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Florida Death Row Advocacy Group
Working to Maintain and Improve Living Conditions for Death Row in Florida
FDRAG NEWSLETTER
PUBLISHED MONTHLY BY FDRAG
VOLUME –IV APRIL 2005
(Personal opinions of our Guest writers do not necessarily reflect the opinions of FDRAG or its members)
Legal Commentary
Legal Analysis,
Karin Elsea
On March 1st, in Deck v Missouri, the USSC heard oral arguments on whether it is unconstitutional to force a capital defendant to proceed through the penalty phase while shackled and handcuffed in view of the jury, and if so, does the burden fall on the state to show that the error was harmless beyond a reasonable doubt or on the defendant to show that he was prejudiced. With his hands handcuffed to a belly chain and his feet in leg irons, Carman Deck was sentenced to death for the 1996. One of the key things that the jury determines in a penalty phase is whether the defendant will be dangerous if he is sentenced to life without parole. When the jury saw him – particularly with extreme restraints – it assumed he did something, or tried to escape and can’t follow rules even in the court room. The logical conclusion is that he’s going to be causing trouble or maybe hurting someone. Deck asked the U.S. Supreme Court to hear his case – solely to consider whether his rights were violated when the court restrained him during sentencing. If his rights were violated, Deck argued, it should be the responsibility of the state to prove that the error had been harmless – rather than his responsibility to prove prejudice. Although the Supreme Court has held that "no person shall be tried while shackled and gagged except as a last resort," its decision is grounded in the fact that during trial the defendant is presumed to be innocent. The restraints, according to the court, compromise that presumption of innocence. The Court has yet to consider whether the same heightened standard applies to the sentencing phase where the defendant has already been convicted of the crime.
Florida Supreme Court Capital Decision Review, Karin Elsea
James Floyd v State of Florida, --- So.2d ----, 2005 WL 673689 FL.,2005 (only Westlaw citation presently available)
Relief granted: death sentence and conviction vacated, remanded to circuit court for new trial. Court ruled the state withheld substantial exculpatory evidence from Floyd in violation of Brady v Maryland, 373 U.S. 83 (1963).
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In order to establish a Brady violation, the defendant has to prove that the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.
The FLSC found that the first two prongs of the Brady analysis were demonstrated as the State did indeed possess exculpatory evidence that it failed to provide to the defendant. The defense was never informed that immediately after the murder, police interviewed a neighbor of the victim at the time of the murder The interviews reflect that the neighbor told police that during the daylight hours on the afternoon of January 16, 1984, within the range of time the state medical examiner determined the murder occurred, she observed two white males park an automobile in the victim’s driveway and then enter and later exit the victim’s home, thus providing direct evidence of two other persons who may have committed the crime for which defendant was charged. The court also found that suppressed evidence could have provided a basis for reasonable doubt in the minds of some jurors especially as the case was a circumstantial one. The defendant’s constitution right to a fair trail was compromised by the withheld evidence, the conviction set aside and a new trial ordered
Dwayne Irwin Parker v State of Florida, --- So.2d ----, 2005 WL 673686 FL ,2005 (only Westlaw citation presently available)
Relief granted: On portions of the first issue raised only , case remanded for evidentiary hearing. Issue in question alleges ineffective assistance of counsel at the guilt and penalty phase, specifically counsel’s failure to present expert testimony pertaining to the fatal bullet and counsel’s failure to fully investigate and present mitigating evidence concerning defendant’s abusive childhood and his alleged mental illness.
Relief denied on all other claims habeas corpus relief denied as well.
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In memory of Glenn Ocha
- killed by the state of Florida April 5th 2005
News from the inside
I can hardly claim that this has been just another month! What I can claim however, is that God is good and faithful and my provider and all that good stuff.
Still being without a job but still having roof over my head speaks for itself, (although prayers to change the situation are welcome. ?)
This entire past month has been about life and death in so many ways that I know it is more than just coincidence.
Watching this whole thing about Mrs. Chiavo and hearing all the “compassionate conservative Christians” use phrases like; “we must remember that God is more so a God of Mercy than a God of the law” and “all life is precious and has dignity” and so on…. I couldn’t agree more –just wondering where all of you fit into the picture? In regards to Chiavo and the sanctity of life.. I heard Mister Chiavo being accused of all sorts of abuse, and over and over people asked him: “how can you do this? If you starved an animal like that you would go to jail”. I waited in vain for someone to say: - “maybe so, but who would be so cruel as to keep an animal alive that was paralyzed and unable to eat by itself. –even just for a week?” I know that there are so many different views on this issue – and I don’t know the answer either- but so many have said: “to think of the poor parents who have to watch their daughter die”. One has to wonder what love is all about in the first place. Would I keep my children here under any circumstances just to avoid the pain of having to let them go?....The answer came when my 25 year old son called me from Denmark a few days ago and said: “mom, you better not let me lay around, like that poor women did, for so many years”, and I promised him I wouldn’t, just like my children have promised me to let me go home if I cannot stay alive with what God gave me to begin with. It is a constant puzzle to watch this life and death issue. Christians fighting to keep one woman alive to honor the sanctity of life, and those same “Christians” are fighting to have you killed-You being sons of parents too I should add.
Then of course Easter came and went, as it has for thousands of years, Easter that represents hope and mercy, compassion, forgiveness, sacrifice and most of all love. Easter that is all about conquering death, about returning from the dead and live again.
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This Easter however was more special than any other I have experienced. It was not only Jesus that rose from the dead – it was also my husband who after 20 years finally got the “stone removed from his tomb” – Praise God -and the ruling from the FSC came exactly 8 days after James had told me about his dream: How he was walking in the dessert – exhausted and too tired to go on. That night in his dream Jesus came and led him out of the dessert and brought him home! So how can I not place all that I am, in the loving hands of the one and only who said he would never leave us nor forsake us, the One who said: “come to me all of you who are weary and burdened and I will give you rest”.
What gives me hope more than anything is the fact that we do not have to call on Him, we do not have to make any kind of decision to invite Him, He comes when we are good and ready. Like He did in my home back in Denmark, and like He did in James’ dreams more than 4 years ago. We never invited Him, yet he found us. We humans don’t even have to believe in Him, He believes in us anyway!
His Holiness the Pope died! A brave soul who spoke what so many Christians are afraid to say out loud – the death penalty is wrong!
Could be the death penalty would be history in no time, if so-called Christians were more concerned about what God has to say about the issue than about numbers of tithing members in their church.
If I sound a little angry in the midst of my joy then it is because I am – I once again stood outside the prison while another human being were executed in cold blood, and once again the Christians who claim to be pro-life were absent.
Let me end this with a short story about Mahatma Gandhi….Mahatma Gandhi is one of the most respected leaders of modern history. A Hindu, Gandhi nevertheless admired Jesus and often quoted from the Sermon on the Mount. Once when the missionary E. Stanley Jones met with Gandhi he asked him, "Mr. Gandhi, though you quote the words of Christ often, why is that you appear to so adamantly reject becoming his follower?”Gandhi replied, "Oh, I don't reject your Christ. I love your Christ. It's just that so many of you Christians are so unlike your Christ.!!!!!
And I will sign of with Bo Lozoff’s words in my heart. Sometimes you have to leave the church to follow the Christ.
God bless you all, Hannah
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The Latest from FADP
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Greetings to All,
I hope you are enjoying this balmy weather we are having. It's going to suck soon enough....
As I write this we are in the midst of the Terri Schiavo situation, and it is very very difficult to not be screaming my head off at the hypocrisy of certain politicians carrying on about the "culture of life" and the "value of life" and how "all life is precious." Blah blah blah. Most of those people are the same ones who want to cut funding for CCRC, cut appeals in general, and do whatever they can to kill as many of you as quickly as possible. Please be assured that we are keeping track of who said what, and we will be pushing their words right back into their faces at the appropriate moments....
There really is not much else worth reporting on at the legislature, YET. BUT, as you read this we are heading in to the home stretch for this year's legislative session. If YOU have people you write to on the outside who live in
Florida, please ask them to call me at 800-973-6548, or visit www.FADP.org to see what actions we are asking people to take. By actions, I mean that we need people to call and/or write and/or visit
Florida legislators. Who do you know that might write a letter or make a quick phone call? You would be surprised at how few people it really takes to make a difference.
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Who do you know that might help? Please ask them to get involved by contacting FADP or FDRAG.
Here is a picture of Puerto Rican Johnny being pulled by my puppy (almost 5 years old Rhodesian Ridgeback/Pit Bull mix), Governor. We named him Governor because we wanted to have at least one Governor who would listen to us. We still don't always have that! But Johnny loves Governor.
When Johnny and I are on the road and he is sharing his story, it is always good to have Governor along. That provides Johnny with an excuse to get out of the crowd, and take a walk and clear his head. Because every time Johnny tells his story, he puts himself back on death row. And you know that is not easy....
Until next time, Yours in the Struggle,
--Abe
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We apologize for the different layout this month. Several of our writers are busy at work, have sick family members or are traveling. Hopefully we will be back to out good old selves next month, and in case you don’t want that to happen, then sent us something you would like to see in the newsletter.
Also- the book drawing. Please be patient in receiving your books, but at the same time, if is has not reached you within a month after the announcement in the newsletter let us know. All the books have been paid for. AND...Please pass the books. Several of you are asking for the Blacks law dictionary, - it is very expensive and we have sent at least three of them to the institution. Please share.
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