Death Watch Journal — Written Friday, September 29, 2017

(This was just received and written by Mike a week before his execution on October 5, 2017
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I now have less than a week to go until my scheduled execution. Yesterday I was put on “Phase II” of death watch. I stay in the same solitary cell, but now they take all my personal property out of the cell — even my clothes and shoes (except for what I’m actually wearing) and put a guard in front of my cell to watch every move I make and write it down. No privacy anymore!

And shortly after they removed all my property, the warden (warden Barry Reddish) came down with a few people from Medical. I can only assume that it was the “doctor” responsible for carrying out the execution. They went to great lengths to conceal his identity, as although I could tell he was an upper middle aged white man, maybe just a bit shorter than I am, he was dressed from head to toe in a light baby blue hazmat suit, which included a white surgical mask. So all I could see of him was his eyes. He kept his head down — probably some part of him has to be ashamed of making a living putting people to death.

Then again, for all I know, he could be eagerly volunteering for the job, only too happy to help carry out these state sanctioned murders and probably couldn’t care less if he helped kill an innocent person or two. With total detachment, I was ordered to extend my arm through the cell-front bars and this masked man proceeded to touch my veins at the inner elbow, first the left arm and then the right, while whispering to another man standing beside him, and that was that. Now they were ready to kill me. Yep, not just a job — it’s an adventure.

Earlier today I had a visit with the “second chair” lawyer assigned to my case, Bryan Martinez. He’s been working on my case for a few months, but this was the first time I’ve met him. And because I was in “Phase II” this legal visit was non-contact (behind glass).

Just before Bryan entered the prison he received a phone call from the state-agency office letting him know that the Florida Supreme Court had just issued its 5 to 1 decision denying my last State appeal. That was the one arguing that the Florida Supreme Court’s earlier decision that held that although all of Florida’s death-sentenced prisoners were illegally sentenced under last year’s decision in Hurst vs Florida, only those sentenced after June 2002 could be granted relief, was unconstitutionally arbitrary and unfair.

My lawyers argued that this “partial retroactivity” rule had to be set aside, as it was constitutionally unsustainable — never before has any court recognized that a new law was retroactive, only to then limit retroactivity to some but not all.

                                                

But the majority of the court refused to address the issues, instead summarily reiterating that they already decided the issue and would not address it again. However, Justice Pariente dissented, writing a lengthy opinion as to why the rest of the court was wrong and unequivocally stating that they are constitutionally obligated to throw the illegally imposed sentences out.

By early next week — before this blog can be posted — my lawyers will file an appeal to the U.S. Supreme Court arguing why Justice Pariente’s dissent correctly recognized that constitutional “due process” and the prohibition against infliction of cruel and unusual punishment dictates that my illegally imposed death sentences must be vacated.And obviously, if the death sentences are thrown out, they cannot execute me.

This is one of the things I have a hard time trying to explain to my family and friends, who ask me how it is that they can execute me when the courts do recognize that my death sentences were illegally imposed. Common sense leads most to assume that if a person has been illegally sentenced to death then they cannot legally execute that person.

But as I’ve said too many times already, when it comes to the death penalty, the insidious politics of death trump what’s fair and right. In our legal system, the Supreme Court itself (Herrera vs Collins) made it clear that there is no constitutional prohibition against executing the innocent — and if a state can “legally” execute an innocent person, then they can also proceed to execute someone who has been illegally sentenced to death… the ends justify the means.

So, in just a few days the odds are that I will be put to death for a crime that I am innocent of — and despite the irrefutable fact that I was illegally sentenced to death by non-unanimous jury votes, what they cannot do is say that they are administering justice as there’s nothing fair or just about about carrying out the execution of an innocent person who was illegally sentenced to death.

No matter, I’m almost done whining about how inherently unfair and politically corrupt our legal system is. By the time this blog is posted, I will probably be dead.

But then again, maybe not… a funny thing happened this week in that at least at the time I’m writing this offers a bit of hope. On Monday, September 25, the United States Supreme Court did their “conference” on cases considered for review and included in that conference was my case that under Martinez vs Ryan, the claims collectively establishing my actual innocence must be heard.

Normally, after such a conference the Court will release its list of the cases that were denied review — or granted review. We anticipated a decision in my case by no later than Thursday (September 28), but as of Friday evening there still has not been any released decision.

Do I dare get my hopes up that maybe, just maybe, the Court will do the right thing and order that the lower Federal courts must allow the evidence substantiating my consistently pled claim to b heard? I want to — I really do want to hope. But there’s that part of me that tells me that if I do dare hope that the failure to release a decision could mean I may have won and my execution will be call off, then on Monday we will get the news that they denied relief.

At this point, now only days away from my scheduled execution, I am afraid to get my hopes up. It is easier to accept my intended fate and spend these last few days preparing for my death. A big part of that preparation is finding the strength not to be angry at this injustice so deliberately imposed upon me.

Too often, I find myself wanting to pray that those who have judged me will be judged by the same measure. But I don’t want to allow those thoughts in… my spiritual faith instructs me to forgive others as the only condition of being forgiven myself.

And I know that if I must die in a few days, I will be in a better place and that despite my 34 years of being condemned to solitary confinement, I have been blessed by having so many who chose to come into my life and extend love and support. I could not have maintained my strength without those who have stood by me. So, as I spend what will most likely be my last few days on earth, I choose to focus on how blessed I am to have had so many others there for me.

                                                                    

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 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.