Florida Cranks Up The Killing Machine

Just when we thought that executions in Florida would remain on hold for a while, Governor Scott unexpectedly rescheduled Mark Asay's execution, and he is now scheduled to be executed on August 24, 2017.

Those who regularly read my blog know that Governor Scott signed my death warrant on November 30, 2015 and I was scheduled to be executed on February 11, 2016. While I was on death watch in the segregated housing area immediately next to the execution chamber, they killed Oscar Bolin on January 6, 2016 (please read: "Execution Day - Involuntary Witness to State Sanctioned Murder") and the very next morning Governor Scott signed a death warrant on Mark Asay, commonly known as "Catfish".

But the following week the United States Supreme Court issued it's decision in Hurst v Florida which by almost unanimous vote the court recognized that the way people were being sentenced to death in Florida (since 1974) was illegal, effectively rendering these death sentences unconstitutional.

A week before my scheduled execution the Florida Supreme Court granted a "stay of execution" until they could decide whether that USSC "Hurst" decision required my death sentences to be thrown out. Subsequently, the following month the Florida Supreme Court also granted Mark Asay a full stay of execution and since early 2016 there have been no further scheduled executions.

But just a few days before Christmas (2016) the Florida Supreme Court issued a decision in Asay's case that unanimously recognized that in light of the US Supreme Court ruling in Hurst v Florida, there is no question that (like me) Asay was illegally condemned to death by a non-unanimous jury (his jury vote was 9-3).

However, once again reflecting how the politics of death override principles of moral restraint, by narrow majority the Fl Supreme Court ruled in Asay v State that they would only throw out the illegally imposed death sentences (retroactive application) of those whose sentences were filed after June 2002 as to retroactively apply Hurst to all death sentences would be too much of a burden on the state.

So, despite the unequivocal recognition that Asay (and about 190 others) were illegally sentenced to death, the Florida Supreme Court said to go ahead and kill them anyway.

   

                                                                

This absurd "partial retro activity" rule is now being challenged in my own case and many others as no court has ever before recognized a substantial change of constitutional law as only partially retroactive - it is either fully retroactive to all cases, or none.

But like a relatively few others, Mark Asay decided not to let his lawyers challenge this "partial retro activity" rule as he doesn't want his death sentence reduced to "life" in prison. The truth is that there are a number on Florida's death row who prefer to be under a sentence of death than to "life" in prison with no realistic hope to ever being set free again. The way they see it, they're going to die in prison anyway so why delay the inevitable? Growing old in prison is not an easy way to go...as you grow older, you become less able to defend yourself from the younger predatory prisoners and your existence often becomes a living hell. So, if you're going to die anyway, why not force the state to kill you instead of slowly rotting away?

Myself, despite spending way over three decades on death row and facing execution several times, somehow I do still hold on to the hope that the courts will one day do the right thing and exonerate and release me. I must admit that at 57 years old, it's becoming harder to see that rainbow in the distant horizon.

And so yesterday afternoon (July 3, 2017) when the lieutenant came on the floor and took Asay away to death watch, for a while there I wondered whether they'd come back and get me to. They always pull only one at a time when you're execution date is scheduled, so it was very possible that Governor Scott, who is running for the United States Senate now, said to hell with the courts and went ahead and rescheduled both me and Asay.

But they didn't come back and get me. That doesn't mean that they won't as the governor certainly could, as the Florida Supreme Court formally lifted my stay of execution - but unlike Asay, I'm allowing my lawyers to pursue legal challenges to that "partial retro activity" rule, so it would seem that the governor should not attempt to reschedule my own execution until that legal issue is resolved.

Even though Asay has made that choice not to allow his lawyers to pursue a similar challenge in his own case, it is still very troubling that Governor Scott made the choice of wanting to carry out his execution.

If Florida proceeds with Asay's execution, he will be the first person to be put to death despite the Supreme Court's recognition that he was illegally condemned by a non-unanimous jury vote. It's one thing to carry out a legally imposed death sentence, but another thing altogether to put a person to death who you know was illegally sentenced to death - who under current law absolutely cannot be put to death. But for no other reason but that the court decided to create a time limitation to retro active application, Florida will go ahead and try to kill him anyway.

Even more troubling is that those who would allow Asay's execution to be carried out next month knew that the pending challenges to this politically motivated "partial retro activity" rule will most likely be successful, recognizing that all of those sentenced to death by a less than unanimous jury vote are entitled to have that death sentence thrown out.

Is this really who we are as a society? Already the United States is the only Western country in the world that continues to allow for the death penalty and we stand in the company of North Korea, Iran and China when it comes to this thirst for putting people to death under the pretense of administering justice.

But Florida is now crossing another line altogether - now Florida is proceeding to carry out executions that they know are illegal. There is absolutely no question that in light of recent Supreme Court decisions the death sentence imposed on Mark Asay by non-unanimous jury vote is illegal.

Does the ends justify the means? many have long argued that it's a slippery slope from administering justice to state sanctioned murder. As Florida crosses this line they cannot come back from, I'd venture to say that as a society Florida has now slid down that slippery slope and the scheduled execution of Mark Asay is nothing less than a cold-blooded act of state sanctioned murder.

Death Watch Journal (Part 36)

Chances are very likely that by the time this is posted, I will be back down on "death watch", once again counting down the final days before my scheduled execution. As those who read this blog regularly already know, on November 30, 2015 Florida governor Rick Scott signed an active death warrant against me, scheduling my execution for February 11, 2016.

But on February 2, 2016 the Florida Supreme Court entered a "temporary" stay of execution so that they could consider whether the US Supreme Court decision issued in January 2016 in Hurst v Florida had any impact on the legality of my own case.

The court issued an opinion on march 8, 2017, rejecting all issues raised. My lawyers filed a Motion for rehearing, arguing that the court made numerous significant factual errors that required rehearing. But on May 10 denied any further review and formally lifted my previously stay of execution. this means that at anytime now the governor can reschedule my execution, and he most likely will do so towards the end of the month.

However, this doesn't mean that I'm out of appeals, as there still are numerous appeals yet to be filed in the near future. But since the death penalty is more about the politics of death than the administration of justice, the state of Florida will try to stack the deck against me by rescheduling my execution before my lawyers can prepare and file these next appeals as the state knows that the politically corrupt courts are especially hostile towards any appeals that are filed while under active death warrant.

Specifically, the Florida Supreme Court's recent denial of relief will now be challenged in several ways. first, we will ask the US Supreme Court to review the Florida court ruling. And we do have a few strong points - most especially, the Florida Supreme Court denied the request for DNA testing that could substantiate mt consistently plead claim of innocence.

Let me say this..most people who read about what courts do assume that those on the courts possess a measure of moral integrity that compels the courts to at least tell the truth, especially when they are deciding whether to take someone's life.

                                                                       

But once again my case (and many others) illustrates the complete absence of integrity by our courts - I ask you this...how can justice ever hope to prevail when truth becomes irrelevant?

For years now my lawyers have repeatedly sought DNA testing of evidence that could prove my claim of innocence. At first, the state claimed that there was no evidence to be tested, but when that proved to be a lie, they switched to argue that since no blood was found on the evidence, no DNA could possibly exist. Of course, that's not true, as skin cells also have DNA, especially if embedded in fabric, which is exactly what we argued.

Unable to get around this inconvenient truth, the Florida Supreme Court decided to just create their own lie - in the March 8, 2017 ruling, for the first time the court declared that DNA testing had already been done, which is absolutely not true. And my lawyers filed a motion for rehearing, arguing that they made a material mistake, as no such DNA testing has ever been done. But even when a person's life is at stake, the Florida Supreme Court refused to correct this - they would rather kill a person on a lie they created than admit they were wrong.

So, now we will appeal their ruling to the Federal courts and hope that they will have the integrity to intervene when they see that the Florida Supreme Court's decision is based on an undeniable false finding.

My lawyers will also be pursuing an appeal to the US Supreme Court challenging the March 15, 2017 denial of my actual innocence appeals. Again, to deny relief, the lower federal court (a judge known for his extreme pro-death penalty stance) simply lied to deny relief and the ends justify the means.

In that case, my lawyers presented numerous specifically plead claims of substantial evidence that have never been addressed by any state or federal court because my original "initial-review" lawyer failed to present them to the court, resulting in these claims (and evidence) substantiating my innocence being procedurally barred. But in 2017 the US Supreme Court announced a new rule of law that for the first time allowed procedurally barred claims to be raised heard by the federal court providing the petitioner can establish that the failure to be heard upon them would result in a manifest injustice.

But the Florida courts controlling Florida are comprised mostly of pro-death penalty conservatives and they use their control to block all death sentenced petitioners from being heard, and often they will deliberately lie to deny relief.

In my case, the judge declared that all my claims were previously addressed on the merits - which is absolutely not true. And not surprisingly, the Federal Court could not identify any prior court ruling that addressed these issues substantiating my innocence.

So, within the very near future we will appeal that to the Supreme Court, asking them to overturn the lower Federal Court's "clearly erroneous and objectively unreasonable" decision (based on the judge's deliberate lie).

Bottom line is that there are still numerous appeals we will yet pursue. But the state of Florida will stack the deck by scheduling my execution within the near future, and even though I do still have reason to hope that justice will prevail, I cannot have any faith in a judicial process governed by judges who repeatedly fabricate lies to deny relief and since they are the only ones who can overcome their own lies, truth can never hope to prevail.

Because most people are generally good people and try to do whats right, they need to believe that those we place in power to administer justice are moral and ethical. I don't think many people would support a legal system that is governed by judges who will lie to justify killing even one innocent person. But it's so much easier to ignore the truth than to lose faith in who we are as a society.

I may not be able to stop this corrupt system from killing me for a crime I'm innocent of, but I know this...I will fight this fight until I breathe my last breath.

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.

Death Watch Journal (part 22)

Imagine being condemned to death for a crime you did not commit, and then finding yourself under an active death warrant, facing imminent execution - and having to basically defend yourself against the relatively infinate resources of the state...not even Hollywood can come up with such a bizarre plot.

But that's the reality I've found myself in these past months. It's now over 9 months (November 30, 2015) since Florida Governor Rick Scott signed a death warrant scheduling my execution for February 11, 2016 and over 6 months since, only days before my scheduled execution, the Florida Supreme Court granted a temporary stay of execution as they decide whether the January 2016 US Supreme Court decision in Hurst v Florida (which declared that Florida's practise of having the judge ultimately determine whether to impose death sentence rather than the jury renders Florida's death penalty unconstitutional) effectively makes my death sentence illegal... a decision will most likely be delayed until after the November elections as when it comes down to it, the death penalty is about politics, not justice.

During this period of time as I remained under this still-active death warrant, I've begged and pleaded with my state assigned legal counsel to work on developping new appeals, but when it comes down to it, they've refused to do anything. Maybe they are so confident that the Florida Supreme Court will throw out my death sentence that they just don't see any point in doing anymore work... but what if they are wrong and the Florida Supreme Court rules against me, as id that is the case then under Florida law the governor is mandted to to reschedule my execution within 10 days of when the court rules against me and I'd again be facing imminent execution.

If there's one thing I'm absolutely certain of after all these years, it's that if I were to sit back and let my life depend on the state assigned lawyers to fight this fight on their own, I would had undoubtedly been dead many years ago and it almost killed me in 1988 when I came within hours of being executed and so I make it a point to become personally involved with my own appeals - and if that means bumping heads with the lawyers assigned to represend me, then so be it! - I already know how hard-headed I am, so I can take it!

So, for 7 months now I've done all I could to try to get my assigned lawyers to do something, but all I get is a lot of talk. They do cover their own butt, though - almost every week they'll communicate with me and always in a manner that leaves no written record so that if I claim that they've effectively abandoned me, they can show that they did a 30 minute legal phone call or whatever each week.

My problem is that unlike my lawyer, I am not waiting on the Florida Supreme Court to rule on whether the Florida death penalty is unconstitutional. Even assuming they did rule favorably on that issue, the most it would do is reduce my death sentence to life in prison, and as Pope Francis put it so well, a "life" sentence is effectively a slow death sentence.

Rather, from the day I was arrested on that crime I have always and unequivocally maintained my innocence, adamantly insisting that the key witness and the prosecutor deliberately fabricated this wholly circumstantial ( i.e., no eyewitnesses, no physical or forensic evidense, no confessions, etc) theory of alleged premeditated murder - the key witness (Frances Smith) was desperate to do anything to get immunity and the local small-town prosecutor was as equally desperate to make a name for himself....it's not merely a coincidence that this same prosecutor has already had two others in unrelated cases subsequently exonorated and released from Florida's death row after the Florida Supreme Court recognized that this prosecutor crossed the line with overzealous prosecution (John Ballard and Bradley Scott were both set free due to prosecutional misconduct)

I am, and always have been, fighting for my freedom and so even if the florida Supreme Court did reduce my current death sentence to life, that would be a "hollow" victory. My state assigned lawyers would celebrate that "victory", but I would not...only my freedom is a real victory.

But of the state assigned lawyers controlling my case have effectively given up, then what am I to do? The vast majority of those sentenced to death simply do not have the intellectual capacity to understand the complexities of the law and are basically helpless. But I'm not your average death sentenced prisoner, and I'm not going to just lay down and give up....I didn't fight this fight for 33 years to quit now.

                                                                   

So, I did the only thing I could do....I wrote up my own appeal and recently filed it in the US Supreme Court, explaining to the court that both the State of Florida and lower courts have unfairly stacked the deck not only against me, but against many of Florida's death sentenced prisoners, by assigning US state agency lawyers who under Florida law are strictly prohibited from pursueing any form of "civil" action challenging our conviction and sentence of death...and I am asking the Supreme Court to exercise their jurisdiction by expeditiously ordering the appointment of new legal counsel that can represent me in what must be pursued.

Specifically, for over 25 years the prosecutor deliberately concealed forensic evidence in my case that conclusively shows that the Florida (FDLE) crime lab found several hairs on the alleged murder weapon that they determined in 1983 did not match me or either of the victims. These only recently exposed crime lab records also conclusively show that when the crime lab told the prosecutor about this unexpected discovery, the prosecutor instructed the crime lab to return all this evidence to his office - and he then hid the evidence until it was accidently revealed in 2009.

But when my state assigned lawyers filed a new appeal in 2009 argueing that this blatant act of deliberate prosecutional misconduct required the court to throw out my conviction and allow a new trial, suddenly my case was reassigned to Judge Christine Greider - a local former prosecutor who previously  worked with prosecutor Randall McGruther and in fact, was appointed to the bench while McGruther himself was on the 20th Circuit Judicial nominating committee.

Not surprisingly, Judge Greider summarily denied the appeal even after the Asst Attorney General representing the state conceded that the previously undisclosed hairs most likely were the key witnesses hair and that they never did disclose this evidence.

A motion to have this previously undisclosed forensic evidence subjected to DNA testing was filed - by me, but was also summarily denied by Judge Greider. The Florida Supreme Court subsequently affirmed the summary denial, rejecting our arguements that under well established law it was per se reversible error to deny this "new evidence/actual innocence" appeal and request for DNA testing without providing any form of evidentiary process necessary to establish the materiality of this deliberately concealed evidence.

My only recourse at that point would be to file a federal civil action under Skinner v. Switzer S.Ct. 1289 (2011) as a means to challenge the denial of DNA testing necessary to establish my actual innocence as "arbitrary and unfair" but under Florida law my assigned state counsel is categorically prohibited from representing death sentenced prisoners in civil actions.

So, last year (before my death warrant was signed) I asked the Federal court to appoint Federal counsel to my case as is statutorily mandated under applicable Federal law (18 U.S.C. 3599), only to have the Federal Court refuse to do so, leaving me with only the state assigned counsel. I appealed this to the Eleventh Circuit court of appeals in January, while facing imminent execution, but Chief Judge Edward Cornes has refused to allow the case to be docketed - as he has done in other similar capital cases (Judge Cornes and his Alabama cronies are knwon for their fanatical support for the death penalty and overzealous pursuit of executions)

With few remaining options - obviously I simply don't have the ability to hire a lawyer to represent me and contrary to popular myth there are no lawyers willing to volunteer to help an innocent man avoid execution - my only remanining option was to write up the appeal myself and file it with the Supreme Court, which I did on August 17, 2016.

If you like to read this 32 page appeal asking the Supreme Court for help in getting legal representation so I can prove my innocence, you can read it in HERE . You can follow the progress of this appeal on the Supreme Court's website at https://www.supremecourtus.gov/  and pull up the case, docketed as In re: Cary Michael Lambrix, Case No. 16-5715 (https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-5715.htm )

What does it say about our legal system that a poor and uneducated man facing imminent execution for a crime he did not commit must write up and file hos won appeals? The reality of it is that in capital cases, the appointment of legal representation is most often a total pretene intended to project the appearance of fairness in an inherently unfair process. - Mike Lambrix

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.

Stay of Execution

As that first week of February began, the days to my scheduled execution were down to less than ten. I focused on separating all my property, which in truth wasn’t much and most was pretty much trash to anyone but me, but it had to be done as I knew that on Thursday February 4th I would move to the next phase of the death watch protocol.

What that meant is that I only had until February 4th to go through my personal property and decide who would get what, My Bible, watch, and other personal things would go to my son, and my mp3 player to my sister Mary. While my small television ad fan would would go to my older sister Debbie. The boxes of personal papers and legal work would be picked up by my friend who would sort all that out. And I would throw away a lot of trash that piled up over the years.

I spent the better part of Monday sorting through that and with each decision I made it brought the reality that I would soon die that much closer. But it had to be done and trying to ignore the obvious wouldn’t make it go away.

On Tuesday morning February 2nd the Florida Supreme Court would hold oral arguments on my case, but I wouldn’t be able to see them. Instead, at that same time I had a visit with my sisters Debbie, Mary, and Janet. Although Debbie and Mary have visited many times through the years, that was the first time my sister Janet had visited in the past 32 years. The last time I had seen her was in the courtroom where I was convicted and sentenced to death.

It was a great visit and all those years that passed, quickly faded away and it was as if we had just talked last week. That’s family. Years can pass without having any communication and just that quick we are talking as if no time had passed at all. Before we knew it, the few hours allowed for that visit passed and we had to say our goodbyes. At the time of that visit, they all expected that within a few days I would be put to death. That made saying goodbye that much harder.

Immediately after that visit with my sisters, my lawyer and the investigator assigned to my case stopped by for a visit as they wanted to tell me how the “oral arguments” on my case went earlier that morning and they told me that they went well, but that nobody could predict what the Florida Supreme Court might do when they ruled, nor even how long it would take for the Court to rule. With my execution scheduled for that following week, we expected a decision within days.

Just after 4 pm my lawyer left and after locking down the entire prison as is protocol for “death watch movement,” I was escorted back up that long main hall slowly shuffling along in the leg shackles and handcuffs and chains until we reached the very last door leading into Q wing, and then down the stairs and back to my death watch cell.

Within moments the phone on the desk in of the cell rang and the sergeant answered it… it was Warden Palmer and he wanted to talk to me. Not knowing what to expect ~ not too often any inmate gets a phone call from the warden ~ I reluctantly said, “hello?” and after that brief exchange of irrelevant formalities, Warden Palmer then informed me that the Florida Supreme Court just ordered my scheduled execution postponed to some as yet undetermined time in the future, allowing the Court time to reach its decision on the applicability of the U.S. Supreme Court’s decision in that Hurst v Florida case.

But I would remain on death watch as a temporary stay meant that at any given time the Florida Supreme Court could lift the stay of execution and proceed to carry out the execution.

Although it is unlikely that they would lift the stay before the originally scheduled date, it remains a possibility. If the court ordered stay remains in effect beyond Friday February 12th, then an execution would not be authorized until the Governor signs a new order of execution.  Under Florida Statute 922.06(2) once the Florida Supreme Court lifts this stay of execution then Florida’s Attorney General must certify that the stay of execution has been lifted and only then is the Governor statutorily required to set another execution date.

Bottom line, it’s almost certain that the Florida Supreme Court will not lift this stay of execution before February 12th, and so although I technically remain on death watch, I would not have any date set for execution.

That uncertainty of imminent death will continue to hang over me as there is no way to know how the Florida Supreme Court will ultimately rule. Within weeks I could go from being steps away from that execution chamber that now patiently continues to wait for me ~ or they could rule in my favor and just that quickly my sentence would be reduced to “life.” Under Florida law since my capital conviction was before 1995, that life sentence would mean that I would not be eligible for parole for at least 25 years (as of March, 1983) so technically I would be eligible for parole in March 2008 ~ 8 years ago. But parole is totally discretionary and Florida rarely ever grants parole to any prisoner previously sentenced to death. I have no realistic expectation of parole. Still, it would be theoretically possible.

If the Florida Supreme Court rules against me, then my execution will be rescheduled. Most likely within a matter of weeks. My other appeals continue to be pursued and they too provide that hope that relief will be granted. Perhaps the courts will yet allow me the opportunity to be heard on the readily available evidence substantiating my innocence and this will be the year that I am finally exonerated and win my freedom ~ finally pursue my long held dream of to travel from coast to coast, visiting the National Parks, watching the sun set over the Pacific Ocean and falling asleep beneath the stars at night.

For those that don’t already know, on January 30 the Sarasota Herald newspaper did a long article about me and my case titled “His Plea for Life at Florida’s Highest Court” and on February 9th a media interview was done with Politico that should also be televised and available online in coming weeks.

I would again thank all those for the cards and letters of support. The truth is that my primary source of strength through this have been those cards and letters, as well as the family visits I’ve received. I know that in many ways all of this is so much harder on those that care about me than it is even on me, myself. I remain truly blessed by all those who so selflessly reach out to me during these past weeks.

And then there’s friends that do so much to help and the phone calls, visits, and photos of my children and the smiling faces of my grandchildren, too.. Even as I feel all but crushed beneath the overwhelming weight of this process that virtually stalks my death, I find comfort in knowing that so many care and continue to hold me in their thoughts and prayers.

Last, a special word of thanks to whoever sent me that book “From the Depths of a Slaughter” by Angela Pomeranz. I personally knew both Timebomb and Bo, and their memories made me smile. Thank you.

Letter from Death Watch (part 8)

Another week already gone, and as I write this today there’s less than two weeks to go before my scheduled execution. It’s been a relatively quiet week and I smiled when the thought of “the calm before the storm” comes to mind, as I know that as we move into that final stretch it will pick up.

On Thursday they will elevate me to the next phase. Since my death warrant was signed on November 30, I’ve been on “phase II” but per protocol once I reach that last seven days prior to execution; things change. Right now I’m allowed to keep all my property in my cell and it’s not much different that regular death row confinement beyond the fact that the death watch cell is significantly larger.

Once I graduate to the next phase (phase I) they will remove all my property from my cell and post an officer just outside my cell 24 hours a day, 7 days a week. He will have a forest green “death watch log” and record my every movement. This is similar to “suicide watch” and its sole purpose is to make sure that the condemned prisoner doesn’t deprive the state out of its intended execution by committing suicide. Once I graduate to the next stage even my lawyers will no longer be allowed regular visits in the death watch interview room, but will only be allowed to see me in the non-contact visitation area through glass. This ensures that even the lawyers cannot pass anything to the condemned prisoner.

It’s all about the methodical process designed to force the condemned to become a willing participant in his or her murder. I know from their perspective, this process is meticulously tuned to ensure that the intended execution goes by the book without unexpected interruption

But more so than anything else, what bothers me the most about this whole process is just how incredibly cold and calculated it is, as if those responsible have completely forgotten that they are taking a human life. It really is nothing less than the “machinery of death.” And I really do have to wonder just how much of their own humanity those responsible for carrying out this act of taking a human life must abandon as nothing about this process is “normal.”

Maybe that’s exactly the point… maybe they need this process themselves so that they can detach from the reality that they are killing a fellow human being. Maybe by becoming so fixated on each minute detail, it provides them that luxury of pushing aside the reality that they are killing another person.

                                                     

I suppose if that’s true, then it helps that most of those who are assigned to assist in this execution ritual have done it many times. One officer recently told me that he’s been down here for at least the last 25 executions. At some point, it probably gets easier. At some point they probably don’t even lose any sleep over it… it’s just a job. And that’s kind of scary.

At least I accomplished one small thing this week. In January this year when they killed Oscar Bolin as I was forced to remain in my death watch cell only feet away, I found out that they would not allow communion on the day of execution. Most Americans claim to be Christian and would find it offensive that a condemned prisoner would be denied communion when having his last spiritual visit.

When I realized that this was the case, I asked several people responsible for this process why they would not allow the condemned prisoner to take communion ~ which is unquestionably one of the fundamental tenets of any Christian faith. And other than allowing communion interfered with their last day protocol, nobody could give me an answer as to why. Apparently, nobody had ever questioned this before.

Unable to get any explanation at institutional level, I then brought this to the attention of my lawyers. Just by coincidence, my top lawyer Neil Dupree ( head of CCRC) was in Tallahassee to participate in budget conferences and in the same room as the FDOC Secretary Julie Jones.

As I understand it, Mr. Dupree took a moment to talk to Julie Jones and simply asked her why it was that condemned prisoners were not allowed to receive communion on execution day and apparently Ms. jones did not even know that this was not allowed and assured Mr. Dupree that she would look into it immediately.

Early the next morning the prisons Assistant Warden came down to death watch and discussed this issue with me, in a polite and respectful manner. Just that easily, the issue was resolved ~ I would be allowed to receive communion from the Catholic priest on the day of my scheduled execution. But I wonder whether those who face execution in the future will think to inquire as apparently I was the first to simply ask.

This past week I was kept busy by the lawyers as the various appeals were submitted to the courts. Since the Hurst v Florida decision was handed down from the U.S. Supreme Court on January 12 declaring Florida’s death penalty statute unconstitutional, many of the top lawyers have joined my legal team as now my own case will decide whether that court decision applies to everyone on death row, or maybe to no one  at all. Oral arguments before the Florida Supreme Court will be interesting. (If you missed these oral arguments you can pull them up at any time at http://www.wfsu.org/gavel2gavel/viewcase.php?eid=2314)

With all the attention of this Hurst v Florida issue, I’m increasingly worried that the lawyers are not pursuing my numerous other issues as aggressively. For one thing, I just don’t have any confidence that the Florida Supreme Court will rule favorably on this Hurst case. Of the seven justices on that court, most are former death penalty prosecutors themselves (they each are politically hand picked, so that’s not just a coincidence) and not even one of them opposes the death penalty. And this court has already sent at least 30 men to their execution since 2002 when the US Supreme Court first ruled this process was wrong. I just don’t see that court suddenly willing to do the right thing. What’s important to me is my long and consistently pled claim of innocence and that it continues to be argued before the Florida Supreme Court and in the Federal Courts. But with this attention on this Hurst issue, my claims that argue my innocence are being neglected and I’m not happy about that ~ and there’s not a damned thing I can do about that either.

Some time this next week the lawyers will file my appeal on the innocence claims in the Eleventh Circuit Court of Appeals. I also expect nothing from that court as my case was assigned to the three most extremely pro death penalty judges (Carnes, Hull, and Tjoulat), so the most I can hope for is that once those judges rubber stamp that federal denied (as they do all death row appeals) then we can try to get the US Supreme Court to grant review.

But the clock continues to count down and each day I’m that much closer to my death. It’s still a matter of days, but soon it will be a matter of hours.

Note: Michael Lambrix was granted an indefinite stay of execution on February 2, 2016.He has now been moved to a regular death row cell at Florida State Prison, while still being under warrant.

Anyone wanting to send a card or letter to Mike, please write to:

Michael Lambrix #482053
Florida State Prison G1204
7819 NW 228th street
Raiford Florida 32026-1100

Letter from Death Watch (part 7)

When the Governor first signed my death warrant on November 30, 2015 scheduling my execution for February 11, 2016, I had 73 days until they planned to kill me. As I write this , I’m now down to 18 days. To keep us occupied ~ if we were to go nuts awaiting our execution then they couldn’t kill us as the Supreme Court has said that violates the Eighth Amendment prohibition to execute a prisoner that has become “mentally incompetent” ~ they have installed a 40 inch flat screen television on the wall in front of cell one, which I watch regularly.

Funny thing though, as the days passed I have noticed that there are previews for more shows that I would really like to watch, but they won’t come on until after my scheduled execution and I find myself saying that it sucks as now I’m going to miss that show. For example, many years ago I faithfully watched every episode of the science fiction series “X-Files,” but then the series ended with a lot of unanswered questions.

Recently the Fox Network brought it back for a six show mini series to answer some of those questions we all waited so long to be resolved. And I was anxiously awaiting its return. However, it doesn’t begin until Sunday January 24th and then run for the next five consecutive weeks. But I only have less than 3 weeks to live so it created a dilemma ~ do I watch what I can and hope that my execution is put on hold until I’ve watched all 6 episodes, or do I just blow it off for now as I wouldn’t want to go to my grave left hanging to see how it all ends. 

More and more I’m confronting these dilemmas ~ finding myself making choices based on when my execution is scheduled. The other day I noticed that my toothpaste was getting low and normally, I would just buy another tube without a second thought. But instead I found myself contemplating whether what I had left might be stretched to last until February 11th as I didn’t want to waste the money buying a new tube, then be put to death and leave it wasted.

These are just a few of the examples of how even the smallest things that most wouldn’t give a second thought to will creep into mind and then I will find myself putting way too much thought into how that particular thing or event impacts my scheduled date with death.

                                                                    

Maybe that’s part of this deliberate process ~ to compel those awaiting their appointed date with death to be reminded that they intend to kill you every moment of every day until they do. Perhaps that “process” itself helps facilitate passivity in the condemned by instilling a sense of becoming part of that countdown, so that when the time does come, we will feel almost obligated to cooperate.

A few days ago the death watch supervisor came down and laid a brand new suit on the desk out in front of my cell. He has been assigned to this post for years and personally dealt with at least the last 30 executions ~ probably many more. In this environment, that wall of separation between prisoner and guard somewhat relaxes and there’s significantly more personal interaction if for no other reason but there’s no one else to talk to.

This supervisor (whom I’m deliberately not naming) exhibits a level of professionalism you very rarely see in the prison system. He deals with us in a fair and respectful manner, and takes good care of us. When our family and friends come for a visit, he will do what he can to make it easier on them. Often even introducing himself to our visitor and giving them his phone number in case they need to call if problems arise. When my mentally challenged daughter came to visit, he escorted her to the parking lot to make sure she got there alright. He is a model of professionalism balanced with that measure empathy towards those he interacts with that you just don’t expect from prison employees.

But when he brought that suit down, it made me realize just how much this job has taken from him. Most of us give no thought to how all this affects those who work here and interact with the condemned. They will spend months down here on death watch with us, knowing just as well as we do that with each day that passes we take one step closer to that date of our appointed death. How could all this not affect them too.

Yet he laid the bag containing the suit down on that desk and as if it was nothing more than getting a cup of water. He pulled the brand new suit from the bag and casually told me I needed to try it on to make sure it fits. I watched as he first took the white shirt from its plastic bag (George for men, size XL, short sleeves ~ long sleeves would obstruct their ability to insert the needles into my arms ~ with a neck of 18 inches). He unfolded the shirt, removing the store tags, then shook it out and passed it through the cell bars so that I could try it on.

As I obediently put this shirt on, he focused his attention on removing the suit from its protective bag. I noticed it was bought at the local JCPenney store. The tag said it was Stafford brand, made in Mexico, with a suggested retail price of $200. I commented about that ~ the prison would only allow a “last meal” limited to $40 , but they didn’t mind spending that much for a custom fitted suit to execute me in.

He passed the pants first and then the jacket through the bars and I put each on. They fit well. I even commented about how good I looked in the dark blue, almost black suit with the subtle charcoal pinstripes. And then I removed it and handed it back and it was returned to its protective bag and places in the closet where it would wait until it was time for me to put it on again ~ only the next time I put it on, they would kill me in it.

This whole process of trying on the suit they bought just to execute me in seemed so mundane; so normal. As if we went through this everyday. And I found myself wondering, how many times has he gone through this routine before and at what point did he reach that point in which having the condemned prisoner try on his execution suit become so routine?

On the legal front, the lawyers continue preparing and filing appeals based on the recent U.S. Supreme Court decision in Hurst v Florida. When that case first came out on February 12th I was somewhat skeptical, as I knew that it’s hard to convince the courts to retroactively apply new case law to older cases. (See, my essay “ Death by Default” posted January 28th at www.minutesbeforesix.com). However, after reading what the lawyers have filed I must admit that they make a very convincing argument as to why Hurst v Florida dictates that my death sentences be vacated and my execution stopped. Many other organizations are also submitting “Amicus” briefs in support, which is almost unheard of. Bottom line, there’s a good chance we can win this, but it will be close. The Florida Supreme Court will hold “oral arguments” on my case on Tuesday, February 2, 2016 which can be watched online at www.wfsu.org/gavel2gavel/

 

My Federal appeal arguing actual innocence also continues to be pursued in the Federal Courts. Anyone who wants to read the appeals that have been and will be filed can do so at www.southerninjustice.net. Hopefully, either the state or federal court will grant a stay of execution soon.

(Note: Indefinite stay of execution was granted on February 2, 2016)