Contents
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Florida Death Row Advocacy Group
Working to Maintain and Improve Living Conditions for Death Row in Florida
Happy Mothers day from Glenn Rogers
FDRAG NEWSLETTER
PUBLISHED MONTHLY BY FDRAG
VOLUME -V- MAY 2005
(Personal opinions of our Guest writers do not necessarily reflect the opinions of FDRAG or its members)
Legal Commentary
Legal Analysis, Karin Elsea
Supreme Court agreed Monday to consider whether someone convicted of murder can offer evidence at sentencing time that casts doubt about culpability. The justices will hear Oregon's appeal of a lower ruling throwing out the sentence for Randy Guzek. He and two other men were convicted in 1988 of killing a couple during a burglary attempt. After he was convicted at trial, Guzek sought to introduce transcripts of testimony from witnesses that suggested he could not have been present at the crime scene, arguing it was "mitigating evidence" relevant to whether he should receive the death penalty. A trial judge declared it inadmissible, saying such "alibi evidence" is relevant only to a defendant's guilt. But the Oregon Supreme Court disagreed, ruling that the 8th Amendment barring cruel and unusual punishment allowed this evidence during the sentencing phase as well as trial phase. The Supreme Court has been silent on the issue, ruling most recently -- in 1988 -- that a convicted murderer does not have a constitutional right to a jury instruction compelling jurors to consider alibi evidence during sentencing. A ruling is expected in October (Oregon v Guzek)
Florida Supreme Court Capital Decision Review, Karin Elsea
Fitzpatrick v Florida, 30 Fla. L. Weekly S 45 (2005)
Relief Granted: non-capital offense vacated and remanded for re-sentencing after a guidelines score sheet has been prepared and considered by trail judge; 1st degree murder conviction and sentence upheld.
Reasoning: Provision 3.701 (d)(1), Florida Rule of Criminal Procedures, mandates that a sentence be imposed based on a sentencing guidelines score sheet that has been reviewed by the trial judge.”
Dufour v Florida, 2005 Fla. LEXIS 691 (2005)
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Relief Denied: Circuit court’s 3.850 motion and habeas petition denied. Post convictions appeal based on the following claims: 1) + 2) counsel and penalty phase counsel rendered unconstitutionally ineffective assistance of counsel in failing to investigate and present a voluntary intoxication defense and in failing to strike jurors during the guilt phase;(3) Dufour received an inadequate mental health evaluation; (4) Dufour was prejudiced by the cumulative impact of improper evidence; (5) trial counsel was ineffective in failing to object when Dufour's sentencing jury was misled by comments, questions and instructions that inaccurately diluted the jury's sense of responsibility for their role in the sentencing process; (6) the State committed fundamental error by destroying exculpatory physical evidence; (7) Florida’s death penalty statute is unconstitutional; (8) section 921.141(5) of the Florida Statutes is facially vague and overbroad; (9) Rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar prohibiting Dufour's lawyers from interviewing jurors is unconstitutional; and (10) the combination of procedural and substantive errors cumulatively deprived Dufour of a fair trial." Relief also denied on habeas claims "(1) appellate counsel rendered ineffective assistance on direct appeal; (2) the cold, calculated, and premeditated jury instruction is unconstitutionally vague and overbroad; (3) Dufour's death sentence is unconstitutional because he did not have a jury verdict on each element of the capital offense; and (4) the combination of procedural and substantive errors cumulatively deprived Dufour of a fair trial."
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Summary of Florida’s Capital Post Conviction Review Process, Michael Lambrix
(Step 1, the actual trial, appeared in the October issue, Step 2, the direct appeal, in the November issue, and Step 3, the writ of certiorari and Step 4a, the state post-conviction appeal in the January newsletter, and step 4b, the evidentiary hearing, in the February newsletter). The federal review began in the April newsletter.
Federal Review (continued)
The Federal 11th Circuit Court of Appeals
If the certificate of appeal is denied by the district court, the defendant may appeal that ruling itself to the Federal 11th Circuit Court {11th CC}, requesting that the court issue the certificate and allow an appeal. In a capital case that is on its first federal habeas the right of full appellate review by the 11th CC will almost certainly be granted absent application of a “procedural bar” based upon failure to comply with applicable rules governing appellate review. Once appellate review is provided, both parties will first submit written briefs arguing each of the claims upon which relief is sought. Once the written briefs have been filed, the Court will
schedule oral arguments.
After oral arguments, the Court will issue a ruling.
The most significant difference between the appellate review provided by the FLSC and the 11th CC is that when a case is heard by the FLSC all sitting justices (7) will hear the case and render decisions; but when a case is brought before the 11th CC, the case is assigned to a 3 member panel of judges. Any decisions rendered work off a majority rule which means that the decision by at least 2 of the 3 judges is binding. Moreover, if that decision stands contrary to previously established law, then the loosing party can petition the full court for a rehearing en banc and ask that the full court vacate the allegedly erroneous decision again by a majority vote.
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The United States Supreme Court
After a decision has been rendered by the 11th CC and rehearing has been denied, a capital defendant may again petition the United States Supreme Court (USSC) for review of specific question of constitutional law. For a petition of writ of certiorari to be pursued,
The capital defendant must identify specific questions of constitutional law addressed within a claim properly presented before the federal court in which the defendant believes the federal court improperly denied relief. The defendant must identify previously established USSC cases that allegedly conflict with the federal court’s ruling on the claim; alternatively, the petitioner may establish that the 11th CC ruling on a question of constitutional law stands in conflict with other federal circuit courts - thus requesting the USSC to resolve the disputed existence of conflict among federal circuits on a specific question of constitutional law.
Death Warrant If a petition for writ of certiorari is pursued, a decision is generally rendered within 3 months and only rarely will the USSC
grant review. However, a reasonable competent post conviction counsel will almost always pursue a petition at this point if - for no other reason but to buy additional time for the development of any possible successive post conviction appeals that might be pursued. Once a capital case has exhausted federal review, then the Florida attorney general’s office will notify the office of Executive Clemency and the Governor’s office, and technically the defendant becomes death warrant eligible, meaning that upon completion of the formality of executive clemency review, a death warrant may be signed by the Governor and an actual date of execution scheduled; an event most lawyers would want to try to at least postpone if not block all together.
Next Issue: Clemency
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News from the inside
May is here, spring is here, and with that this feeling of new beginnings.
More than ever I feel a sense of hope, not only because James got his new trial, but lots of things are happening in regards to the death penalty which you can read about further on in the newsletter…..
And I finally got my work permit renewed and with that …. A JOB!
I know this has not much to do with death row and your conditions, but somehow all that I do makes me think of life, you, and how you got to be where you are.
My new job is in a nursery, and preschool, and every morning that I go there, I am met with little arms reaching for a hug, and eyes full of light and life looking at me. I see innocence that has not yet been violated.
I see all of us in these little kids.
We were all born good, all of us expecting nothing but goodness and love “at arrival”- and for some it worked out OK - but for many, life hits right between the eyes and sends us to our knees, and for some the blow is so heavy that we never get back on our feet. All of us have this hurt child living in us, and we have no clue how to heal it, not until love comes along and knocks down all the walls.
I guess for most it takes the love of God, the only ‘real” Father/Mother to love and nurture us back to life.
To those of you who wrote with congratulations…Thank you so much! For those of you who wrote and blessed me with prayers ...thank you,.. It all warms and means the world.
I watched TV the other day. A five year old child got handcuffed and taken away by the police from her school.
A FIVE YEAR OLD!!! And the media were full of ideas as what to do with this child that was so out of control…Did the school have other options, etc? EXCUSE ME…..If anyone is out of control it has to be the adults. A 5 year old???…What has the world come to? Kids are not out of control unless adults hand over the control. How can we fail the kids so miserably?
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The little girl threw a fit!.. Yes…and???
Sit on the little “monster” for crying out loud, if you can’t think of anything else to do, but just make sure she knows you love her and that you are stronger than her, so her world can feel safe again.
We also have politicians, showing in the media and calling criminals for creeps! A well respected right winged politician called a newly arrested man for a creep; Yes he sure did!…I cant help but think that it must be the same guy who believe it is OK to beat the crap out of his kids while telling them it hurts him just as much as it hurt them. The same kind who thinks that handcuffing a 5 year old child is A- OKAY. This man is by the way, the same one who will go to church every Sunday, confess to be a good Christian, tell his kids that God will have punished and tormented in eternal flames if they ever drink a beer, are homosexuals or have sex before marriage, and then he will be totally puzzled by the fact that his children cannot understand that God loves them unconditionally!
As I have said before, I am sure Jesus left the so called church long time ago.
How is this for a revelation? – We are the church! We don’t come to church – we bring it! Church was never meant to be a building, or an institution. And if any Christian is ever “popular” he better check his heart, because a popular Christian is an oxymoron. Followers of Christ go against the world, they are ridiculed and persecuted and very much unpopular in the eyes of the world. And if anyone disagrees I suggest reading the bible with fresh eyes, (your own would be a good start ?) I am sure that if Jesus came by one of these days he would be judged by the “church” as being a sorry example of a “good” Christian. Having a mind of your own as a Christian is not a good thing ….. Jesus had plenty of that and just look what happened to him!
By the way and F.Y.I – he does love you, you know. Jesus I mean; it is hypocrites and so called teachers and preachers he cannot get along with. He prefers the thieves and the prostitutes any day… but that is another story, and I am out of space, so how about this?….
God bless you and keep you, and let His light shine upon you and give you Peace.
With all my heart…Hannah
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May Birthdays
Congratulations!!
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Name | date |
| Victor Jones | 01 |
| Robert Henry | 01 |
| Brett Bogle | 01 |
| Randall Jones | 07 |
| Paul Scott | 09 |
| Daniel Conahan | 11 |
| Eddie Sexton | 12 |
| Dieter Riechmann | 17 |
| Demitris Thomas | 18 |
| Wydell Evans | 19 |
| Johnny Kormondy | 20 |
| Manuel Valle | 21 |
| William White | 23 |
| Donald Dillbeck | 24 |
| Scott Mansfield | 24 |
| Michael Mordenti | 25 |
| Sonny Oats | 25 |
| Robert Consalvo | 25 |
| Danny Rolling | 26 |
| Floyd Damren | 27 |
| Sean Smith | 28 |
| John Hardwick | 29 |
!!!What happened to the recipes you all promised to submit.!!!
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Winners of the book drawing
May 2005
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Noel Doorbal UCI Flex magazine subscription
Earle Sweet UCI 48 laws of power
Gary bowles UCI radical enlightenment by Jonathan Israel
William Coday UCi German Philosophy by Terrry pinkard
Jeffrey attwater UCI – this old house magazine sub…
Troy Merck UCI thre Gnostic scriptures by Bentley Layton
Robert Preston UCI Tihkal. By Alexander Shulgin
Andrew Lukehart UCi the complete guide to writing fiction
Four books has been or will be send from Dale Recinella’s ministry also – Please make sure to pass the books on the wings after you are done reading them.
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History and Customs...
In the U.S. Mothers' Day is a holiday celebrated on second Sunday in May. It is a day when children honor their mothers with cards, gifts, and flowers. First observance in Philadelphia, Pa. in 1907, it is based on suggestions by Julia Ward Howe in 1872 and Anna Jarvis in 1907.
Although it wasn't celebrated in the U.S. until 1908, there were days honoring mothers even in the days of ancient Greece. In those days, however, it was Rhea, the Mother of the gods that was given honor.
Later, in the 1600's, in England there was an annual observance called "Mothering Sunday." It was celebrated during Lent, on the fourth Sunday. On Mothering Sunday, the servants, who generally lived with their employers, were encouraged to return home and honor their mothers. It was traditional for them to bring a special cake along to celebrate the occasion.
In the U.S., in 1908 Ana Jarvis, from Grafton, West Virginia, began a campaign to establish a national Mother's Day. Jarvis persuaded her mother's church in Grafton, West Virginia to celebrate Mother's Day on the anniversary of her mother's death. A memorial service was held there on May 10, 1908 and in Philadelphia the following year where Jarvis moved.
Jarvis and others began a letter-writing campaign to ministers, businessmen, and politicians in their quest to establish a national Mother's Day. They were successful. President Woodrow Wilson, in 1914, made the official announcement proclaiming Mother's Day a national observance that was to be held each year on the 2nd Sunday of May.
Many other countries of the world celebrate their own Mother's Day at different times throughout the year. Denmark, Finland, Italy, Turkey, Australia, and Belgium celebrate Mother's Day on the second Sunday in May, as in the U.S.
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