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.

Moved off Death Watch - Still Under Warrant (part 10 of Death Watch series)

I’ve now been moved back to a regular death row wing as we await a ruling from the Florida Supreme Court on whether the January decision by the U.S. Supreme Court in Hurst v Florida is retroactive to all Florida cases.

I remain in regular communication with my lawyers and am told that the Florida Supreme Court is still ordering legal counsel in other capital cases to submit arguments on this Hurst issue. That implies that the Florida Supreme Court has not decided what they will do. And considering the importance of this issue it's a good thing that they are taking their time and hopefully will do the right thing when they do rule.

To be clear, what this issue comes down to is whether the Supreme Court’s ruling in Hurst declaring Florida’s process for deciding whether someone should be sentenced to death is unconstitutional will apply only to a limited number of cases (those most recently sentenced to death who are still pursuing their first round of appeal), or must it apply to everyone?

The legal argument comes down to what would be fair? The state argues that “retroactive” application of Hurst to all cases would not be fair to the state, who has spent years pursuing the finality of that sentence by execution or the victim's family who are entitled to closure.

On the other hand, our argument is that it would violate fundamental principles of law prohibiting arbitrary and unfair application of laws if the court says that those most recently sentenced to death are entitled to have their sentences vacated under Hurst while those under death sentences imposed longer are not entitled to that same relief under indistinguishable circumstances.

The state's primary argument is that in a similar case in 2002 (Ring v Arizona) the Supreme Court already said that this type of ruling cannot be applied retroactively (See, Summerlin v Schivo, (2003)). But the problem with the state’s argument is that it ignores the undisputed fact that the Summerlin case was based exclusively upon application of the Federal standard of retroactive application ~ and that the state court is not obligated to follow that Federal standard of retroactive application.

What all this really comes down to is that the states are constitutionally empowered to adopt more liberal applications of retroactive law. In Florida, this state standard was established long ago in Witt v State, in which under state law the primary element in deciding retroactive application simply comes down to doing what is fair and right ~ and not the Federal standard of relying heavily upon rules of procedure and finality.

For this reason the lawyers remain confident that the Florida Supreme Court will rule in my favor and hold that Hurst v Florida will apply to all Florida death row cases.

And if I win this argument in my case then pretty much everyone else on Florida’s death row will also have their death sentence vacated.

Assuming for the moment that we do win this, then what? Technically. the court will most likely order a new sentencing process for all 390 Florida death row prisoners before a new jury. But it is extremely unlikely that the state of Florida would actually pursue new death sentences as the average capital sentencing costs about $250,000 each as in each case the defendant is legally entitled to obtain a mitigation specialist and necessary mental health experts as well as call witnesses to establish the “mitigating” circumstances applicable to each case. Likewise, the state is entitled to call it’s own expert witnesses and present the evidence necessary to establish the aggravating factors supporting a sentence of death.

What this means is that attempting to resentence all those currently on Florida’s death row would cost about one hundred million dollars and quite simply, the state just doesn’t have that money available. For that reason alone the majority of those currently on death row would simply have their sentences reduced to to life in prison. For those convicted prior to 1995, that “life” sentence means that they must serve at least 25 years before becoming eligible for parole ~ those convicted after 1995 would never become eligible for parole under the current “life without parole” law.

                                                                 

Myself, I was convicted in early 1984 and if the court rules in my favor then I would go from being on death watch facing imminent execution today to being technically eligible for parole tomorrow. Because by law each of us are legally entitled to credit for all time served on death row, technically I would have become eligible for parole in March 2008.

But the reason I repeatedly say “technically” is because the grant of parole is completely within the discretion of the parole board and history has shown that Florida’s parole board very rarely grants parole to anyone convicted of violent crimes.

The real irony in that is that virtually every credible study on which prisoners are most likely to commit another crime if released shows that those convicted of murder are the least likely to reoffend. But it doesn’t have anything to do with truth or justice… the decision to grant parole is based exclusively upon politics and little else.

However, politics do change and there are many today ~ including many conservatives ~ that think it’s time to reform the current system and bring an end to locking people away and throwing away the key. Quite simply, there’s a growing chorus of change and it’s now entirely conceivable that within the foreseeable future, parole will once again be available.

As all this remains yet undetermined the reality that I’m dealing with is that only a couple of weeks ago I was facing the probability of being put to death by execution. The court ordered a stay of execution as they consider how Hurst will apply. Then I was removed from the death watch holding area and placed back on a regular death row wing.

And today I can sit here and contemplate the increased likelihood that I will one day yet walk out that front gate of the prison and back into the real world. I can dream of what I would do if only I was allowed to go home. For many of those incarcerated as long as I have been, there’s little waiting for them outside the prison, but for me, I’m blessed in that I have family ~ parents, siblings, children, and grandchildren ~ and I have friends anxiously awaiting that day when I might yet walk to freedom. It’s not just my dream ~ it’s their dream too.

So, that’s the big change… although still technically on death watch. We all have renewed hope and where just a few weeks ago we were talking about my funeral preparations, today we talk about that possibility of freedom. That’s the power of hope and hope springs eternal.