Forgotten Veterans: Condemning America’s Heroes.

As I sit in my concrete cage condemned to death, I take a moment to remember that today, November 11th, is Veteran’s Day. That is the legal holiday in which America honors those who have served in the military, willing to give their life to protect the constitutional liberties we all too often take for granted. In America, on the 4th of July, we celebrate our freedom, but today we take a moment to remember those who are fighting to protect our freedom.

Growing up in the San Francisco bay Area in the late sixties and early seventies, I often witnessed the chaotic protests against the Vietnam war at the time and because of the era in which it was, veterans coming home from service in that war were all too often looked down upon. For reasons that made no sense to the child that I was these men who served – often voluntarily – were blamed for a war they didn’t want to fight. Only many years later when I enlisted into the army did I realize the truth of a bumper sticker I saw while stationed at Ft Sill, Oklahoma: “Politicians start wars, soldiers fight them”.

It wasn’t that long after that brief military experience that I awoke early one morning, hours before even the sun came up, to a deaf-defying scream that awoke the whole wing on death row. About 4 or 5 cells up from me was a black man named David Futchess. At the time I was still new to this strange world in which I remain condemned to, and didn’t know that David often had these nightmares in which he was once again in Vietnam in yet another firefight with an invisible enemy, that was methodically picking off his fellow comrades one at a time. The technical term is post Traumatic Stress Disorder, and it is common among men who served in combat, as David had.

In the coming months I came to know him as we shared the recreational yard together. For the most part, he was a quiet guy and easy to get along with and some might even say he was passive. But sometimes in the middle of a conversation his mind would just drift away and his eyes would go death as if staring off into a distant horizon and his hands would start shaking, sometimes causing his whole body to tremble. On one such occasions as he stood there in his trance a ball hit the ground near him and David spontaneously fell to the ground, screaming something incoherent.

A few years after I came to death row, in April 1986, the State of Florida put David to death in the electric chair. Just in the relatively short time that I was on death row, David was the 12th man executed since I came to Florida State Prison. Back then when the cell lights would go off just before an execution, I would pray for each, dropping to my knees and pleading with a God that never once answered my prayers and I continued praying until the lights came back on, knowing that once they did, yet another man was dead. Through the window out on the catwalk in the front of my cell I could then see the same white hearse they brought in through the back gate to collect the remains of the executed and I’m sure I wasn’t the only one who stood at my cell door silently watching it slowly drive past our windows with the body of our friend and brother inside.

Those familiar with David Futchess’s case know that serving his country screwed his head up. After coming home a forgotten hero his neighbor said that it was not uncommon
for David to dig foxholes in his yard and sleep in them. Others talked about how sudden loud noises put him into a state of shock. Some said he turned to drugs to deal with the nightmares and it wasn’t that much of a surprise that one day he snapped and killed somebody. Just that quickly he was no longer an American hero who sacrificed his own sanity to serve his country and the very country he so willingly served with honor turned against him and quickly condemned him to death. I can only hope that now he has found peace.

Through the years I have come to know many others here condemned to death who by every right and reason are American heroes – now abandoned and condemned to death by the country they gave so much to protect.

Perhaps few cases could illustrate the tragedy of this injustice more than that of George Potter, who remains here on Florida’s death row to this day. George is now in his seventies and growing old on death row is not easy. I have been blessed to know George through the years and I find strength in his own perseverance. But when I think of the injustice that has been so deliberately inflicted on this man of honor and integrity I become disgusted of what my country has become and how quickly we turn on our true hero’s.

When George was barely 17 the Korean War broke out and George was so anxious and determined to fight for his country that he went down to the local military enlistment center and lied about his age. Within months this kid quickly became a man while fighting a war for a country that he believed in. While the friends he grew up with were still struggling to graduate high school back home, George was on the front line fighting a war. Not long after that George was shot and subsequently awarded a purple heart.

Even then, George refused to go home, insisting that they send him back up to the front line as he refused to abandon his fellow soldiers and brothers in arms. Even before his first wound fully healed, George was back on the front lines pushing North under General
McCarthy when his company (attached to the Eight Army) was suddenly overrun by the Chinese army and slaughtered.

Back to the south the politicians calling the shots decided to just let them die as the Chinese army could not be stopped. But George never gave up, not even when they gave up on him and left him for dead. Most of his comrades were killed, their bodies thrown into heaps like garbage. George was again severely wounded in combat and presumed dead. Only days later was he found and treated and subsequently awarded another purple heart and other medals honoring his sacrifice and service to his country. Then they sent him home.

For over 30 years George was an outstanding citizen and member of the community. But he was still haunted by the nightmares he couldn’t escape and like is only too common he turned to drinking to drown the ghosts of those who died beside him. During one of these drunken bouts George got caught up in a spontaneous event, a domestic argument with a woman he dated that too quickly escalated into her tragic death. Unable to cope with what happened, George pled guilty, then went back to his cell and attempted to take his own life.

But he lived and just as quickly our legal justice system forgot about his honorable service and the many medals bestowed upon him and quickly condemned him to death. Years later numerous high ranking military officers came to court to testify on behalf of George, speaking of how George earned each of the medals for honor and bravery and asking the court to show mercy to this genuine American hero – but the court refused to do so and denied their appeals. George remains here on death row, barely able to read and write, not only abandoned by the country he fought for, but also most of his family and friends.

But the stories I tell about David and George are only a few of the so many more. The tragic truth is that there are many forgotten heroes on death row, those who did not hesitate to run into battle to defend the very constitutional liberties now used to condemn them to death.

Many of the veterans served during the Vietnam War and were changed by their experience, but their numbers now dwindle as Florida is only too eager to put them to death. A few years ago it was Arthur Rutherford who had served as a marine in Vietnam and never recovered from that experience. As with all the others, his service to country meant little to a judicial system that sees military service only as a minor “non-statutory” mitigation factor given little to no weight when deciding whether these men should be condemned to death.

Many of these men have too much honor and self respect to argue that their military service should be used to save them. Take for example Thomas Pope, who has now been on Florida’s death row almost 30 years. Like Rutherford, he too has served honorably as a marine in Vietnam when still a young man and was recognized for his service and sacrifice for his country.

But the years have not been kind to Tom (Pope) as his service to country has long been forgotten. Now he very rarely even gets mail or a visit – like so many others his family and friends have long ago forgotten him. For many years Tom was my cell neighbor and I love him like my own brother. But now he is housed in another part of the building and I haven’t talked with him in a long while as it is almost impossible to talk to others housed on other wings. But he is not forgotten and I can only hope that others might also remember him. In a few months (January 29) he will be 60 years old so maybe someone will send him a birthday card to let him know that he is not forgotten.

Now, a new generation of military veterans is coming to the row as already I see new faces and learn of their own experiences that forever changed their lives. Not long ago I talked to a man now condemned to death who served with my older brother in the first Gulf war in Iraq. He remembered crossing paths with my brother shortly before my brother took an Iraqi grenade in the chest. More recently I see younger men now coming to join the ranks of the condemned who fought in combat in the current wars in Iraq and Afghanistan. 

                                             

So, today I want to take a moment to honor these men who stood their ground willing to sacrifice their lives for this country and the constitutional freedom that we often take for granted. All of us fall short of the glory of God and not one of us is perfect. Even assuming that these men committed a crime for which the law demands accountability, I think that it is indeed a sad commentary on the degradation of our own moral values as a society that we so quickly condemn our heroes to death and forget the service and sacrifice they gave so that we could remain a free society. Today I salute these forgotten heroes.

Are Prosecutors above the Law?

Some might argue that as a death sentenced prisoner I’m hardly qualified to throw stones at anyone, and maybe they’re right. In the Bible it quotes Jesus Christ as saying “let him who is without sin cast the first stone”. But then, I suppose it could equally be argued that it is human nature to find fault in others around us, in our own way, we all throw stones so is it really all that terrible that I throw a few stones, too?

Those familiar with my previous writing already know that I am especially critical of prosecutors who have exalted themselves to gods and use the power entrusted in them to victimize the innocents. For the life of me I just don’t understand why our society continues to tolerate what clearly is a virtual epidemic of prosecutional misconduct.
We live in a constitutional democracy and these prosecutors are employed to represent us, “we, the people”. When a state (or district) attorney prosecutes someone, they do it in our name.

But very rarely do we hear anyone speak out against these self-exalted “gods”, not even when we know they are corrupt and have consistently abused their authority.
Even our courts protect them by granting these parasites immunity, so that even if they do deliberately fabricate evidence and send an innocent man to his (or her) death under the pretence of administering “justice” they can look the court in the eye and know they are protected.

Recently I read an editorial in the USA Today newspaper (April 6, 2009 “Real-life CSI rife with conflicts of interest”) in which it mentioned only in passing that Texas had implicitly conceded they executed an innocent man. The editorial discussed a recent report in the National Academies of Science, in which independent investigators revealed that crime labs across the country routinely manipulate forensic evidence to favor the state, assisting the state in securing a conviction.

In that unnamed case the individual was convicted and condemned to death primarily upon the forensic evidence testing by a state-owned lab. But the test results that sent this man to his death were deliberately manipulated and at best, “unreliable”. This man protested his innocence to no avail - forensic evidence is presumed to be objective and jury’s will believe the science over the self serving protestations of innocence every time, oblivious to the fact that this all-powerful forensic evidence all too often is not what it seems, and is even routinely manipulated and fabricated to give the prosecutor the evidence needed to convict.

This Texas case is by no means the exception. Similar independent studies of crime labs in almost every other state have consistently exposed similar acts of manipulation of forensic evidence to win a conviction. Although perhaps in most cases the accused actually was guilty - but what about the countless cases in which the accused was innocent?

What this is really about is winning by any means necessary. Those familiar with the American criminal justice system know only too well that prosecutional misconduct is by far the leading cause of wrongful convictions. In the past year we have seen numerous high profile cases in which prosecutors deliberately broke the rules to win a conviction. Most recently it was the case of U.S. senator Ted Stevens of Alaska, ironically himself a career conservative who voted in the very Federal judges and US Supreme Court justices who have given prosecutors immunity even when they deliberately fabricate evidence and knowingly convict and even condemn the innocent.

Senator Stevens spent decades as a powerful politician – arguably one of the most powerful politicians in America. But he fell from political grace when he campaigned for “pork-barrel” projects that included an infamous “bridge to no-where”. Subsequently in came out that he had a substantial amount of money- which some said were pay-offs for his political support. Imagine that- a politician accepting kick backs.

Last October Senator Stevens was convicted of corruption, and his long political career abruptly ended in public disgrace. He of course vowed to appeal, protesting his innocence. But he was just jet another convicted felon crying innocence, and nobody bothered to listen.

Earlier this month the newly appointed US attorney General Eric Holder personally called for the conviction to be thrown out after his office discovered the prosecutor had actually withheld exculpatory evidence from Senator Steven’s lawyers. Although the prosecutor in the Stevens case is claiming inadvertent “carelessness”, the now revealed court intent in concealing the evidence that if exposed would had discredited the states case against Senator Stevens.

Think about this for a minute- if a prosecutor can deliberately conceal exculpatory evidence when convicting one of the most powerful senators in America, in a high profile case, then what chance does the average indigent accused criminal defendant in America actually have?

The American judicial system is completely corrupt to its very core- and I for one am absolutely convinced that the true cause of this inherent corruption is the judicially invoked absolute immunity the US Supreme Court has granted prosecutors.

For those unfamiliar with the legal concept of “absolute immunity”, basically it means that according to the US Supreme Court prosecutors cannot be held accountable, not even if they deliberately fabricate evidence to convict an innocent man.

In fact this issue is now again pending before the US Supreme Court (Pottawattamie County, Iowa vs. Harrington, US Sct case # 081065). In this case the lawyers representing two prosecutors (Joseph Heval and David Richter) are now arguing that although they do not deny deliberately concealing exculpatory evidence (evidence supporting innocence) from the accused, that based upon Imber V. Pachtman, 424 vs. 409 (1979) they are absolutely immune from being held accountable and the case must be dismissed.

What does it say about the integrity of the American judicial system when prosecutors can appear before the US Supreme Court and openly admit that they did knowingly withheld evidence resulting in a wrongful conviction – and claim that under the law established by the US Supreme Court, they cannot be held accountable?

The problem here is that the American public in general is ignorant- they just don’t have a clue as to how completely corrupt the judicial process has become. Most Americans don’t realize that the US Supreme Court has itself declared that prosecutors can deliberately fabricate evidence with the intent to convict and condemn innocent men and women with completely impunity – and that in America, the constitution does not even protect the innocent from being executed.

Without accountability there can be nothing but inevitable corruption. But how do you hold corrupt prosecutors accountable when the court protects them?
Even now as the public is becoming increasingly aware of the virtual epidemic of wrongful convictions we still tolerate a corrupt judicial system that effectively advocates convicting and executing the innocent by refusing to hold corrupt prosecutors accountable.

Maybe I’m wrong for throwing stones. But as Abraham Lincoln said – “evil can only triumph when good men choose to do nothing”. If the recent case of Senator Stevens clearly shows nothing else, it is that nobody- not even the most powerful politician in America, is immune from being victimized by deliberate “win by any means necessary” prosecutional misconduct.

I would encourage you to read the previously posted blog article “The Anatomy of a corrupt prosecutor" and think about why this matter really is by far the most important issue relating to the contemporary epidemic of wrongful convictions. Any legal system that knowingly tolerates the deliberate fabrication of evidence, including the deliberate concealment of exculpatory evidence, and allows this type of deliberate prosecutional misconduct to become the leading cause of wrongfully convicting and condemning innocent men and women is nothing less than completely corrupt itself.

But unless people start to speak out against this evil it will never end. How many more innocent men and women must be victimized by morally and ethically corrupt prosecutors who are more interested in winning the case than ensuring justice is served?
How many innocent men and women must be executed by a corrupt judicial system before people out there realize that if it can happen to me, it can also happen to you?
What will it take for the public out there to get it through their heads that if a corrupt prosecutor can do this to the most powerful politician in America, then they can do it to you too?

If this issue matters to you, then I ask that you check out www.southerninjustice.com , and read the currently pending appeal briefs in my case presently before the Florida Supreme Court. Collectively, these recently filed briefs (written arguments) show how easy it is for a state attorneys office to deliberately fabricate a case against anyone, and knowingly send an innocent man to death row. And just as it can happen to senator Stevens, and as it has happened to me, it can also happen to you or someone you love. Isn’t it time that each one of us stood up and spoke out against this epidemic of prosecutional misconduct and start demanding that our judicial system hold any prosecutor who dares to deliberately violate the law fully accountable. Anything less only serves to undermine the integrity of our judicial system itself.

Political Fight over Florida Supreme Court

Anyone who might still doubt that politics’ control the administration of justice can now bow their heads and accept the error of their ways. To be honest, the ignorance of the public often amazes me. It’s a lot like looking out upon a vast prairie of ostrich’s, each with their head deliberately impaled in the ground – they can’t see it because they don’t want to see it. Ignorance is bliss and they’d rather ignore the inconvenient truth that our American judicial system is completely corrupted by special interest politics than be compelled to accept a truth that would haunt their own social conscience.

At a national level there is simply no question that our elected President’s hand-pick judicial nominee’s for positions on the Federal courts, choosing only those who reflect their own ideology. Former (finally!!) President George W Bush took political corruption of the courts to a whole new level. First by stealing the presidency by having a controversial vote in Florida derided in his favor by a marginal majority of conservative justices on the US Supreme Court (Bush v. Gore, 120 Sict – (2000), and then, once politically elected by only 5 Justices to the office of President, (despite the fact that there is just no question that George W Bush lost the popular, “general” election) dear George then used his power to appoint even more ultra-conservative justices to the Court to secure a legacy of conservative ideology within the Federal Judiciary.

Now in the shadow of that circus another Bush-inspired judicial coup is unfolding in Florida and a political showdown may just follow. This story begins with the present Florida governor, “chain gang Charlie” Crist, winning election as Florida’s governor in November 2006. Governor Crist is a career ultra-conservative republican, proudly cut of the same cloth as George W Bush, who he campaigned for while at that time serving as Florida’s elected Attorney General while George W Bush ‘s younger brother Jeb Bush was governor of Florida.

Some argue that Governor Crist is nothing but a willing puppet of the mighty political cartel that empowers the Bush clan. Whether they are right or wrong, we will most likely never know. In all fairness to former Governor Bush, he has proven himself to be willing to confront conservative politicians and go “against the grain” to support wrongfully convicted men such as Alan Crotzer and William Dedge who were exonerated and released after DNA evidence established their innocence. Subsequently, Governor Crist fought conservative politicians to pass state laws providing monetary compensation to the wrongfully convicted. But although Governor Crist appears to stand his ground to “do the right thing”, at a more fundamental level there’s no question that he remains a tried and true red-blooded conservative subject to the strings that tie into the Bush cloth. Anyone who might doubt that need only look to the recent appointments Governor Crist has made to the Florida Supreme Court.

As a death-sentenced prisoner, the court’s willingness to fully and fairly hear appeals has a direct impact on my life - literally! Conservative justices such as those on the US Supreme Court (especially Justices Scalia and Thomas) will always rule in favor of the state or big corporation as the individual citizen means nothing. The greater goal of protecting the almighty “state” from the embarrassment of making a mistake, such as sending innocent people to death row, means that these conservative justices have consistently ruled that our constitution (the foundation of our protected rights) does not prohibit the state from executing the innocent Herrera v. Collins, (1993)

So the last thing I’d want to see is the Florida Supreme Court politically stacked with rabid, ultra conservative justices that have no respect for innocent lives, like those blood thirsty pro-death penalty ideological zealots who control the US Supreme Court. But that’s exactly what appears to be happening as Governor Crist is now systematically stacking the Florida Supreme Court with justices hand-picked from a list of die-hard Bush family insiders. Governor Crist has the opportunity to do what no other Governor has been able to do – in just the first two year of his first term as governor Crist is able to appoint 4 of the 7 justices on the Florida Supreme Court. This means that he will be able to pull a conservative political coup on the court, allowing that conservative ideology to control Florida law for many years yet to come.

In a previous blog article I wrote about the first Justice appointed to the court a few months ago. Charles Canady is now a Florida Supreme Court justice and there’s simply no question that the primary qualification for the appointment was that Charles Canady previously served as legal counsel to Governor Jeb Bush. Not long after that appointment Governor Crist was called upon to appoint another Justice for the Florida Supreme Court, and consistent with his conservative campaign he picked another Bush insider, Rickey Polston, to the court. As with now justice Canady, this soon-to-be Justice Polston worked in the Bush administration.

Suddenly influential politicians in Florida took notice and started speaking out against Governor Christ’s obvious campaign to stack the Florida Supreme Court with Bush administration conservative insiders. Former Florida Governor (and former US senator) Bob Graham joined forces with former American bar association president Talbot “Sandy” D’ Atemberte and others to scream “foul” in an editorial in the St Petersburg Times (“Take politics out of Florida’s Judiciary” Sunday December 28, 2008) Both Graham and D’Atemberte argued why Governor Crist should not politically corrupt the Florida Judiciary by hand-picking conservative Bush family insiders to control the court.

But just a few days later on January 2, 2009 Governor Crist responded by public ally announcing that his third appointment to the Florida Supreme Court is Jorge LaBarga, a Cuban-American from south-east (Palm Beach County) Florida. Not surprisingly Jorge LaBarga previously campaigned for Jeb Bush when he ran for governor in 1994 (see Florida Bar News, January 15, 2009 Crist names LaBarga to the Supreme Court)

But just who is Jorge LaBarga and can he fairly be labeled a “conservative”? As the article in the Florida Bar News reflects, Justice LaBarga fled his native Cuba as a child of only 11 years old. His family built a home in rural southeast Florida, where his father worked in the sugar cane fields. Justice LaBarga worked his way through the Florida State University to earn his law degree and coming out of college went to work as an asst public defender (criminal defense attorney) from 1979 to 1982.

For reasons not reported in 1982 he then jumped the fence and went from defending criminal defendants to prosecuting them. LaBarga spent 4 years as an Asst State Attorney in palm Beach County before quitting that job to go into private practice where he remained until then Democratic (not Republican) Governor Lawton Chites appointed him to the circuit (trial level) court in Palm Beach County. Justice LaBarga remained as a lower level circuit court judge for almost 12 years – until his recent appointment.

The question now is just who is Justice Jorge LaBarga? In a public statement announcing LaBarga’s appointment, Governor Crist stated that “Judge LaBarga brings to Florida’s highest court all the qualifications needed in a justice, including integrity fairness and compassion”

I suppose the truth will remain to be seen. There is no question that all 3 of the new justices appointed to the Florida Supreme Court have direct political ties to the Bush family political cartel. In the next two months Governor Crist will pick a fourth appointment to the Florida Supreme Court to replace soon to retire Justice Wells – and we can already assume that whoever Crist picks he (or she) too will have political connections to the Bush family. But perhaps Governor Crist will be wise to remember that he will have to run for re-election in 2010 if he plans to remain on as Florida’s elected governor. Does he really want to provoke a political fight that will cost him that election?

Written by Michael Lambrix.
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