Capital Case Roundup — Death Penalty Court Decisions the Week of September 142020

NEWS (9/17/20) — Florida: The Florida Supreme Court has denied post-conviction relief to Ken Lott, retroactively applying its new rule that a death sentence imposed under the state’s unconstitutional judicial fact-finding statute did not violate Lott’s right to a jury trial because the jury had unanimously found an aggravating circumstance. The court held that Lott’s Sixth Amendment right to a jury trial in his capital sentencing proceeding extended only to the determination of whether the defendant was eligible for the death penalty, not whether aggravating circumstances outweighed reasons to spare his life.

Lott was sentenced to death in 1995 for first-degree murder. Although Lott’s indictment did not specify any specific aggravating circumstance, the court ruled that Lott was not unconstitutionally sentenced to death because the jury had unanimously found that he had a previous conviction for assault, which is an aggravating factor under Florida law. The court had previously denied Lott’s appeal of an order denying him DNA testing of the evidence in his case.

NEWS (9/16/20) —Tennessee: A Shelby County trial court has ruled that Pervis Payne is entitled to DNA testing of physical evidence in his case. Judge Paula Skahan authorized testing on several items of physical evidence that were withheld from the defense until 2019. District Attorney Amy Weirich, who opposed the motion, said she would not appeal the order. However, she planted the seeds for an argument that the presence of someone else’s DNA may be a product of contamination, saying she “ha[s] concerns that touch DNA has been deposited on the items over the last 33 years since the murders happened.” The ruling may have an impact on Payne’s scheduled December 3 execution date.

NEWS (9/16/20) — Texas: The Texas Court of Criminal Appeals has overturned the death sentence imposed on Mexican national Juan Lizcano, finding that he is ineligible for the death penalty because of intellectual disability. The court initially upheld Lizcano’s death sentence, imposing an unconstitutional standard for assessing his intellectual disability. After the U.S. Supreme Court struck down the court’s approach in Moore v. Texas, the Texas appeals court returned Lizcano’s case to the trial court to reconsider his intellectual disability claim. The Texas Tribune reports that Lizcano is “at least the sixth death row inmate whose sentence was reduced after the U.S. Supreme Court slammed Texas’ methods for determining intellectual disability.”