Special Smashwords Edition
Heinous, Atrocious and Cruel
The Casebook of a Death Penalty Attorney
by
Terry Lenamon
With
Brooke Terpening
Heinous, Atrocious and Cruel, The Casebook of a Death Penalty Attorney
Special Smashwords Edition
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Copyright © 2011 Terry Lenamon
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Version 2011.12.10
Dedication
To my wife Gloria: the woman who finds the time and dedication to be a great mother and prosecutor, and balance the two;
To my loyal staff and friends, Brooke, Melissa, Andrea & Stuart and to my good friend Reba Kennedy;
And to my mom and dad who were always there for me, even when everyone else doubted:
Thank you.
Heinous, Atrocious and Cruel
The Casebook of a Death Penalty Attorney
Table of Contents
Foreword: Death Really is Different in Florida
Chapter Three: Mentally Challenged
Chapter Four: Childhood Neglect
Chapter Seven: A Child Is Missing
Foreword: Death Really Is Different In Florida
At the outset, death is different. At least the Supreme Court thinks so. For those who are not lawyers, but are interested in how a death penalty proceeding works in Florida, read on. It will provide a good backdrop to the cases in this book.
Florida has unique issues that make a death penalty proceeding even more challenging to an attorney than it already is. We are one of the few states that will sentence a person to death by a simple majority vote of the jury. A simple majority, a single person, is all it takes for a recommendation of death. It does not have to be unanimous. Once convicted, a lone holdout on the jury is not enough to avoid a death sentence, and even then, a judge may override a jury’s decision for a life sentence.
Florida has struggled to make its process Constitutional. In State v. Dixon, 283 So. 2d 1 (Fla. 1973), the Supreme Court of Florida upheld the constitutionality of the death penalty statute. The court found that “death is unique punishment in its finality and in its total rejection of the possibility of rehabilitation.”
However, not all murders are alike. The Dixon court confirmed that it was the intent of the legislature to reserve application of the death penalty “only to the most aggravated and least mitigated of the most serious crime.” As a result, the Florida Legislature put into place a special process with safeguards so that the death penalty is applied properly after conviction of a capital crime.
Separate lawyers are required since capital trials consist of two separate phases, the guilt phase, and the penalty phase. The same jury that decides guilt in the first phase sits on the penalty phase to decide the punishment.
During penalty phase, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, those circumstances weighing in favor of mercy. The defense and prosecution can present new evidence supporting these circumstances. The jury then makes a sentencing recommendation based on these aggravators and mitigators.
The aggravating circumstances that can apply in any given first degree murder case are limited to those set forth in Florida Statute § 921.141(5). These circumstances are limited to fifteen possible aggravators:
1. § 921.141(5)(a): The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed in community control or felony probation (“while serving a sentence”).
2. § 921.141(5)(b): The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (“prior violent felony conviction”).
3. § 921.141(5)(c): The defendant knowingly created a great risk of death to many persons (“great risk of death”).
4. § 921.141(5)(d): The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb (“during course of a felony”).
5. § 921.141(5)(e): The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody (“escape or avoiding arrest”).
6. § 921.141(5)(f): The capital felony was committed for pecuniary gain (“pecuniary gain”).
7. § 921.141(5)(g): The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws (“disrupting government function”).
8. § 921.141(5)(h): The capital felony was especially heinous, atrocious, or cruel (“HAC”).
9. § 921.141(5)(i): The capital felony was a homicide and was committed in cold, calculated and premeditated manner without any pretense of moral or legal justification (“CCP”).
10. § 921.141(5)(j): The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties (“LEO victim”).
11. § 921.141(5)(k): The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim's official capacity (“government official performing duties”).
12. § 921.141(5)(l): The victim of the capital felony was a person less than 12 years of age (“child under 12”).
13. § 921.141(5)(m): The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim (“advanced age or disability”).
14. § 921.141(5)(n): The capital felony was committed by a criminal street gang member, as defined in § 874.03 (“street gang member”).
15. § 921.141(5)(o): The capital felony was committed by a person designated as a sexual predator pursuant to § 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed (“sexual predator”).
The mitigating circumstances that can apply in any given first degree murder case are identified in Florida Statute § 921.141(6). Unlike the aggravators, the eighth mitigator is extremely open-ended. Almost any extenuating circumstance in the client’s life is allowed. The eight mitigators are:
1. § 921.141(6)(a): The defendant has no significant history of prior criminal history.
2. § 921.141(6)(b): The capital felony was committed while the defendant was under influence of extreme mental or emotional disturbance.
3. § 921.141(6)(c): The victim was a participant in the defendant's conduct or consented to the act.
4. § 921.141(6)(d): The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
5. § 921.141(6)(e): The defendant acted under extreme duress or under the substantial domination of another person.
6. § 921.141(6)(f): The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.
7. § 921.141(6)(g): The age of the defendant at the time of the crime.
8. § 921.141(6)(h): The existence of any other factors in the defendant's background that would mitigate against imposition of a death sentence.
The trial judge performs the next step by actually determining the sentence. Although the trial judge gives great weight to the jury recommendation, the trial judge is not bound by the jury’s recommendation. The rationale is that a trial judge has more experience in both the criminal process and facts of crimes. What the average person, inexperienced in crimes, thinks is incredibly significant or especially heinous, may not in balance be so significant or heinous. The cool reason of a judge also serves to counterbalance any overly inflammatory prosecution.
The trial judge’s last step is justification of a death sentence in writing. This step is necessary so that the sentence is open to judicial review. Judicial review ensures that the issue of life or death was decided according to the rule of law.
There is one final safeguard in place. The Supreme Court of Florida must review all death sentences. The court reviews the sentence for proportionality to ensure that the application is not unreasonable or inappropriate when compared to other cases. Thus, the defendant has one last opportunity before a court of law to argue against the most severe and final of all punishments.
The importance of mitigation in this process cannot be overstated. The results of a thorough mitigation investigation are very effective in persuading a jury to vote for life instead of death at the end of penalty phase. Often the mitigation is presented to prosecutors before trial begins as a waiver package to convince the state not to seek the death penalty.
Mitigation is so important in capital cases that the American Bar Association (“ABA”) has issued “The ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003).” The ABA Guidelines requires that each capital defense team have at least one mitigation specialist.
The role of the mitigation specialist on a death penalty case is broad. A mitigation specialist must develop an in-depth and comprehensive social history of the client. This requires identification, location, and retrieval of all records regarding the client, as well as the records of all immediate and extended family members. In addition to obtaining records, the mitigation specialist must conduct comprehensive interviews with the client and as many individuals as possible who have known the client.
Locating and interviewing witnesses in a capital case, especially family members, is more difficult than it would seem. It is a sensitive endeavor, requiring exceptional time, patience, and skill. One reason is that family members, like the client, may also suffer from mental retardation, mental illness, and substance abuse.
In addition, obtaining the trust of the witnesses is a key issue. Family members in particular are suspicious of talking to anyone about the client. They often assume that the reason for the interview is to incarcerate or hurt their loved one. Others are naturally reluctant to reveal painful and embarrassing facts regarding family history to a stranger. Consequently, a significant amount of time must be spent in overcoming various impairments, but also in demonstrating a sincere commitment to assisting the client. These difficulties, combined with the length of time between childhood and the time of the offense or post-conviction investigation, often requires that witnesses be re-interviewed to obtain valid, reliable data.
The mitigation specialist should verify the information by obtaining corroboration from more than one source. For example, a head injury and its effects should be documented by interviewing anyone who witnessed the injury or knew the client before and after the trauma as well as the treating medical professional. Additionally, all medical records must be obtained. This is essential so that a medical, psychological, or neurological expert can draw accurate conclusions about the effects of the injury on the client's perception, judgment, and behavior.
The penalty phase attorney must begin work on the case as early as possible in the preparation of mitigation. Mitigation investigations routinely require between 200 and 500 hours of uninterrupted intensive work over a period of six months to two years, depending on the complexity of the case, accessibility of family members and other witnesses, the nature and extent of the impairment of the client, and the availability of expert witnesses. A competent mitigation investigation is a critical part of the defense of a capital crime. Without adequate time and resources for thorough mitigation, the defense is seriously compromised.
This is an abbreviated description of the process. Volumes have been written on Florida’s death penalty system. Each year the Public Defender’s Office holds an excellent intensive multi-day seminar on capital defense. I have listed other good sources to explore for those with a deeper interest.
Brooke Terpening
I have been practicing criminal law for a long time, and for many years, my focus has been on defending individuals that face a sentence of death in Florida capital murder trials. Not a week goes by where someone does not ask me how I can do this work, and why I do what I do.
Why do I defend what some call “the worst of the worst”? Just why is it that I defend those people that have been described on more than one occasion (and by more than one prosecutor) as the worst of our society?
In Florida, where I live and do most of my work, death penalty cases have two lawyers, known as first chair and second chair. As first chair in a death penalty case, my job is concerned with the guilt finding of the defendant. As second chair, my job is to convince the jury to spare the life of the person if they are convicted. This job is known as “mitigation,” a dedicated area that I practice within, focusing upon the mental health aspects of homicide defendants.
“How can you represent those people?”
There are all the usual stock answers. “I am defending the Constitution.” “The death penalty is not a cost-effective solution.” “There is no deterrent value.” “As for retribution, is a life in a cage worse than death?” “The system is not perfect, and innocent people have been sentenced to death.” “Death row is overwhelmingly populated by the poor and disadvantaged.”
And all of these answers are true, but they don't tell you the whole story.
Fundamentally, I do this because I want to understand. Why did this happen? How did this person arrive at my figurative doorstep, accused of a horrendous crime? What are the factors, the background, the events that led this person here?
Every person has a story. There is always some underlying common humanity in even those convicted of the most brutal crimes. It is my job to bring these mitigating factors to the jury, to shed light on the darkest heart and most disturbed mind.
And I'm bringing you this selection of cases from my briefcase — war stories, if you will, that I think exemplify the work that I do, because I think that you may share the same core need that I have — the need to know WHY.
Chapter One: Mentally Ill
Katherine had such a sweet face, even in death. I was sad, really sad, looking at the police file photographs of this pretty little toddler. Her life had been taken from her by her mother, the woman supposed to protect her. At eighteen months old, what did little Katherine know as her mommy was placing her underneath the water. Was she scared? Was she trusting?
Eighteen months old. I reflected on the pain that Katherine must have experienced. Such a horror, but a horror not that different than many of the other cases I’d come across in my job as a death penalty defense lawyer. I’d see even worse in the years to come.
I put the photos back into the manila envelope, and put that into the file folder. Katherine’s mother was my new client, Yvette Yallico. My client: another child.
Yvette was eighteen years old at the time she was arrested for killing her daughter. A young woman with a significant history of mental illness, Yvette herself was born to a teen mother who had been physically and sexually abused. The cycle of violence and destruction that began its evolution with Yvette’s mother I would later learn continued with Yvette herself.
At the time of Katherine’s homicide, Yvette was still a child: a high school senior getting ready to take her high school competency evaluation test. Married at 16 years old to a 28-year-old man, Yvette had wandered into the same world that her mother experienced when she had married at age 13.
Yvette’s young mother had used drugs during Yvette’s pregnancy, had been sexually assaulted during her pregnancy, and ultimately diagnosed with gonorrhea at Yvette’s birth. Yvette’s dad? Yvette never knew her father. Her mother was not sure who the father was, acknowledging that she had multiple sexual partners during the period of time that she had become pregnant with Yvette.
The first time I came face to face with Yvette Yallico was in a Miami jail cell shortly after I was appointed to the case because of a Public Defender conflict. Yvette was housed at the Women’s detention center in Miami. The detention center has a large open space for prisoners to meet with family. Attorneys could find privacy with their clients if they were lucky enough to get one of three miniscule conference rooms bordering the large room. I was lucky and appropriated one of the rooms before handing a pink inmate request slip to the guards.
I was surprised at how young the woman seemed that was brought to the attorney’s room by guards. Yvette was barely five feet tall and slightly overweight, with a very pretty face and dark eyes. She seemed very out of touch with her surroundings, and when I informed her that I was taking over her case, she had no response. It was surreal because in the hour that I spoke to her, she kept expressing her desire to get out of prison so she could take her finals.
I wasn’t her first lawyer. Many times, public defenders have to conflict (ask the court for another lawyer to be appointed to the case) because people who may be witnesses in the new case are, or have been, involved in other pending or past cases of the Public Defender’s Office. Lawyers can’t muddy the waters between cases.
When the case prosecuting Katherine’s death arrived, the public defender’s caseload soon made it apparent on the surface that their representation of the defendant in this new matter, Yvette, would be a conflict of interest with cases they’d already undertaken. It wouldn’t be fair or ethical for the public defender to do otherwise than to ask that an outside attorney be appointed to take over the defense. So, that’s how I got involved with the defense of Yvette Yallico.
Back in 1999, there was only a small group of lawyers in private practice who were being appointed to death penalty cases in Florida. I was one of those. We were called death-qualified.
I still remember getting the phone call from Pat Nally, a public defender friend of mine. Pat had been assigned to represent Yvette and he had already spent a great deal of effort in a very short time frame working up the case before the conflict was discovered.
“Terry, can you take this one? It’s bad — there’s a baby who’s the victim — and it’s short notice.” We discussed scheduling, ruled out conflicts on my end, things like that. Would I take a case where a baby had died? Yes, I would. That’s my job. It’s what I’m supposed to do.
Soon, the court order was in place, substituting me as attorney in charge for Yvette Yallico. Now I was the appointed attorney to represent this indigent citizen in a case where the state of Florida would seek her death as its penalty for a crime.
Reviewing the Files
First things first, I reviewed the files — the public records as well as the defense work done thus far. I discovered that the Miami-Dade Public Defender’s Office had done its typical impeccable job in representing this woman early on in the case. Having served as a public defender in Miami for a number of years before entering in private practice, I had learned the importance of “leaving no stone unturned” in the representation of a capital defendant. I was first introduced to this concept through the work of some great lawyers who worked in that office and who treated every death penalty case as if it were the most important case on the docket. This was no different. They’d done their job.
From the public defender’s file, I learned that the Miami public defender became involved in this case after teen mom Yvette Yallico had been interrogated and then arrested by the police for murdering her child and brought before a magistrate judge at First Appearance. Interesting gap. Immediately upon appointment by the judge as Yvette’s indigent defense counsel, I began going through the paperwork. The Public Defender’s file showed that they had started to corral resources to make sure that the investigation in this case was done properly and expeditiously. Good. Every resource we could muster would be needed. Yvette remained in jail as I came up to speed.
The First Mental Health Investigation After the Crime
It was readily apparent from the get-go that Yvette Yallico was suffering from some kind of massive mental health issue, some sort of traumatic breakdown. No one on either side of the case disputed that Yvette acted strangely.
Typically, in these cases, the lawyer wants to get an evaluation done as closely as possible to the time of arrest. In the perfect world, obviously, you would want the police initially to have her evaluated by an independent, neutral psychologist or psychiatrist. However, we don’t live in the perfect world and sometimes things aren’t always the way they are supposed to be. From the files, I discovered that Yvette was first evaluated by Mary Haber, a well-known forensic psychologist with a history of experience and a dynamic personality to go along with it.
Dr. Haber had met with Yvette Yallico and had formed an opinion. Dr. Haber’s information had been provided to the public defender’s office, and now it had passed to me when I took over the case. More on Dr. Haber later.
After my initial conversation with Pat, before I ever laid eyes on Yvette Yallico or saw all the records, it was clear to me that this was a mental health defense case: insanity was probably going to play a role in the defense of this teenager. Psychological opinions like this first one by Dr. Haber would be critical to the case. Little did I know at that point how horrific and extensive Yvette Yallico’s mental illness would prove to be.
Psychiatric Issues Since Age 11
Psychologically, the journey for Yvette that ended in her arrest in October 1999 began many years before. Yvette began to experience psychotic episodes as early as age 11. The teachers and school counselors took note, and eventually Yvette was categorized as a severely emotionally disturbed child within the Miami-Dade public school system. I learned from her school records that Yvette had been evaluated many times resulting in multiple diagnoses including psychosis, NOS (“not otherwise specified”), schizophrenia, and bipolar disorder.
Psychology is never a perfect science, of course. Different doctors evaluating the same individual can reach different conclusions. In this case all of Yvette’s hospitalizations — beginning with an initial hospitalization at age 11 to her final hospitalization before the arrest, which occurred about 6 months prior to Katherine’s death — were all related to acute psychotic episodes, which included a pattern of hallucinations and delusions. Bizarre behaviors that had all been recorded in various files now became a part of my defense preparation.
These documented episodes included Yvette believing that she had the ability to talk to Jesus, and that Jesus had told her to eat only bread. Sometimes, Yvette referred to herself as Yahweh. On other occasions she reported that God, or Yahweh, was constantly speaking to her. According to Yvette, God told her that marijuana was natural and good, and God had given her suicidal thoughts. If she committed suicide, she would show her devotion to him. Yvette also believed at times that the devil was inside of her. Routinely, she heard voices and “received” special messages from the television. Many of the delusions and hallucinations were followed by a series of manic sleepless nights, odd behavior, and even some promiscuity. There was clearly a longstanding pattern of abnormality.
An Abnormal Crime Scene
The story of this tragedy began one sunny afternoon in October 1999, when Miami police logged an emergency call from an adult male requesting paramedics go to his North Miami apartment because he had just received a call from his wife Yvette telling him that there had been an accident involving their child.
The father, Juan, told police that his wife Yvette had just called him at work to say their baby had drowned. Unable to get a clear answer from Yvette as to what had happened, he was calling the cops for help. In a panic, he also called his mother.
Witness interviews revealed that Juan’s mother arrived at the couple’s apartment at the same time as Juan. Upon arrival, Juan ran up to the second floor apartment and went in — only to find his baby girl Katherine submerged underwater in the bathtub, floating face up, with no response. Not moving. Not breathing.
A neighbor showed up to help. Yvette stood nearby, unemotional and detached, while Juan and the neighbor tried to resuscitate the baby. The police arrived with paramedics, who transported the baby to the hospital. Katherine was DOA.
At the apartment, law enforcement began their investigation. Yvette remained on the scene. She had not asked to go in the ambulance, and now she was questioned by the police. The officers noticed straightaway that the young mother was showing a detachment: there was no emotion here, no concern about her child. After questioning her for a short period, they placed Yvette in the back seat of a police vehicle to discuss the matter in more detail. What had happened to her baby that day?
During that squad car chat, their notes described Yvette as being more interested in finding out when she would be done with the questioning so she could get back to studying for her high school competency exam than knowing anything about Katherine. Suspicion rose about Yvette.
Police transported her down to the Miami police station in that squad car, and questioning continued at the station. Yvette told them what had happened.
Conflicting Statements
In the first two statements, she described the drowning as an accident. Yvette told the police that she was cooking dinner and had left the baby playing in the bathtub alone, and Katherine had drowned. It was an accident, she explained. Yvette went into the bathroom and found the baby floating, and she called her husband.