Florida Death Row Advocacy Group

As the loyal readers of this newsletter will know, FDRAG’s legal bulletin was first featured in the July newsletter, took a break in the summer and is now back in full force having had plenty of time to ponder and dwell on the question, how to best make this column informative. Thus the idea of a mix of outside and inside; having someone on the inside provide an explanation and chronicle Florida’s capital post conviction review (FCPCR) process and someone on the outside review capital decisions handed down by the Florida Supreme Court (FLSC). FCPCR’s writer, Michael Lambrix, was sentenced to death in 1984 and presently resides at UCI. The legal bulletin is written by Karin Elsea, a paralegal who lives in Maryland. Both welcome comments/suggestions/ideas. Due to space limitations FCPCR is going to appear in several installments; the first one will cover the actual trial; the 2nd the direct appeal; the 3rd the petition for a writ of certiorari, the 4th the state post conviction process (Rule 3.850) and the 5th the post conviction appeal. Further issues will focus on the federal court appellate review and the process applicable to subsequent successive review. FLSC’s decision review will be on-going.

Summary of Florida’s Capital Post Conviction Review Process Michael Lambrix
Step 1 – The Actual Trial: Upon an indictment by a local grand jury, the defendant is tried before a 12-person jury. A capital trial differs from most criminal trials in that there are 2 distinct stages: the guilt phase is limited to presentation of evidence, including a defense geared exclusively to the question of guilt. Only if the jury unanimously finds the defendant guilty of capital (1st degree) murder does the trial then proceed to the 2nd stage, the penalty phase. At this time the state will present evidence to establish any alleged aggravating factors as defined by statutory provisions applicable to the specific circumstances of the case. The state must theoretically prove each alleged aggravating circumstance beyond a reasonable doubt and at least one aggravating factor must be found to be applicable before a death sentence can be considered. After the state presents its evidence of alleged aggravation, the defendant is allowed to (but not required to) present any evidence reasonably believed to establish mitigation. Unlike the state’s limitation to present only evidence of aggravation specifically defined by statutes, a capital defendant is not limited to presenting evidence consistent with statutorily defined mitigating factors and may present non-statutory mitigation such as personal history, social history, etc – a lawyer’s creativity is the only real limitation.

After both sides present their relevant evidence, the court will provide the jury standard jury instructions that generally guide the jurors’ application of aggravating/mitigating evidence to perimeters defined by the law. The jury is then instructed that they must deliberate in private and upon discussing the evidence, each juror must make an individual recommendation as to whether s/he believes death or life with no possibility for parole is appropriate. At least 7 of the 12 jurors must recommend death at which point the trial judge must determine the actual sentencing. Judges have been known to override unanimous recommendations for life and still impose death although in light of the USSC decision in Ring v. Arizona, 536 U.S. 584 (2002), that practice is constitutionally questionable but FL has not yet modified its statutory provisions to comply with Ring.

Florida Supreme Court Capital Decision Review Karin Elsea
Pietri v. Crosby, 29 Fla. L. Weekly S 440, (8/26/04) Relief denied.

1. Failure to present a voluntary intoxication. Held: Relief denied. Defense counsel was not ineffective for failing to present a voluntary intoxication defense. Analysis: defendant could not demonstrate that he was actually intoxicated at the time of the offense and evidence of “metabolic intoxication” - which allegedly produces a diminished capacity - would have been inadmissible at trial.
   
2. IAOC {Ineffective Assistance of Counsel} during jury selection: Defendant complains that defense counsel did not properly challenge a juror who would automatically vote for death if someone was convicted of 1st degree murder of a police officer. Held: Relief denied. Trial court was not erroneous in denying defendant’s challenge for cause of a particular juror denied as juror stated that he would follow the law and weigh aggravating and mitigating factors.
   
3. Failure to investigate and present mitigating evidence. Defendant argues that defense counsel failed to properly investigate and present available mitigating evidence during penalty phase. Held: Relief denied. Evidence presented during the evidentiary hearing was wholly cumulative with regard to a deprived childhood and drug addiction, defense counsel was not ineffective for failing to present additional lay witnesses during the trial.
   
4. Public records request: Defendant argues that the state should have produced a letter relevant to the subject matter of post-conviction proceeding. Held: Relief denied. Defendant did not cite authorities in support of claim that a letter written by a private attorney unconnected to the case constitutes a public record that must be disclosed. Defendant is therefore not entitled to disclosure of the letter and the claim is denied.
   
5. Stolen documents request. Defendant argues that defense counsel provided IAOC by failing to properly investigate/litigate issues concerning a document that was allegedly stolen from his counsel’s investigator’s office and obtained by the state. Held: Relief denied.

Defendant was not able to demonstrate prejudice relating to purloined document as his defense changed long after the document was taken. Further, as the state attorney had not access to the document, defendant fails to demonstrate how hew as prejudiced by the state Writ of habeas corpus denied:

1. defendant’s complaint against appellate counsel being ineffective for failing to challenge trial court’s rulings denying motion for change of venue is procedurally barred;
2. complaint that appellate counsel was ineffective by failing to properly investigate and litigate issues concerning a document allegedly stolen from his defense counsel’s investigator denied as being without merit;
3. complaint that he was left defenseless on the witness stand because defense counsel failed to object when he was questioned about lying to the police is denied.
4. defendant’s complaint against judge’s instructions with regard to aggravating factor denied as being without merit;
5. Defendant’s complaint that the FL death penalty sentencing scheme is unconstitutional under Ring v Arizona, 536 U.S. 584 (2002) is denied.

1. He received IAOC at the penalty phase of his trial. Held: Relief denied. Court agreed that defendant’s counsel’s penalty-phase performance was deficient, but defendant failed to show a reasonable probability that absent counsel's errors, he would not have been sentenced to death .
   
2. The State committed a Brady¹ and a Giglio² violation by not revealing that it had given defendant immunity in exchange for his testimony. Held: Relief denied. Court cannot say that the circuit court's decision to discredit Gary's evidentiary hearing testimony was unreasonable or unsupported. Court affirms the circuit court's denial of Brady and Giglio claims.
   
3. He received a constitutionally inadequate mental health evaluation. Held: Relief denied.
   
4. The post-conviction circuit court judge should have granted defendant’s motion to disqualify himself. Held: Relief denied. Motion to disqualify is legally insufficient and the circuit court did not err in refusing to grant the motion.
   
5. Several of his claims were improperly denied by the circuit court without an evidentiary hearing. Held: Relief denied. Motions rejected for being either merely conclusory and/or meritless.
   
6. Defendant’s trial counsel's failure to object to certain jury instructions was ineffective assistance. Held: Relief denied as defendant cannot demonstrate the prejudice required to prevail on an ineffective assistance of counsel claim.
   
7. Defendant is innocent of the death penalty. Held: Relief denied because court found on direct appeal that the evidence supported the existence of three aggravating circumstances.
   
8. Rules that prohibit lawyers from contacting jurors are unconstitutional. Held: Relief denied as claim should have been raised on direct appeal and, therefore, is procedurally barred.
   
9. Death penalty statute is unconstitutional. Held: Relief denied because claim should have been raised on direct appeal and, therefore, is procedurally barred.
   
10. The cumulative effect of the errors at trial deprived defendant of a fair trial. Held: Relief denied.

1. That he received ineffective assistance of counsel on direct appeal. Held: Denied because the court’s opinion on direct appeal indicates that appellate counsel did raise the issue of cumulative error.
   
2. That the Court did not conduct a proper harmless error analysis on remand from the United States Supreme Court. Held: Denied for being without merit and procedurally barred.
   
3. That the instruction for the "heinous, atrocious, or cruel" (HAC) aggravating circumstance was unconstitutionally vague. Held: Denied as evidence was sufficient to support this aggravating facto.
   
4. That he did not receive a proper appeal because the appellate record was incomplete. Held: claim should have been raided on direct appeal and, therefore, is procedurally barred.
   
5. That Florida's capital sentencing statute is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). Held: claim should have been raided on direct appeal and, therefore, is procedurally barred.

¹ Proving that the state did not disclose relevant information/material to the defendant amounts to mounting a Brady defense, Brady v. MD, 373 U.S. 83 (1963).
² Proving that one of the state’s witnesses lied and was known to have lied by the state is called a Grglio violation, Giglio v. US, 405 U.S. 150 (1972).

We have some structure changing in FDRAG. In the future, make sure you know exactly what it is you need/wish/want to express, and direct your letters to the person in question. These addresses will be on the back page of the newsletter as always. The reason for this change is simply that time spent on answering mail far exceeds the time spent on dealing with things that could make a difference. Which after all is the purpose for this group?, so the general answering of FDRAG’s mail is no longer taking place here but at the various addresses provided at the back page. Not much else to report, we have been flooded time and time again here in Starke, the kids who just returned to school returned back to home as the schools were closed for what seemed forever. And as soon as one hurricane had passed through here, well, HERE comes another one, and another and… hopefully it is over now……..To those of you writing to Chris and wondering where he is at, the lucky young man is getting married and have been busy trying to get that together, along with himself and his fiancé and a new house. On top of that we are building our church and Chris is a part of that too. Please be patient with him, he has not forgotten or forsaken you, he is just busy and in love, not only in Jesus but his future wife. He will return full force. …So will FDRAG, once we get ourselves together after the summer and the weather in particular. Shalom….Hannah

PS : Please get your heads out from under your fans and listen to that rude cat of mine… before he shreds my furniture and I have to nail him to the floor. As the observant reader will notice, page 6 has been dedicated to the hurricanes which passed through the great state of Florida during the month of September, substituting for the content you would usually find. Ironically, we in FDRAG have seen ourselves reduced to frankly thanking the Gods for their weather-of-mass-destruction related program activities – you know, the same Gods who only know what possible explanation there might be for your utterly ignoring us and not sending us any examples of the beautiful artwork which usually adorns the pages. You see, if not for the weather, we’d have to leave these pages blank – blank, I tell you!!! Miss Hannah is so distraught that she forgot to feed me for 2 days in a row, and frankly, it’s all your fault. So I was inspired by Dick Cheney, our dearly beloved Vice President, and would like to issue the following statement: It's absolutely essential that within four weeks from today, on or before October 30th, you make the right choice, because if you make the wrong choice then the danger is that the FDRAG newsletter will get hit by deadlines with blank pages again, that it’ll be hit in a way that will be devastating from the standpoint of our many faithful readers*, and that you'll fall back into the pre-the-time-when-you-still-loved-us-and-sent-us-artwork mind-set, if you will, that in fact these blank pages are just sheer laziness and that you are not really in the mood to do your part." *Actually, five. Yours, R. Udeasheck

FLORIDA:…Survivor calls capital punishment 'madness'--He urges people to get involved in the movement to abolish it. 2 numbers have dominated Juan Roberto Melendez Colon's life in the past few decades. The 1st is 8-046466, his inmate number during the nearly 18 years he spent on Florida's death row. The 2nd is 99, his ranking among condemned prisoners nationwide who have been exonerated and released since capital punishment was reinstated in 1973. "When it [his case] first started, I was naive to the law," Melendez said Tuesday about the 1984 arrest that started his journey through the justice system. "I thought when I was done with the process, I would be let go. "I was wrong." Convicted for a murder he insisted he hadn't committed, Melendez sat in a cell for the next 17 years, eight months and one day, while the Florida Supreme Court rejected three appeals. Finally a judge ruled he deserved a new trial and prosecutors decided to drop the case. Since his release from the Florida State Prison on Jan. 3, 2002, Melendez, 53, has traveled the nation to speak out against capital punishment. In Utah this week, Melendez said the system of imposing the death penalty is flawed beyond repair. "Once you are indicted with a grand jury, there is no turning back," Melendez told The Salt Lake Tribune a few hours before he spoke at the S.J. Quinney College of Law at the University of Utah. Judi Caruso, a New Mexico attorney and human rights activist who also spoke at the university, said that Melendez's experience is not unusual. "The death penalty system is error-prone," Caruso said. Melendez, a migrant worker who grew up in Puerto Rico and spoke little English at the time, was convicted of the 1983 murder of Delbert Baker, a cosmetology school owner. He claims prosecutors targeted him after cutting deals with 2 acquaintances, including a now-deceased man believed to be the real killer. After years of being ignored by the courts, a new lawyer took over Melendez's appeals and discovered a cassette tape with incriminating statements by the real killer at the trial attorney's office.

That tape, along with other favorable evidence, was turned over to Judge Barbara Fleisher, who struck down the conviction in December 2001. Fleisher said the prosecutor had withheld crucial evidence that substantiated Melendez's claim of innocence. The state, without acknowledging any wrongdoing, declined to retry the case. "If I would have lost this appeal, I wouldn't have lasted long," Melendez said. He captivated his audience Tuesday night with his dramatic story of being convicted of 1st-degree murder and armed robbery despite having an alibi backed by 4 witnesses. "When they sentenced me to death, my heart got full of hate," Melendez said. "I was scared, very scared, to die for something I didn't do." The hatred and fear accompanied him to his rat- and roach-infested prison cell, he said. He first planned to get into shape so he could fight the guards who one day would come to take him to the death chamber; he also considered suicide. "I'm not walking to that chair," Melendez said. But then he found hope. The condemned men around him, the ones considered monsters by many, taught him to read, write and speak English, he said. He followed the example of many and embraced a faith, in his case, Christianity. Ad he started having dreams of Puerto Rico, a sign that God knew he didn't do it, Melendez said. One month after his conviction was overturned, Melendez walked out of prison to the cheers of his fellow death-row inmates. During his years of incarceration, he said, "I learned how to forgive, how to have compassion for others, how to love." He moved back to Puerto Rico, where he lives with his 74-year-old mother in Manuabo. He also counsels troubled youths who are hired at the plantain field where he works. "The years are gone," Melendez said. "I'm just taking a negative situation and making something positive." He urged his audience to form a coalition in Utah to abolish the death penalty. "We can get rid of this madness," he said.