Death Watch Journal — Saturday, September 23, 2017

As I write this I’m now down to less than two weeks to go before my scheduled execution. Contrary to his past practice of keeping two people at a time under a live death warrant, Governor Scott has not signed any new warrants and so I continue to have the entire death watch floor to myself.

Now that Hurricane Irma has blown through, things are finally getting back to “normal” and my lawyers are able to work on my case. Still, losing that first few weeks on a 34-day death warrant left us with less than three weeks to pull together what needs to be done.

As I previously wrote, though, fortunately we already had four appeals pending in various courts. I remain hopeful that those pending appeals will be met by the courts with favor. This Monday (Sept 25) the U.S. Supreme Court will address my one stronger appeal on the argument that contrary to what the Supreme Court instructed in numerous other cases, the lower federal courts in my case improperly denied any opportunity to address numerous claims that if addressed on their merits would support my innocence.

I’m hoping that at a minimum the Supreme Court will order a summary remand of that case (Lambrix vs Jones), as if they do, then this whole death watch thing will end and my case be sent back to the lower federal courts for full review on the merits of issues that should lead to my exoneration and release.

                                                                

But I don’t want to get my hopes up. I know only too well that the Supreme Court rarely grants review, much less relief in capital cases. They receive over 10,000 cases each year and of those less than 100 are granted review. The odds are significantly against me and in 34 years of dealing with this, nothing has ever gone my way. The only real surprise is that I wasn’t put to death many years ago.

That does not mean that I’m throwing in the towel. I will continue to fight this fight until I breathe my last breath. I can’t stop the state of Florida from killing me for a crime I didn’t commit. But that doesn’t mean that I won’t do all I can to stop them from doing that.

I wanted to do a hunger strike to protest this injustice, but after 12 days I decided to stop. I could have gone the distance, but it became clear that it was too hard on my family. They were worried, and they’re already going through enough, so when they visited this past Tuesday I let them know that I was ending my hunger strike.

The way I see it, I made my point, as I went 12 days without consuming anything but water. And according to the prison records, I lost 18 pounds. Actually, that was funny as on Thursday (Sept.21) when I hit the two-weeks-until-execution mark, they brought down the dark blue suit the state bought last year to kill me in, just to make sure it still fit. But when I tried the pants on, they fell to the floor. I lost at least two inches from the waist. And the shirt no longer fit either. I thought that was funny.

I was able to see my daughter for two days this past week, thanks to my sister bringing her. Those who know me know that my daughter Jennifer (who is now 38) is mentally disabled due to oxygen deprivation at birth. She is a “forever child” — she will  always have the mental capacity of a child (preteen), and doesn’t really understand that within just a few weeks I could be gone. In a way, I’m glad that she doesn’t really get it as I don’t want to see her hurt. But I also worry about who will be there for her once I’m gone.

But hopefully, it won’t come to that. I guess I’m just kind of down on all of this as, although this is not my first time facing execution, this time seems different and I’m not as confident that I will win another stay of execution. I actually do have numerous strong appeals, including those specifically addressing my actual innocence and arguing why they must allow DNA testing.

The problem is that the courts are openly hostile to anything we file. A few months ago the Florida Supreme Court went so far as to blatantly lie when addressing our request for DNA testing, denying it upon the false finding that DNA testing had already been done — it wasn’t.

                                                                  

    Fl Supreme Court

And the federal courts are even worse. The federal judges who control my case are outspoken proponents of the death penalty and have a long history of refusing to grant relief to capital petitioners under any circumstances. They’ve repeatedly lied about the case and there’s no pretense of objectivity or fairness. For that reason, I already know that anything we file in the lower federal courts will be summarily denied.

So all of this ultimately will come down to the U.S. Supreme Court and that won’t be until the very day of my scheduled execution. By that time next week we will have at least five separate appeals before the Supreme Court and they could just throw them all aside and not even look at them.

But my lawyers remain especially hopeful that the Supreme Court will take notice of the one issue addressing the illegally imposed death sentences. There’s no question that I was illegally sentenced to death as the jury votes in my case were not unanimous as they are now required to be.

The Florida Supreme Court recognized that I and all others who had a less than unanimous jury vote for death were illegally sentenced. But the FSC decided that they would only grant relief to those illegally sentenced after June 2002 — and that, because it would be too burdensome to grant relief to everyone, those sentenced prior to 2002 would not be granted relief.

This unprecedented “partial retroactivity” has created a big issue that most legal experts feel the U.S. Supreme Court will find unconstitutionally “arbitrary” and fundamentally unfair. The problem, however, is that it could take years before the Supreme Court decides they are ready to address the issue, and by then, I and many others will be long dead.

                                                                   

                                                                  
All we can do is wait and see. All of this is actually so much harder on my family and friends — they too must deal with the uncertainty of my fate, and I worry about those closest to me.

But at the same time, I know how blessed I am. There’s so many out there doing all they can to try to stop this machinery of death. Already, Governor Scott has received more signatures protesting my intended execution than any other, but even if God himself tried to plead with Governor Scott, it would fall on deaf ears as the only thing Governor Scott cares about is his campaign for a seat in the U.S. Senate in 2018, and executions win elections.

I am disappointed that the media has not shown any interest in the evidence substantiating my innocence. The death penalty is no longer a story to the media… apathy proves deadly.

But I’m doing alright and I thank those who sent me cards of prayer and support. All we can do is stay strong and keep the faith.

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