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.

FLORIDA SUPREME COURT RULES ON APPEAL

As some of you who regularly follow my blog already know, on Thursday June 27, 2013 the Florida Supreme Court finally ruled on my long pending new evidence/innocence appeal, and unanimously denied the appeal in a “per curium” opinion. Considering it took the court almost 3 years to finally decide this case, the denial was a surprise – but even more surprising was the hostility reflected in the ruling. Instead of giving adequate review of the state’s own deliberate prosecutorial misconduct, as even the state conceded that the prosecutor had intentionally concealed numerous state crime lab files containing crucial evidence that would have undoubtedly undermined the credibility of the state’s key witness, the Florida Supreme Court instead chose to vent their unjustified hostility towards any “secondary” post conviction appeals.

Perhaps in a better world we would like to think that those appointed to our highest courts would have the moral character and professional integrity to rise above their own obvious prejudices and rule according to the law. But as the philosopher Friedrich Nietzsche said, paraphrasing, those who spend their whole lives fighting monsters should not so much fear the monster, but instead fear becoming the monster. I truly doubt those on the Florida Supreme Court can even see the evil boiling within them, and blinded by their own distorted sense of “moral justification” they probably even think they are doing the right thing when they respond with such hostility towards legitimate claims of innocence and knowingly send innocent men and women to their death under the pretense of administering justice.

But the irony of their actions is that this decision strays so far and contrary to well established law that it could be argued that by ruling as they did, the Florida Supreme Court actually may have done me a favor.

Here’s what is at issue. The main claim in this appeal was that the prosecutor who originally tried this case deliberately concealed numerous state crime lab records back in 1983 that contained irrefutable evidence that the state crime lab found numerous hairs on the alleged “murder weapon” that did not match either the victim, or me, but were consistent with those of the state’s key witness, Frances Smith.

In 2009 an independent researcher found these state crime lab files concealed at a state records repository in boxes from the State Attorney’s office. This researcher then turned these file folders over to my lawyers, who immediately recognized that this was a major violation of long established Federal constitutional law.

In a nutshell, it has long been established that prosecutors are constitutionally required to disclose all favorable evidence to the defendant. Yet consistently we see that prosecutors deliberately violate this law and hide favorable evidence, hoping it will never be discovered – and only god knows how much is not discovered! This type of deliberate prosecutor misconduct is responsible for a greater percentage of wrongful convictions in death penalty cases than any other cause – and Florida by far leads the country in the number of such wrongful convictions in capital cases!

Apparently embarrassed by their record number of wrongful convictions, the Florida courts have now decided they will just ignore such deliberate prosecutorial misconduct – even if it means sending an innocent man to his death. For example, in James Guzman v. State of Florida, 721 So. 2d. 1155 (Fla. 1998) the Florida Supreme Court addressed a similar case in which irrefutable evidence showed the prosecutor deliberately concealed evidence that would have impeached the credibility of the state’s key witness – if the Florida Supreme Court had it their way, Guzman would have been put to death. But the Florida court’s denial was so contrary to applicable Federal law that the Federal courts subsequently intervened, specifically finding the Florida Supreme Court’s denial of a new trial “unreasonable” and “clearly contrary to established Federal law,” and on October 27, 2011 the Court of Appeals, Eleventh Circuit, vacated Guzman’s capital convictions and ordered a new trial.


Similarly, on January 20, 2012, the United States Supreme Court issued its opinion in Juan Smith v. Burl Cain, U.S. Sct Case No. 10-8145. Like in Guzman, the death sentenced petitioner (Juan Smith) was denied relief by the state courts on a claim that the prosecutor had deliberately concealed evidence that could have been used to undermine the credibility of the state’s key witness. In a cursory opinion written by Chief Justice Roberts, which even conservative pro death penalty justices Scalia and Alito joined, the Supreme Court found that the state courts denial of this claim was unreasonable and contrary to clearly established federal law, and threw out all five capital convictions and sentences of death imposed on Juan Smith…only Justice Clarence Thomas disagreed.

For that reason, being familiar with applicable law, when I learned of how the Florida Supreme Court had denied my appeal in an extremely hostile opinion focused more on unethically attacking me and my legal counsel than on the substantial issue presented, instead of being upset, I smiled, as I knew immediately that they actually did me a favor – and their denial of relief actually will now significantly improve the likelihood that either the U.S. Supreme Court or Federal Court will now throw out my convictions in their entirety – and set the stage for my release, although it will now take longer.

Here’s how the case will now proceed…once the Florida Supreme Court’s ruling is “final” (after rehearing is denied), my lawyers will now take the case directly to the U.S. Supreme Court, and argue that as in Smith v. Cain (2012), the state court’s cursory denial of this substantial Federal claim must be summarily thrown out in their entirety. And in light of Smith v. Cain, there’s a very good chance that the U.S. Supreme Court will now do just that.

But assuming for the moment that the Supreme Court declines review, thanks to the Florida court’s refusal to allow a full evidentiary hearing on this issue, I will now be entitled to a full new Federal appeal, which will also now allow me to specifically argue “fundamental miscarriage of justice/actual innocence” – meaning that this will now open the door to allowing me to present all the evidence supporting my consistently pled claim of actual innocence.

Although it sucks that the Florida Supreme Court has once again shown that they lack the moral character and integrity to follow long established constitutional law – which obviously contributes to why Florida leads the country in wrongful convictions in capital cases – the truth is that upon realizing just how extremely outside applicable law this ruling was, I almost felt compelled to give the Florida Supreme Court justices a big hug and heartfelt thanks. And I can’t help but wonder if the Florida Supreme Court justices actually knew what they were doing as they obviously are aware of the decisions in Smith v. Cain and Guzman v. Sect., FDOC, and either just didn’t care what the Federal Courts think – or this is their way of saying that although they don’t have the courage or integrity to do the right thing by ruling as they did, they knowingly set the state for what they know will almost certainly now result in Federal Courts throwing out my convictions and result in my own exoneration and release.

I realize that many who do care about me and have followed my case are probably upset about this seemingly awful ruling – but I write this to tell you that although the Florida Supreme Court’s ruling was unreasonably hostile and reflects just how completely corrupted the Florida Supreme Court has become by the “politics of death” – and why there can be no doubt that they are only too willing to put innocent people to death – this really was not that bad of a ruling as they all but guaranteed that I will now receive full Federal review and almost certainly will now have my convictions vacated by the Federal Courts.

Michael Lambrix # 482053
Union Correctional Institution
7819 NW 228th street
Raiford, Florida 32026