Death Watch Journal (part 31)

 As I write this, it is Saturday March 25, 2017 and it has been now 480 days since Florida governor Rick Scott decided that he would put me to death despite readily available evidence substantiating my consistently plead claim of innocence and I was to die on February 11, 2016. It has now been 397 days since that scheduled date with death.

When the death watch supervisor came to tell me that I would be moved off "death watch" and back to the regular death row housing area on February 9, 2016 I was having a visit with my family and close friend Jan, and we all knew at the time that it was supposed to have been one of my last visits. Because I was still on "death watch", the visits were restricted to non-contact, meaning I was separated from them by a glass window.

It was also my older sister Debbie's birthday..she turned 60 and we all sang her Happy Birthday - and I sang extra hard to make sure they could hear me through that way too small hole in the glass window, and when I was told that I'd be moved off death watch, Debbie quickly claimed that news as the best birthday present ever.

Flash forward to today. I just had another great visit with my sisters and this time it was in an open "visiting park" where we all sat around a steel table and could hold hands and walk around. When the visit started, I got a big hug from each - and noticed that they brought some small white frosted cakes that they purchased in the main visiting park downstairs before coming up to the death row visiting park.

No sooner did I get that big hug from each of them and we sat down at our assigned table, they began ripping open the plastic packaging on the cakes and laid them neatly on napkins in front of each of us - and then in obvious preplanned and practised unison, they began to merrily sing Happy Birthday, and I smiled - and stopped them short on that first chorus: "Whoa, what the hell are y'all doing", and for a moment they looked puzzled, then I continued "you know you can't sing in the visiting park unless you stand up and dance", and they all smiled, and one of my sisters quickly stood up (I won't say which one - she'd be embarrassed!) and started to dance as all three continued to sing, and I couldn't help but smile the biggest smile I could as I thanked them and we ate our cake.

                                                           

It's moment like those that make it all bearable. I'm lucky in that even after all these years. I do still get visits from family as very few get any visits at all. This particular day there were only two others in the visiting park, both of them having visits with their girlfriends, and they both left early so at the end of the day we had the visiting park to ourselves, and it was a great visit, although I admit that it might have been a little better if only I had a girlfriend as then I could have gotten a birthday kiss too...but who would put up with an old dog like me?

This "birthday" visit was especially great as I needed it. As a few of my past posts reflect, I've been kind of "down" lately as in the past few months we went from thinking that the courts would rule favourably and this nightmare would soon end, to having both the state and federal courts deny my appeals and now I'm looking at having my execution rescheduled within the near future. Obviously, the thought of imminent death weighs heavily on me, but it's even harder on my family and so it was especially nice to see them laughing and enjoying the moment.

Still, that cloud hung above us and I did all I could to not talk about what may very well soon come. But it wasn't something that we could avoid and the conversation swung around to what I thought would happen in the coming weeks.

I explained to them that even though the Florida Supreme Court denied my long pending appeals on march 9, that decision is technically not final until my lawyers file the "motion for rehearing" on march 31, then the Court reviews that and decides whether they will allow their decision to stand "as is", or reconsider it, and either actually grant relief, or at least rewrite that March 9 decision.

I shared with them my hopes that the Florida Supreme Court will recognize that it was both factually and legally wrong and then grant me the relief I'm legally entitled. For example, what I believe was our strongest issue was the request for DNA testing of the evidence to substantiate my consistently plead claim of innocence. As they do in all cases, the state opposed DNA testing and in denying my request the court adopted as "fact" that DNA testing was previously conducted when it clearly was not. And that was a significant error, so rehearing should be granted.

More importantly, as a matter of law I was entitled to have this evidence tested for DNA if there's any reason to believe that it will support my claim of innocence - which we did establish how it will, so legally the court was wrong in denying the request for DNA testing and hopefully the court will have the integrity to correct it's own mistake.

Of course, the lawyers are far more interested in arguing the issue of why - the death sentences imposed on me are illegal, and I have no problem with that - I do think it's a really strong legal issue, but I'm not too excited about merely having my sentences reduced to life as I've spent the past 34 years trying to prove my innocence and get my freedom. The truth is that if I wanted a "life" sentence, I would have gotten that many times through the years, but I've repeatedly turned it down as here in Florida it's all but impossible to get parole and so if I'm going to die in prison. I'm at least going to go down fighting.

And it's the same with the recent denial of my federal "actual innocence" appeal - although that was a hard blow and really took the wind out of me. But after I got over that initial blow, I realized that the decision has substantial flaws in it and that I have a really good chance of having that reversed - and the readily available evidence substantiating my innocence fully heard.

So, although we began the visit with that cloud of uncertainty hanging over us, there's still good reason for hope and if the courts do the right thing and allow the evidence to be reviewed, I could still be celebrating my next birthday out there in the real world, a free man.

Did Florida execute yet another innocent man?

Once again, the state of Florida deliberately put a man to death by execution despite an unresolved claim of innocence. As has only become too common, the Florida courts simply refused to address the evidence supporting the claim that Robert Waterhouse was innocent before they too his life for a crime that Waterhouse may very well have been innocent off.

In January 1980 the nude body of Deborah Kammerer was found on the shore of Tampa Bay. It was obvious she died a violent death. But there was no eyewitness to the crime and nothing more than circumstantial evidence that perhaps she was in a bar the night before at the same time that Robert Waterhouse was there. The bartender claimed that Waterhouse talked to the victim and that they left the bar together. The policed immediately focused their investigation then on Waterhouse. He was taken into custody but never confessed to killing Deborah Kemmerer, only that he casually knew her from the bar. Police claimed that Waterhouse volunteered that he had experienced problems involving sexual activity, especially when drinking, and that he responded to his arrest by exclaiming that his life was over.

The police impounded Waterhouse’s car and claimed that a Liminol test revealed the presence of blood. The state got their expert to testify at trial that although they could not actually say that this blood was from the victim, it was generally consistent with the victim’s blood – and countless others. Several hairs were also found in Waterhouse’s vehicle and again the state produced an expert who told the jury although they could not prove it was the victims hair, it was consistent with her hair – and again, equally consistent with millions of other unknown people.

When Waterhouse was arrested in 1980 forensic DNA testing of blood and hair was not yet available. Such testing would have conclusively proven whether or not that blood and hair came from the victim. Years later when DNA became available and Florida adopted laws for allowing for DNA testing on earlier cases, Waterhouse was among the first who all but beat the courthouse doors down, demanding that this blood and hair be tested. Of course, the state of Florida fought tooth and nail to prevent this testing. Undoubtedly afraid that these DNA tests would prove that Waterhouse actually was innocent, the state lawyers advised the court that virtually all of that forensic evidence was “accidentally destroyed” due to a clerical error, even though applicable Florida law forbids the destruction of evidence in any capital case until the case becomes final and no further appeals can be pursued.

In May 2004 sixth Judicial Circuit Court judge R. Timothy Peters ordered a hearing on the state’s dubious claim that by coincidence virtually all of the forensic evidence that could have proven Waterhouse's innocent was destroyed. In this order Judge Peters specifically recognized that Waterhouse’s motion to compel DNA testing, which legally required a showing of innocence, was legally sufficient. But shortly following Judge Peter’s order for a hearing, the state prosecutor attempted to have Judge Peters removed and the hearing presided over by Judge Beach – the judge who had originally convicted and condemned Robert Waterhouse.

When judge Peters refused to step aside, the prosecutor filed an appeal to the Florida Supreme Court, asking that they stop Judge Peters from allowing any hearing on how and why all the evidence was destroyed, but the Florida Supreme court refused to stop the hearing. Although judge Peters was allowed to preside over the hearing, it was actually judge Beach who ultimately denied Waterhouse Waterhouse's appeal that that the destruction of the evidence violated his constitutional rights to a fair and meaningful opportunity to prove his innocence. In an unpublished order in October 2006 the Florida Supreme Court upheld the order rendered by Judge Beach. Why the Florida Supreme Court specifically ordered that its opinion denying his innocence claim not to be published, as all other decisions in capital cases are, remains a mystery – and the court will not explain its reasoning.

On January 4, 2012 Florida governor Rick Scott signed a death warrant against Waterhouse, scheduling his execution for February 16, 2012. Pursuant to Florida Rules of Criminal Procedures, only after a death warrant was signed were Waterhouse’s lawyers allowed to gain access to police and state agency files on the case. An ambiguity in one of the police reports compelled the lawyers to locate and talk to Leglio Sotolongo, who in the night of the crime worked as a doorman at the bar. To their surprise, Mr. Sotolongo remembered Robert Waterhouse and the events that took place that night of January 2, 1980, and he told them that he had told the police detective Cary Hitchcock that Waterhouse did not leave the bar that night with the victim Deborah Kammerer but rather had left with two men. Further, Mr. Sotolongo remembered that he also told detective Cary Hitchcock that the bartender Kyoe Ginn, who said she saw Waterhouse leave the bar with Deborah Kammerer was lying, as it would have been impossible for the bartender to actually see the door from where she was.

Under sworn oath, Mr. Sotolongo testified that rather than being interested in the truth, detective Hitchcock became angry and accused him and another bouncer (Leon Vasquez) of trying to help a murderer, even to the point of physical altercation in an attempt to coerce Mr. Sotolongo and Mr. Vasquez from telling that they had seen Waterhouse leave with two men and not the victim.

For over 30 years the police deliberately concealed this evidence and lied in police reports. When finally discovered that detective Hitchcock – who’s testimony was used to convict and condemn Waterhouse – had concealed Mr. Sotolongo’s statement and falsified police reports , the original trial concluded that since Mr. Sotolongo was not compelled to actively testify until over 30 years later, he was not a credible witness.

In a final appeal, Waterhouse’s lawyers attempted to stop the execution by arguing that execution of an inmate should be prohibited when the prisoner has maintained his innocence and it is shown that the state has destroyed evidence that may have proven his innocence. But once again, in a unanimous decision by the Florida Supreme Court, dated February 8, 2012, the court denied Waterhouse claims, denied relief and cleared the way for his execution.

Once again I am reminded of the public speech given by former Florida Supreme Court chief Justice Gerald Kogan shortly after his retirement in which he said” There is no question in my mind, and I can tell you this from having seen the dynamics of our criminal justice system over the years that I have been associated with it, as a prosecutor, defense attorney, trial judge, and Supreme Court Justice, that convinces me that we certainly have executed people who were, in fact, not guilty of the crime for which they have been executed”

America today remains the only western nation in the world that continues to use capital punishment, joining company with countries that America itself has long recognized as refusing to recognize basic human rights (Iran, North Korea, and China etc). With an average of well over 20,000 homicides occurring in America each year, and the vast majority of these convicted of murder having solid evidence of their guilt (such as eyewitnesses, forensic evidence, confessions etc) I ask you this – why is it that we see again and again those being put to death were convicted upon, what can fairly be described as, specious evidence, at best? Why is it that so many of those actually have substantial questions of actual innocence and evidence supporting their innocence, which the courts simply refuse to address and resolve? Shouldn’t there be a strict and inflexible rule of law that no person should be put to death if there is any question of whether they may be innocent? But contemporary, politically manipulated judicial systems have proven again and again that it lacks the moral character and ethical integrity required to protect the innocent from being executed.

Maybe everyone who claims to be innocent is not innocent, but without adequate safeguards to protect against the execution of the innocent by prohibiting the state from putting any person to death unless and until all questions of innocence are fully and fairly resolved, how can anyone say with any measure of moral certainty that we are not putting innocent people to death?

Michael Lambrix
#482053
Florida State Prison

Please check out my website http://www.southerninjustice.net