Imagine being only a few feet away from the shore in a body of water way over your head – and you’re drowning. Desperately you look to a crowd of people who have gathered to watch you go down and yet not a single person even attempts to throw you a rope. You struggle to tread water, but it’s a losing battle and slowly you begin to sink into the cold depths and still those gathered to watch, those who could so easily save your life, just stand there and let you go down. Your life means nothing to them – they don’t care.
As a death sentenced prisoner, that’s just as I feel. I’m drowning and my death means inevitable. And yet the lawyers the state pays to throw me the rope and save my life are just standing there, watching me go down. The rope is right there at their feet and all they have to do is just bend over, pick it up and throw it. But they won’t. My expectations are unrealistic as in truth they don’t work for me, they work for the state – the same state that wants me to die. Saving me from death is not in their interest as that would be biting the hand that feeds them.
I don’t understand it and yet I’ve seen it too many times. When it comes to the death penalty, who lives and who dies is not decided upon the nature of the crime allegedly committed, but upon the quality of legal representation the condemned is provided. However, the state doesn’t play fair – they deliberately stack the deck by creating obstructions to prevent appointed legal counsel from too “zealously” representing their clients – and the lawyers play along as they adopt the Marxist philosophy that the good of the many outweigh the good of any one man.
Even the innocent are expendable when it comes to the politics of death. I would challenge anyone who might question my innocence to check out www.southerninjustice.com and decode for yourself. But my innocence is irrelevant and the US Supreme Court has already proclaimed that the US Constitution does not prohibit the state from putting a person to death simply because they are innocent Herrera v. Collins (1993)
For the reason my only chance to avoid being executed in spite of my innocence is to present material “new evidence” that sufficiently “undermines confidence in the verdict”, thereby establishing the foundation upon which the courts can grant a new trial by throwing out the wrongful conviction.
But specifically in our politically corrupted courts this is a very difficult thing to do, especially when the evidence used to convict you was wholly circumstantial – meaning there never was any eyewitness, or physical or forensic evidence, or confessions. Although the US Supreme Court does recognize a “fundamental miscarriage of justice” exception to politically manufactured and statutorily created procedural bars that would allow the litigation of a successive post conviction appeal, this exception requires the condemned prisoner to first produce “reliable new evidence” such as scientific evidence (DNA evidence) or other physical evidence substantiating innocence. See House v. Bell, 547 US 518 (2006)
The problem is that if there never was an eyewitness, or physical, or forensic evidence to begin with the how could it even be possible to produce this type of evidence? The fact of the matter is that the less evidence there was to convince a jury to convict you, the easier it is to execute you. How does that even make any sense?
Anyone who might doubt that the innocent ARE being executed should consider the words of now retired former Florida Supreme Court Chief Justice Gerald Kogan, who had public ally stated that:
“ And there in no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years….that convinces me that we certainly have, in the past, executed those people who never didn’t fit the criteria for execution in the State of Florida, or who – in fact – were not guilty of the crime for which they have been executed”
The irony of all this is that the vast majority of people out there believe that the courts thoroughly review every capital conviction specifically to ensure that the person actually is guilty of the crime before they are executed. That simply is not true. The courts actually are legally restricted to review only the specific claims raised on appeal as presented by appointed legal counsel. A free-standing claim of innocence cannot even be raised on appeal, as innocence in itself is simply irrelevant.
The entire appeal process is governed by a complete set of procedural rules that prohibit legal counsel from raising claims unless they deal with the alleged deprivation of a specific right that arguably deprived the “convicted killer” of a “fair trial” See, as the US Supreme Court explicitly states in Herrera v. Collins, 506 US 390 (1993) in America, you have the constitutional right to a “fair trial” but you do not have a constitutional right to be protected from execution simply because you are innocent
This is where the complexity - and the insanity – of the capital post conviction appeal process really takes its toll. Because of the politics of death, over the years pro-death penalty politicians and judges have created a complex maze of rules that govern death penalty appeals. By arguing the need “to expedite the finality” of capital convictions so that the sentences of death imposed upon the condemned can be carried out without “unnecessary delay” these pro-death penalty advocates have created procedural rules that because of their complexity the condemned prisoner cannot possibly attempt to pursue his own appeals and must depend upon legal counsel to do so.
But in numerous cases the US Supreme Court has declared that there is no right to legal counsel in capital (death-sentence) post conviction appeals. See, Murray v. Giarratano, 492 US 1, (1989), recently reaffirmed in Lawrence v. Florida, 549 US 327 (2007)
Here in Florida, this created a problem. After the death penalty was re-instated in Florida in 1974 and found to be “constitutional’ in Proffitt v. Florida, 428 US 242 (1976) Florida was once again cleared to crank up its killing machine and in 1979 Florida became the first state to put a person to death (John Spinkelink) against his will. In the years that followed, beginning with the execution of Robert Sullivan in the late 1983 Florida then took the lead in the number of executions it carried out – back then (1983-1986) not even Texas could keep up with Florida. But then Florida reached a bottleneck. During these dark days of cranking up “ole Sparky” a small group of volunteers (Susan Carey, Charlotte Holdman etc) worked diligently to recruit lawyers willing to represent the growing death row population. But as the number of death sentenced prisoners steadily increased, there simply were not enough lawyers willing to volunteer to represent them – and yet then Governor Robert Graham kept pushing for more executions.
Under the law that existed at the time; see Graham v. State, 372 so 2d 1365 (Fla. 1979),
although there was no constitutional right to appointment of post conviction counsel in capital cases, the Florida Supreme Court ruled that “due process” (a constitutional right governed by the concept of “fundamental fairness”) required the courts to appoint legal counsel “ when a prisoner filed a substantially meritorious post conviction motion and a hearing on the motion was potentially so complex that the assistance of council was needed”.
By 1984 the Florida Supreme Court was compelled to begin composing “stays of execution” to stop the execution of those who did not have legal counsel. Politically, this did not look good for governor Graham and then Florida Attorney General Jim Smith, so they got together to talk about what could be done to provide legal representation to the condemned so that they could continue carrying out more executions.
As this umbrella of politically influenced circumstances came together, both governor Graham and Attorney General Jim Smith proposed establishing a state-funded agency that would be responsible for doing nothing but representing the condemned, sort of like a ‘public defenders” office.
By mid 1985 this state-funded agency came to exist as “Capital Collateral Representatives”. A small group of dedicated lawyers (director Larry Spalding, along with a staff of thee lawyers) were hired to run it. At first, to avoid any appearance of politically motivated conflict, the state allowed this small staff of lawyers free reign to manage the office, but as these original “CCR” lawyers proved very effective at aggressively representing the condemned and executions in Florida came to a sudden stop, the very politicians that originally advocated for the creation of this state-funded agency believing that it would serve to expedite more executions now began seeing it as an obstruction.
In 1986 pro-death penalty Republican Robert Martinez became governor in Florida and quickly adopted an insidious plan to circumvent the effectiveness if this “CCR” office. His policy was to simply sign numerous “death warrants” so that the minimally funded and staffed “CCR” office would be overwhelmed and rendered ineffective. Once again the rate of executions in Florida picked up.
But the pro-death penalty politicians in Florida’s capitol were now at open war with the rag-tag band of “idealists” who fought to prevent any executions. A then relatively new Republican politician by the name of “Chain gang Charlie” Crist led the political fight against this state-created “CCR” agency. As the years passed “Chain gang Charlie” built his political career feeding off the blood-lust lynch mob frenzy of the pro-death penalty advocates and eventually rode that wave all the way up the political ladder to where he is now – Florida’s elected governor.
With mounting political pressure, the original “CCR” director Larry Spalding was metaphorically tarred and feathered, and run out of town. By law, the governor was responsible for appointing a new director but could not so obviously appoint anyone too pro-death penalty for fear that to do so would create a legal challenge due to conflict of interest.
As the years passed this “CCR” office continued to fight the fight, but increasingly it was losing a battle. The agency was completely dependent upon state-funding and the pro-death penalty politicians increasingly invented new ways to limit their allotted budget as a means of choking off the lawyers ability to adequately represent the condemned clients. See Spalding v. Duggar, 526 So 2d 71 (Fla, 1988); State ex rel Butterworth v. Kenny, 714 So 2d 404 (Fla 1998); Arabalaez v. Butterworth, 738 So 2d 326 (Fla. 1999), etc.
In 1992 the Florida Supreme Court joined the political battle to restrain the lawyers assigned to represent the condemned and created the “Supreme Court Committee on Post Conviction Relief in Capital Cases”. The specific purpose of this committee was to identify and eliminate the causes of delay in executing those condemned to death. Consistent with this politically motivated agenda, the Florida Supreme Court formally adopted new rules governing capital post conviction appeals, and imposed a strict time limit for filing these capital appeals – one year if the condemned prisoners post conviction was not filed within that one year after the conviction became “final”, then the entire post conviction appeal was automatically “procedurally barred” and lost forever.
Because of the political interference, increasingly the lawyers responsible for representing the condemned were performing inadequately. Largely in part because of inadequate funding the attorneys did not fully develop and present the post conviction claims that should have been raised. As a result numerous death sentenced prisoners began to argue that the constitutionally protected right to “meaningful” post conviction review was being circumvented by the “ineffectiveness” of appointed post conviction counsel.
The argument that a death sentenced prisoner might be entitled to pursue a whole new post conviction appeal if he could establish that the lawyer the state provided did not provide reasonably competent representation and failed to raise claims that should have been raised suddenly threatened to undermine the pro-death penalty political efforts to expedite executions. Suddenly the statutorily created “right” to post conviction counsel arguably opened the door to the state being responsible if that appointed counsel failed to provide adequate representation.
The Florida Supreme Court knew that to recognize this argument would open the door to a virtual flood of new post conviction appeals, which would undoubtedly agitate the powerful pro-death penalty politicians. That simply could not happen. In this author’s own case, the Florida Supreme Court ruled that claims that appointed post conviction counsel failed to provide ‘competent” representation were not cognizable
as there was no constitutional right to post conviction counsel in the first place, thus there could be no protected constitutional right to receive competent post conviction representation. Lambrix v. State 698 So2d 247 (Fla. 1996)
In plain English that means that the state of Florida only wanted to establish the pretense of post conviction representation – NOT the actual privilege of competent representation. In other words, the Florida Supreme Court decided that as long as they assign a lawyer to the case they have fulfilled any obligation – if by chance that lawyer proves to be completely incompetent, well – too bad.
Not surprisingly it didn’t take long after this absurd, politically motivated ruling for the pro-death penalty politicians and judges to invent yet another way to obstruct death-sentenced prisoners ability to pursue meaningful review of capital convictions. Once again under the fictions pretense of preserving the “fairness” of this corrupt process, and only after yet another politically motivated “commission” empaneled to find new ways to expedite executions “recommended” restructuring the state funded “CCR” office, the predominantly pro-death penalty Florida legislature rewrote Florida statistics, chapter 27 to “break up” the “CCR” office, and in its place create three separate “regional” offices.
These offices became known as “Capital Collateral Regional Counsel”. The North Florida office was known as “CCR-North”, the central Florida office as “CCR- Middle” and the southern Florida office was referred to as “CCR-South”. By law the Governor was responsible for appointing the director to each of these regional offices, and each director was obligated to answer to the newly created “Commission on Capital Cases” which is overseen by a board of directors comprised of – not surprisingly – pro-death penalty politicians. These changes brought with it a complete collapse of confidence in these state funded agency’s commitment to adequately and effectively provide post conviction representation. In all fairness, a number of lawyers previously employed by the original “CCR” office continued working in the regional offices and did all they could to provide adequate representation – but not without political consequences.
Systematically the “old school” lawyers who continued to aggressively represent Florida’s death sentenced prisoners were run out of the office, often deliberately replaced by former prosecutors and completely in-experienced lawyers. Increasingly the condemned prisoners sought to have these lawyers discharged due to incompetence, or even try to raise the necessary legal issues themselves (what is known as “pro se” filings)
But once again the arrogance of those so deliberately determined to corrupt the process in the interest of circumventing meaningful post conviction review rose to a whole new level when the pro-death penalty politicians became angry end even incensed when the CCRC-North office (under the direction of Michael Reiter) dared to successfully appeal numerous capital convictions, resulting in the Florida Supreme Court being compelled to throw out at least three condemned prisoners appeals (Barry Hoffman, Michael Mordenti and James Floyd) and two others were thrown out in the lower courts (Juan Melendez and Rudy Holton). All of these convictions were thrown out because of prosecutorial misconduct used to wrongfully convict them. Juan Melendez, Rudy Holton and Michael Mordenti were all set free, while both Barry Hoffman and James Floyd “pled out” to lesser sentences. All five could now not be executed. Suddenly these rabid pro-death penalty politicians controlling the state funded offices responsible for representing Florida’s condemned were (metaphorically) foaming at the mouth – how dare these lawyers actually win these appeals, setting these “convicted killers” free! (so what if they were innocent!) Within months these politicians came up with yet another way to keep these lawyers in check – in blatant, politically motivated retaliation, these politicians abruptly eliminated the state funding for the CCRC –North Office, and closed it down. (the office that had won these appeals)
The political message was loud and clear – the lawyers employed by the state to provide post conviction representation to Florida’s condemned prisoners were not hired to provide competent representation, but rather only the pretense of representation if any of these lawyers dared to too aggressively represent their condemned clients they would find themselves unemployed. It was as simple as that.
Among the condemned prisoners, the knowledge that these lawyers were providing nothing more than a pretense of representation became only too clear in a desperate attempt p protect their own interests, those death row inmates that could began to file “pro se” supplemental appeals, arguing in these hand written legal “briefs” that their appointed post conviction counsel was not providing adequate representation, and attempting to raise the arguments themselves.
But once again the Florida Supreme Court acted with deliberate indifference to protect the politically corrupted capital post conviction process. Confronted with these “pro se” actions. The Florida Supreme Court literally invented a judicially created rule that specifically prohibits any prisoner from filing a pro se action if they are represented by legal counsel. Logan v. State, 846 So2d 472 (Fla. 2003)
Although Logan v. State actually was not a capital case involving a death sentenced prisoner, immediately the Florida Supreme Court began to aggressively apply this “Logan” rule to any pro se action submitted to the courts by death sentenced prisoners. See, Lambrix v. State, 900 So2d 553 (Fla. 2005), Lambrix v.State So2d (Fla 2007) (Fla Sct Case *SC06-0038)
Numerous death-sentenced prisoners, including myself, then moved to have these “CCRC” lawyers removed so that the necessary supplemental actions could be filed – only to have the Florida Supreme Court then apply the rule to automatically dismiss and strike these motions to discharge counsel. Incredibly, the Florida Supreme Court has now adopted the policy and practice of refusing to allow Florida’s death sentenced prisoners to discharge these “CCRC” lawyers, leaving death sentenced prisoners in Florida with virtually no means of protecting against the incompetence of appointed counsel, thus accomplishing a complete pretense of representation.
To illustrate this complete deprivation of the most basic concept of fundamental fairness I would encourage you to read in its entirety the action entitles “Petition for Declaratory and/or exercise of All-Writs”, which can be easily reviewed at www.southerninjustice.com/collateral-actions/ In this comprehensive petition, I specifically attempted to argue that the Constitution’s “Due Process” clause that governs the concept of “fundamental fairness” requires judicial recognition of protection against incompetence by appointed post conviction counsel before the
Incompetence results in the irreparable deprivation of meaningful post conviction review. Quite simply put, that the basic concept of fairness requires that the courts provide some means in which to allow death-sentences prisoners to fully present their post conviction appellate “claims” if appointed counsel is not doing so.
But once again I underestimated the pervasive political corruption within the Florida Supreme Court, naively believing that I could appeal to their sense of moral conscience, and compel the court to do what was right.
On march 11, 2009 the Florida Supreme Court ordered that my pro se Petition for Declaratory Judgment was an unauthorized pleading under Logan v. State, and ordered that this petition be stricken from the record.
As if that was not enough, I have now been informed that if I do continue to file any further legal actions attempting to challenge the competency of the CCRC counsel the State has appointed to represent me, that under Florida law I can and will be subjected to “disciplinary actions at the hands of prison officials under the pretense that since any and all pro se actions are now prohibited under this draconian “Logan” rule, any further filings will be deemed “frivolous”
What this means is that the Florida Supreme Court has now decided that to shut me up they will instruct the prison officials to subject me to inter-departmental disciplinary actions, which will result in me being placed in “disciplinary confinement” with a complete loss of any privileges (TV, radio, visits, canteen, reading/writing material, etc) for a period of 30 days each time I attempt to file any further action. Additionally, since I would have to mail any such action to the court, I would also be disciplined for “improper use of the mail” and will be subjected to suspension of all “mail privileges” (and contact/communication with the outside world) for up to 6 months for each alleged infraction.
This brings us to the complete resurrection of the infamous “Star Chamber”! By this I do not mean the Hollywood movie starring Michael Douglas as a corrupt judge who moonlights as a vigilante, stalking and killing those who have escaped justice by some legal technicality. Rather, I am referring to the infamous quasi-judicial tribunal that existed in England in the 16th century. In Faretta v. California, 422 U.S. 806, 821 - 23 (1975) a far more “liberal” US Supreme Court used the historical example of this draconian “Star Chamber” to conclude that a criminal’s right to address the court in person is fundamental, and cannot be denied. As the Supreme Court fully explained:
“ In the long history of the British jurisprudence there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber, that curious institution which flourished in the late 16th and 17th centuries, was of mixed executive and judicial character, and characteristically departed from common law traditions. For those reasons and because it specialized in trying “political” defenses, the Star Chamber has for centuries symbolized disregard for basic, individual rights. The Star Chamber not merely allowed, but required defendants to have counsel. The defendants answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed (See, J.Stephen, “A history of the criminal law in England”, 341-42 (1883) As Stephen commented on this procedure, “There is something especially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the object of the rules so used is to provide for his defense” (end quote)
Most people out there do not realize just how pathetically corrupt the death penalty process in America is. It’s no wonder that those most familiar with our judicial system such as former Florida Supreme Court Chief Justice Gerald Kogan publicly admit that Florida has, and will continue to, execute innocent men and women.
Florida has deliberately re-created this infamous “Star Chamber”. There is no criminal penalty more “political” than capital punishment. Just as in England’s “star chamber”, the state of Florida has established a system of legal representation that is virtually controlled by pro-death penalty politicians who openly and intentionally manipulate the lawyers employed to represent these sentenced to death, so that these lawyers provide nothing more than a pretense of representation.
As with the “star chamber”, these lawyers cannot be discharged no matter how incompetent they might be, and by law (Florida Statutes, Chpt 27) they are prohibited from pursuing or raising any defense not specifically authorized under these statutory provisions. Like the infamous “star chamber”, these lawyers can be subjected to severe consequences if they attempt to prevent an unauthorized appeal, including the suspension of their license to practice law, thus depriving them of their livelihood.
Finally, just as with the Star Chamber, through he adoption of fundamentally unfair judicially created rules, the courts will only accept pleadings specifically filed by appointed counsel, and if such counsel screws up and fails to adequately present the appointed counsel, the condemned prisoner is prohibited from presenting the claims to the Florida courts himself, and ultimately will be put to death.
Bottom line – only the defense authorized by the State, and presented by the State controlled legal counsel are allowed. But this is not new – this has been going on for years, and yet not a single lawyer or organization has challenged this system.
You see, I don’t blame the pro-death penalty politicians and judges who openly use their political powers to manipulate and corrupt the process in their own agenda to expedite more executions even if it means putting innocent people to death. They are what they are, as that is their nature. They have no moral conscience. Rather, the ones truly responsible for the continued existence of such a blatantly corrupt system are the lawyers who represent the condemned prisoners. For the most part, they have sols out – they have become cowards, willing to stand by and watch their client drown yet
unwilling to simply pick up the rope and throw it in before their client goes under.
In have no doubt that the State paid and State controlled lawyers appointed to provide for my legal representation are fully aware that the manner in which my post conviction appeals have been, and continue to be, handled is ‘fundamentally unfair” and this corrupt process could be challenged in Federal Court – but these lawyers are not willing to pursue any action that might offend the political powers that control these state-funded offices, as they know that to do so will undoubtedly result in the office losing its funding. I suppose when it comes down to it, it is better to be paid to throw your client to the wolves than not be paid at all.
As I have previously quoted in other articles, as Abraham Lincoln so well said “Evil can only triumph when good men choose to do nothing”. I will continue to try to tread water as long as I can, but I know that ultimately it may very well be my fate to succumb into the dark, cold depths as those I must trust to save me stand idly by, watching as I sink deeper and deeper. If that is to be my inevitable fate, then I have but one final question to ask…to paraphrase the words that the father of democracy, the philosopher Socrates, once spoke to the corrupt tribunal that condemned him to die…..”to which of us go the worst fate – you or I?”
Please check out my full case argueing my actual innocence, including all court records, trial transcripts, and appeal briefs at www.southerninjustice.net
More writings from Michael about life on death row