Posts Tagged ‘death penalty’

The United States Supreme Court will entertain oral argument today on the issue of whether a life sentence without parole for a juvenile offender convicted of a non-murder offense violates the Eight Amendment’s prohibition on cruel and unusual punishment. The Court has already decided that juveniles are not subject to the death penalty.

Terrence Graham was 16 years old when he was convicted of burglary and attempted armed robbery. He received a one year sentence. Shortly after his release he earned a sentence of life without parole upon being convicted of armed residential burglary and robbery. His criminal defense lawyers argued on appeal that the life sentence, for any juvenile, constitutes cruel and unusual punishment.

In 2005, the Supreme Court issued a deeply divided opinion when deciding that juveniles cannot be executed. The composition of the Court, of course, has changed radically in the last several years.  Mr. Graham may have wished for a speedier appeal process. Oral arguments in his case, and a transcript of the arguments, will be available at http://www.oyez.com.

No CommentsTags: appeal process, attempted armed robbery, burglary, criminal defense lawyers, cruel and unusual punishment, death penalty, Eight Amendment, juvenile, lawyers, life sentence, offender, oral argument, Oral arguments, parole, residential burglary, sentence, transcript, United States Supreme CourtRead More

Governor Rick Perry does not want you to find out if Texas carried out the execution of a legally and factually innocent person. The Texas governor replaced the head of the Texas Forensic Science Commission just days before he and other experts were scheduled to testify at a hearing called to investigate whether the state killed an innocent man, Cameron T. Willingham.

Politics almost certainly played a role as the Governor is running for the republican nomination in his reelection bid. The maneuvering for a replacement will delay the hearing until after his run for the nomination is over. Keep in mind that the execution of Mr. Willingham took place as on the Governor’s watch.

The execution of Mr. Willingham proceeded despite the so-called safety-net of clemency. A petition for clemency was denied by the Governor after the Texas Parole Commission summarily voted against clemency despite clear and compelling evidence of innocence. In fact, the Commission reportedly made its recommendation admittedly without reviewing any of the exonerating evidence or even meeting for a vote.

The Willingham case was not simply one where his lawyer failed to defend him competently at the criminal trial. Exonerating evidence – good enough for Florida – freed Gerald Lewis from a death row prison in a Florida case remarkably similar to Willingham’s. The same evidence at issue in both the cases involved the unscientific and false conclusions of the arson investigators at the original trials. Although these conclusions were resoundingly refuted by actual science, the Florida process resulted in freedom for Lewis and death for Willingham. Willingham lived in the wrong state.

United States Supreme Court Justice Antonin Scalia has taunted death penalty opponents to produce a factually innocent person executed in the modern age. Mr. Willingham is likely that man. For an in-depth review of his case, refer the excellent September 7, 2009, New Yorker magazine article, Trial by Fire, by David Grann. No matter what opinion you have of the death penalty, your faith in the Government’s ability to provide due process will certainly be shaken.

No CommentsTags: Cameron T. Willingham, clemency, crimina trial, death penalty, death row, execution of Mr. Willingham, exonerating evidence, factually innocent, Florida, Gerald Lewis, Governor Rick Perry, innocence, lawyer, legally innocent, testimony, Texas Forensic Science Commission, United States Supreme CourtRead More

Criminal defense lawyers uniformly advise their clients to provide information to law enforcement only by and through an attorney, and for good reason. Many cases are prosecutable only because the defendant gave the police what they needed to make their case. In the past, attorneys did not have to worry about law enforcement sneaking behind their back to interrogate their criminal defendant clients, because the law protected the defendant from law enforcement using that information without the defendant’s express consent. But just in the past week, here in San Diego, I have been informed of two occasions where law enforcement has tried to question a client of mine without my prior knowledge or consent. In the past, making a run around the lawyer would have been clearly illegal conduct.

No longer. Law involving the Sixth Amendment right to counsel was recently changed by the United States Supreme Court’s decision in Montejo v. Louisiana. The Court in Montejo overruled the famous Supreme Court case Michigan v. Jackson, where the Court held police are prohibited from initiating an interrogation of a defendant once an attorney has been appointed. Prior to Montejo, in situations where counsel is appointed by the court, there was a presumption that any later waiver of the Sixth Amendment right to counsel is involuntary. As a result of this recent decision, in such cases where counsel is appointed for a defendant, the police are allowed to later interrogate the defendant when the defendant consents. The presumption that the statement was involuntary is no longer valid. This decision has a tremendous impact on criminal defendants as many defendants would assume that once counsel is appointed police interrogations are not permitted without counsel present. This decision exposes criminal defendants to less protection from interrogations by police after counsel is obtained.

Criminal defense attorneys must take a lesson from Montejo and advise law enforcement at the earliest stage in the proceedings that that the defendant expressly invokes his or her right to counsel and does not consent to any law enforcement contact without the attorney.

Indeed, the stakes for some defendants are high: Mr. Montejo himself was charged with first-degree murder, was convicted, and sentenced to death, thanks partly to his cooperation with the police. The court had appointed counsel but the police didn’t wait to question him. The police paid him a visit and obtained not only a letter of confession but took him on a field trip to locate the murder weapon. He later met his attorney for the first time. The Louisiana Supreme Court rejected his claim that his statements and gun  should have been suppressed under the rule of Michigan v. Jackson, which forbids police interrogation after the right to counsel has been invoked. It held that Jackson’ s protection is not triggered unless the defendant has actually requested a lawyer or otherwise asserted his Sixth Amendment right, and here Mr. Montejo apparently did not actually make the request or assertion. The Court overruled Jackson. And Montejo sits on death row.

Contact us to help with your case, (619) 232-5122, or  info@attorneylombardo.com.

No CommentsTags: confession, cooperation with police, criminal case, criminal defendant, criminal defense, criminal defense attorneys, criminal defense lawyer, criminal lawyer, death penalty, evidence, interrogate, interrogation, jackson, law enforcement, montejo, murder, right to counsel, right to remain silent, san diego criminal defense attorney, san diego lawyer, Sixth AmendmentRead More