January 27, 2007

~ Petition Filed In The U.S. Supreme Court ~ Jan 2007 ~


Re: Death Row Inmate Asks U. S. Supreme Court to Recognize Constitutional Right to Timely Review of Actual Innocence Claim.

On January 22, 2007 Florida death row inmate Michael Lambrix filed a petition in the United States Supreme Court asking the Court to recognize a Constitutional right to timely review of a claim of actual innocence raised in a state court.

Statutorily forced to represent himself, Lambrix argues that although the Supreme Court has repeatedly addressed the question of whether procedural rules favorable to the state can be strictly enforced to default an appeal raised by a prisoner because it was not timely filed, the Supreme Court has never addressed whether similar procedural defaults can be imposed upon the state when the state is found to have obstructed and denied timely review of a state post conviction appeal.

At 46 years old “Mike” Lambrix has spent almost his entire adult life in solitaire confinement on Florida’s death row. For 24 years now Lambrix has argued his innocence to anyone who would listen, although very few would. Convicted and condemned to death in one of the smallest counties of the South, Lambrix has consistently insisted that the entire wholly circumstantial case of capital murder brought against him was deliberately fabricated with the intent to have him wrongfully convicted and condemned to death.

The case brought against Lambrix in the rural farming community of Glades County, Florida in early 1983 was questionable all along. There were no eyewitnesses, no physical or forensic evidence, and no confessions. The entire wholly circumstantial case was based upon Lambrix’s recently estranged ex-girlfriend's specious claim that he told her he committed these brutal crimes.

At trial, the jury was not allowed to hear that this key witness actually told numerous other stories and even failed a pretrial polygraph test. Then the local trial judge prohibited Lambrix from personally testifying, leaving the state’s case essentially unchallenged. Lambrix was convicted and condemned to death by a Glades County jury in March 1984.

As the years went by Lambrix filed numerous appeals, without success. By late 1988 Lambrix came within hours of execution before receiving a stay in Federal Court. But by 1997 the U. S. Supreme Court, in a marginal and deeply divided 5 to 4 vote, upheld Lambrix’s death sentences.

In early 1998 former state witness Deborah Hanzel came forth and under sworn oath admitted her testimony was false. She claimed the key witness Frances Smith (now Ottinger) and a local state attorney’s investigator coerced her to provide the false testimony that corroborated Smith-Ottinger’s testimony.

An investigation into Hanzel’s claims revealed that this key witness was actually having a secret illicit affair “of a sexual nature” with this state attorney’s lead investigator, Robert Daniels while Lambrix was being prosecuted. Investigator Daniels was the very person who formally initiated these capital charges against Lambrix and then personally supervised the development of the circumstantial evidence used to corroborate Smith-Ottinger’s testimony. Additional investigations now show that, that circumstantial evidence was fabricated.

For over 9 years now Lambrix’s collective claims substantiating his actual innocence argument has been pending before the lower state trial court in Ft. Myers, Florida. Although Lambrix has consistently attempted to compel timely review, his efforts have equally consistently been thwarted by the state. In the Petition now filed with the Supreme Court, Lambrix is arguing that just as the Court has strictly enforced procedural rules prohibiting review of appeals deemed “untimely” when favorable to the state, the Court must now enforce equally severe consequences upon the state for failing to provide timely review – Lambrix argues that constitutional law now requires the Court to recognize that the failure to provide timely review of Lambrix’s pled actual innocence claims requires the Court to now impose a procedural default upon the state and summarily vacate Lambrix’s capital convictions and sentences of death.

The full Petition can be read here

This case is featured on: www.southerninjustice.com (See, “Condemning an Innocent Man to Death.”)

For more information, please contact

Southern Injustice
P.O. Box 184
Wickliffe, OH 44092-0184

or send an email to mike@southerninjustice.com

January 07, 2007

Is Florida's Death Penalty on its last leg?

Back in 1972 the US Supreme Court ruled that the death penalty in America was "cruel and unusual" because it was arbitrarily imposed and thus unconstitutional. The court laid down the law and said that although capital punishment itself was not per se unconstitutional if the individual states wanted to use the death penalty, it must be imposed fairly, with reasonable consistency. Forman v.. Georgia, 408 U.S. 238 (1972) This ruling affectively vacated all death sentences then pending at the time and the individual states quickly began rewriting their death penalty laws in a rush to comply with the Supreme Court ruling.

Florida was the first state to pass its new laws re-enacting the death penalty. Within months these new laws, supposedly designed to "narrow" the imposition of the death penalty by establishing specific statutory aggravating circumstances that must be found to exist before any defendant can be condemned to death, and soon men began filling the cells on Florida's death row. That was over 33 years ago - many of those then sentenced to death then still remain locked away in solitary confinement even after all these years. (Jacob Dougan, Gary Alvord, William Ecledge, Raymond Merks, etc) (See also "Justice Delayed is Justice Denied")

Through the years many challenges have been pursued seeking to overturn the death penalty, but none have been successful. Recently, presumably because of the increasing high number of exonerations of those wrongfully convicted and condemned to death, (See 'Southern Injustice: Condemning an Innocent man'), support for the death penalty has consistently been following. A report issued by the Justice Department this month (December 2006)found that increasingly in recent years juries are not willing to impose the death penalty. Consistently, studies have shown that if given the choice of imposing the death penalty or imposing a sentence of life without parole, jurors will choose life without parole.

But Florida is a "red" state in which conservative republicans control the branches of state government by campaigning on get-tough-on-crime issues. In November 2006 the state elected republican "Chain gang Charlie" Crist as Governor and "Mad Dog" Mc Follum as Attorney General - both of whom build their political careers with their rabid support for the death penalty and undoubtedly will continue to do so.

However, the continued validity of Florida's death penalty is presently being challenged on numerous fronts and there is reason to believe that within the foreseeable future Florida's death penalty will be declared unconstitutional. If this happens, then all those presently under sentence of death will have their sentences reduced to "life" - many of those currently condemned to die will theoretically even be immediately eligible for parole, although it is unlikely parole would be granted.

There are presently three major constitutional challenges pending before the Courts that if successful, any one of them can affectively abolish the death penalty in Florida. The one issue that has received the most public attention this past year is whether the form of execution (lethal injection) constitutes "cruel and unusual punishment" because of the manner in which it is administered.

This argument is based upon claims that the chemicals used to sedate the condemned may wear off before the second chemical is used to paralyze the inmate and the third one to cause death by cardiac arrest. Imagine if you can - being administered a drug that renders you incapable of expressing pain, then another drug that virtually burns your veins as it flows through your body and so for a prolonged period of time you're subjected to a physical pain equal to having acid poured into your guts eating its very out. Would that not be a form of excruciating torture that as a matter of moral conscience would offend any civilized society?

In 2005, the issue was raised in the case of Clarence Hill, a Florida inmate then under a death warrant and was litigated all the way up to the U.S. Supreme Court See, Hill v. McDonough, 126 S.Ct. 2096 (2006) only to be remanded back to the lower federal court where the issue was disingenuously circumvented by finding that it was "untimely" raised and thus procedurally barred from review upon the merits. Shortly after that cowardly ruling Clarence Hill was executed. Subsequently, only a month later Florida executed decorated Vietnam veteran Arthur Rutherford, also by lethal injection. (See Another Day, Another Death)

This month brought about the Christmas sacrifice, the execution of Angel Diaz a Puerto Rican native who spoke little English yet was compelled to represent himself at trial - a pathetic pretense of justice that left many knowledgeable about his case questioning whether he was even guilty of the crime.The Puerto Rican government called upon Florida Governor Jeb Bush to grant Diaz a clemency but these pleas were ignored. Diaz lawyers attempted to again have both the Florida and Federal Courts grant a stay of execution until it could be determined whether Florida's method of administering lethal injection were adequate to ensure the condemned prisoner would not suffer a prolonged barbarically torturous death - but again these pleas for judicial review of the issue were denied without addressing the merits of the claims.

At 6:00 PM on Wednesday December 13, 2006 Angel Diaz lay strapped to a gurney at Florida State Prison. As witnesses watched from behind a glass wall, the warden gave the final instruction to administer that lethal cocktail of drugs. But it quickly became evident that something had gone wrong, horribly wrong. It then took 34 minutes before Angel Diaz was finally pronounced death....34 minutes to torturously inflict death upon a possibly innocent man as he lay helplessly strapped to a gurney.

True to the inherent nature of government, immediately after this obviously botched execution was carried out the Dept. of Corrections spokesperson attempted to claim that the administration of drugs proved temporarily inadequate to inflict quick death due to Angel Diaz pre existing liver problems. However in the days that followed pieces of the real truth began leaking out to the media...the prison had used unqualified medical technicians to insert the IV needle and administer the lethal drugs.The needle had been pushed through the vein into the soft tissue and so the drugs were not injected directly into the vein. He should have been unconscious after five minutes and dead within 15. Instead, he struggled and grimaced for 34 minutes while a second dose of lethal drugs was administered, again incorrectly. The county medical examiner who performed an autopsy after the execution found 12-inch chemical burns on the interior of both his arms.

On Friday December 15, 2006 Florida Governor Jeb Bush announced that he would immediately convene a commission to look into this execution and whether lethal injection itself was being administered without the infliction of cruel and unusual punishment. Governor Bush declared that no more executions would be carried out in Florida until this issue was resolved. Additionally, lawyers for other death row prisoners are now preparing court challenges which will focus on Angel Diaz botched execution as proof that Florida's means of administering the death penalty by way of lethal injection is unconstitutional.

To those knowledgeable of Florida's death penalty system these latest challenges must seem like deja vu...it has only been a few years since Florida faced similar issues concerning the use of the electric chair. In may of 1990 Jesse Tafero was strapped into Florida's "Old Sparky". Witnesses watched in horror. As the electricity ripped through his body flames could be seen coming from his head. Although separated by a glass wall the witnesses were soon overwhelmed by the smell of burning flesh as a cloud of smoke hung over the room. Subsequently a campaign to end the use of the electric chair began but prison officials conveniently determined that Tafero's horrific execution was an isolated incident caused by the use of a synthetic sponge and could easily be remedied by going back to using only natural sponges in the headgear used to fasten the electric wires to the head of the prisoner.

But then it happened again....and again. Clearly the use of the electric chair was on it's last leg. The final execution by electrocution in Florida was the death of Allen "Tiny" Davis, a rather large man who also literally caught fire in front of the witnesses. No longer could Florida defend the use of the electric chair without risking having Florida's death penalty itself declared unconstitutional. At the time Florida did not have any alternative to the electric chair, if the courts found this method to be unconstitutional it would effectively vacate all existing death sentences. Like rabid dogs, hungry for more blood the conservative politicians in Florida called for an alternative to "Old Sparky" so that if the Courts did declare death by the electric chair unconstitutional no death sentences would be vacated. This politically inspired Machiavellian plot brought up statutory provisions adopting the use of lethal injection in Florida, and let it down the path to where it is today. But with both the use of the electric chair and now the use of lethal injection both now constitutionally questionable - and no other viable alternatives available to carry out executions in Florida - will Florida's death penalty now itself be declared unconstitutional? As this issue is now aggressively pursued through the Courts, at least two other major constitutional challenges are working their way through the Courts, either of which may very well end the use of the death penalty in Florida.

Recently in Coday v. State (Florida Supreme Court opinion released October 26 2006) at least three of the seven members expressed their opinion that Florida's death penalty is unconstitutional. In a concurring opinion, former Chief Justice Pariente spoke of how the Florida Supreme Court had previously instructed the state legislature to address Florida's capital sentencing scheme as Florida is now the only state that does not require a jury to impose a death sentence by unanimous vote, or even require jurors to identify the specific aggravating circumstances used to justify their recommendations of imposition of death. In State v.. Steele, 921 So. 2d 538 (Fla. 2005), the Florida Supreme Court explicitly admonished the Florida legislature that if it did not immediately modify Florida's capital sentencing scheme to conform with the requirements that a sentence of death must be imposed only by unanimous jury vote, then in light of Ring v. Arizona, 536 U.S. 584 (2002) Florida's death penalty itself may soon be declared unconstitutional.

Subsequently, the Florida legislature did take up the issue - and with the conservative republican legislators leading the way, voted not to change Florida's capital sentencing scheme thus making the deliberate decision to allow Florida to remain the only state that allow a person to be sentenced to death without an unanimous jury vote - and leaving Florida open to having its entire death penalty declared to be unconstitutional. (See "Don't preach pro-life while practicing pro-death"). In light of this refusal to correct this constitutional infirmity in the state legislature, legal challenges, filed by condemned prisoners are now working their way up through the courts arguing that Florida's death penalty is unconstitutional. If successful, this decision will inevitably result in vacating all present death sentences in Florida.

Last, but not by no means least, yet another significant constitutional challenge to Florida's death penalty was initiated following the recent release of a comprehensive report by the American Bar Association that found Florida's death penalty system to be fundamentally flawed. This challenge is in form of an argument that the ABA report establishes the necessary new evidence to open the door to challenge the constitutionality of Florida's dysfunctional death penalty system. Because of politically created and judicially enforced procedural rules, such as challenge to an individual death sentence that has previously been affirmed on appellate review can only come if "new evidence" can be developed that allow the claim to be timely raised. For this reason most of those currently sentenced to death cannot initiate a challenge to the constitutionality of the death penalty based upon recently empirical studies that question the validity of the manner in which that penalty has been previously imposed. However if that condemned prisoner can convince the courts that this comprehensive study constitutes newly discovered evidence that previously could not have been discovered, then a new appeal can be initiated. Alternatively under Florida law if any court does subsequently issue a ruling declaring Florida's death penalty to be unconstitutional in a manner that is considered to be a fundamental change of law, then that ruling can be retroactively applied to extend relief to all death sentenced prisoners.

The argument raised in context of this recently comprehensive ABA report is that in light of the individual and collective deficiencies Florida's present death penalty system is unconstitutional for the same reason the US Supreme Court had previously declared the death penalty itself was unconstitutional in Forman v Georgia that Florida's death penalty is arbitrary and capricious, and unnecessarily invites imposition of the death penalty when that most extreme punishment is not constitutionally appropriate.

As recognized in the comprehensive report Florida presently leads the country in the number of men and women wrongfully convicted and condemned to death. Since Florida reinstated the death penalty at least 22 men and women condemned to death have subsequently been exonerated. Additionally of the over 650 men and women originally sentenced to death in Florida since 1974, at least half subsequently had their sentences reduced when the courts found that the sentence of death was imposed improperly.

With an error rate so high one would think that as a matter of moral conscience government officials in Florida would follow Illinois' lead and impose a moratorium to study the system, identify its faults and integrate necessary reforms. But Florida won't. Even with the documented cases in which the actual execution itself was obviously botched Florida has refused to take the initiative to correct problems.

With the Florida Supreme Court advising the Florida legislature to address the capital sentencing scheme due to clear constitutional problems the legislature refused to do so. And when the American Bar Association issued its own report following a comprehensive study that identified the fundamental flaws in Florida's death penalty, the State refused to impose a moratorium until adequate corrections could be made. Collectively, the result is clear - Florida's death penalty should be declared unconstitutional and abolished permanently. With such a well documented history politically motivated corruption that has created an inherently unfair system, as a matter of moral conscience Florida should not be allowed to impose the death penalty as such a politically corrupted system simply cannot be trusted with carrying out this ultimate punishment that itself has no place in a civilized society.

Regardless of whether one philosophically supports the death penalty or not it is that element of moral conscience that whatever measure of justice might be administered, it is administered in a fundamentally fair and humane way, and with the compassion and constraint of a civilized society. To condemn a man to death is in itself a conscious decision to deliberately take a human life. Although it is convenient to justify capital punishment by blindly adopting that "eye for an eye"mentality it is not and cannot be that superficial or simplistic. The punishment is by its very nature absolutely irreversible - once carried out it cannot be undone. To tolerate a system that has proven not only its inherent imperfection, but its unwillingness to correct identifiable imperfections is to advocate imposing this ultimate punishment upon the absolutely innocent, to make victims of the innocent under the pretense of administrating "justice". Even if we are morally certain of guilt, to tolerate a process that inflicts that punishment in a torturous and barbaric manner makes barbarians out of all of us.

Whether Florida's death penalty is on its last leg or not remains to be seen. But knowing what we do know about Florida's death penalty system as a matter of conscience we individually - or as a collective society - continue to tolerate a system so fundamentally flawed? If Florida's death penalty survives these latest challenges then what will that say about us as a supposedly civilized society?

January 05, 2007

Condemned Man Tortured to Death in Florida

Have you ever asked yourself what it is that makes us a “civilized society?” Just what does the word “civilized” mean? According to Webster’s New World Dictionary it means “to bring or to come out of a primitive or savage condition to a high level of social organization and of cultural and scientific development.” But where do we draw the line between what is “civilized” and what is not? Who decides where that line is drawn? Do we as individuals get to choose or should a society – especially a democratic society – establish some minimal definition that must be applied to all society.

Here in America we are a Constitutional Democracy. As such, our Constitution establishes specific fundamental rights that protect the individual from excessive governmental actions, which include the right to be protected against the infliction of cruel and unusual punishment. Recently, this particular right became the focus of national media attention when Florida botched the execution of Angel Diaz on Wednesday December 13th, 2006.

Diaz was convicted on a capital murder charge under questionable circumstances. A native of Puerto Rico, Diaz barely spoke any English. The evidence that led to the capital charges was at best barely even minimal. There were no eyewitnesses, no physical or forensic evidence that he committed any crime, and no confession. Diaz has consistently protested his innocence and other than relying on the jury’s verdict the state never presented any further evidence of his alleged guilt.

At trial, even though he was barely able to speak English, Diaz was effectively forced to represent himself. As is all too common in capital cases Diaz was originally appointed a lawyer who was not capable of providing competent representation. Upon realizing this lawyer was incompetent Diaz asked the trial judge to appoint a new lawyer – but the judge refused. Unwilling to go to trial with an incompetent lawyer Diaz then exercised his right to represent himself – an obviously fatal mistake as Diaz had no training in law and unable to speak or understand English the entire trial was rendered a pretense and Diaz was quickly convicted and condemned to death.

Through the years his appeals were denied. By last year all state and federal appeals were fully exhausted and Diaz became death warrant eligible. Shortly before Thanksgiving Florida Governor Jeb Bush signed an active death warrant on Diaz, scheduling his execution for Wednesday December 13th, 2006 – a timely Christmas sacrifice.

According to numerous eyewitness accounts of the execution of Angel Diaz, these witnesses watched from not more than ten feet away as Diaz “grimaced in pain before dying 34 minutes after receiving the first dose of chemicals.” (Ron Word “Man Executed for Miami Bar Slaying takes 34 Minutes to Die” Gainesville Sun December 14, 2006) and that “it looked like Diaz was in a lot of pain … he was gasping for air 11 minutes.” (Executed Man Takes 34 Minutes To Die” St. Petersburg Times, December 14, 2006)

Immediately following this execution a Dept. of Corrections spokesperson told the media that the unusually prolonged execution was the result of Mr. Diaz having kidney problems that interfered with the lethal drugs administered. This quickly proved to be a deliberately fabricated lie intended to cover up incompetence.

By Friday December 15th, 2006 Governor Jeb Bush announced an immediate moratorium on all further executions until a commission could look into the Diaz execution and determine whether lethal injection is cruel and unusual punishment.

Slowly pieces of the truth were revealed – Diaz did not have any kidney problems. Rather, the prison personnel responsible for inserting the needle into Diaz’s arm into which that lethal dose of chemicals would then be injected failed to insert the needle into the vein itself. The dept. of Corrections refuses to say whether a qualified physician participated in preparing Diaz for execution and the identities of all those involved are confidential, protected from being identified by law.

As a result of the improper insertion of the needle actually penetrated into the soft tissue of Diaz’s arm rather then the vein and when the three drugs were then pumped into his still conscious body he was not rendered unconscious. He visibly struggled for an extended period of time before an unprecedented second dose of drugs was then pumped into him.

A subsequent medical autopsy revealed that Mr. Diaz suffered almost foot long chemical burns on both arms where the drugs were pumped in. Knowing that Mr. Diaz was still conscious during that time, there can be no question that Mr. Diaz suffered a prolonged and excruciating painful death – that Mr. Diaz was quite literally physically tortured to death.

In the days that followed even pro-death penalty politicians were appalled by what happened and publicly supported a moratorium until it could be determined what went wring. Both present Florida Governor Jeb Bush and current State Attorney General (soon to be governor) Charlie Crist declared that this matter must be looked into and resolved before any more executions would be carried out.

But what bothered me was when many of the “average citizens” were asked about this botched execution they said in their opinion the condemned man should suffer and that execution should not be “humane.” On a local Jacksonville television station one particular man said that we as a society should deliberately make the condemned suffer the most painful death possible as that is what “punishment” is for and it would send a stronger message to deter others from committing similar crimes.

As a Christian and as a member of a presumably “civilized society” I’ve got a problem with those opinions – I think it says a lot about the kind of person they are that they would advocate the deliberate infliction of torture upon another human being. To paraphrase Nietzsche, when one deals with monsters regularly the greatest threat is not the monster itself, but of becoming the monster.

It is too easy to simply say that a condemned man should experience as much pain as can possibly be inflicted under the mentality that these “killers” has no problem inflicting pain upon their victims. If these people see these condemned killers as monsters because of what they did, then doesn’t deliberately advocating the same thing upon them make these people no less of a monster? Is that the kind of society we want to be?

Many of those who do advocate the deliberate infliction of torture upon the condemned even dare call themselves “Christians” and attempt to justify their sickness by quoting the Old Testament phrase “an eye for an eye” law. Wasn’t the point of Jesus’ sacrifice to bring about a new Biblical law of love and forgiveness, of “turning the other cheek,” and showing compassion to those who are even our enemies? We can’t have it both ways – that same Old Testament book of law demands that those committing adultery be taken out in public and stoned to death. If we as a society want to live by Old Testament law, then let’s commit to the whole law and not just parts of it we find convenient to justify our own sickness.

Recently I read an excellent book written by a lawyer who was once a strong supporter of the death penalty. Now a catholic lay minister he spent years studying Old Testament law as it applies to contemporary Christian society in respect to the death penalty. I would strongly recommend this book to anyone who remains confused about the application of Old Testament “eye for an eye” law in a contemporary Christian society. The book is titled “The Biblical Truth About America’s Death Penalty” by Dale Recinella.

As long as we have the death penalty it is inevitable that innocent people will be condemned to death even executed. See, Southern Injustice: Condemning An Innocent Man. In Florida over 22 men and women have already been exonerated and released from death row after being wrongfully convicted and condemned to death.

For those who want to advocate physical torture as part of the punishment of death, do they also believe that the Old Testament law – the same chapter that preaches and eye for an eye – that demands that those responsible for convicting and innocent man should themselves be out to death? Maybe if we start subjecting prosecutors, who are responsible for wrongfully convicting and condemning innocent people, to slow torturous deaths then the integrity of the judicial system would be protected. See, Prosecutorial Misconduct: Does Immunity Invite Injustice?

As a civilized society we demand accountability against those who violate our laws. But equally so, as a matter of social conscience and as an example to the world itself we also demand society refrains from the unnecessary infliction or cruel and unusual punishment. Those who would advocate anything less becomes nothing less than monsters themselves… that’s the difference between a civilized society and uncivilized individuals.

January 01, 2007

December 5th, 2006 Hearing Transcripts

The December 5th, 2006 hearing transcripts can be read and download HERE in pdf format.