Thursday, March 16, 2017

Death Watch Journal (part 29)

Written March 12, 2017

Breaking News! On Thursday March 9, the Florida Supreme Court denied my long pending appeal and specifically lifted the previous “stay of execution,” effectively setting the stage for Governor Rick Scott to reschedule my execution within the near future.

As most reading this already know, all executions in Florida have been on hold since the state supreme court granted me a stay of execution on February 2, 2016 to consider whether the US Supreme Court’s January 2016 decision in Hurst v Florida applied to all previously imposed death sentence, such as mine.

Subsequently, in December 2016, the Florida court issued a decision in Mark Asay v State in which the court recognized that in light of the Hurst v Florida decision there was no question that anyone who was condemned to death by less than a unanimous jury vote was unconstitutionally sentenced.

However, in Asay v State, and its companion case of John Mosley v State, a marginal majority of the court ruled that they would only grant relief from illegally imposed death sentences to those whose sentences were imposed and final, after June 2002 (when the US Supreme Court issued its earlier decision that formed the foundation for the Hurst v Florida decision).

That meant that those illegally sentenced after 2002 would have their death sentences thrown out, but those whose sentences were “final” on their first direct appeal prior to June 2002 would not get relief.

Many in the media and elsewhere have since publicly questioned this finding, arguing that it is fundamentally unfair and makes no sense. That the court would recognize that the death sentences were unquestionably illegal, but that it would allow those sentenced prior to 2002 to be executed, while those sentenced after 2002 would be granted relief.

                                                                 


This point will undoubtedly be argued before the US Supreme Court. What must be emphasized is that what the Florida court did in arbitrarily cutting off retroactive relief at 2002 is clearly unprecedented. No other court has ever held that once a substantive new rule of law entitles to retroactive relief, they would only apply it so some, but not to others. A new rule of law is either retroactive or it is not.

The question now is whether the Supreme Court will accept review of this issue quickly. The Court accepts very few cases each year - and whether or not they accept a review is completely within their own discretion.

For this reason, it took 14 years (and 47 illegal executions) before the Court finally agreed to review a case that argued that under Ring v Arizona (2002) those sentenced to death were entitled to relief. When the Court did finally grant review in Hurst v Florida, they all but unanimously agree that Florida was illegally sentencing all of us to death.

It’s all but certain that the Court will eventually accept review of the recent Florida Supreme Court ruling of partial retroactivity — but it could take another 14 years and many more executions, and by that time I may be long dead.

In the recent decision denying my appeal and lifting the stay of execution, the Florida court did grant leave to file a motion for rehearing, so within 15 days (no later than March 24) my lawyers will file a Motion for Rehearing challenging this ruling, but it will almost certainly be denied within a matter of days, and I expect that the governor will most likely reschedule my execution before the end of this month. When that is done, the date will probably be set for some time around the end of April.

However, let me emphasize that although this Hurst issue has been getting all the attention, this is not the only legal issue being pursued in my case, and I do have other appeals pending. In the decision denying me relief they also (again) denied my request for DNA testing of evidence that would support my claim of actual innocence. This denial will be pursued further.

Additionally, separate from this state court appeal, in 2015 my lawyers filed a comprehensive appeal in the federal courts arguing that I am constitutionally entitled to have full review of the readily available evidence sustaining my actual innocence and that appeal remains pending before the Federal Court of Appeals (Lambrix v Secretary, Dept of Corrections, Eleventh Circuit case no. 16-10251).

Recently, the Supreme Court issued a decision in a Texas Capital case (Buck v Davis) that provides strong support for my claim of entitlement to full federal court reviews of my substantiated innocence claim and I remain hopeful that, based on the case, my federal appeal will not be formally re-opened, and fully reviewed. If this is done, I am confident that my convictions will be thrown out and I will be legally exonerated.

Because lawyers who represented me many years ago did not “timely” present my substantiated claim of innocence to the state courts in my original post-conviction appeal (in 1988), under politically manufactures rules designed to speed up executions, all evidence substantiating my innocence has been “procedurally barred” from review before both the state and federal courts. But the 2012 USSC case of Martinez v Ryan opened the door to finally overcome that procedural bar and have my innocence claim heard.

But the federal courts in Florida and Texas have categorically refused to allow death sentenced prisoners to reopen their federal appeals under this 2012 Martinez rule. The recent USSC ruling in Buck v Davis should now force these pro death penalty judges who control the Florida federal courts to now reopen my case and allow the evidence substantiating my innocence to be heard — at least I hope so.

But for now, I’m going to have to dance with death again, soon.

Sunday, March 12, 2017

Mike Lambrix Loses Appeal, Opens Door For Execution

Friday, March 10, 2017



The Florida Supreme Court  has lifted the stay on Mike's death warrant, and he could find himself with a new execution date. Read it here 

                                             

Death Watch Journal (Part 28)

March 2, 2017

Sometimes I wonder whether this thing called "hope" is my greatest adversary, existing only to torment me, to break me...could hope be my nemesis, capable of a conscious form of malevolence not unlike the fictional sirens depicted in Homer's "Odyssey", their seductive charm luring the passing sailors to their death, and so too does this entity of hope haunt me on countless sleepless nights as I grasp desperately upon those fragile strings of hope as I look down into that darkness of the abyss beneath me.

I remember the one scene in the movie "Shawshank Redemption", where the old and experienced convict (Morgan Freeman) sat in the prison chow hall, offering his sage advice to the new arrivals...telling them to forget about hope of freedom, as it will drive you crazy - maybe he was right.

As I write this today, it is March 2, 2017, and today marks exactly 34 years since I was arrested on these capital charges that subsequently led to me being convicted and condemned to death for a crime I did not commit.

It's been a long and hard journey and sometimes I wonder how I have managed to maintain my sanity - and again, sometimes I wonder whether I really have as perhaps I'm the only one who cannot see that I actually went nuts years ago.

Last year I yet again counted down the days to my own scheduled execution, only to receive a 'temporary stay of execution' and was removed from my "death watch cell" two days before I was to die. It wasn't the first time that I faced relatively imminent execution and I know the State of Florida will continue to use all available resources at their disposal to have me executed yet.

For most of the past year I had reason to hope that the January 2016 decision by the US Supreme Court in Hurst v Florida, 136 S.Ct. 616 (2016) (which declared that the manner in which Florida imposes a sentence of death - allowing a judge rather than the jury make the ultimate decision on death, violated long standing fundamental constitutional rights that rendered such death sentences illegal) would lead to having my own death sentences thrown out. In fact, this is the issue that the Florida Supreme Court ordered a stay of execution on.

                                                          



But on December 22, 201 - just before Christmas - the Florida Supreme Court crushed that hope when it issued it's ruling in Mark Asay v State of Florida recognizing that under Hurst v Florida there was no question Florida death sentences were imposed illegally and finding that all those sentenced to death after 2002 would be entitled to have their illegally imposed death sentences vacated - but that because it would be too much of a burden on the State to correct all these illegally imposed sentences, they would not throw out the death sentences imposed prior to 2002. My death sentence was imposed in 1984 and was affirmed on direct appeal in 1986, which meant that under Asay v State, I would not be entitled to relief under Hurst v Florida. Just that quickly, my hopes were crushed.

Although the Florida Supreme Court still has not actually issued any ruling in my own case yet, I had to accept that when they did, they would deny my appeal consistent with Asay v State, as they have numerous other similar pre-2002 capital cases in the past few months.

With my hope of being granted relief crushed, I began to mentally prepare myself for what I was sure would soon follow...the denial of relief in my case and having my previously stayed execution rescheduled.

Since that decision in Asay v State that seemingly sealed my fate, I spent the last two months letting my family and friends know that they should expect the court to soon deny my appeal, and that I would then be recheduled for execution again - and since the state and federal courts have consistently refused to even look at the readily available evidence substantiating my consistently plead claim of innocence, they should be prepared for that rescheduled execution carried out.

Clearly, I felt that there was no reason to yet again hope for any chance of proving my innocence, and mentally I prepared myself to die, and I was not alone as when I shared this news with others, while most of those closest to me stood by me that much more, a few apparently decided that they didn't want to stick around just to watch me die and I haven't heard from them since - and who could blame them?

Little by little I began going through my personal property, weeding out what I would throw away so that when I was put to death it wouldn't be a burden on my family...I was prepared to die, again.

Then out of the blue come the phone call from my lawyers the other day, letting me know that on February 22, 2017 the US Supreme Court issued it's decision in the Texas capital case of  Duane Buck v Davis, in which the court addressed the issue of whether a prisoner can seek and be granted relief on a previously denied federal appeal based upon ineffectiveness of legal counsel in that earlier appeal, by employing a procedural motion to reopen that earlier case under Federal Rule of Procedure 60 (b), and the court agreed that equitable relief under extraordinary circumstances to prevent manifest injustice would be pursued and granted under Rule 60 (b).

Suddenly hope again sprung forth - the Supreme Courts unequivocal recognition that relief from an unjust conviction or death sentence could be granted by way of Rule 60 (b) meant that my own long pending Federal appeal arguing exactly that point would now have to be granted, opening the procedural door to finally receiving a full review of all the evidence substantiating my innocence. And if allowed to be heard, I would finally be exonerated, and win my fight for my freedom.

For the next few days I felt giddy - more than just happy, I was elated, especially when I was able to share this good news with my family, as they too hung desperately to every string of hope.

But as is the nature of hope, after that initial elation ran it's course, I found myself slowly sinking back into the depths of hopelessness and despair, reminding myself that in these past 34 years again and again I allowed myself to become convinced that truth and justice would prevail, only to have that hope crushed.

This Buck v Davis case should compel the federal courts to finally address the evidence substantiating my innocence and by every right and reason I should be elated - that previously unyielding door has been cracked open, But if I've learned nothing else these past decade after decade, it is that you cannot count on our courts to do the right thing. And for that reason I will not throw myself upon the rocks as that seductive siren call of renewed hope tries yet again to suck me in.


Death Watch Journal (Part 27)

I write this (February 20, 2017), I continue to await the Florida Supreme Court decision in my case. Every Tuesday I tried to catch the P.B.S "Capital Update" on the local news, as they will often report on decisions issued by the court. And then on Friday afternoon my lawyers will schedule a phone call so that they can tell me if any decision has been issued.

Let me explain just how this goes. Here at Florida State Prison the wing that houses those under sentence of death is located almost at the very end of a very long hallway - a straight corridor that runs from one end of the prison to the other. I've walked that walk so many times through the too many years, and it averages about 600 steps, and I go through three separate electronically controlled security gates to get from the death row wing to where the area for lawyer visits and phone calls is.

                                                       

It's a long walk and a lot of time to think about what the lawyers might tell me when I do finally get on the phone. Of course, since all death sentenced prisoners are fully restrained whenever we are removed from our solitary cells in full leg shackles, handcuffs and waist chains, that long walk is more like one short shuffle step at a time and if you do try to get too fast the leg shackles will cut into the back of your ankles and make a bloody mess.

As I make that journey I'm escorted every step of the way by one of the guards and I make a point of trying to keep my mind of what news may be waiting me when I do get to that phone reserved for legal calls, so I will talk to whichever guard may be by my side that day and I get along with most so will engage in casual conversation almost as if we were strolling a park together.

When we finally reach what is commonly known as "the colonel's office", I'm then escorted into a small office that has a plain small table desk with two chairs, and a phone on the table. They keep me restrained the whole time that I am in there, even though I will be securely locked in that small room by myself during that phone call as legal communication, whether in personal visits, phone calls or by mail, is considered to be "privileged and confidential" so they are not supposed to listen in, although I must admit that at times my paranoia will compel me to to wonder whether they are listening.

So, they will then connect me to my lawyers, who maintain their office in South Florida, and we will have 30 minutes. Again, because I must remain physically restrained at all times, I cannot actually pick up the phone receiver, so instead I will wait until the red light comes on indicating that the call has been connected, then I will push the button marked "Line 1", and then wait to hear a voice on the other end.

A long running joke I have with my lawyers of many years is that once that phone call is connected, from time to time one of them will say "hi" and I will immediately respond: "No I'm not - they drug test us!", and we will have a little laugh. And it's true, I cannot be "high" as for at least the past 23 years now they have been randomly drug testing prisoners and I've taken many drug tests, and never once failed one.

The truth of the matter is that being condemned to death has almost made me a saint. I don't smoke - I did long ago, but quit that nasty habit way back in my early years on the row. I don't drink (probably could if I wanted to, but I don't want to), not do I do any drugs, although I do still wonder from time to time whether maybe this "reality" I'm trapped here in (death row) isn't really real at all, but merely a bad acid trip and anytime now I'm going to wake up and exclaim; "wow!, y'all aren't going to believe the trip I just has!", and I don't even run around with wild women anymore - gotta admit  though, that's probably the one bad habit I miss the most as it does get really lonely here, I don't even cuss that much anymore - yeah, I probably am on my way to sainthood and only because I was condemned to death - kind of ironic huh?

Back to the phone call ...it's now been over a year since I received that stay of execution and each week I anxiously await word on whether the court has ruled. They've already decided the main issues relating to whether the January 2016 US Supreme Court ruling in Hurst v Florida will be applied retroactively and based upon their December23, 2016 ruling in Mark Asay v State of Florida, I already know that I will be denied relief on that issue as Like Asay, I was sentenced to death prior to 2002, and in Asay, the FSC said they will not grand relief from the indisputably illegally imposed sentence of death in cases in which that sentence of death was imposed prior to 2002.

And so each and every week I anxiously await that decision that will decide my fate, knowing that it will all but certainly be against me - and yet still clinging to that hope that for whatever reason the court will actually grant relief. And with every step of that long walk that possibility of what I might hear plays out in my head...the Florida Supreme Court generally releases it's decisions in capital cases around 11.00 AM each Thursday, so we do this phone calls on Fridays, and so each Friday begins when I wake up knowing that today may be the day that news comes.

You see, it's the continued uncertainty of my fate that weighs most heavily on my mind. I've heard it said that they can only kill you once, but I know that that is simply not true - every time I'm forced to confront my fate, I'm a part of me dies. Most define the death penalty only by that end result - the execution - and give no thought to anything else that the condemned prisoner and his family and friends go through.

But in truth, the contemporary death penalty is actually a lot like that old Chinese torture, commonly known as a 'death by thousand cuts', each little stab is never enough to kill you, but eventually enough small stabs will take their toll. And in it's own way, that's what the not merely days, or weeks, or months - or even years, but decades of death does to the condemned...each and every time he is forced to confront the uncertainty of his (or her) fate, it's another small stab that cuts deep down into the soul, a seemingly endless journey through a hell few can even begin to imagine.

And so i make that long walk week after week, at least so far each week being told that there has been no decision - and at least for that moment I feel that weight of confronting the uncertainty of my fate briefly lifted, but it doesn't take long before it quickly comes back, as just as soon as I complete the phone call and start to make that long way back, the anxiety of that same walk next week is already starting to creep in...as I said, it's not a quick death, but by deliberate intent and design, my condemnation is a death of thousand cuts.