Death Watch Journal (Part 26)

I remember a cartoon I was read years ago. In the first frame it depicted a desert scene with a large cactus in the forefront and on the arm of that cactus were two vultures — the larger one presumably was the parent while the much smaller one was the younger child. But intently stared off into the distance. Across that great expanse of endless sand dunes and off in the distance there was what appeared to be a small dot with a puff of dust rising above it. The second frame showed the same scene, only now the small dot was much closer, and it could be seen as a man desperately crawling across the scorching, barren death, obviously on the brink of death, but stubbornly refusing to give up hope as he clawed his way forward. Both vultures sat silently, just watching as the man drew closer and closer. The third frame showed the man now almost immediately in front of the cactus, looking up towards the vultures with a look of desperation as the younger vulture began to jump up and down, all but screaming, “Can we get him now?” and the larger vulture calmly patted him on the shoulder, “Patience, Son, patience.” The fourth and final frame showed the man now crawling past and away from the vultures, a slight smile of hope and defiance as he seemingly escaped his inevitable fate. Now the younger vulture looked at his father with a look of malice and intent in his beady little eyes, and exclaimed, “Patience, my ass — let’s just kill the bastard!”

Well, the vultures are circling again and with each pass they draw just a bit closer, and I am that man desperately crawling across that barren desert. This time last year I was facing relatively certain imminent execution despite my innocence and had already ordered my last meal and been measured for the suit the state so generously bought for no other reason but to kill me in.

Then the Florida Supreme Court granted a “temporary” stay of execution and on February 9, only two days before my scheduled execution — I was removed from the death watch housing area and placed back on the regular wing housing death row at Florida State Prison, where I remain today.

Over the past year the state courts struggled with the question of whether the January 2016 U.S. Supreme Court case of Hurst v Florida would require all illegally imposed sentences of death to be thrown out. Until that issue was resolved, my stay of execution would remain in effect. As the months passed, numerous rulings gave us the hope that the Florida Supreme Court would do the right thing and rise above the only too common corruption of the Politics of Death.

When the Florida Supreme Court issued its own decision in October, 2016, in Hurst v State, in which the majority of the Court not only recognized that consistent with what the U.S. Supreme Court plainly stated in Hurst v Florida, the manner in which Florida imposed death sentences — all death sentences since 1974 — was unconstitutional, but went a step further to also add that the previously existing process violated even greater protections afforded under the Florida constitution  and that such illegally imposed death sentences amounted to the unconstitutional infliction of “cruel and unusual punishment,” we thought for sure the court would now throw out all these illegally imposed sentences of death.

As reflected in my previous blog posts, after that October 2016 decision in Hurst — and others that closely followed — it appeared that the Florida Supreme Court was going to do the right thing and upon recognizing that all death sentences were illegally imposed, retroactively apply Hurst and effectively vacate all Florida death sentences. It seemed that was the only logical conclusion.

But on December 23, 2016, perhaps reflecting the malice in their hearts by releasing these decisions just before Christmas, the Court issued its decisions in Mark Asay v State of Florida and John Mosley v. State of Florida in which any hope of having all death sentences vacated was quickly dispelled.

In Mosley, the Court concluded that there was no question that the U.S. Supreme Court opinion in Hurst v Florida made it clear that they were wrong when they previously decided that the 2002 case of Ring v Arizona did not apply to Florida’s cases. Of course, the FSC made no mention of the fact that since they were wrong in the 2002 case of Leroy Bottosin and Amos King, they had allowed 47 men (no women) to be put to death based upon which is now recognized as their own clear error.

The FSC then went on to recognize that since John Mosley was sentenced to death after that 2002 USSC decision of Ring v Arizona, fundamental fairness entitled him to relief from that illegally imposed death sentence, and the Court ordered his death sentence vacated, and a new sentencing.

This is called “retroactive application” of new law, which allows more recent substantial court rulings to be applied to older cases. Which brings us to what the Court then did in the Mark Asay case. It must be emphasized that in all the state and federal cases previously addressed on the issue of retroactive application, no court has ever adopted a “partial retroactive application” rule of law… until now.

In the Mark Asay case, a marginal majority of the Court first recognized that like John Mosley and all others, it was beyond dispute that Mark Asay was illegally sentenced to death. But then the Court departed from convention and decided that because Asay’s sentence was originally affirmed prior to 2002 (before Ring v Arizona), they would allow his sentence to stand. To justify this decision, the Court said that granting Asay (and all others whose death sentences were affirmed prior to 2002) relief under Hurst would burden the courts and inconvenience the state. It would be easier on the state to go ahead and kill them all even if their death sentences were illegally imposed.

Asay’s lawyers quickly filed a “Motion for Rehearing” in which they argued that arbitrarily granting relief to post-2002 cases while denying it to pre-2002 cases violated numerous constitutional provisions that govern fundament fairness and prohibit arbitrary punishments. But this decision had little to do with principles of law, or doing what was fair or morally right (obviously, if someone was illegally sentenced to death, they should not be put to death). Rather, once again it is about politics — not administering justice down here in the Deep South. Executions win elections, and the end justify the means even if it means illegally executing people.

On February 1, 2017 the Florida Supreme Court summarily denied an reconsideration and lifted the previously granted stay of execution. Any day now, Mark Asay will have his execution rescheduled, and I expect that it won’t be long before I again join him down there on death watch. Although the Court has not issued a ruling in my case, as least as far as this one issue is concerned, it’s clear that the Court will soon rule against me and life my own stay of execution. I do have other appeals pending that focus on my consistently maintained innocence, but whether the courts will address those innocence claims remains to be seen. And I know without any doubt that the courts have allowed innocent people to be put to death in the past, so I guess will soon enough see.