Terry Lenamon on the Death Penalty : Lawyer & Attorney Terry Lenamon on Capital Punishment Defense, Death Penalty Trials & Appeals | Law Firm

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

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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. 

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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?

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Admist the Orlando Sentinel's column covering television - with the series finales of The Closer and the continued success of NCIS, TV Guy Hal Boedeker took the time to talk with Terry Lenamon about one chapter of his new book (see it there in the left sidebar).

Interestingly, Hal Boedeker was focused on one chapter of Terry's many different stories of death penalty cases in his book: the Casey Anthony representation.  (Terry covers many different instances where he represented people facing capital punishment; the Anthony case is just one section of this book.)

As those who follow this blog will recall, Terence Lenamon was the first death penalty qualified attorney who represented Casey Anthony after she was arrested and jailed.  What happened there?

Terry gives some information in the Orlando Sentinel interview.  For the full story, check out the book. 

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Heinous, atrocious and cruel - these words describe the crimes that Terence ("Terry") Lenamon defends on a daily basis as one of Florida's select group of death-qualified attorneys.

Terry achieved national recognition as a death-qualified defense trial lawyer with his representation of some of Florida's most well-known and most reviled defendants. His cases have aired on the First 48, Caso Cerrado, Issues with Jane Velasuez Mitchell, and Nancy Grace.  His clients have included Casey Anthony, Yvette Yallico, Cesar Mena, and Harrell Brady, the infamous "Miami Strangler."

In this book, he has chronicled some of his most challenging cases.

These cases offer a fascinating insider's look at the workings of a death penalty prosecution. This is a world that most people never get to see, and a world that most people would like to pretend does not exist. Terry and his team take the reader on journeys to discover how their clients ended up facing death row.

These cases explore the much deeper issues of compassion, forgiveness, retribution, and revenge. The defense of people accused of horrific crimes often requires a deeply critical look at how we as a society treat some of our most damaged and weakest members. As their defender, Terry does not attempt to justify or excuse their crimes, but to offer sometimes disturbing insights into how these fellow human beings came to his figurative doorstep. No matter what your stance is on the death penalty, this book is a must read for those interested in the workings of our criminal justice system and capital crimes defense. These stories represent a fraction of his cases.

Terry is a Board Certified criminal defense attorney practicing in Miami, Florida. Terry has first-chaired over 100 jury trials in his 17 years practicing law. Terry Lenamon is also founder and the former Executive Director of the Florida Capital Resource Center, a non-profit organization that provides support to Florida death penalty attorneys.

For a looksie, please check out the preview made available at the Amazon website.  

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Fascinating news out of the Death Penalty Information Center:  in 2011, there were only 43 executions after 2010's 46 and 78 new death sentences were given to defendants in 2011 after 112 in 2010.  That's the big news: 112 down to 78 new sentences of death is record-breaking. 

Read the DPIC Report online here (or download the pdf).

Right now, lots of discussion is taking place as to the reasons why this is happening. 

• It means that capital punishment is not being given to those defendants found guilty of crimes. 
• It means that there may be less prosecutions seeking the death penalty in their cases, too. 
• And, hat tip to the defense bar, it may also mean that defense attorneys are doing an excellent job of convincing juries of the mitigating circumstances that exist in cases that should thwart a sentence of death. 

So, what is going on?

The DPIC points out that Gallup Polls have a falling number of Americans that support the death penalty, too.  Gallup shows 61% support the death penalty now; that's down from 68% in 2001.

A Fordham law professor opines that media coverage plays a factor here: not only are folk more aware of the reality that innocents do get convicted (and sentenced to death) but that capital cases are much more expensive for state budgets. She also explained to USA Today that the U.S.Supreme Court has issued opinions that have narrowed when the death penalty can be used (i.e., limiting it regarding minors or the mentally challenged). 

This is a hot topic and lots of discussion is going to be had on 2011 as the Year We Went Under 100 Death Sentences for a long while.  There's obviously a number of factors at play. 

One thing that might need to be discussed more: the fact that the states are in a quandary about how to kill, what with all the constitutional issues involved in lethal injection these days and the relunctance to return to old standbys like firing squads or electric chairs. 

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 This week, the New York  Times wrote a short article informing its readers of the case that is going before the United States Supreme Court out of California, Martel v. Clair (you can follow the case online via the USSCt docket ).  The High Court will be considering the following issue - and only this issue - in its review:

Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.

This week, the Justices heard oral argument in this case and next week, you can listen to that December 6, 2011, oral argument online here.   The State of California (technically, warden Michael Martel) was represented by Ward A. Campbell, Supervising Deputy Attorney General and the Death Row Inmate Kenneth Clair was represented by Seth P. Waxman out of Washington, D. C.

The Facts Behind Martel v. Clair

Back in 1987, California Death Row Inmate Kenneth Clair was sentenced to die for the sexual assault / strangulation death of Linda Faye Rodgers.  After the trial, Mr. Clair filed a petition for habeas corpus and a federal public defender was appointed to represent Clair in this federal court proceeding.  

Clair's efforts in the federal system and state system went forward for many years.  The federal district judge ruled that the federal proceedings would be stayed while Clair's state remedies were "exhausted" including those on claims raised after the murder trial was done.   At the California Supreme Court, a second habeas corpus request by Clair was denied, and the ball was back in the court of the federal system to seek relief.

In June 2005, Clair wrote a letter requesting a new lawyer and sent it to the federal judge, the second letter that Clair had sent to the court.  Clair had already written the judge to voice his concerns and complaints about his lawyer and what Clair saw as his attorney's neglect and disinterest in his case.  

The federal court had done something after that complaint letter: the attorney was questioned and the lawyer responded to the court by reporting that there had been a conference with their client, Mr. Clair, and that the attorney-client relationship would be continuing.  The conference happened in April 2005. 

Key to the second Clair letter: Clair told the court that a private investigator had discovered physical evidence that had never been tested and that his lawyer hadn't looked it over, much less had it tested or tried to introduce it at trial.  The investigator also wrote the judge, and confirmed what the Death Row inmate had written.  

Here's the shocker:  after getting that PI letter and the inmate's letter, the federal judge didn't move forward to investigate what this was all about.  The  U.S. Court of Appeals for the Ninth Circuit ultimately ruled that the district court abused its discretion and now, the case is before the High Court for review.

From the briefing:

At the end of ten years of capital federal habeas corpus proceedings in the district court, respondent suddenly complained about and sought replacement of his court-appointed public defender with a new appointed lawyer. The district court refused, explaining that "it appears Petitioner's counsel is doing a proper job" and that "[n]o conflict of interest or inadequacy of counsel is shown," and thereupon issued its ruling denying habeas corpus relief.

On appeal, however, the Ninth Circuit appointed a replacement lawyer, vacated the judgment, and remanded for further proceedings to allow the new lawyer to raise additional claims for relief. The Ninth Circuit explained that no showing of ineffectiveness of counsel was required, for it was enough that Clair had expressed "dissatisfaction" and had alleged that the public defender was failing to pursue potentially important evidence. 

 

Court Appointed Death Penalty Counsel - Huge Duty With Insufficient Funding

Last year, we discussed how California in particular was in crisis because of a funding problem in death penalty defense representation, "Lawyers Cannot Afford to Take Death Row Appeals in California."  

Is the fact that this lawyer had to operate on a shoestring budget (and that's being kind) a factor in the Clair case?  

And, assuming this to be true, then will the U.S. Supreme Court take this opportunity to address the indigent defense crisis in this country, where attorneys are appointed to represent defendants but are not given sufficient funding to do their job?  

The High Court arguably already had this opportunity back in the summer of 2010 and failed to address this problem.  We'll keep our fingers crossed, but we're not optimistic.  Money isn't the focus of the pending case - and there are lots of arguments against the Ninth Circuit's ruling on all sorts of reasons, including an "administratively unworkable result" challenge by a bunch of state attorneys general, including Florida's Pam Bondi (read the amicus brief here).  

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There's a new blog to check out for those who are interested in the death penalty, published by Athina Ouranidou.  It's entitled "Artists vs. Death Penalty." 

Athina is in her final year as a law student at Birmingham City University in the United Kingdom.  She's opposed to the death penalty, and has started publishing Artists vs. Death Penalty as a vehicle for artists to share their work, in its various forms, in a stand against the death penalty.  And, of course, as a means to inspire others as well.

Already, Athina reports that her blog has achieved a steady top ranking in Google Everything Search for the phrase, ‘artists death penalty’ and she's been interviewed by the Greek magazine “Ανεξartητη Γυναίκα της Θεσσαλονίκης” about the blog site (you can read the interview online - check out page 44).

Check it out!

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Florida has exonerated more Death Row Inmates than any other state in the nation - 23 inmates, to date - and that's something we all need to be taking very, very seriously.

Which is exactly what has been happening over in Tallahassee, where a panel made up of respected academics, experts on death penalty legalities, and legislators gathered together to consider how to combat the evident and obvious danger that innocent folk might be executed by the State of Florida.

Seems everyone agrees that there are lots of problems with capital punishment, cost not being the least of them.  However, it doesn't appear that the swift and clean answer of abolishing the death penalty in Florida will be happening any time soon. 

What was this panel?  It was put together by the Florida State University in commemoration of the 5th anniversary of an ABA study of Florida's death penalty procedures - which included recommendations that weren't followed by Florida lawmakers.

For example, Florida still doesn't need an unianimous jury to sentence someone to death.  Juries can recommend the death penalty by a majority vote, and the judge imposes the sentence (and he or she usually follows the jury's recommendation).  The ABA  thought that juries in Florida should at least be required to vote 100% in favor of death before it was recommended.  Didn't happen.

What will result from the panel's efforts?  Too soon to tell.  We should look for new proposed legislation coming from it ... but whether or not those proposals become law in the State of Florida is another ball game.  

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DNA testing for Death Row inmates gets a lot of attention over in Texas, but it's really a national issue -- and lots of eyes are turned to Austin this week as the Texas Court of Criminal Appeals stayed the November 8, 2011, execution of Hank Skinner.  Skinner's fight is far from over: the opinion states that the stay has been granted so the court can " ... take the time to fully review the changes in the statute as they pertain to this case."

Skinner still has not found victory in his fight to get evidence tested for DNA that includes the knives used as murder weapons. 

David Protess of the Innocence Project has been following the Hank Skinner story - as well as the importance of DNA testing in death penalty cases - for awhile now.  For details on the Skinner case and this latest ruling's impact, read his article at the Huffington Post. 

Meanwhile, more and more attention is being given to the actions of a series of prosecutors in the Hank Skinner matter and their apparent blindspot on justice insofar as testing DNA evidence in this case. 

What happens to the prosecutors?  It's not clear - first things first is getting Skinner's DNA testing requests approved and testing done.  Moreover, assuming that Skinner is proven an innocent man it's also not clear what the ramifications of that reality will be on the district attorneys who made decisions in this case.

Perhaps the best news today, other than the stay of execution of course, is the fact that more and more questions are being asked of the propriety of actions and attitudes of the prosecutors in this case (and hopefully, in every death penalty case). 

Are they concerned with justice or are they concerned with politics or sadly, building a winning track record at trial? 

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Over in Ohio, Reginald Brooks and his ace defense team are fighting against an execution date of November 15, 2011, when Brooks is scheduled for capital punishment in the homicides of his three sons, killed long ago while they slept (in 1982).

A federal district judge has failed to find error in the changes that the State of Ohio made in its execution methodology: Judge Gregory Frost then rejected Mr. Brooks' motion that his execution be delayed. 

Meanwhile, on the same day, the Ohio Supreme Court issued its determinations that denied several different requests by Mr. Brooks, also declining to delay an execution day that is two weeks away. 

Read that summary disposition here.

Defense attorneys are working very, very hard on this case.  Brooks' age has been the basis for requests of mercy and clemency, and arguments have been advanced that he suffers from mental illness. 

The Ohio Parole Board came down against clemency in an unanimous vote on Monday.  Read their Clemency Report here. 

There's not many more tools in the defense team's tool box.  Time is running out and no powers that be have seen fit to extend that execution schedule.

Hat's off to that defense team, today and every day through November 15, 2011.  Few can understand the emotional, raw, intense efforts those death penalty defense attorneys are experiencing right now. 

Perhaps knowing that your work is being acknowledged and appreciated by more folk than you know will be of some help to you.  Because it's out here. 

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Right now, the Florida House of Representatives has before it a bill that would end lethal injections as a method of execution.  This bill doesn't end the death penalty, though (that's a different bill): this proposed legislation, if it becomes law, will return Florida to its prior methods of carrying out capital punishment.

That's right.  Old Sparky or the Firing Squad would be back as the two ways that executions would be carried out here in the State of Florida.

• You can follow the bill as it makes its way through the Florida Legislature online here. 
• Read the actual language of the proposed law here (or download it as a pdf).

Who's responsible for this?  Florida State Rep. Brad Drake -- and he's getting lots of news coverage from this, too.  Coast to coast. 

We've already written on the method of killing people in electric chairs; go here if you want to know more about it. 

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On Texas Death Row, Henry Watkins "Hank" Skinner is fighting to have DNA testing done of evidence that he argues will support his claims of innocence in the beating death of his girlfriend,  Twila Busby, and her two grown-up sons back in 1993. 

In 2010, the U.S. Supreme Court issued its opinion that Skinner could proceed in civil court, arguing violation of his civil rights under the Civil Rights Act (42 U.S.C. § 1983) because the State of Texas post-conviction law on when DNA testing can be done after there has been a trial and a sentencing are in violation of those civil rights. 

The High Court didn't decide that the DNA testing could happen.  It just opened the doors to a civil courtroom debate on what had happened much earlier, in a criminal one.  This is a big deal.  

Right now, Hank Skinner is scheduled to be executed by the State of Texas on November 9, 2011.

Lots of folk are following the case of Hank Skinner.  Some, because they are interested in the civil rights aspects of the case  Some, because they are against the death penalty.  Others are following along because they believe that Hank Skinner is an innocent man. 

One person with a particularly unique perspective here is Kirk Bloodsworth, who supports Skinner's request that the DNA be tested as the first Death Row inmate in the United States to be exonerated after post-conviction DNA testing proved Bloodsworth to be innocent.

No matter the reason for your interest, here are some sites that are doing a fine job in bringing consistent information to us all regarding the Hank Skinner case:

• Hank Skinner.org - this site gives information about the case, as well personal information about Hank Skinner, including instructions on how to contact him by snail mail or email there on Texas Death Row in Huntsville.
• Texas Coalition Against the Death Penalty - this site has a page dedicated to following the Hank Skinner case as part of its overall campaign to end capital punishment in Texas.
• Grits for Breakfast - an award-winning site dedicated to informative discussion of the Texas criminal justice system, Grits is monitoring the Hank Skinner case in periodic posts, the latest one being published on October 25, 2011, " Why does Texas AG continue to fight DNA testing in Hank Skinner case?"
• The Texas Tribune - a Texas online newspaper founded by the former head of Texas Monthly is covering the Hank Skinner story in depth, including yesterday's story about the Big Letter that was sent to Governor Rick Perry and Attorney General Abbott asking for DNA testing - and signed by big kahunas like former Texas Governor Mark White.

What Can You Do for Hank Skinner?

Other than informing others, etc., you can sign the petition by the Texas Coalition here or contact the Texas Governor by phone, fax, or email at the contact information provided on his web site. 

. 

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Terry Lenamon fought long and hard to get QEEG Brain Mapping introduced as evidence in the death penalty trial of Grady Nelson last fall.  The QEEG evidence was introduced.  The judge  sentenced Grady Nelson not to a sentence of death, but instead to life imprisonment. 

That was almost a year ago, and now QEEG evidence is being fought for by another death penalty defendant, Huberto Delgado, here in  Florida.

Over in Tampa, Florida Public Defender Julie Holt is pushing for the introduction of  QEEG brain-mapping tests as part of her defense of  Humberto Delgado, who is facing the death penalty for the alleged shooting death of Tampa Police Officer Mike Roberts. 

The prosecution is fighting hard against the introduction of the QEEG evidence and expert testimony has been presented by both sides as to whether or not the QEEG testing and analysis should become evidence at trial.  Trial is set to begin October 31, 2011.  The judge has not yet ruled on the QEEG evidence in the Delgado trial.  

What is QEEG? 

QEEG is different than other brain imaging tools. Past scientific attempts to understand the brain were done via things like x-rays, CAT scans (Computerized Axial Tomography scans) or MRIs (Magnetic Resonance Imaging) -- each dealing more with the structure of the brain than how it was operating at any given juncture.

Enter QEEG.  With QEEG (Quantitative Electroencephalography), experts can study how a particular subject's brain is functioning -- in real time -- through this painless evaluation of the brain's electrical activity.

Sensors are being placed upon the scalp which read electrical neuron activity under certain conditions (eyes closed, open, etc.). Result? QEEG, with expert analysis, gives information on exactly how well, or how lacking, a particular person's brain is capable of functioning.

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