Private practice attorneys wanting court appointments usually sign their names to a potential appointment list with their local criminal courts, and in the past, they were appointed to criminal cases (capital and otherwise) where the private defender had a conflict.

However, beginning in 2007 when the legal fees provided to court appointed lawyers were cut, fewer and fewer criminal defense attorneys could afford to take these cases. As the abilities of the public defender to provide legal counsel to indigent defendants dried up, so has the number of private attorneys willing to undertake these cases at the lowered legal fees. In many cases, the lawyers would simply go out of business by doing so.

The Example of Gregory Hagopian, Esq.

Faced with being placed between a rock and a hard place, Florida judges have started appointing attorneys regardless of the appointment list. Now, Florida attorneys in private practice risk an expensive and time-consuming criminal court appointment even if they have no desire to undertake the case.

Like Gregory Hagopian, a Bradenton sole practitioner (family law, criminal defense) and former president of the Manatee County Bar Association. In 2008, Chief Judge Lee Haworth Judge of the 12^th Circuit Court appointed Greg Hagopian to represent a defendant in a multi-party RICO case, where 16 co-defendants were alleged to be members of the Third Shift gang, trafficking drugs in Manatee County. As part of his appointment, Judge Haworth did declare Florida’s law setting attorney compensation unconstitutional, ordering the Justice Administrative Commission to pay Gregory Hagopian $110 an hour (up from the standard $75 /hour set under the law).

Hagopian appealed the Judge’s appointment. He argued that even at $110/hour, the big RICO defense case might bankrupt his practice, as well as the appointment being unfair to his other clients, against his own wishes, and forcing him to provide legal services at a fraction of their true value (which he estimates as up to $100,000 through trial). He lost the appeal, and has been forced to continue in the appointed representation.

Findings of Five Year Study by the Constitution Project

For the past five years, a study of the right to counsel crisis has been undertaken by a Washington, D.C. group, The Constitution Project. In April 2009, their findings were released.

In a report entitled, Justice Denied: America’s Continuing Neglect of Our Right to Counsel, they found that in Miami–Dade County, the caseload for the average public defender skyrocketed from 367 felonies in 2006 to nearly 500 felonies in 2009, while the budget of the public defender’s office was simultaneously cut by 12.6 percent in just two years (2007-2009).

The purported solution of appointing private lawyers to fill this public defender gap is not appropriate, especially for indigent defendants in death penalty cases. Here, all the problems addressed by the study of the system’s failures are exacerbated.

Indigent Defense in a Capital Case

In capital cases, the defense counsel must have specialized knowledge and established experience in death penalty representations. After all, someone’s life is at stake. Indigent defense in a death penalty case is the most complex and the more vulnerable aspect of this right to counsel crisis.

These representations are special circumstances, with additional requirements that include: (1) adequate funding for the case; (2) the need for co-counsel or support counsel, since capital cases involve essentially two trials, guilt and sentencing; (3) numerous experts; (4) investigators; (5) interpreters; (6) technological support; (7) adequate time for case preparation, including the logistics of having client involvement.

None of this is being adequately addressed by the State of Florida, or by the federal government. The truth is that appointment of private practice attorneys at all levels of indigent defense is failing miserably as a solution to Florida’s right to counsel crisis. Without adequate funding for indigent defense counsel, the protections promised by Gideon and its progeny today are simply fantasy, and criminal defense attorneys are risking bankruptcy as they continue in their calling.

All Eyes on Cheshire Connecticut as Death Pen Trial Begins

Terry Lenamon — Thu, 21 Jan 2010 12:14:16 -0500

I'm not the first one to notice the potential analogies between the current Cheshire murder case and the long ago Kansas multiple homicide made famous by Truman Capote in his masterwork, In Cold Blood.

In fact, one author has gone so far as to capitalize on the comparisons being made, inserting Capote's title into his own book on the Connecticut case, "In the Middle of the Night: The Shocking True Story of a Family Killed In Cold Blood." Needless to say, his choice in titles is controversial and criticized.

That there's already a book on this case -- published and promoted last fall, long before the trial setting -- isn't surprising. This case has become the focus of many people across the country, looking at the case from many different perspectives. However, given our current media culture it's also true that once again, the danger of a trial by media rears its ugly head.

Trial by Media?

The New York Times is giving detailed coverage of this case, as are many different media outlets. There is no denying it is an event that bodes well for ratings.

A quaint town in Connecticut. Middle of the night. A family -- handsome dad (a doctor), pretty mom, two cute teenaged daughters -- sleeps, unaware that two men are breaking into their New England cottage. The father is beaten and tied up. The mother and one of the girls are raped. A fire is started. The mother is strangled. Both teen daughters die, tied to their beds, from smoke inhalation. Only the dad survives.

This is a horrific event and no one can help but be shocked at what happened here. Of course, the trial of the two parolees charged with these crimes will be covered by the press. As it should be -- criminal defense attorneys do not want to deny media coverage of criminal cases. Those journalistic eyes on the process, the investigation, the procedure, etc. all aid in insuring that justice is done and we don't have Kangeroo Courts in this country.

However, due to the well known nature of this case, jury selection will take a long time. It has to -- to find those who can serve as jurors without bias or prejudice cannot be easy here.

Not two days into jury selection, one potential juror already broke into tears during voir dire, just listening to the charges being read and many in the panel are being excused after telling the judge they know all about the case, "it's all over the papers."

Added to this media complication is the fact that this is a death penalty trial and under Connecticut law, selection of jurors is much more detailed since a man's life is being considered as part of the sentence, should guilt be found. Aggravating factors involving the crimes as well as mitigating circumstances involving the defendant will all come into play.

One more complication here: after the Connecticut legislature finalized a bill repealing the death penalty in their state, the governor vetoed the bill, giving as her sole reason for doing so -- the Cheshire killings.

Media Has Already Influenced Jury Pool - Has There Already Been a Trial by Media?

The media's impact has already impacted jury selection - it could take months to seat a jury in the Cheshire case. Whether or not this becomes another example of trial by media is still somewhat debatable. Detailed national coverage of this case goes back two years.

It's not hard to predict that the media scrutiny will only increase once the trial actually begins. And lots of defense folk and death penalty opponents will be watching the Cheshire proceedings as they unfold. Because -- as I written before for the Orlando Sentinel --- trial by the media is wrong, and no matter how horrific the Cheshire murders were, our system cannot condone the media suplanting the jury in this, or any other, case. Unfortunately, it may well be the case in the Cheshire proceedings that a trial by media is already a fait accompli.