Filing # 59045104 E-Filed 07/14/2017 03:11:11 PM

IN THE CIRCUIT COURT OF THE

FIFTH JUDICIAL CIRCUIT IN AND FOR
MARION COUNTY, FLORIDA

STATE OF FLORIDA, CRIMINAL DIVISION

Plaintiff, CASE NO.: 2011-3085-CF-A

vs.

JAMES BANNISTER,
Defendant.
/

MOTION TO CONTINUE TRIAL

The undersigned, hereby files this Motion to Continue Trial and in support states:
1. The Defendant is charged with four counts of Capital Murder in which the State of
Florida is seeking the death penalty.
2. Mr. Bannisters case is currently set for trial on August 14, 2017.
3. Undersigned is currently scheduled for trial in a state capital murder case September 5,
2017 in Bradford County, Florida.
4. On March 7, 2012, undersigned counsel was appointed in the case of State of Florida v.
William Wells. Mr. Wells is charged with capital murder for an alleged homicide that occurred at
Florida State Prison. At the time of the alleged offense, Mr. Wells was serving five life sentences
on five separate homicides counts. The motive behind the killing of the fellow inmate was so that
Mr. Wells could get to death row. Mr. Wells has an extensive history of mental illness and
trauma.
5. On December 1, 2016, Judge William E. Davis set the case for trial for the period of
September 5, 2017, to October 10, 2017. At the time of the setting, there was no death penalty
statute in existence in Florida. The Florida Supreme Court, pursuant to Hurst v. Florida, had
struck down the then-existing statute. As this Court is aware, the legislature passed a new
unanimous statute in the spring of 2017.
6. On May 7, 2017 William Wells mailed a letter to undersigned counsel seeking dismissal
of counsel and indicating the desire to plead guilty and present no meaningful mitigation.
Essentially, Mr. Wells sought to receive the death penalty without any defense from counsel. At

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the time of receipt of the letter, undersigned counsel was out of state in Wyoming at Staff
Training for Trial Lawyers College. Undersigned counsel subsequently filed multiple motions
based on mental illness and related issues.
7. On June 1, 2017, undersigned counsel met with Mr. Wells in Starke at Florida State
Prison. After extensive discussions, undersigned counsel persuaded Mr. Wells to retain counsel
on the case and present both defenses and mitigation and argue against the death penalty. It was
agreed that counsel would seek no more continuances and file a speedy demand.
8. On June 6, 2017, undersigned counsel and Mr. Wells appeared at a hearing in front of
Judge Davis. During this hearing Mr. Wells agreed to withdraw his motion to represent himself
and terminate counsel. It was communicated that a speedy demand would be filed in early July
upon counsels return from Wyoming.
9. On July 6, 2017, counsel filed the Speedy Trial demand pursuant to Florida Rule of
Criminal Procedure 3.191(b) and the Court set trial for September 5, 2017 on July 13, 2017.
10. It is estimated that Mr. Wells trial will last 1-2 months.
11. In addition to undersigned counsels scheduling conflict, the defenses guilt phase
preparation for Mr. Bannisters case is still incomplete.
12. Although over 140 witnesses have been deposed, there are still several essential
witnesses that remain. These includes the lead detective, other main detectives, cooperating
witnesses, and witnesses related to the victims.
13. Previously this Court denied undersigned counsels request for an extension of time to
file important first phase motions. Undersigned has filed incomplete first phase motions with
this Court, requesting leave to amend such motions when Mr. Bannisters discovery process is
completed.
14. There are seven separate motions to suppress the statements Mr. Bannister made during
the investigation that undersigned counsel is not done investigating. There are also pending
suppression motions related to evidence collection that were just filed.
15. There is a pending challenge to the reliability of the telephone records the State intends to
introduce through its expert.
16. Further, there is a pending motion to challenge the admissibility of an enhanced recorded
statement which cannot be amended until this Court grants the approval for funding of an audio
technician to evaluate the recording.

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 17. Undersigned counsel has filed five motions related to first phase experts with this Court.
It is critically important for undersigned counsel to consult with this experts on the varying
forensic aspects of Mr. Bannisters case. The appointment of these experts has yet to be
granted.
18. Consultation with these yet to be appointed forensic experts may lead to undersigned
counsel filing other motions related to the admissibility of other types of forensic evidence, or
requests for further testing of forensic evidence.
19. Counsel has also recently filed a Brady motion requesting any outstanding discovery on
the States main witness Randall Neumann and unlisted witness Brandon Elkins. Mr. Elkins was
present for part of the conversation between Mr. Bannister and Mr. Neumann that the State has
categorized as an admission.
20. There also remain four outstanding second phase experts that this Court has not
addressed. Two of these experts were previously denied by this Court and the Defendant has
filed the appropriate motions for rehearing.
21. The work of these experts is critically important for the Defendants mitigation defense.
22. While the mitigation defense of Mr. Bannister has made tremendous progress, there are
things that remain incomplete.
23. The mitigation specialist still has several lay witnesses to interview in different parts of
the country.
24. Some of the more recently court-appointed experts have not begun their work.
25. And typically, it is important for undersigned counsel to have experts consult with each
other regarding their findings prior to trial. This cannot be done until the collection of all
relevant data is collected by the mitigation specialist and it certainly cannot be done when there
are pending second phase experts.
MEMORANDUM OF LAW

The due process clause and the 8th Amendment to the United States Constitution
heightened reliability at both the trial on the merits and the sentencing phase of any capital case.
U.S. Const. amends. V, VIII, XIV.
It is beyond dispute that this standard must be applied to any capital sentencing
proceeding. The United States Supreme Court has long held that the qualitative difference of
death from all other punishments calls for a greater degree of reliability when the death

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sentence is imposed. Lockett v. Ohio, 438 U.S. 586, 604 (1978). See also Mills v. Maryland,
486 U.S. 367, 376 (1988) ([I]n reviewing death sentences, the Court has demanded even greater
certainty [than in other criminal cases] that the jurys conclusion rested on proper grounds);
California v. Ramos, 463 U.S. 993, 998-99 (1983) (qualitative difference of death from all other
punishments requires a correspondingly greater degree of scrutiny of the capital sentencing
determination); Caldwell v. Mississippi, 472 U.S. 320, 329-330 (1985) (Eighth Amendments
need for reliability in determination that death is appropriate punishment requires sentencers to
be aware that their power to determine appropriateness of death; to hold otherwise would give
rise to constitutionally intolerable possibility of substantial unreliability).
Federal case law also makes clear that a trial court must also apply this heightened
standard of reliability to all other aspects of a capital case, including the merits phase of a capital
trial, in order to satisfy the demands of the Eighth Amendment.
In Beck v. Alabama, 447 U.S. 625, 637-638 (1980), the United States Supreme Court held
that the concerns for heightened reliability which applied during the sentencing proceedings in a
capital case were equally applicable to the trial on the merits in a capital case. In Beck, the Court
held that the Constitution required the giving of lesser-included offense at the trial on the merits,
if requested in a capital case, even if there was no due process requirement to give a lesser-
included offense instruction in a non-capital case, stating:
to insure that the death penalty is indeed imposed on the basis of
reason rather than caprice or emotion, we have invalidated
procedural rules that tended to diminish the reliability of the
sentencing determination. The same reasoning must apply to rules
that diminish the reliability of the guilt determination. Thus, if the
unavailability of a lesser included offense instruction enhances the
risk of an unwarranted conviction, Alabama is constitutionally
prohibited from withdrawing that option from the jury in a capital
case.

The Court noted that failing to give such an instruction might enhance the risk of an
unwarranted conviction and that [s]uch a risk cannot be tolerated in a case in which the
defendants life is at stake. Id. In so holding, the Court relied upon its previous statement in
Gardner v. Florida, 430 U.S. 349, 357-358 (1977), recognizing the different nature of death
penalty cases:
[D]eath is a different kind of punishment from any other which
may be imposed in this country. . . . From the point of View of the

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 defendant, it is different in both its severity and its nality. From
the point of view of society, the action of the sovereign in taking
the life of one of its citizens also differs dramatically from any
other legitimate state action. It is of vital importance to the
defendant and to the community that any decision to impose the
death sentence be, and appear to be, based on reason rather than
caprice or emotion.

See also Herrera v. Collins, 506 U.S. 390, 406 n. 5 (1993) (Beck emphasizes the importance of
ensuring the reliability of the guilt determination in capital cases in the first instance.)
Justice OConnors concurrence in Thompson v. Oklahoma, 487 U.S. 815, 856 (1988),
lends further support for the notion that a trial court must apply heightened scrutiny to all
decisions that may lead to the imposition of a death sentence:
Under the Eighth Amendment, the death penalty has been treated
differently from all other punishments. . . Among the most
important and consistent themes in this Court's death penalty
jurisprudence is the need for special care and deliberation in
decisions that may lead to the imposition of that sanction. The
Court has accordingly imposed a series of unique substantive and
procedural restrictions designed to ensure that capital punishment
is not imposed without the serious and calm reection that ought to
precede any decision of such gravity and nality.

State courts have also recognized the necessity of applying the standard of heightened
reliability to all aspects of a capital case. See, e. g., People v. Arthur, 175 Misc. 2d 742, 673
N.Y.S.2d 486 (N.Y.Sup.Ct. 1997) (noting that higher procedural standards designed to assure
greater reliability of a capital sentencing proceeding are not contained strictly within the capital
sentencing proceeding authorized by [New Yorks sentencing statute]. Any aspect of a capital
case which directly affects the reliability of the fact-nding process regarding sentencing should
be subject to heightened scrutiny. While certain stages of capital litigation would rarely, if ever,
present such a circumstance (e. g., grand jury proceedings or arraignment), the same cannot be
said for the discovery process); see also Azania v. State, 778 N.E.2d 1253 (Ind. 2002)
(Widespread concern over the fairness and reliability of death sentences demands that the courts
and the public have no signicant doubts as to the fairness of the process. These same
considerations require heightened sensitivity in a death penalty case in determining whether a
jury selection system is random and impartial as required by Indiana law.).

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 There is an obvious inter-connection between the merits and sentencing phases of a
capital case. But for a guilty verdict in the merits phase of a capital case, the jury would not even
be permitted to consider the death penalty, much less impose it. While a trial on the merits may
exist without a sentencing trial, the latter is wholly dependent on the former. This heightened
reliability requirement for the guilt phase would not be met should Mr. Bannisters because the
first phase investigation in its current state is deficient. Counsel has not completed discovery,
the State has failed to provide the totality of discovery, and experts have not been retained to
consult with the Defense on important forensic issues in Mr. Bannisters case.
Not only does a premature date threaten the reliability of Mr. Bannisters proceedings,
but also his rights to effective representation of counsel. The ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases (2003 revision)
assign counsel (at Guideline 10.4(B)) the responsibility for conducting a thorough investigation
relating to both guilt and penalty, regardless of any statement by the client opposing such
investigation. (Guideline 10.7). Inherent in the approach to competent capital defense dictated
by the Guidelines is the recognition that the mitigation function is multifaceted and multi-
disciplinary.
The United States Supreme Court has concluded the ABA Guidelines are a signicant
component of the Sixth Amendment obligation for effective assistance of counsel in capital
cases. See, Sowell v. Collins, 557 19 F.Supp.2d 843, 866-867 (S.D. Ohio 2008) (The United
States District Court, Southern District Ohio held that it must objectively review counsel's
performance in the context of prevailing professional norms which are dictated by the standards
of the ABA Guidelines).
Consistent with the Guidelines a vast amount of mitigation evidence must be developed.
See Supplementary Guidelines For The Mitigation Function Of Defense Teams In Death Penalty
Cases (2008). The kinds of information that must be identified include, but are not limited to:
Fetal and birth trauma, including prenatal malnutrition, prenatal exposure to alcohol, drugs
and toxins, maternal medical conditions, such as diabetes, liver and thyroid disorders and
toxemia, and complications of delivery such as anoxia;
Early developmental history, including ages at which important developmental tasks such as
walking and talking were mastered;
Early physical health of client, including chronic illnesses, high fevers, traumatic injuries,

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 infectious diseases, nutritional status; whether medical attention was available and, if so, the
nature and extent of any intervention;
Evidence of early signs of mental illness or deficiencies, including mental retardation,
pervasive developmental disorders and major mental illnesses such as schizophrenia or
bipolar disorder; onset and course of adolescent or adult mental illness; treatments, including
self-medication
Educational history, including when and where client attended school, the presence of any
learning disorders, special education and referrals for additional assistance;
History, nature and extent of mental, physical and/or sexual abuse, including isolation and
shunning, scapegoating, beatings and burnings, having to watch repeated abuse of loved ones
History and course of drug addiction, including who introduced client to various drugs and
toxins and means of self-medication;
Nature of relationships with parents and significant others, including whether or not client
knew parents, the degree of bonding and trust present, presence or abandonment and
betrayals by parents;
Residential history, including foster homes, juvenile settings, moves due to evictions;
Presence or absence of necessary support systems within the family, school, and community;
presence or absence of advocates;
Presence or absence of client skills and means by which to build a sense of self esteem and
personal competence;
Nature and extent of poverty, including substandard living conditions, including periods of
starvation or malnutrition, lack of heat, medical attention, clothes
Number and nature of traumatic life events, including loss, injury or illness of significant
others, victim or witness of extreme violence, chronic or acute physical/sexual abuse, loss of
home or prolonged hospitalization;
Health history, including major accidents and head injuries, infections, hospitalizations,
outpatient care, chronic untreated conditions, medical treatment received in institutions;
Nature of work experiences, including childhood jobs to help support family; necessity to quit
school in order to support family; number and nature of jobs; ability to perform/master tasks;
willingness to perform tasks assigned; job related injuries/illnesses; exposure to toxins;
Juvenile and adult criminal history, especially the presence and nature of influence of co-
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 defendants; experiences with law enforcement, juvenile detention centers, courts, parole and
probation, prisons, and work release programs, especially in regard to rape, inmate violence
and violence and abuse perpetuated by the institution;
Military history, including location and nature of combat experience, exposure to toxins,
nature of job assignments, special training, commendations, indications of PTSD;
Religious and spiritual experiences and activities;
Nature of significant relationships, including family friends, spouses, ex-spouses and co-
defendants and the effects of these relationships and/or the loss of the relationships of the
client; and
Physical and mental health histories of parents and other family members; school histories of
same, employment history of same.
Id.
It also includes identification, location and retrieval of all records regarding the client ever
generated, as well as all records regarding all immediate and extended family members. These
include but are not limited to the following:
All birth certificate and hospital birth records and/or all individuals who have knowledge of
the clients birth, all medical records, including private physicians, clinics and hospitals.
These include, emergency room records, all lab reports, x-rays, EEGs, CT scans, ECGs,
PET scans, MRIs, medications logs, nurse and physician notes, immunizations and all
pathology reports;
All school records, including transcripts, health records, standardized testing, attendance,
special education testing and/or classes, disciplinary action for every school attended,
including adult education and vocational schools, GED, college and Job Corp;
All social service records, including food stamps, AFDC, WIC, welfare, counseling records,
referrals, and medical and mental health treatment, records associated with adoption agencies
and foster homes, including placement and discharge reports, progress reports, and medical,
educational, mental health, and intellectual evaluations;
All juvenile records, including public defender and state attorney files, pre-trial intervention,
community service records, juvenile detention records, to include all medical, educational
and intellectual evaluations, treatment plans, field and progress, notes and referrals, and court
files;

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 All adult criminal records, including police, sheriff and FBI records; jail and prison records
to include all psychological, educational and medical evaluations and notes, daily progress
notes, disciplinary reports, work assignments, classifications reports, participation in all
vocational, educational, religious and honor programs, religious reports and visitation logs;
all court records; all public defender and state attorney files
All probation and parole records, including presentence investigations and sentencing
reports, field notes, family and social history information, conditions of supervision and
violations, and conditions of release from supervision;
All employment records, including applications, attendance, job assignments and
performance evaluations, medical and psychological evaluations, relocations, pay records;
All psychological and psychiatric records, including community mental health clinics, private
doctors and counselors, hospitals and substance abuse facilities, to include intake evaluations,
treatment interventions, all medication logs, physician and nurse progress notes, referrals,
and discharge reports.
Id.
It is essential that, whenever possible, the data collected be triangulated; that is, obtain
data from more than one source and, preferably, more than one type of source, in order to assure
valid and reliable information. For example, a head injury and the effects of the trauma should
be documented by all those who witnesses the injury and its aftermath, as well as by medical
records and the medical personnel who treated the client. This is essential in order that experts
evaluation the client can draw accurate conclusions about the effects of the injury on the clients
perception, judgment and behavior. See, Lee Norton, Mitigation Investigation, in FLORIDA
PUBLIC DEFENDER ASSN, DEFENDING A CAPITAL CASE IN FLORIDA 25 (2001).
In Mr. Bannisters case, although significant progress has been made in the investigation
there remain witnesses in other states to be interviewed. Most importantly there are experts that
have yet to be appointed on Mr. Bannisters case. Mental health experts are essential to
defending capital cases. Neurological and psychiatric impairment, combined with a history of
physical and sexual abuse, are common among persons convicted of violent offenses on death
row. The defendants psychological and social history and his emotional and mental health are
often of vital importance to the jurys decision at the punishment phase. Creating a competent
and reliable mental health evaluation consistent with prevailing standards of practice is a time-

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consuming and expensive process. Counsel must provide these experts with extensive historical
data, as well as obtain a thorough physical and neurological examination. Diagnostic studies,
neuropsychological testing, appropriate brain scans, blood tests or genetic studies, and
consultation with additional mental health specialists may also be necessary. See ABA
Guidelines. Should the Defendants request for a continuance be denied, the undersigned
counsel would not have the capacity to present to the jurors an effective and comprehensive
mitigation defense.
The Sixth Amendment entitles a criminal defendant to more than mere legal
representation; an accused has the right to the effective assistance of competent counsel. Powell
v. Alabama, 287 U.S. 45, 58, (1932). In order to fulfill that Constitutional guarantee and render
effective assistance of counsel, counsel must be given adequate time to prepare for a case. See
Powell, 287 U.S. at 71 (inadequate case preparation can jeopardize an accuseds right to
effective assistance of counsel). While the Constitution nowhere specifies any period which
must intervene between the required appointment of counsel and trial, the denial of adequate
time for appointed counsel to confer, to consult with the accused and to prepare his defense,
could convert the appointment of counsel into a sham and nothing more than a formal
compliance with the Constitutions requirement that an accused be given the assistance of
counsel. Avery v. Alabama, 308 U.S. 444, 446 (1940). The prompt disposition of criminal
cases is to be commended and encouraged. But in reaching that result a defendant, charged with
a serious crime, must not be stripped of his right to have sufficient time to advise with counsel
and prepare his defense. Powell, 287 U.S. at 59. Here, should trial remain set for August 10th,
undersigned counsel would be wholly ineffective.
Wherefore, the undersigned REQUESTS the motion for continuance be granted.

Certificate of Service

I HEREBY CERTIFY that a copy of the foregoing motion has been furnished via

eservice to the Office of the State Attorney, this 14th day of July, 2017.

Respectfully Submitted,
/s/ Terence Lenamon
Terence M. Lenamon
Florida Bar # 0970476
245 SE 1st Street, Suite 404
Miami, Florida 33131

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 305/ 373-9911
terry@lenamonlaw.com

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