Transcript of Episode 38, with Terry Lenamon

Scott Glovsky:

Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best Trial lawyers in the United States. We simply have great lawyers, tell great stories from cases that had a profound impact on them. So let’s get started.

I’m very happy today to be sitting with Terry Lenamon. Terry’s a phenomenal criminal defense lawyer, death penalty lawyer, and has done tremendous, tremendous work on some very, very intense cases in Florida. Terry, thanks so much for being with us.

Terry Lenamon:

It’s great to be here.

Scott Glovsky:

Terry, can you share with us a story of a case that had a profound impact on you?

Terry Lenamon:

Certainly. I tried a case back in the spring of 2015, involving my client, his name is Byron Burch. Byron had spent most of his life in and out of prison and he was accused of committing a horrible, brutal murder of his great aunt. She was in her early 80s at the time of the homicide in a small town in central Florida called Brooksville, Florida. And the state of Florida sought the death penalty. And at some point, I became his attorney along with Tanya Olivae who was my co-counsel. And together we ended up trying the case, Byron Birch versus the state of Florida.

Scott Glovsky:

Well, let me ask you first, what does it feel like to have a man’s life literally in your hands?

Terry Lenamon:

Well, certainly it’s a great responsibility that I take very seriously, but like most of the cases I do, which are capital murder cases they involve very complicated matters that stem from things such as early childhood abuse, sexual assault to trauma and to horrendous, horrendous facts that end up being very favorable to the prosecutor in those kinds of cases. And so going into those cases, usually, we’re dealing with an uphill battle. And a lot of times our main focus is ultimately to try to save our client’s life. And Byron Burch was no different.

Scott Glovsky:

So tell us the story.

Terry Lenamon:

Well, I mean, the best place to tell the story is when Byron was very young, he was sexually abused by his father. His father, who at the time of the Trial was doing a 35 year prison sentence for multiple sexual abuses against young children, had sexually abused him while he was separated from Byron’s mother, but had come to stay with Byron’s mother and at the time took advantage of that situation and sexually abused him.

Byron then ended up being raised by a very dysfunctional mother who herself was sexually abused as a child, came from a very dysfunctional family. Byron is African American. He grew up in an area that was highly filled with racial tension, Brooksville, during his childhood, even in the early 90s, late 80s had a lot of racial tension going on. And the environment that he was raised in was not a safe environment. So we have this child who was sexually abused, neglected by his mother, never really loved or cared for, but for one particular person. And that would have been his grandmother.

And at 14, 15, his grandmother died and he ended up melting down and becoming a sexual abuser himself. And he sexually abused a nine-year-old cousin, was arrested and sentenced as an adult to prison at 15 years of age. So you can imagine that this individual who from the very beginning is damaged and suffering all this trauma and neglect was not heading to a really good place. And where he ended up heading to was basically in and out of prison his entire life for burglaries and thefts, things like that, and a lot of drug use. He became addicted to crack cocaine.

So that was kind of like the backdrop of who Byron Burch was and how he came to lead up to the days that led to this really brutal, brutal murder. And so essentially he gets out of prison and this would have been in 2010 and he goes back and lives with his mother who he already has a dysfunctional relationship with and can’t get along with her. He’s not holding down a job. He’s trying to work labor pool, but ends up going back to what he knows and that’s smoking crack cocaine and he gets back into this severe, severe addiction of smoking crack.

And if you know anything about crack cocaine, you would know that this is an addiction that destroys boundaries. It causes brothers to steal from brothers, children to steal from their parents, parents or steal from the children. The addiction just has no boundaries because of the desire to reattach with the feeling that a person gets when they smoke crack cocaine and Byron was no different. But the way Byron was different was that besides the actual crack addiction that he was suffering, he had so many other things wrong with him.

He had brain trauma that he had suffered as a late teen, early 20 boxer. So he had significant brain damage, and he had post-traumatic stress syndrome from the sexual abuses and the neglect and probably had some bipolar tendencies. So you put all that together and it’s a recipe for destruction when you insert crack cocaine into that person’s body. And so that happened. And in the days leading up to the murder, he would smoke crack cocaine, find something to steal, get more money, smoke more crack cocaine. And it became a very, very vicious cycle.

Until one day he ran across his great-aunt who was a loving, well known retired teacher in the community of Brooksville. She was working for the sheriff’s department as a volunteer at the time and she lived alone in her house, and out of the goodness of her heart, she agreed to let Byron do some work on the outside of the house. And what happens after that is unclear, but certainly, at some point, Byron entered the house, there is a struggle in the kitchen because there is blood everywhere.

If you look at the crime scene photos, you can see that she must’ve been cooking ’cause the oven was open and there were some muffins that had just been cooked, placed on the top of the oven. But a struggle begins in that kitchen and leads into the bathroom. And that’s where the police discovered her body with over 30 knife stab wounds. And so the evidence supports that Byron chased her down and stabbed her to death, and she died in the bathroom from several cut arteries and she bled to death.

So she lost consciousness pretty quickly, but there’s no question that she suffered in the process. A fingerprint, an actual palm print of Byron’s was found on the bathtub next to her body. And within a short period of time, after they found the body, the police went there that night because a cousin hadn’t heard from the woman, his great-aunt, and ended up breaking into the house and discovering the body. And within a short period of time, the neighbors had identified Byron as being in a neighborhood near the house.

The police knew who he was, knew that he had been trouble before, and they ultimately went looking for him. And when they found him, he was in a flop house on the other side of town and the police went to arrest him on another burglary that he had committed from the time that he had killed his aunt to the time that he got to where he was and where the police found him. When they went to arrest him on the burglary and also wanted to question him on the murder, he ended up pointing at a bag that he had been carrying, which had all his belongings, every belonging that he had.

It happened to also have a pair of shorts with her blood all over them that was used at trial in support of his conviction. And so they take him down to the police station. The videotape, he denies that he ever had anything to do with it, but ultimately they charge him because of the print. There were some eyewitnesses who claimed that he had some of the property that was taken from her house in his possession and the blood that was sent off in DNA comparison was done on those items.

And so prior to trial we had litigated issues involving the DNA, trying to exclude it, arguing that wasn’t reliable. We had litigated issues involving the palm print, the same reasoning behind that had what’s called a Daubert hearing, where you question the reliability of scientific procedures that are being conducted, but ultimately we lost on all of that and ended up having to get ready for trial and pick a jury.

Now, the interesting thing about capital cases is they’re very distinct from any other kind of case that you try, because number one, you’re going into essentially two separate trials if your client gets convicted during the first part, which is the guilt-innocence part. And in Florida, 12 jurors are chosen, multiple alternates are chosen to be on the panel. So there’s like 16 jurors listening to the evidence, and the importance of understanding in capital cases that you are probably not going to win the first part of the case becomes super important because as you’re preparing your case, which includes the jury selection process, the presentation of your defense in the first phase and ultimately the presentation of your defense in the second phase, you’re dealing with what most likely needs to be what’s called integrated case approach.

And that means that your role is to maintain credibility with jurors throughout the process. And if you go into the first part of the case and say, “He’s innocent, he’s innocent, he’s innocent,” and then the jury convicts him, you’re not going to have a great deal of credibility with the jury when you go, “Well, he is guilty. You found him guilty. But would you listen to the mitigation involved in that?” So you try to integrate your defense and the first part with the second part. Now, the simplest form of integration that one can think of as an example would be an insanity defense.

That part is during the first part of the case you’re saying, “Hey, he did this, but he’s crazy. He’s mentally ill,” or whatever the situation is that you’re dealing with on the mental illness and the insanity. And then when the jury rejects that issue, there’s an easy integration into the second phase where you’re going, “Remember we said he was guilty but mentally ill? Well, here’s a lot more evidence about not only his mental illness but his horrible childhood and all the things that are mitigation that needs to be presented.”

That’s the kind of mindset you have when you’re going into these capital cases. And Byron was no different. The only difference really with Byron was that he was never saying that he did this. He never admitted that he was part of this. He was innocent. So we had to use the reasonable doubt kind of argument at Trial to try to convince the jury that he didn’t do this, but maintain credibility at the same time. And so as we get closer to the actual trial, we start looking at things that are important to us holistically in the case.

Now, case preparation on any capital case is significant. It involves multiple experts in both first and second phases. It involves a lot of investigation and a lot of people and a lot of dollars and cents that are being spent to generate all of these things. And Byron was no different. I think we had a total of 17 or 18 experts that we had hired. Some of those experts were the first phase experts that we talked about dealing with the fingerprint and the DNA and some crime scene issues that we had developed.

But most of the experts that we hired had to do with second phase. And that is the penalty phase, and the way it works in any capital cases, essentially you have the guilt-innocence phase, the jury makes the decision. If the person is convicted, you go into the penalty phase. And then based on the recommendation of the jury and the penalty phase, the judge will make a decision based on their recommendation.

In Florida, at the time of Byron’s trial, it only required seven jurors to vote for death out of the 12. It was a bare majority. That has changed since and there’s been significant litigation in Florida that deal with unanimous requirements on jurors. And so nowadays, even though Florida at this very moment does not have a death penalty, they will have a death penalty shortly within the next couple of months. The legislator’s going back and retooling the process and is going to basically come up with a unanimous requirement that’s consistent with the case law required by the Supreme Court of the United States, and the death penalty requirement would be a unanimous jury.

But back when we were trying Byron it was only seven. So as we move forward with that, we do things like try to hire jury consultants, and many times we’re able to do that depending on who the judge is and put together whatever other people that we need to assist us, including in this case we had for the penalty phase, we had a psychologist, a neuropsychologist, a psychiatrist, a trauma expert, an expert in sexual abuse, we had a prison adjustment doctor, we had a drug addiction doctor, we had a neurologist, we had someone who specializes in PET scans because we had a PET scan done.

That was like our typical presentation that we were preparing for as we move forward, including family members and other things that we look towards, but essentially the way it works is that you have the first phase of the case. And in this case, our defense was he didn’t do it, but we basically embraced the civilian witnesses that were the main witnesses for the state. We embraced their addictions. And so what happened was there were three witnesses who testified that they had seen Byron with the material and so forth and so on.

All of those were crack addicts. And so I spend a lot of time cross-examining them on their addictions and how it really has changed their lives and kind of looking towards the penalty phase knowing that that’s going to be part of our mitigation. The jury was out for two days. They convicted him and then we went into the penalty phase. At the penalty phase, the state gets to put on what’s called aggravating factors that are additional. Our client had a multiple prior violent felony convictions, including a sexual assault of a nine-year-old cousin.

He had a couple burglaries and a couple of battery on a police officer charges that were considered aggravating factors and the jury can weigh those aggravating factors in addition to the murder case to decide life or death. And then we presented our experts. We do an opening statement. They put on their case in chief. And then we put on our case in chief, which included the experts I just talked about and the family members and a teacher and some other individuals. And then we do a closing argument and argue to the jury and the jury is instructed. The jury came back with a life recommendation and Byron was sentenced to life.

Scott Glovsky:

What was your approach to the story of the case?

Terry Lenamon:

The story becomes very important because maintaining credibility with the jury from the very beginning there has to be consistency that doesn’t interfere with your defense in the first part of the case. And in the first part of the case, we basically have a horror of a situation where this elderly woman is victimized. She’s loved. I mean, there was a street named after her in the town. She was a woman of the year after her murder. I mean, it was just an outpour from the community about the death that had occurred to her at the hands of her nephew.

So we have to maintain credibility with the story. And in this situation, the story became … It didn’t come to us right away, but at some point, the story became very important in the sense that she and my client’s great-grandmother were sisters. They were from a family of eight. If you were to put up on a whiteboard align and draw that across, you would put Sarah, who is the victim in this case on the far left-hand side and you would have put my client’s great-grandmother on the far right and there was eight children, six children between them two.

If you were to follow and draw the lines down and do a diagram, you would see that Sarah’s children were college educated, her son had a Ph.D. She was educated herself. She married an educated man. These are all African Americans raised in this community. So she’s very well known in the community because she spent her whole life teaching in this community, but she essentially had a life that was completely different from my client’s great-grandmother. And if you were to draw a line down, my client’s great-grandmother had the grandmother, she was raped and she was a product of rape, the grandmother.

The grandmother got married at 15 and ended up having my client’s mother. She was also raped multiple times. She witnessed horrible, horrible things, my client’s mother, while she was growing up. And then my client, his mother ended up marrying this basically pedophile who would rape her as well. So you had two extremes. A lot of times I come up with ideas because I listen to music a lot and I listen to songs and lyrics. That’s kind of like my thing that I do on the side. And so there’s a song by Phil Collins that two worlds … It’s from the Tarzan movie and it talks about two worlds, two families, but they’re totally separate.

And that was really the theme that I put together in play that this client of mine was not near as fortunate as the woman and the victim and her family. And they grew up in different worlds even though there were from the same family. And the underlying tone is don’t kill … Really the underlying tone, in this case, was the victim was very religious and I don’t believe in a million years she would have ever wanted death penalty for her great-grandnephew.

And so the undertone was always that, that she had forgiveness, that she was loving and caring and everything that we want from a human being to be including how much she gave to her nephew ended up brutally murdering her. So the underlying theme in part under the surface was this issue about forgiveness and redemption and mercy in that. The thing on the surface was two families, two different worlds growing up and then within that theme of the story evolves about the horror that my client had to deal with and suffer.

That’s kind of the storyline, but the theme has undertones and the undertones are always about mercy and forgiveness because that’s what you get jurors to do at the end of the day to open their heart to vote for life as opposed to death.

Scott Glovsky:

What did this case mean to you?

Terry Lenamon:

I think every case I have dealt with in the capital context I carry with me a certain amount of what I consider responsibility in representing my client as a human being. And although I see Byron as a human being and I see Michael as a human being, I see James, these are all clients I represent in the capital contexts and I individualize them, the general concept in my mind is that I have a responsibility that’s two-fold.

Number one is to save their life. That’s my responsibility. And so I don’t get always caught up in forming really, really tight relationships with my clients mainly because that’s inconsistent with who I am. But I have a group, a team of people who help me really put it together, and I have a process using psychodrama and other tools to get to the point where I’m seeing setting and understanding what’s important, what’s strong and what’s not so strong. So that’s really the first responsibility is to save my client’s life.

The second responsibility is to generate this connection with the jurors as members of our community that they need to look inside themselves and find out the goodness that they have so they can get past the anger and the hate that we see that exists in our society.

Scott Glovsky:

How’d you do that?

Terry Lenamon:

I mean, in jury selection, a big part of that is getting to know them, first getting the time necessary to talk to them and then basically front loading or seeking out danger points in my case and getting them to talk about the relationship to those danger points that I feel and acknowledging to them that, “Hey, I’m worried.” And for example, in Byron’s case, when I first met him, I was a little startled because he had a glass eye and so he had this white all on his eye, and he looked a little scary. And it’s like I spent time with him the first initial couple sessions just finding myself getting drawn to that one eye.

As I got closer to trial, I thought that was an important thing because I don’t … It’s easy for them to label my client as a monster. First of all, he’s African American. We had an all white jury. When we picked the jury, we went through 3, 400 jurors and there was only probably 8 or 10 that were African Americans on the panel and that’s consistent with the population. So it wasn’t like we were getting a bad luck of the draw and all those African Americans eliminated themselves legally.

I didn’t even have any challenges to keep them on the panel. With the eye situation, that was just an example when I’m talking about that, that I had a fear of that and I brought that out. And he was called one-eyed Jack and had a glass eyeball. He had all these nicknames that dehumanized him when he was growing up. ‘Cause it’s an incident that happened when he was 11 years old.

And so I would talk about those things. I talked about race. Race was a big issue I talked about in jury selection. So in jury selection, the technique that I kind of use is something that I picked up from a Trial Lawyers College and some of the people that taught me Bettinger’s book, 12 Jurors One Voice, I think it’s called. I used to hero concept with the jury where I basically guided them into a situation telling them that, “You’re coming in here and you’re nobody, but you’re really somebody,” and setting myself up. So I was the mentor and I did full circle. By the time I did my closing argument penalty phase, they were the hero and I carried enough of them to save my client’s life. And I thought that was an important approach to the case as well.

Scott Glovsky:

It must be incredibly scary to actually get to know your client in this context where if you lose, he dies or she dies. Is it hard to deal with that?

Terry Lenamon:

I really don’t put that in play for whatever reason, my makeup, my personality, who I am, I don’t know what it is, but I’ve never had that fear that I’m going to lose my client to an execution as a driving force in any way. I mean, it doesn’t act as a roadblock, it doesn’t act as a like a motivator to do things the way I need to do them. That’s never been really any of the driving force. I mean, the driving force to me has always been the humanistic connection and the fact that as a person, I was raised Catholic, and I certainly don’t believe in the death penalty or the taking of life by the state, but I also have this connection to a higher power and there is a fundamental Christian connection to what I do and what I believe and that there is more of a goodness in human people.

And so I think a part of my responsibility is take these cases that are really horrific and are losers on their face, and people just hate and want to hate and I just feel the challenge to try to find the goodness and people to identify that that whole concept of if you’ve haven’t sinned, you can pick up the stone and throw, that kind of thing. So that’s kind of like really my driving force behind what I do.

Scott Glovsky:

Is it hard to do that though? I mean, what do you do when you encounter people in the public who say, “How do you do what you do? How do you defend murderers?

Terry Lenamon:

Well, the easy answer is I don’t tell people that I do, but that happens occasionally and you know what? Those are the same people who are going to be sitting in my juries and I probably don’t spend a lot of time generating any kind of argument with them. I mean, I can only think of maybe a handful of times that I’ve had those kinds of conversations. And most of the time I think I’ve just kind of blown it off and walked away because, at that moment of time, I’m not in that … I’ve been practicing for 25 years.

I’m not in that young lawyer who I have to try to argue and convince people of anything. The time that I need to convince people is when I’m in a courtroom and I have a client and I have to save my client’s life and it’s the jury that I need to connect with or the judge to whatever extent I need to connect with that person, but outside of that context, I’m not really an advocate. I don’t do anything against the death penalty. My job is individually, I’m a criminal defense lawyer who specializes and represent people charged with horrible, horrible crimes. And that’s what I focus in on.

Scott Glovsky:

I know how hard you work in the cases you work on. Must take a piece out of you with each case. What costs has being a Trial lawyer in this incredibly high-level death penalty cases, what costs has that had for you?

Terry Lenamon:

I mean, probably if you go past five years ago when I was in a different place in my life, there was a big cost. Booze, whatever. I mean, escape, but I’m past that. I’m a recovering alcoholic. I’ve been sober for five years. It’s the best thing that ever happened to me. So there’s no cost. I actually get a big benefit from doing what I’m doing. I mean, it brings a completion into my world that I didn’t have before and now I have.

Scott Glovsky:

What do you mean a completion?

Terry Lenamon:

The satisfaction, the satisfaction of knowing that besides trying cases and saving client’s lives that way, many times I’ll get the case, the death penalty taken off the table. And so my client is not facing the death penalty. So it’s the satisfaction of being able to do my job and do it very well and be blessed with the opportunity of being able to do things like graduate from the Trial Lawyers College, go to a lot of programs on the death penalty to teach lawyers around the state of Florida on the death penalty issue.

Terry Lenamon:

All of those things, those generate positive feelings in my life. It’s great satisfaction that I have for being able to do what I do.

Scott Glovsky:

What does the public not understand about the death penalty?

Terry Lenamon:

I don’t think it’s an understanding issue. There’s a lot of things that they don’t understand and some of them do now because we’re seeing a change in the concept of the death penalty. Like innocent people do get sentenced to death. There are people who have been executed who are innocent. I mean, those are the things I think some of the public understands, some of them don’t. Some of them care, some of them don’t care.

They may not understand the cost and the reason why it takes so long from the time someone is sentenced to death till they execute. And they may not understand a lot of the legal implications involved in that, but I think that the biggest thing that the public doesn’t realize is that many of their motivating factors are based on emotions that are incomplete. And so things like anger and hate and some underlying things like prejudice and racism that they may not consciously be aware of, but we know that there are studies on racism and the color of the skin and the darker skin you have, the more people are going to be prejudiced.

A light-skinned black and a dark-skinned black get a different swing of the bat from a juror on occasion depending on the makeup of the person. So I don’t think that they factor in all those things that cause this desire to kill. And I think that they leave behind the Judeo-Christian New Testament concept of turn a cheek and forgive. And I think many times when jurors are reminded that indirectly, ’cause you can’t preach to jurors, you can’t talk about the Bible, but you can do things and say things that bring out the humanity in them and the love and the understanding and forgiveness.

Then I think when society does that, they realize that killing people is just not part of a system that we want to be in play.

Scott Glovsky:

Terry, on behalf of your clients, on behalf of the lawyers you mentor, thank you very much and on behalf of our listeners and myself, thank you for taking your time to share with us.

Terry Lenamon:

Thank you, Scott.

Scott Glovsky:

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I’d really appreciate it if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at www.scottglovsky.com, and I’d love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people, and it provides a general outline of how to fight health insurance denials. Have a great week and we’ll talk to you in the next episode.