Thursday, January 28, 2016

Death by Default

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As many of you may know, the execution of Michael Lambrix by the State of Florida is scheduled for February 11, 2016 at 6:00pm.  On Mike's behalf, please write to Governor Rick Scott (letters are better than emails but emails are better than nothing) and request that Michael Lambrix be given a clemency hearing before the full clemency board. Michael has never had an opportunity to present all of the evidence in support his request that his sentence be commuted. Basic fairness requires that evidence be considered.

Office of Governor Rick Scott
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001
(850) 488-7146

For more information on Mike's case visit:

By Michael Lambrix

On Tueday January 12, 2016, the United States Supreme Court rendered an 8 to 1 decision finding that the Florida death penalty process is unconstitutional. But, that hasn’t stopped  the state of Florida from continuing to pursue my previously scheduled execution on February 11, 2016. Even when the the legal process employed to condemn me and 390 others in Florida is found to be unconstitutional , comtemporary judicially created rules will still trump constitutional law and allow Florida to proceed to put us to death...this principle is commonly known as “Death by Default.”

The average person would find it incomprehensible that even though a particular law itself is declared illegal a state can still proceed to put people to death under that same law that is found unconstitutional. Quite simply, the “politics of death” trump the basic concepts of fundamental fairness and even justice itself.

Here’s what is at issue. In Florida, as with all southern states, the death penalty is politically popular. All any wannabe politician anywhere in the South who wants to win an election has to do is jump up on their soapbox and declare that they will push to expand the death penalty and expedite executions and the crowds will gather to support him or her. That’s just the way it is down here in the South and they’re not going to change their ways without a fight.

After the Supreme Court found the death penalty in America to be unconstitutionally “arbitrary and capricious” in Furman v Georgia (1972), Florida was the first state to quickly rewrite its death penalty laws and bring back capital punishment. Under the pretence of making this process “fair,” Florida elected to adopt a system in which a jury would merely hear evidence of why a defendant should, or should not, be sentenced to death and then the jury would make an “advisory” recommendation—but only the judge would make the final determination of which “aggravating” circumstances existed and what the sentence would be.

Almost immediately, this process of determining who would live, and who would die, was challenged upon arguments that rather than prevent arbitrary imposition of the death penalty, it actually promoted it. But the US Supreme Court upheld Florida’s process in Proffit v Florida (1976) and long before Texas gained international recognition as the Western World’s leading executioner, Florida infamously held the record for the most executions and in fact, was the first state to carry out an involuntary execution in America since the reinstatement of the death penalty when Florida put John Spenkelink to death in 1979.

As Florida continued its rabid pursuit of executions, substantial challenges to this death penalty process remained, but repeatedly—by the narrowest of 5 to 4 decisions, reflecting the simple majority of conservative pro death penalty justices controlling the Supreme Court, the Court allowed Florida to continue by finding that this process that reduced the juries’ role in deciding who would live and who would die merely “advisory” was constitutional. See Spaziano v Florida (1984) and Mildwin v Florida (1989).

This remained the rule of law until Ring v Arizona (2002) when, with the support of several pro death conservatives, the Supreme Court expanded its earlier noncapital decision in Apprendi v New Jersey (2000) to capital death penalty cases, by finding that the Arizona process employed to impose a death sentence unconstitutionally allowed a judge, and not the jury, to determine whether the facts necessary to allow a sentence of death.

What this comes down to is a basic principle of long-established constitutional law, which dictates that under our constitution each person is entitled to have facts determined by a jury and that it is a fundamental principle that any fact that qualifies a capital defendant for a sentence of death be found by a jury.

In light of this landmark decision in Ring v Arizona, the Florida death penalty process was called into question. But Florida wasn’t about to voluntarily surrender its death penalty that easily, and immediately embarked on a potently disingenuous plan to exempt itself from Ring v Arizona by signing death warrants on Amos King and Leroy Bottoson, both of whom had the statutory “aggravating circumstances” of “previously convicted of a violent felony” used to impose sentence of death.

Florida’s argument in King and Bottoson was that since the determination of a “previous conviction” was not dependent upon factual debate by the jury, but conclusively proven by objective fact, the requirement that the jury find the fact does not apply. The Florida Supreme Court quickly adopted this argument and ruled that Ring v Arizona has no application to Florida and expeditiously proceeded to put both Amos King and Leroy Bottoson to death.

The attorneys representing King and Bottoson pleaded with the US Supreme Court to stop the executions, arguing that the Florida Supreme Court clearly was wrong in concluding that Ring v Arizona did not apply, but the Supreme Court declined review. Since 2002, at least three of the seven Florida Supreme Court justices have repeatedly said that the narrow majority of the Florida Supreme Court was wrong, and in State v Steele, 921 SO.2d.538 (Fla.2005) the court even all but begged the Florida legislature to rewrite Florida’s death penalty statutes to conform to Ring v Arizona, admonishing the legislature that if they did not, Florida would be at risk of having its entire death penalty scheme declared unconstitutional.

But, the Florida legislature refused to address the issue—in fact, their only response was a renewed legislative effort to limit Death Row appeals and speed up executions, resulting in the adaptation of Florida’s “Timely Justice Act” in 2013, which statutorily required death warrants (and corresponding executions) to be signed at a faster pace. See “The List” (previously posted essay describing how this new Florida law was intended to push for hundreds of executions).

From the time the Supreme Court rendered its decision in Ring v Arizona (2002), Florida has refused to comply—basically telling the Supreme Court to go screw itself—and in each of the well over 100 new death sentences imposed in Florida since 2002, the condemned prisoner asked the Supreme Court to accept review of the question of whether Ring v Arizona applied to Florida. But the Supreme Court declined review and left the question unresolved.

During this same period of time, Florida proceeded to put at least 30 prisoners to death, each time the Supreme Court declining to stop the execution. In fact, current Florida Governor, Rick Scott—a “tea party” Republican and self-made billionaire who bought his way into political office, has put 23 men to death—far more than any other governor in Florida’s history (on February 11, 2016, I will become number 24), as he prepares to run for US Senate in 2018 ...death wins elections.

Finally, in 2013 the Supreme Court accepted review of the issue in the case of Timothy Hurst and by an 8 to 1 decision categorically concluded that Ring v Arizona did unquestionably apply to Florida. As a result, every death sentence imposed at least since 2002 (when Ring v Arizona issued) is called into question, and the approximately 30 prisoners executed since 2002 were put to death even though the manner in which they were sentenced to death was illegal.

But it gets better. Florida still refuses to accept that the Supreme Court’s ruling in Hurst v Florida (January 12, 2016) requires review of previously imposed sentences of death and insists that since Hurst v Florida is technically not “new law” that would require retroactive application, since it was based upon Ring v Arizona (2002), they can and will proceed to put prisoners to death even though they were unquestionably illegally sentenced to death.

And here we have it—Death by Default. My own case will now become the test case for no other reason but the coincidence that I am the next Florida prisoner scheduled for execution. We already know that Florida Supreme Court will be venomously hostile to the argument that Hurst v Florida requires that my previously scheduled execution now be called off.

Under this “death by default” defense of law, they might be right. The fact is that I’ve been down this same path before. In 1992, the US Supreme Court ruled that the jury instructions used to guide a juror’s decision in recommending death on the statutory aggravators of “Heinous, Atrocious, and Cruel (“HAC”) and “Cold, Calculated, and Premeditated (“CCP”) were “unconstitutionally vague," and therefore, any sentences of death imposed under these “aggravators” was itself illegal.

Just as with this Hurst v Florida case, as coincidence would have it, my case was pending on Federal review at the time, and became the first capital case to challenge the unconstitutionality of the sentence of death under Espinosa v Florida. The Eleventh Circuit Court of Appeals remanded my case to the Florida Supreme Court so that the state court could address application of Espinosa first, and the State of Florida aggressively argued that Espinosa could not apply since that decision was not issued until after my conviction became final.

By unanimous decision the Florida Supreme Court found that I was not entitled to relief from the unconstitutionally imposed sentences of death, because my lawyers did not raise this issue on my “direct appeal,” thus it was procedurally defaulted. Lambrix v Singletary 502d. (Fla.1994). My case was sent back to the Federal Appeals Court, which adopted the Florida Supreme Court decision in Lambrix v Singletary 72 G3d. (11th Cir.1996).

However, the United States Supreme Court then granted review of my case specifically to address whether the lower court’s refusal to adopt Espinosa v Florida to my case—and vacate the illegally imposed sentences of death was improper. The argument seemed simple enough—under Espinosa it was beyond debate that I was illegally sentenced to death, so could a “procedural default “now prevent application of that law to my case? Quite simply, could the State of Florida proceed to put me to death by depriving me of application of this rule of law for no other reason but that my previous lawyer failed to properly raise it on my direct appeal?

In a narrow 5 to 4 decision, Lambrix v Singletary, 520 US 518 (1997), the Supreme Court concluded that although there was no question that I was illegally sentenced to death, I was not entitled to relief because Espinosa v Florida was not decided until after my conviction became “final” on direct appeal.

To put this in plain English, the Supreme Court did not dispute that under Espinosa I was illegally sentenced to death. Rather, the conservative, pro-death penalty justices weaseled their way out of this by concluding that their own politically motivated and judicially created rules limiting retroactive application of new rulings superseded what the United States Constitution said.

Already, the State of Florida is arguing that this recent Hurst v Florida decision is “procedurally defaulted” for the very same reason the Supreme Court previously stated in Lambrix v Singletary (1997)—that I am not entitled to relief under a new rule of law that did not exist before my conviction became final.

The stakes are high. My case will now decide whether Hurst v Florida requires all 390 death sentenced prisoners in Florida to be resentenced. And this decision could very well reach well beyond February 11, 2016, and rules that Hurst requires relief, then the ripple effect could very well bring an end of the death penalty in America. Already most legal experts are predicting that the death penalty will inevitably be thrown out by the Supreme Court within the foreseeable future.

Only a few months ago, conservative pro-death penalty justice, Antonio Scalia, publicly complained that the death penalty was on its last leg. Even in Texas, the public has grown reluctant of imposing death. In all of 2015, only 3 men were sentenced to death in Texas, while 14 executions were carried out. Not surprisingly, Florida once again leads the country in the number of people sentenced to death in 2015...and every one of those death sentences will now be thrown out in light of Hurst v Florida, wasting millions of dollars of tax-payers money.

Although by a steadily decreasing number, most (narrow margin) Americans still support the death penalty. But I have got to believe that this support is the product of ignorance as most Americans, as a matter of who we are as a society, genuinely believe in the concept of fundamental fairness. Even when they embrace the antiquated biblical concept of an “eye for an eye,” it extends from that basic principle of “fairness”—you kill someone, you get killed.

But it’s based upon ignorance, as few actually know how our legal system really works. Worse yet, most don’t really care. We simply assume that those entrusted to administer justice are guided by ethical constraint and moral character—and yet those who actually do take the time to become familiar with how our legal system really works, know that this is anything but the truth.

As I have said too many times before, and yet at the risk of redundancy I will say it again, I would challenge anyone to come forth with any credible evidence that I actually committed the crime that I have been wrongly convicted of and condemned to death for.

I say this, as I also believe that most Americans possess fundamental basic principles of moral values that demand a “moral certainty of guilt” before they would be willing to deliberately put any person to death. When it comes down to it, the act of “murder” is defined as deliberately killing an innocent person. Although some might argue that executing a thousand guilty men is “justice,” few can dispute that executing even one innocent man is murder.

But make no mistake about this—on February 11, 2016, the State of Florida will put me to death for a crime that I did not commit. By the States own admission, the entire wholly circumstantial (i.e. no eyewitnesses, no physical, or forensic evidence, no confessions, etc.) rested exclusively upon the testimony of a single witness, Frances Smith—and she readily admits that she did not actually witness me commit any act of violence against anyone.

Rather, Frances Smith—a woman I briefly lived with—only came forward with her story, that I told her I committed this crime, after she was arrested on “unrelated felonies,” while in exclusive possession of the victim’s vehicle. She wanted immunity from prosecution and had to come up with a good story to earn her won freedom. But the jury were not allowed to hear indisputable evidence that Smith actually gave law enforcement at least three other stories before she came up with the one that awarded her immunity. Nor was the jury allowed to know that even after Smith came up with this story she testified to, she then failed (“showed signs of deception” in) a state-administered polygraph test.

What I’ve also always admonished anyone who would listen is this—don’t take my word for anything. Rather, look at the records, and allow the facts and evidence to speak for itself. All my appeals are readily available online for anyone to read at so anyone who might question what I’m saying, should go to that website and read the record for themselves.

Since my conviction in early 1984, a virtual wealth of evidence has been developed substantiating my consistently pled claim of innocence. In 1996, the only witness that supported Smith’s trial testimony came forward and testified that key witness, Frances Smith, and state investigator, Miles Daniels, the lead investigator in this case, had deliberately coerced her to provide this false testimony. It was then revealed that, by Smith’s own admission, during that time, Smith and Investigator Daniels were having a secret relationship “of a sexual nature.” They deliberately concealed this relationship from the defense and the jury.

Not long after that, both the state attorneys own lead investigator (Daniels) and former Asst State Attorney, Tony Pires, testified that Frances Smith lied at trial when she denied receiving a promise of immunity from prosecution. Then it was revealed that the trial prosecutor, Randall McGruthers, deliberately concealed physical evidence showing that the only forensic evidence discovered on the alleged “murder weapon” were hairs belonging to none other than key witness Frances Smith—at trial, the same prosecutor told the jury that nothing was found on this “tire iron,” deliberately lying to the jury.

As luck would have it, by the time all this evidence was brought up before the Federal Supreme Court, one of the former prosecutors, Peggy Quince, who pursued my execution for years, was politically appointed to the Florida Supreme Court and actually was the Chief Justice. Although Peggy Quince recused herself, the remaining six justices made it unequivocally clear that they did not appreciate allegations of prosecutorial misconduct brought against their colleague, Chief Justice Quince and denied all relief in an especially acrimonious ruling. Lambrix v State, 39 So 3d. 260 (Fla.2010), and subsequent Lambrix v State, 124 So. 3d. 390 (Fla. 2013). See also, (comprehensive civil action filed, naming Chief Justice Peggy Quince as defendant, for obstructing access to the court).

All of this wealth of new evidence was then presented to the Federal Court, specifically arguing that the collective weight of this evidence conclusively established my innocence (In re: Cary Michael Lambrix, Case No. 14-15617-P, Eleventh Circuit Court of Appeals), which the court summarily denied—refusing to address the pled claim of innocence. See, In re Lambrix, 776 F.3d.789 (11th Cir, 2015). Legal counsel then sought justice in the United States Supreme Court, arguing that absent Supreme Court intervention, the State of Florida would proceed to put an innocent man to death. See In re: Cary Michael Lambrix, US Supreme Court case No. 15-6163.

But, on November 30, 2015 the US Supreme Court declined review—within hours, Florida Governor Rick Scott signed a death warrant scheduling my execution for Thursday, February 11th, 2016.

Death by Default—that’s how our legal system really works. Most believe—I guess most need to believe—that the death penalty is reserved for only the worst of the worst. But really, is it? Or, is the actual truth closer to the reality that the death penalty is a political tool used by politically ambitious prosecutors and elected politicians to win election by flaming the passions of contemporary lynch mobs—and if that means executing the innocent, then so be it.

In the coming weeks, as the date of my scheduled execution draws closer, all attention will be on this Hurst v Florida as it applies to my own case. If we win then it will apply to all 390 Florida cases. If we lose, and the scheduled execution is carried out on February, 11, 2016, then it will establish precedence allowing Florida to continue to push for more executions.

You can personally watch the “oral arguments” in my case online “live” on Tuesday, February 2, 2016 at 9:00am (Eastern Central Time) at  (subsequently, they can be watched at anytime at this website, by pulling up the case under Cary Michael Lambrix v Florida State, Florida Supreme Court Case No. SC16-8).

If you watch these “oral arguments,” you will see that the State of Florida will focus their entire argument on the principle that the recent Hurst v Florida decision cannot apply to my case. They will concede that there is no question that under the Supreme Court’s recent January 12, 2016 decision in Hurst v Florida there is no question that I was illegally sentenced to death. But they will argue—and the pro-death penalty justices on the Florida Supreme Court will agree—that the grant of relief is procedurally barred because this decision came too late...Death by Default.

My case is not uncommon. This is how the death penalty in America really works. Who lives and who dies is not determined by the nature of the crime, but the arbitrary application of politically procedural defaults.

Michael Lambrix was executed
by the State of Florida on October 5, 2017

Please make a donation to support Minutes Before Six

As many of you may know, the execution of Michael Lambrix by the State of Florida is scheduled for February 11, 2016 at 6:00pm.  On Mike's behalf, please write to Governor Rick Scott (letters are better than emails but emails are better than nothing) and request that Michael Lambrix be given a clemency hearing before the full clemency board. Michael has never had an opportunity to present all of the evidence in support his request that his sentence be commuted. Basic fairness requires that evidence be considered. 

Office of Governor Rick Scott
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001
(850) 488-7146

For more information on Mike's case visit: 


CS McClellan/Catana said...

Mike, although most people will overlook your mention of the hostility raised by the challenge to the prosecutor in your case, this is an important point. Until very recently, prosecutors have wielded immense power over capital punishment. They decide who will go to trial, and they also decide what evidence for the defense can safely be hidden from defense lawyers and the jury. That power is now beginning to be questioned and criticized. A few prosecutors have been called into account, and the media are now focusing attention on abuses of power by prosecutors. It's a long, slow process that, if it continues, will help make the criminal justice system more truly just rather than subject defendants, mostly poor and black, to trials that are actually pawns in the game of political chess.

Anyone who wants to know more about this particular issue can google "prosecutorial misconduct." You will be shocked at what you find. Mike's case is *not* unique. In fact, it is all too common.

Anonymous said...

So, in conclusion...

Was this man, according to the Supreme Court of the United States, illegally sentenced? Yes.

Does the state of Florida impose the sentence anyway? Yes, because they didn't know they were acting illegally at the time.

This is insane. Honestly, I don't think they key issue here is one of innocence or guilt. I keep thinking, what if there was a very respected institution out there that said a plane could get from point A to point B using a certain amount of fuel, and it turns out that amount of fuel is dangerously low? Do you continue risk the passengers lives because the original mistake was made with good intentions and most of the flights didn't crash, anyway? Pretending for a moment that I am pro-DP and the inmate in question is definitely guilty, the idea that a constitutionally unsound decision should be upheld because the people who made it thought they were right at the time is, again, insane.

CS McClellan/Catana said...

To anonymous: They knew they were acting illegally. They always know. The legislature and the judiciary act together to find ways around the law, and simply hope that it will be years or decades before the high court declares their end run unconstitutional. The Supreme Court itself has done this many times.

Right now, I'm thinking about the recent Supreme Court decision on the 8th amendment challenge from Pennsylvania. It was turned down on the basis of it being suffiently clear that guilt was established and that the trial was conducted without error. In other words, the court refused to address the issue of constitutionality at all. There has been almost no coverage of that decision, as far as I can tell, and no comments about whether the court allowed itself to be swayed by the actual guilt rather than whether the death penalty is a violation of a person's constitutional rights.

If you argue that this is very different from actually using the law to execute people, I agree. What I am trying to show is how the courts, all the way up to the Supreme Court, will do end runs around serious questions of justice.

Anonymous said...

I keep reading stories like this, where regardless of actual innocence or guilt there are procedural errors that are intentionally being ignored in order to kill people. Everybody washes their hands of their mistakes, from the arresting officer, forensics teams, lawyers, judges, appeals courts, all the way to the death team they're doing their jobs. The public don't like the death penalty or support it as soon as they learn enough. Most never learn enough. There is too big a gap between the public and the law for there to be much liaison on any matter, petty ones and grave ones such as the death penalty. People are thinking of you and reading your posts, including your past works. Your words and stories will remain whatever happens. Thanks for teaching me lessons that I can't ever find elsewhere. If only one could put them into practice somehow, most of our hands seem tied. Good luck

Anonymous said...

I understand that, CS. I should have clarified I was posting as if this were a best case, black-and-white scenario where the system was pure of heart and there was no chance the convicted man was innocent. The point is that even in the best case scenario, to execute Lambrix in good conscience takes denial into delusion territory, even beyond the concept being applicable to the entire practice of capital punishment. As it actually is--corruption, politics, etc.--is just straight up evil.

Tanya said...

That is so true Anonymous. Unfortunately, I think most people are extremely uneducated about how the "justice" system really works. They'll watch the news or read the paper and form thier opinions without getting all the facts and doing research. If they would they would understand how much CORRUPTION goes on in the courtroom, from prosecutors to judges to "witnesses" and even court appointed defense attorney's who do what they can to ensure a conviction for their own client,guilty or not, to ensure thier future court appointed victims! I was truly shocked the first time I realized what disgusting liars these people are. Good luck to you Michael. I'm hoping for a good outcome.

Anonymous said...

I am so pleased that execution date has been stayed

Lynne Benson said...

75% of wrongful convictions we're due to official misconduct according to the best Death Penalty Information Center. What is wrong with lawyers? As a nurse if I was committing misconduct my license would be suspended or revoked. I would not get away with misconduct for a New York minute. One of the defining characteristics of a profession is peer review and accountability. So our lawyers are professionals? I think they're shameful. I think that prerequisites to law school to be a major, a double major in ethics and logic. I am so tired of hearing this same story over and over and over again. Despicable group of hoodlums. And the ones that aren't irresponsible in practice are irresponsible for not confronting the profession. There. I'm really angry. My good friend Billy cancel is on death row in Alabama for 28 years. We know who committed the crime so does the prosecutor. We got the new evidence. Evidence was withheld from Billy attorneys for 20 years. Do you know why he can't get a new trial? Because an attorney missed a filing deadline. Honest to God. We are waiting his final court decision amicus curiae filed by the Eagle foundation, the The n
National Association of evangelical churches the Catholic bishop Alabama the Jewish leadership of Alabama and several retired prosecutors . The brief challenges the judges to live up to the constitution of Alabama which quotes the Bible and God's justice and then compare is a filing deadline to God's justice.

Joe said...

Lambrix received an indefinite stay. His next post should be very interesting.

This Florida ruling might very well prove to be the beginning of the end of the death penalty.

light year said...

Lynne Benson, i'm not fully aware of your predicament, but i would recommend you to make your case as public as possible. The internet can be of much help in this matter. Such misconducts which literally steal people's lives must be known and punished!

Very glad for Michael, wish you best in this battle.

granny@home said...

They just over ruled the death penalty stop and are to resume executions i feel so bad i am praying for mike as an old friend of mine i am so worried about him