Death Watch Journal (Execution Rescheduled)

On Friday, September 01, 2017, Florida governor Rick Scott decided that it was time kill me again and signed an order rescheduling my previously “stayed” execution for Thursday October 5, 2017. That gave me about 35 days to live. By that afternoon I was pulled (not forcibly) from my regular death row cell on “G-wing” and escorted up to the front of the prison and brought to an office where FSP warden Barry Reddish then read the governor’s order to me and then it was back down that long main corridor to the very end of the prison where the heavy steel door leads on to “Q-wing.”

The bottom floor of Q-wing is Florida’s execution chamber as well as the 3 cells that house the condemned prisoners while on “death watch.” Since they just put Mark Asay to death last week (August 24) I was the only prisoner down here and was placed in “cell one” (see Cell 1— PBS documentary, featuring myself), to once again slowly count down what the state of Florida intends to be my last days in this life.

The question now is where do we go from here? I must first accept the reality that especially since current governor Rick Scott began his unprecedented campaign to kill as many prisoners as he could — he’s running for the U.S. Senate and in these southern states nothing wins more votes than a good old fashioned lynching — not even one person he’s targeted for execution has survived.

That’s just the reality of it and so going into this I must accept that the odds are stacked against me. By confronting and accepting that truth, I can at least come to terms with it.

But with that said, my lawyers seem somewhat confident that at the very least we have a good chance of having the courts put a stop to all this on the one big issue of whether Florida can continue to execute those who have been illegally sentenced to death. This is generally referred to as the “Hurst” issue and it is what the Florida Supreme Court ordered a stay of execution on in my case only last year when I was originally scheduled for execution on February 11, 2016.

This issue comes from the January 2016 decision by the U.S. Supreme Court in Hurst v Florida in which by a rare super majority (8 to 1 vote) the Supreme Court recognized that the way Florida was sentencing prisoners to death by allowing the judge to determine the sentence was illegal, as under the Constitution any such sentence has to be determined by a jury.

In the aftermath of the Hurst v Florida decision, Florida change the laws on the death penalty., now not only requiring that the jury determine the sentence (life or death) but that it must do so by a unanimous vote (12 to 0) instead of the simple majority previously required.

However, in Mark Asay  v State of Florida, the Florida Supreme Court decided that they would allow this substantial change of law to be retroactively applied only as far back as 2002. Specifically, the Court decided by a marginal majority that those illegally sentenced to death after June 2002 would have their sentences thrown out, but those illegally sentenced before June 2002 would not. This “partial retroactivity” rule is unprecedented and as the lawyers are arguing, creates an arbitrary process that is itself unconstitutional.

                                                                   

                                                            - Photo by Rune Eraker -


This issue was not resolved in Mark Asay’s case as he didn’t want his lawyers to pursue it. Although they did superficially present this “partial retroactivity” to the court, it was not fully addressed. My case will now be the first one to fully address this issue, but it is expected that the Florida Supreme Court will be very unreceptive to the issue — after all, they are the ones that created this absurd rule. For that reason, it’s far more likely that if it is fully addressed, it will be by the U.S. Supreme Court, and we won’t know if they will grant review until only shortly before the scheduled execution.

While that issue appears to be what the lawyers will undoubtedly focus on I do have at least 3 other appeals already pending in the courts, which focus on my consistently pled claim of actual innocence.

As those already familiar with my case know (see www.southerninjustice.net) I have maintained my innocence in this wholly circumstantial case (i.e, no eye witnesses, no physical or forensic evidence, no confessions, etc.) and there is a virtual wealth of readily available evidence, including including DNA evidence — that supports my claim of innocence, but the courts have refused to allow this evidence to be heard because they say that my lawyers failed to present it in my original “post conviction” appeal.

Before Governor Scott signed the order rescheduling my execution, my lawyers filed a comprehensive “Petition For Writ of Habeas Corpus” in the Florida Supreme Court; (see Cary Michael Lambrix v Julie Jones, Case No. SC17-5153) that fully summarizes how the collective evidence does establish my actual innocence and that I am entitled to have this evidence heard before they kill me. Also, in this original “actual innocence” habeas, my lawyers challenge the Florida Supreme Court’s earlier denial of our request for DNA testing — the Court stated that DNA testing was already done, but that simply is not true and our argument is that the courts cannot deny in a case presenting a claim of actual innocence, on clearly false pretenses.

Additionally, I have two separate appeals still pending before the U.S. Supreme Court, both arguing why I was wrongfully convicted. In Cary Michael Lambrix v Julie Jones, we argue that the federal court’s refusal to allow the evidence establishing my actual innocence heard violates established federal law. If the U.S. Supreme Court grants review of that case, not only would it probably lead to my own exoneration and release, but it would open the door to forcing the Florida federal courts to allow other cases to be heard.

Last, in the other case already pending before the U.S. Supreme Court, Cary Michael Lambrix v State of Florida, case17-5539 we argue that the Florida Supreme Court violated its own rules by denying me a new trial on the issue based on irrefutable evidence that my appointed public defender that represented me at trial was secretly acting as a witness against me to the FBI, and that  under long-established federal law this undisclosed “conflict of interest” requires the court to throw out my convictions and order a new trial.

Bottom line is that I do have numerous strong appeals already pending and several more that haven’t been filed yet. Legally, I’m in a better position now than I have been in many years. But we also know that one of the reasons that Governor Scott hand picks which cases he will sign a death warrant on is because he is deliberately stacking the deck — he knows that once you’re “under warrant” the politics of Trump justice and the courts are significantly less receptive to anything you file - even becoming openly hostile. That’s why nobody has survived a death warrant under Governor Scott — I’m the only one still alive.

                                          

I don’t know how this will play out. I don’t have any confidence in our legal system as it has long been corrupted by the “politics of death,” and proven itself only too willing to sacrifice the innocent. But I am blessed with my friends who will advocate my case the best that they can…. politics work both ways. Maybe with their help we can turn the politics of death to our advantage. Maybe.

Read Mike's moving essay written for his sister Why the Butterflies Must Die at MinutesBeforeSix