REQUEST FOR STAY, REQUEST FOR AN INTERVIEW, INVESTIGATION, AND HEARING, AND PLEA FOR COMMUTATION OF SENTENCE ON BEHALF OF MICHAL LAMBRIX

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1 TO: The Office of Executive Clemency Commission on Offender Review 4070 Esplanade Way Tallahassee, FL DEATH PENALTY CASE EXECUTION SCHEDULED FOR OCTOBER 5, 2017 REQUEST FOR STAY, REQUEST FOR AN INTERVIEW, INVESTIGATION, AND HEARING, AND PLEA FOR COMMUTATION OF SENTENCE ON BEHALF OF MICHAL LAMBRIX Michael Lambrix, DOC No , a prisoner under sentence of death, by and through undersigned pro bono Clemency Counsel, and pursuant to the Florida Rules of Executive Clemency, respectfully requests that his death sentence be commuted to a sentence of life imprisonment. In 2016, Florida s death penalty scheme that has been in place since 1972 was held to be unconstitutional by the U.S. Supreme Court in Hurst v. Florida, 136 S. Ct. 616 (2016). Subsequently, the Florida Supreme Court held that the jury must unanimously agree on the aggravating factors before death may be imposed. Hurst v. State, 202 So. 3d 40 (Fla. 2016). Nevertheless, Michael Lambrix, who was sentenced to death in 1984 with less than a unanimous jury recommendation, is set to die on October 5, The courts have ruled: Michael Lambrix is one of the 164 Florida death row prisoners who will not receive the benefit of the Hurst decisions that require a unanimous decision on the aggravating factors before a death sentence may be imposed. The reason? Because his conviction and sentence of death were final before June 24, 2002, the date that Ring v. Arizona, 536 U.S. 584 (2002) was decided. See Asay v. State, 210 So. 3d 1 (Fla. 2016). Michael Lambrix is fully aware that the Governor and Cabinet had the benefit of his 2014 clemency petition when a warrant for his execution was signed in He is 1

2 also fully aware that the Governor and Cabinet have access to the numerous legal challenges and opinions that have been issued in this case. Mr. Lambrix is not asking the Governor and Cabinet to reconsider his guilt or innocence or his proffered testimony today. He is merely asking this Board to review his case in light of the Hurst cases and decide whether, given the facts of his case and the arbitrariness of the cut-0ff date for relief, it is fair and just to carry out this execution. PROCEDURAL HISTORY On March 29, 1983, Michael Lambrix was indicted for the first-degree murder of Aleisha Bryant and Lawrence Lamberson in the Glades County Circuit Court. The first trial ended with the declaration of a mistrial on December 17, 1983, when the jury failed to reach a verdict on guilt after deliberating for some eleven hours. Mr. Lambrix was convicted on both counts of murder on retrial and the jury recommended the death penalty by 8-4 and The late Honorable Richard M. Stanley, Circuit Court Judge, sentenced Mr. Lambrix to death on March 22, 1984, after finding five aggravators and no mitigators. Both the 1984 convictions and death sentences have been upheld despite numerous legal challenges over the years. In 2000, the U.S. Supreme Court held that the jury must find all facts that increase a punishment. Applying Apprendi v. New Jersey, 530 U.S. 466 (2000), the U.S. Supreme Court held in 2002 that the jury must find all facts required to impose a death sentence in Ring v. Arizona. For the next fourteen years, Florida death row inmates and their lawyers challenged Florida s death penalty scheme under Ring. 2

3 In 2014, Mr. Lambrix submitted an updated clemency petition 1 (fully incorporated herein by reference) setting for the forth the structural flaws as well as evidence that the aggravators were not based on credible evidence. Most of the evidence in support of mitigation and attacking the aggravators was never considered due to misconduct, ineffective assistance of counsel and procedural bars. He also set forth a case of redemption and provided evidence that he has become a contributing and worthy member of his community, as well as a loving father and grandfather. On November 30, 2015, Governor Rick Scott signed a warrant for Mr. Lambrix s execution declaring executive clemency for MICHAEL RAY LAMBRIX, as authorized by Article IV, Section 8(a), of the Florida Constitution, was considered pursuant to the Rules of Executive Clemency, and it has been determined that executive clemency is not appropriate. It was while the execution was looming over Mr. Lambrix s head that the U.S. Supreme Court held after over a decade of litigation--that Florida s death penalty was unconstitutional in Hurst v. Florida, 136 S. Ct. 616 (2016). The planned execution was halted; the Republican President of the Senate declared that no executions should go forward until the deficiencies in Florida s death penalty scheme are addressed. The legislature drafted a new death penalty sentencing scheme in 2016 but failed to require a unanimous verdict on the aggravators leading the Florida Supreme Court to strike the new legislation in Hurst v. State, 202 So. 3d 40 (Fla. 2016). On September 1, 2017, Governor Rick Scott signed a new death warrant scheduling the execution of Michael Lambrix for October 5, Michael Lambrix has 1 Mr. Lambrix previously submitted clemency petitions in 1988 and

4 and will continue to contest the conviction and death sentences in the courts. For the purposes of this plea for clemency, he acknowledges that the courts have decided that he is not entitled to relief at this point. Michael Lambrix is not raising a legal challenge to the failure to apply Hurst in his case; rather, he is seeking a commutation of his death sentences as a matter of fundamental fairness. PLEA FOR MERCY This execution is not inevitable. The signing of a warrant is not merely a ministerial act but a decision by the Governor of the State of Florida. Mr. Lambrix is asking the Governor and Cabinet to reconsider his plea for mercy in light of the very recent Hurst decisions. The Supreme Court has recognized that the importance of the clemency process in a capital case cannot be understated: Far from regarding clemency as a matter of mercy alone, we have called it the fail safe in our criminal justice system. Harbison v. Bell, 129 S. Ct (2009) (quoting Herrera v. Collins, 506 U.S. 390, 415 (1993)). In fact, the Florida Supreme Court has recognized that clemency is part of the overall death penalty procedural scheme in this state. Remeta v. State, 559 So. 2d 1132, 1135 (Fla. 1990). Michael Lambrix respectfully requests that the Governor and Cabinet stay the execution, conduct an interview and investigation, hold a full and fair clemency hearing and, thereafter, commute his death sentences to life in prison. THE FACTS: THE STATE WOULD NOT BE ABLE TO SECURE A DEATH RECOMMENDATION IF THIS CASE WENT TO RESENTENCING TODAY. The case against Mr. Lambrix began with the arrest of Frances Smith in Hillsborough County after she was caught driving Mr. Lamberson s Cadillac shortly 4

5 after the murders. Smith gave various conflicting statements about the car at first. Eventually, faced with a criminal charge of grand theft, she told authorities that Mr. Lambrix had killed the victims. She then brought them to the location of the bodies in southwest Florida. The first trial ended with the declaration of a mistrial on December 17, 1983, when the jury failed to reach a verdict after deliberating for some eleven hours. By the second trial, Smith sufficiently embellished her story, giving the State what it needed a conviction and enough evidence for the judge to find the weightiest aggravators. It was Smith who provided the only description of what happened in support of the heinous, atrocious and cruel ( HAC ) aggravator when she claimed that Mr. Lambrix said he hit Mr. Lamberson in the head with the tire tool and he said he choked Alicia. And after that, he stomped her in the head. Frances Smith the hub of the State s case--told the jury at the second trial that Mr. Lambrix got me and started shaking me and told me he would do me too. It was also Smith who provided the State with a pecuniary motive for the attacks when she testified that Mr. Lambrix took a gold chain from Lamberson s neck and went through his pockets. She testified in support of the cold, calculated and premeditated ( CCP ) aggravator concerning how Mr. Lambrix told her that he placed the female victim face down in the pond because she was not yet dead and would finish drowning. For added measure, she even testified at the second trial Mr. Lambrix acted happy during the burial process. Smith also testified that Mr. Lambrix told her that if she turned him in, he would kill her. Shortly after burying the bodies, she said Mr. Lambrix picked up the tire tool and wrapped it in the t-shirt that she had given him They both left the southwest 5

6 area in Lamberson s Cadillac and headed north to the Tampa area. She provided further support for the finding that the murders were for pecuniary gain when she testified that Mr. Lambrix later searched Mr. Lamberson s car, complaining that he thought he had more money than that. Smith added that Mr. Lambrix took some of Mr. Lamberson s clothing from the car and that Mr. Lambrix told her that he sold the gold chain. Even though most of these details never came out in pre-trial statements or at the first trial, she was not cross-examined regarding her prior inconsistent statements at the second trial. The penalty phase presentation was almost non-existent: basically family members begged for his life. It is not surprising that the trial judge found no mitigating factors. 2 The 1983 jury recommended the death penalty by non-unanimous votes of 10-2 and 8-4. If this case went to resentencing today, Frances Smith would not be believed. The jury never heard that Frances Smith admitted to her estranged husband during the time of the investigation that she had an affair with Investigator Daniels, the lead investigator on the case. Years later, in 2004, Smith admitted that she had the affair with the lead investigator on the case in open court during a deposition. Even though the courts determined that this revelation was not sufficient to grant a new trial, the veracity of Ms. Smith s testimony at a resentencing would be in question. In 2006, Investigator Daniels 2 Despite the fact that character testimony was presented during the penalty phase, the court found no mitigating circumstances with respect to either murder. Lambrix v. State, 534 So. 2d 1151, 1154 (Fla. 1988). 6

7 revealed for the first time that the State Attorney s Office promised not to prosecute Ms. Smith for her testimony as long as she cooperated. Judge Stanley 3 found the following aggravating factors that were based entirely on Frances Smith s testimony as provided for the first time at the second trial: (1) the murder of Lamberson was committed for pecuniary gain; (2) the capital felonies were especially heinous, atrocious and cruel (HAC); and (3) the homicides were committed in a cold, calculated, and premeditated manner (CCP) without any pretense of moral or legal justification. The judge also found that the capital felonies were committed by a person under a sentence of imprisonment because Mr. Lambrix had committed the crime after walking away from a work release center where he was serving a sentence on a nonviolent charge. The last aggravator, that the defendant was previously convicted of another capital felony, is not as weighty where, as here, both murders occurred during the same transaction. After the convictions and death sentences were upheld on direct appeal, Mr. 3 The late Judge Stanley made comments regarding another death-sentenced inmate, Raleigh Porter, which brought the Judge s impartiality into question. Judge Stanley testified at a hearing regarding comments he made around the time of Mr. Porter's 1978 resentencing proceedings over which Judge Stanley had presided. The hearing was held because it was reported that Judge Stanley told a clerk that he had agreed to a change of venue in Mr. Porter s case because Glades County had good, fair minded people here who would listen and consider the evidence and then convict the son-of-a-bitch. Judge Stanley was alleged to have said that once convicted, he would send Mr. Porter to the electric chair. Judge Stanley also admitted that he always sat in court with a sawed off machine gun laying across [his] lap. Mr. Porter was granted relief from the death penalty. See Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995); Porter v. State, 723 So. 2d 191 (Fla. 1998). During the course of investigating the allegations concerning Judge Stanley s improprieties, Mr. Lambrix learned that the former judge made at least two separate comments to the clemency board concerning Mr. Lambrix s case. 7

8 Lambrix raised a claim of ineffective assistance of counsel because his trial lawyers failed to raise voluntary intoxication as a defense during the guilt phase and because they failed to present evidence of chronic alcoholism to the jury. The Florida Supreme Court denied relief finding that the evidence of alcoholism would not be sufficient to overcome the weighty aggravators in the case. Lambrix v. State, 534 So. 2d 1151 (Fla. 1988). 4 In 1992, the U.S. Supreme Court decided in Espinosa v. Florida, 505 U.S (1992) that the jury instructions that were given to Mr. Lambrix s jury for the HAC aggravator were unconstitutionally vague. Two years later, the Florida Supreme Court decided in Jackson v. State, 648 So. 2d 85, 90 (Fla. 1994) that Florida's standard CCP jury instruction, also given to Mr. Lambrix s jury, was unconstitutionally vague as well. Mr. Lambrix s attorney objected to the jury instructions for HAC at the time of trial, thus preserving the issue for appeal. However, the appellate lawyer failed to raise the issue on direct appeal. Therefore, the Florida Supreme Court found the 4 Lambrix alleged that several family members were prepared to testify concerning Lambrix's long history of drinking. He also asserted that Dr. Whitman, who had been appointed prior to trial to evaluate Lambrix's competency to stand trial and his sanity at the time of the offense, told defense counsel at that time that Lambrix suffered from substance abuse disorder and that alcohol abuse played a significant part in the offense. Finally, Lambrix alleged that he had been recently examined by an expert in addictionology who would testify that Lambrix suffers from alcohol dependency and that the amount of alcohol ingested by him on the night of the offense rendered him intoxicated to the extent that he was incapable of forming the specific intent necessary to a conviction of first-degree murder. Because we are passing on the facial sufficiency of the motion, we must accept the allegations of fact as true for purposes of this appeal. Lambrix v. State, 534 So. 2d 1151, 1153 (Fla. 1988). 8

9 matter to be procedurally barred. The Court also found that the claim of ineffective assistance of appellate counsel was also procedurally barred. Lambrix v. Singletary, 641 So. 2d 847, 848 (Fla. 1994). The Espinosa issue went all the way to the U.S. Supreme Court where, in a 5-4 decision, the Court found that the claim was barred based on federal rules regarding retroactivity. Lambrix v. Singletary, 520 U.S. 518 (1997). To recap: the most weighty aggravators, CCP and HAC, were found by the trial judge based on the questionable testimony of the unindicted co-defendant, Frances Smith, who later revealed that she was having an affair with the lead detective on the case. We also know that the State would be prohibited from using the same vague jury instructions on CCP and HAC due to the case law. Even if the State were able to present any credible evidence of CCP and HAC at a resentencing, there is substantial mitigation that the jury never heard including that Michael Lambrix was the product of rape and that he was horribly physically and verbally abused as a child. If this case were tried today, the jury would hear an incredible redemption story, admissible as model prisoner evidence. Michael Lambrix, an honorably discharged disabled veteran, is an accomplished writer whose essays demonstrate growth and compassion. The Nobel Peace Center in Oslo, Norway will be exhibiting a large collection of photographs by renowned photographer Rune Eraker entitled, "Noble is Man" beginning in September of Pictures of Michael Lambrix amidst some of his own writing will be included in this major exhibition. The photos of Mr. Lambrix and Mr. Eraker's photos from around the world will tell the important story of how humanity finds peace through struggle. Mr. Lambrix has reached people throughout the 9

10 world with his thoughts on humanity and how to better society. To be included in this exhibit is indeed an honor; Michael Lambrix is not a person who should be executed. CARRYING OUT THE EXECUTION OF MICHAEL LAMBRIX IN LIGHT OF HURST AND THE ERRORS IN HIS CASE WOULD BE A MISCARRIAGE OF JUSTICE THAT CAN ONLY BE CURED BY A COMMUTATION OF HIS DEATH SENTENCES. On January 12, 2016, the United States Supreme Court held Florida s capital sentencing scheme unconstitutional because the jury, not the judge, must make all findings of fact requisite for a death sentence. Hurst v. Florida, 136 S. Ct. 616 (2016). On October 14, 2016, the Florida Supreme Court concluded that, in light of Hurst v. Florida, the Sixth and the Eighth Amendment required a unanimous jury verdict prior to the imposition of a death sentence. [J]ury unanimity further(s) the goal that a defendant will receive a fair trial and help[s] to guard against arbitrariness in the ultimate decision of whether a defendant lives or dies, jury unanimity in the jury's final recommendation of death also ensures that Florida conforms to the evolving standards of decency that mark the progress of a maturing society, which inform Eighth Amendment analyses. Hurst v. State, 202 So.3d 40, 72 (Fla. 2016) (internal citations omitted). Accordingly, the jury must unanimously find that sufficient aggravators existed to justify a death sentence and that the aggravators outweighed the mitigating factors that were present in the case. If a unanimous death recommendation is not returned, a death sentence cannot be imposed. The decision in Hurst v. Florida was of fundamental significance, and as noted in Mosley v. State: it is undeniable that [the Hurst decision] changed the calculus of the constitutionality of capital sentencing in this State. 209 So. 3d 1248 (Fla. 2016). After 10

11 conducting an individualized retroactivity analysis, the Mosley court found that Hurst v. Florida was to apply retroactively to Mosley, who was sentenced after Ring. Id. The court granted relief and vacated and remanded Mosley s death sentence for a new sentencing. Id. On the same day that the Florida Supreme Court issued Mosley, it issued Asay v. State, 210 So. 3d 1 (Fla. 2016). Both Asay and Mosley had challenged their death sentences in light of Hurst v. Florida. Asay s death sentences and Mosley s death sentence were final before the decision in Hurst v. Florida issued. Both cases presented the question of the retroactivity of Hurst v. Florida. However, the Florida Supreme Court broke from its own jurisprudence and held Hurst v. Florida to be retroactive in Mosley s death sentence under its Witt analysis, while in Asay, its Witt analysis found Hurst v. Florida was not retroactive to Asay s case. The result of Asay and Mosley was the repudiation of a binary approach to retroactivity under Witt. In Asay, the Florida Supreme Court, superficially at least, seemed to suggest that there were just two categories of collateral cases at issue in a Witt analysis of Hurst v. Florida - those cases final after the issuance of Ring v. Arizona, 536 U.S. 584 (2002), and those final before Ring issued. A majority of the Florida Supreme Court in separate opinions in the two decisions complained that the Court, through the two rulings, had injected unacceptable arbitrariness into Florida s capital sentencing process. As a result, the distinction between who gets the benefit of Hurst v. Florida and therefore, get relief and who doesn t and, therefore, gets executed will be an arbitrary one. The decisions in Asay and Mosley have opened the door to arbitrariness infecting Florida s death penalty system in violation of the Eighth Amendment. See Desist v. United States, 394 U.S., at (Harlan, J., dissenting) ( [W]hen another similarly 11

12 situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a new rule of constitutional law. ). In abandoning the binary approach to retroactivity, the court has embraced imprecision as it sifts through death penalty cases in collateral review on a case by case ad hoc approach. The arbitrary nature of the Hurst decisions is demonstrated by the fact that other inmates whose offenses and original convictions and sentences date back to the 1980s have received the benefit of Hurst. For example, James Card was prosecuted for a homicide that occurred in 1981; his conviction and sentence became final in Card v. State, 453 So. 2d 17 (Fla. 1984). That conviction has remained intact ever since but the death sentence was vacated in collateral proceedings. A resentencing was conducted in An 11-1 death recommendation led to another death sentence which was affirmed and became final four days after the issuance of Ring v. Arizona, 536 U.S. 584 (2002). See Card v. State, 803 So. 2d 613 (Fla. 2001), cert denied 536 U.S. 963 (2002). Because his petition for certiorari review was denied four days after Ring issued, the Florida Supreme Court ordered a resentencing. Card v. Jones, 219 So. 3d 47 (Fla. 2017). Similarly, J.B. Parker was convicted of a 1982 homicide and sentenced to death. The conviction and death sentence became final in Parker v. State, 476 So. 2d 134 (Fla. 1985). In 1998, Parker s death sentence was vacated though his conviction remained intact. State v. Parker, 721 So. 2d 1147 (Fla. 1998). In 2002, Parker received another death sentence after the jury returned an 11-1 death recommendation. The Florida Supreme Court affirmed on direct appeal. Parker v. State, 873 So. 2d 270 (Fla. 2004). Because the death sentence became final after Ring v. Arizona issued, there will 12

13 be another resentencing on Parker s first-degree murder conviction that was final in Even though Parker s crime was before the crimes in this case, Parker will get the benefit of Hurst. Affording defendants like Card and Parker the benefit of new sentencings under Hurst while denying Mr. Lambrix a resentencing violates basic concepts of equal protection and the Eighth Amendment right to be free from cruel and unusual punishments. All three defendants are all similarly situated in that they were convicted of capital offenses that occurred in the early eighties before Apprendi or Ring. Card and Parker, however, received the benefit of the Hurst decisions solely because of the arbitrary reason that there was an error in the underlying proceedings requiring a new sentencing. Fortunately for them, these new sentencings resulted in a final conviction date after The Florida Supreme Court, however, denied relief to Mr. M for the arbitrary reason that his date of finality was before Ring. There is and can be no constitutionally valid reason to give Card and Parker a right to a life sentence unless the jury unanimously consents to a death sentence, while Mr. Lambrix received two death sentences without the unanimous consent of his jury but will nevertheless die at the hands of the State. Moreover, carrying out Mr. Lambrix s execution is premature because no court has yet to address whether Hurst is retroactive to all death-sentenced inmates under federal principles. Given the constitutional infirmities of partial retroactivity that has yet to be reviewed by the United States Supreme Court and the fact that no court has addressed federal retroactivity, Mr. Lambrix s execution is premature and has a good chance of being ruled unconstitutional. Michael Lambrix deserves mercy. 13

14 CONCLUSION Michael Lambrix, convicted of two counts of first-degree murder, has spent his time in prison bettering himself and the lives of those around him. Michael Lambrix, an honorably discharged disabled veteran, is an accomplished writer whose essays demonstrate growth and compassion. His redemption story alone provides adequate grounds for mercy in this case. But the cruel and arbitrary application of Hurst to some inmates and not others amounts to no more than asking the condemned to draw sticks to see who will live and who will die. The only just and fair remedy is for this Board to act as a fail safe and grant clemency. Respectfully submitted, /s/ Roseanne Eckert ROSEANNE ECKERT Fla. Bar. No FIU College of Law S.W. 8th Street RDB 1010 Miami, FL Reckert@fiu.edu Tel. (305) CLEMENCY COUNSEL 14