Friday, July 29, 2016

Death Watch Journal (part 21)

Is Florida about to crank up it's killing machine again? While executions have been on hold since the Florida Supreme Court granted me a stay of execution days beforeI was to be put to death in early February following a decision in Hurst v Florida (which declared the way Florida decides who is condemned to death unconstitutional) it would appear that this week's decision by the Florida Supreme Court in Mullens v State has now effectively cleared the path for some executions to proceed - but not mine, at least not yet.

There has been an assumption that since I was the next in line for execution, my case would decide whether any executions would proceed. But nothing is ever that predictable in the administration of death penalty law. To be honest, I wasn't too excited about having my case decidethis issue, but I didn't exactly have much of a choice.

If not for the January 2016 decision by the United States Supreme Court in Hurst v Florida it's almost certain that I would have been executed on February 11, 2016. In that Hurst case the USSC declared that Florida law that allowed a judge to determine whether a person was eligible for the death penalty was unconstitutional as under the sixth amendment only a jury can make the factual determinations necessary to impose death.

Using my own case as an example, as with most Florida cases, the jury heard evidence of both why death should be imposed (aggravating circumstances) and why it should not be imposed (mitigating circumstances) then merely made a "recommendation" that death should be imposed, which the judge then reviewed, and writing up his own "findings in support of sentence of death". On march 22, 1984 I was formally condemned to die.

Over 80 men and women have been executed in the state of Florida between 1979 and 2016 under this illegal process, the latest execution being Oscar Bolin on January 7, 2016 (please read: "Execution Day: Involuntary Witness to State Sanctioned Murder"). I was to follow Oscar Bolin into the death chamber on February 11, 2016, but just as I was preparing to go into "phase II" of the death watch process, I was granted a "temporary stay" as the Florida Supreme Court weighted whether this Hurst v Florida decision was retroactively applied to older case such as mine.

As I write this, it has been 145 days since I received that temporary stay of execution. Each and every day I would watch the news anxiously awaiting that decision as to whether I would live or die. I would follow every case that addressed the issue as a growing body of lawyers and judges called upon the Florida Supreme Court to do the right thing and reduce all death sentences to life.

Myself and many others around me speculated on just what the court will rule and debated whether having a death sentence is reduced to life would be doing us a favor or condemning us to have faith even worse than death.... to slowly rot away in the prison system until we inevitable die of old age.

                                                           

Finally just this week the Florida Supreme Court gave us a glimpse into how the Hurst versus Florida decision might apply, or more accurately, how it would not apply. In the case of Khaddafi Mullens v State of Florida, the Florida Supreme Court declared that Hurst vs. Florida does not apply to Mullens because he waived his right to sentencing by jury. This is the first case to address application of Hurst and it's not a good sign.

The significance of this ruling is that it can now be used to exclude a larger number of Florida'd death sentenced prisoners from any relief under Hurst vs. Florida. Keep in mind that in Hurst, the US Supreme Court simply stated that only a jury can decide whether the elements necessary to justify a death sentence can be found. But under this same sixth amendment, it has long been recognised that the defendant can waive his right to have a jury decide his fate.

Although Mullens was on direct appeal, and his case would still have many more levels of appellate review before both the state and federal courts, there is actually a surprisingly large number of death sentenced prisoners who, like Mullens, waived their Sixth Amendment right to a jury at sentencing who have already exhausted their state and federal appeals and could now be targeted by Florida Governor Rick Scott for execution.

One might wonder why anyone facing the possibility of death would waive their fundamental constitutional right to have a jury decide their fate. But the truth is that many do. Some waive their right to jury determination because they feel having their case heard by only a judge would be preferable, while the majority of others waive their right to jury determination because they actually wanted to be sentenced to death and opposed presentation of any "mitigating" evidence.

This is something you rarely hear the courts or media talk about. There are many who actually wanted to be condemned to die, each for their own reasons. Some genuinely felt remorse for the victim and believed that justice could only be served if they were executed.  Others opposed any mitigation as they did not want to be sentenced to "life". They knew that they were only two choices ..life in prison with no chance of ever being free, or death. And they choose death.

Some find that decision difficult to comprehend. For most, if asked whether they would like to live or die, the answer is no brainer as it is our natural instinct to want to live. But in all fairness, I think the question is more comparable to asking someone with a terminal disease whethey would prefer to be put to death, or die slowly, as either way they know they're not coming out of this alive.

Those familiar with the prison system know only too well what awaits them if they are sentenced to life. See, that's something you'll never get the pro death penalty proponents to understand - that if they really wanted to make "murderers" suffer, instead of putting them to death they should sentence them to "life" in prison, as it truly is a fate worse than death. And those who know it will often ask the court to sentence them to death.

When someone is sentenced to death, they are placed in continuous solitary confinement, leaving that six foot concrete crypt only for at most a few hours each week for recreation on an enclosed concrete "yard". Condemned prisoners are not allowed to work a prison job, or go to the dining hall for meals or even participate in church services. They are simply warehoused in that solitary crypt until the state gets around to killing them decades later. And it's not much of a life, and most go crazy in their own way. But at least there's that morbid hope that the nightmare will come to an end when they are executed.

In contrast, if sentenced to life they are cast down into what most amounts to a  jungle and forced to survive among both man and beast, only too often preyed upon, if they don't evolve into the predator themselves.

Doing life without any hope of being released truly is a long death sentence, as Pope Francis recognized when he visited the United States last year and called for not only the abolishment of the death penalty, but also of mandatory life sentences, which he referred to as a "slow death penalty".

Recently this was addressed by the Florida Supreme Court in the case of Atwell vs State (decision dated May, 2016). In that case, Angelo Atwell was 16 years old in 1990 when he committed a robbery and murder, and was subsequently sentenced to life on both counts. However, in 2010 the United States Supreme Court held in Graham vs Florida that sentencing juveniles to life with no possibility of release amounted to cruel and unusual punishment because juveniles are not as capable as adults.

Florida then tried to weasel out of it by saying that Atwell would be assigned an "objective" parole date of 2130, meaning that Atwell did have reason to believe he would be freed; all he had to do was live to be 156 years old. Florida claimed that since it did provide him a release date (at 156 years old) his life sentences were not in violation of Graham vs Florida.

However, a majority of the Florida Supreme Court disagreed, finding that it was unreasonable to assume that Atwell would live to be 156 years old and a parole date in 2130 effectively amounted to a mandatory life sentence in violation of Graham v Florida.

In reaching this conclusion the Florida Supreme Court recognized that there are currently 4626 inmates in the prison system technically eligible for parole, but that in the fiscal year of 2013-14 only twenty-three of those 4626 inmates were actually granted parole. The conclusion is that for all practical purposes, parole doesn't exist in Florida and those serving a life sentence will die in prison.

This is why so many current death sentenced prisoners would rather not have their  death sentences reduced to life. It's not only those who waived a jury determination of sentence at trial, which are now precluded from relief under  Hurst v Florida, but also many more who now are demanding that their lawyers not raise claims of entitlement to relief under Hurst v Florida.

Myself, I have no intention of waiving anything. I do understand that like everything else in the Florida Criminal Justice system, the parole board haslong been politically corrupted and until they are forced to change there is no reasonable expectation of parole.  Assuming the parole system doesn't change, if those currently sentenced to death have their sentences reduced to life, they will still die in prison, only it will take longer and they'll have to survive in the jungle.

But the way I see it, this recent Atwell vs State case illustrates that not only is change  possible, but it's inevitable. There is a growing force of politicians andjudges who  want to see these mandatory life sentences abolished and the parole system modified to allow for reasonable release on parole.

For that reason I'm willing to fight to have my unconstitutionally imposed sentences of death reduced to life - if I am put to death, I obviously will not have any chance of proving my innocence and winning my freedom. But at least if I had my death sentence reduced to life, then there is still the hope that I can convince the courts to address my claim of innocence, and if not, then at least maybe in coming years what the Florida Supreme Court said in Atwell vs State about juveniles must be given a reasonable release date will extend to adults. If I know nothing else about the criminal justice system, it is that it evolves with society's ever-changing values. And change will come.

One of the guys who is insisting that he be executed rather than slowly die of old age in prison told me that I'm just afraid of dying and I immediately responded: "No, I'm not afraid to die - you're just afraid to live". And as long as I'm alive, I have hope of freedom. But nobody wins freedom from the grave.


Sunday, July 3, 2016

Death Watch Journal (part 20)

That gun to my head to remain fully cocked and ready to fire, but at least for now the safety is still on as the Florida Supreme Court continues to debate whether all Florida death sentences must be thrown out, or just some. as I watched the oral arguements in the most recent case before the Florida Supreme Court on June 7, 2016 I noticed that the justices went to great lengths not to reveal their position on whether Hurst v. Florida will be applied retroactively to all cases, or limited to only the most recent cases.

As I continue to struggle with the uncertainty of whether I will live or die, I thought some about where I was 16 years ago today - at that time convinced that within weeks I would walk out a free man. But it didn't happen. Instead, once again I learned a lesson we all learn about what the death penalty is really about... politics. I smile when I think about the epidemic of blissful ignorance - those who truly believe that our system is committed to that noble cause of administering justice and protecting the innocent. I suppose that's what they need to believe, as if they were to be forced to confront the truth that those responsible for convicted and condemning people to death under the pretense of administering justice only too often couldn't care less about whether the accused actually committed the crimes...all that really counts is winning the conviction, and too many prosecutors will do whatever is necessary to win as they don't get promoted by losing cases.

                                                       

Too often I hear people speak of the "moral certainty of guilt" as the benchmark for ensuring that innocent men and women are not put to death.  But it's merely rhetoric - it makes a good sound bite on the evening news and provides an assumption that there truly is solid evidence supporting every capital case and no reasonable person would question the guilt of those put to death. This is the smoke and mirrors show prosecutors and politicians put on to distract away from the real truth - that only too often the alleged evidence used to convict and condemn us, at best, tainted and not at all what it seems.

I'll be the first to admit that I'm hardly objective when it comes to my own case. But then again, as I've always said to anyone who would listen, I'm not asking anyone to simply believe me - and they shouldn't believe the prosecutors either. Rather, all I have ever asked is that those who do feel that there must be a moral certainty of guilt, before the state takes a life under the pretense of administering justice, look at the evidence in my case themselves and then ask whether they can say that the collective evidence establishes my guilt - or does it show that the State of Florida is only too willing to execute the innocent?

The basic facts of my case are that in February 1983 while I was living with Frances Smith in a small rural farming community, she and I went to a local bar where by chance we met another couple, a 35 year old man who called himself Chip, who would later be identified as Clarence Moore, also known as Lawrence Lamberson, and a nineteen-year-old local waitress by the name of Alicia Bryant. The state's own investigation (unknown to the jury) revealed that Moore was a "career criminal" and known associate of south Florida drug smugglers, with the history of violently assaulting women when intoxicated.                                                         
It is not disputed that me and Frances Smith joined Moore and Bryant and the four of us then spent the evening of Sunday February 5th 1983, drinking at several local bars before the four of us then decided to go back to the trailer me and Smith shared, located on a ranch well outside of town. After arriving at the trailer, me, Moore and Bryant sat in the living room drinking whiskey while Smith was in the adjacent kitchen cooking a late night dinner. Smith would later testify that we were all "laughing teasing and playing around" just before me and Moore would go outside, leaving Smith and Bryant inside the trailer.

Fast forward to the following week. Frances Smith was arrested while in the exclusive possession of the car belonging to Moore. She was then intensely questioned by the police as to how she got the car, and gave the police one story after another, each proving false, before she was bonded out of jail. The following week Smith walked into the state attorney's office in Tampa, Florida and announced that she knew where the bodies are buried in rural Glades county and will lead the police to them - but she wanted full immunity from prosecution.

                                                                 
                           Frances Smith

Smith then tells the prosecutor that after arriving at the trailer that night, I first went outside with Moore and then returned alone about 20 minutes later, at which time I "looked normal". I had no blood on me. Then I went outside with Alicia Bryant, but this time I was outside much longer and when I returned I was "covered in blood" and told her "they're death".

Smith has consistently said that although she repeatedly asked what happened, I wouldn't talk about it, and never said why. She claimed she was then "forced" to assist in superfacially concealing the bodies of Moore and Bryant, then left Glades county with me, and subsequently we parted ways with Smith keeping Moore's car until she was arrested on unrelated charges.

The following month I was arrested and charged with capital murder of both Moore and Bryant. Based solely on Smith's statements, I was indicted on premeditated murder and the state announced it would seek the death penalty. At arraignment, I pled not guilty.

The prosecutor knew that is wholly circumstantial case was weak, and that unless additional evidence could be developed there was a really good chance that the jury would reject Smith's testimony and acquit me. But then another witness came forward. The girlfriend of Smith's own cousin (Deborah Hanzel) conveniently corroborated Smith's otherwise unsupported testimony by claiming that she too had talked to me and that I admitted to killing the man, apparently motivated by an intent to steal his car.

Suddenly this wholly circumstantial case had substance and with the threat of the death penalty hanging over my head the local prosecutor tried to coerce me into pleading guilty for a more lenient sentence, but I refused. In December 1983 the case went to trial, but that first jury refused to convict me of any charges - they could not reach an unanimous verdict ("hung jury")

The case was rescheduled for trial and the local prosecutor vowed to convict, but shortly before trial again attempted to coerce me into pleading guilty to lesser charges of (second-degree murder) in exchange for what would had been a sentence of 17 to 22 years - I would have been out within 10 to 15 years. But again, I refused, insisting that I would not plead guilty for something I didn't do.

On the very day that the re-trial began, for reasons never explained, the original presiding judge (Richard Adams) was abrubtly removed and replaced by another judge, (Richard Stanley) - a local career prosecutor who  was later quoted by various newspapers as saying that he always carried a"sawed off machine gun" while on the bench and that if he had it his way, he would have shot capital defendants "between the eyes" in his courtroom rather than going through the expense of convicting and condemning them.                                                                  
I knew I was in trouble just as soon as they started to pick the jury and the court stacked the deck with at least 4 jurors related to members of the small town local sheriff's department - and it only got worse from there. Judge Stanley then prohibited the jury from knowing that key witness Smith actually gave numerous conflicting stories prior to coming up with the one she testified to - and that even then, Smith failed a state administered polygraph test.

Then the court prohibited me from testifying, even though I was the only person who could have disputed Smith's claims and allowed the jury to know what really happened outside. I was not allowed to testify for no other reason but my appointed lawyer - who never previously represented a capital defendant - felt that my testimony was not necessary as he felt the state could not prove the case.

Not surprisingly it took less than an hour for the jury to convict me on both counts of capital premeditated murder, and I was subsequently sentenced to death, joining the ranks of the condemned in March 1984.

                                                               

It would take another 20 years before I was finally given the opportunity to testify in court as to what really happened that night. Most people are blissfully ignorant of how our legal system really works - they think that the Courts review every case and address innocence on every appeal - and that's just not true.

As the US Supreme Court plainly stated, innocent is not an issue. Rather, the courts are limited to reviewing only specifically pled claims of substantial error, and such claims must be presented within the very narrow parameter of procedural rules - if not properly presented, even the strongest claims of error are "procedurally defaulted".

In 1997 my primary appeals before both the state and federal courts were concluded when in Lambrix v. Singletary, 520 US, 51B (1997) by a marginal 5 to 4 decision the United States Supreme Court ruled that although I was illegally sentenced to death, because my lawyers failed to timely present the claim, I was procedurally barred from relief.

Florida Governor Lawton Chiles appointed clemency counsel and I entered into the pre-death warrant stage - no Florida death row prisoner has been granted clemency since 1986, nor would any.

But then unexpectedly the only witness that corroborated Francis Smith's trial testimony came forward and admitted that her trial testimony was not true. Deborah Hanzel then testified under oath that key witness Smith and the prosecutor's lead investigator Miles "Bob" Daniels had coerced her to provide the false testimony, telling her if she didn't, then her children would be harmed.

Deborah Hanzel also testified in 2003 that Frances Smith told her that her own testimony was not true, and that - just as I had consistently claimed for the past thirty three years, Moore had physically assaulted Bryant and when I tried to stop the fatal assault, Moore turned on me, forcing me to act in self-defense (link to video). As Hanzel testified about how Smith and the prosecutor's lead investigator worked together to coerce her false testimony, Smith's own recently divorced husband contacted my lawyers and advised them that Smith had often "bragged" about how she was having an affair with the prosecutor's lead investigator "Bob", and that he had protected her from prosecution.

The court ordered Frances Smith to respond to these allegations under oath, and although at first she swore she didn't know the investigator "Bob" Daniels, she then reluctantly admitted that it was true - that he did have a sexual relationship with the prosecutor's lead investigator during the case. Both Smith and investigator Daniels were then compelled ro reluctantly admit that just before testifying they were seen talking in the hall. But Daniels insisted he never had sex with Smith - but then conceded that even if it was true, he wouldn't admit it as it would jeopardize his state pension and cause problems in his marriage.

As all this was pending, it came out that the prosecutor, Randall McGrunther, had deliberately concealed evidence prior to trial. From the very beginning of the case the prosecutors claimed that no physical and forensic evidence was recovered in the case. But in 2009 it was revealed for the first time that in 1983 the State Crime Lab actually did find numerous hairs on the alleged "murder weapon" that they found did not match either victim, or me - and that when the crime lab brought this unexpected discovery to the attention of Randall McGrunther, he ordered all the evidence to be returned to his office - then he concealed this evidence until it was accidentally recovered at the state records respository.

Confronted with the probability that based upon this collective "new evidence" that the jury never heard my convictions would be thrown out, suddenly I was offered yet another opportunity to negogiate a plea for a reduced sentence. This time I was willing to plea "no contest" to reduced sentence of 30 years on a plea of second-degree murder. At the time I already had 22 years in and was entitled to another seven years of time off for "good behavior". Agreeing to this "plea bargain" (as it is commonly called) meant that I would be released within months.

Judge R. Thomas Corbin postponed any other hearings to allow both parties to reach an agreement, but then all of a sudden the prosecutor decided that they would not allow a reduced conviction - but if I would formally abandon any further claim of innocence, that would reduce my death sentence to life. It seemed simple enough -  all I had to do was waive any further review of my consistently claim of innocence and the State of Florida that would let me live - I didn't have to die.

But I couldn't do it. As was published in the Ft MyersNews Press in July 2006, I would not enter a plea to a crime I knew I didn't commit.

Judge Corbin then denied all relief, finding that every witness that testified for me was not credible while every witness to testify for the state was telling nothing but the truth.

Not long after Judge Corbin made the absurd and  self-contradictory ruling, it was revealed that the local state attorney had established a powerful "political action committee" (AAC) with the assistance of a convicted money launderer associated with Colombian drug cartels and through this  AAC all but controlled local elections and circuit courts judges and judge Corbin was up for reelection.  Motions to disqualify Judge Corbin and reopen the case were summarily denied.

The case proceeded to appellate review before the Florida Supreme Court and it was argued at length that Judge Corbin's denial of relief was contrary to the evidence and "dubious at best". Further, legal counsel argued that judge Corbin improperly refused to allow of wealth of readily available evidence that would substantiate the pled allegations that the key witness Frances Smith and the prosecutor's office deliberately fabricated the case of alleged premeditated murder and that they knew that it was a case of legally justified self-defense.

But as luck would have it, by the time I finish made it back up to the Florida Supreme Court, none other then Peggy Quince was the politically appointed Chief Justice. Notably, prior to being appointed to the state's highest court, Peggy Quince was part of the prosecution team in my case during the post-conviction proceedings when the evidence at issue was deliberately concealed. To grand me relief, the Florida Supreme Court would now have to recognize that Chief Justice Peggy Quince engaged in prosecutional misconduct that resulted in sending an innocent man to death row.

Motions to disqualify the court and allowed the case to be heard by a panel of Judges not associated with Chief Justice Peggy Quince were denied. A formal civil rights action was then filed seeking to expose this denial of fair and impartial review, but that was dismissed for no other reason but a technical error, see http://lambrixvmcneil.blogspot.com

In unprecidented hastily presumablyattributable to the Florida Supreme Court's desire to protect their chief justice Peggy Quince from allegations of prosecutional misconduct, the court affirmed denial of relief - categorically refusing to even address the readily available evidence substantiating my consistently maintained claim of innocence.

Under the 1996 "Anti-terrorist and Effective Death Penalty Act" (AEDPA) my federal court review was limited and effectively unavailable.  My legal counsel filed a "petition for writ of habeas corpus" with the United States Supreme Court argueing that absent extraordinary intervention the State of Florida would proceed to put an innocent man to death, specifically arguing that neither the state or federal courts have allowed any opportunity for the readily available evidence substantiating my innocence to be heard and asking the Supreme Court to order a full hearing on the evidence.

On the morning of November 30, 2015 the Supreme Court denied review. Not more than 2 hours later Florida Governor Rick Scott signed a death warrant formally scheduling my execution for February 11, 2016. (check out: "Execution day: Involuntary witness to murder" )

Within days of that scheduled execution I received a stay of execution pending a review of application of Hurst vs. Florida. I continue to remain under an active death warrant and my execution could be rescheduled soon.

As I know quite literally stand in the shadow of death, do I regret not accepting the states offer to reduce my sentence to life if I will abandon my claim of innocence? No, I do not. I thought this fight to prove my innocence for 33 years now, and never once wavered. I'd rather die with my integrity intact than weasel out of it a coward. If the State of Florida is willing to execute an innocent man, then so be it. But as Socrates said to the tribunal that wrongly condemned him to death so long ago, "to which of us go the worst fate, you or I?"