Sotomayor: Florida death penalty rule ‘Kafkaesque’

Franz_Kafka_1917U.S. Supreme Court Justice Sonia Sotomayor signed off on a recent decision denying a stay of execution for Gary Ray Bowles, a serial killer who targeted gay men, before Bowles was put to death shortly before 11 p.m. Thursday.

But Sotomayor hinted that the state’s rules may need to be revisited.

Here’s an ABA Journal article breaking down Sotomayor’s statement:

U.S. Supreme Court Justice Sonia Sotomayor expressed concern last week about a Florida procedural rule that makes it difficult for death-row inmates to assert claims that their mental disability is a constitutional bar to execution.

Sotomayor called the rule “Kafkaesque” in a statement on cert denial for Gary Ray Bowles, a serial killer who targeted gay men, report Bloomberg Law, the Daytona Beach News-Journal and CNN. Bowles was executed Thursday.

The U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that executions of mentally disabled inmates violate the Eighth Amendment.

In Hall v. Florida in 2016, the U.S. SuprU.eme Court struck down Florida’s bright-line IQ threshold for asserting a mental disability that would exempt inmates from execution. The Florida Supreme Court ruled that same year that the Supreme Court decision applied to prisoners sentenced before the 2016 Supreme Court ruling.

But the Florida Supreme Court has also held that inmates claiming retroactive protection under Hall must have asserted an earlier claim of intellectual disability based on Atkins. Bowles didn’t raise his claim of intellectual disability until 2017, according to an Aug. 13 Florida Supreme Court decision denying his claim.

Sotomayor criticized Florida’s requirement for inmates to have asserted an intellectual disability claim before the Supreme Court overturned Florida’s bright-line IQ rule. Under the rule, Florida did not consider an inmate to be mentally disabled unless he or she had an IQ of 70 or below. Bowles had prior IQ test scores of 74, 80 and 83.

“This Kafkaesque procedural rule is at odds with another Florida rule requiring counsel raising an intellectual-disability claim to have a ‘good faith’ basis to believe that a death-sentenced client is intellectually disabled (presumably under the limited definition of intellectual disability that Florida had then imposed),” Sotomayor said.

Sotomayor also said Florida’s procedural rule “creates grave tension with this court’s guidance in Montgomery v. Louisiana,” a 2016 Supreme Court decision giving retroactive effect to an earlier decision barring mandatory life in prison without parole for juveniles.

Sotomayor said Bowles’ cert petition raised an Eighth Amendment claim but did not address concerns based on Montgomery.

“Because I do not believe that the questions as presented merit this court’s review at this time, I do not disagree with the denial of certiorari,” she said. “In an appropriate case, however, I would be prepared to revisit a challenge to Florida’s procedural rule.”

Law professor: “Nobody” executing Death Row inmate

Chance Meyer, a Nova Southeastern University law professor who previously defended prisoners sentenced to death, penned an op-ed in advance of the execution of Cary Michael Lambrix, scheduled for Oct. 5.

Meyer, an instructor and adjunct professor at Nova’s Shepard Broad College of Law, contends those involved in the execution process — including Gov. Rick Scott — maintain that they are merely following state law in ordering and performing death by lethal injection.

Here’s Meyer’s take on the proces:

Nobody is going to execute Michael Lambrix

On Thursday, October 5, around 6:00 in the evening, in the lethal injection chamber at Florida State Prison in Bradford County, nobody is going to execute Michael Lambrix.

Nobody on the team of corrections officers that performs the lethal injection will be the one who executes Lambrix. Department of Corrections procedures give each officer a discrete task in the overall process, so nobody is responsible for the end result. The tasks are “requisite,” so nobody has to choose whether to perform them. The officers’ identities are “kept strictly confidential,” so nobody has to be anybody.

The officers just follow orders from the warden. And the warden just follows orders from the Governor.

On September 1, Governor Rick Scott sent the warden a death warrant ordering Lambrix executed.

In the warrant, Scott explained that a Florida statute “requires that I set a . . . date for execution . . . .” In other words, he didn’t choose to have Lambrix executed. Nobody did. He just followed orders from the Florida Legislature.

The Legislature passed the statute in 2013, as part of the so-called Timely Justice Act. At that time, legislators explained that their intent for the act was “that capital postconviction proceedings be conducted in accordance with court rules, and that courts strictly adhere to the timeframes . . . established therein.” In other words, the Legislature was not giving new orders. Nobody was. The Legislature was just trying to ensure that everyone would follow court orders.

A court ordered Lambrix executed, but neither the judge that issued the order nor the jurors that voted for the execution are responsible.

Lambrix was sentenced in 1984. His judge made the critical findings necessary to impose the death penalty. Since then, the U.S. Supreme Court has held that only juries, not judges, can make “the critical findings necessary to impose the death penalty.”

In 1984, his jury’s recommended sentence of death was not unanimous. Since then, the Florida Supreme Court has held that a “jury’s recommended sentence of death must be unanimous.”

So nobody made a lawful decision to execute Lambrix.

“[T]umble[ing] down the dizzying rabbit hole of untenable line drawing” is how Justice Lewis of the Florida Supreme Court describes the legal regime that permits defendants like Lambrix to be executed. Nobody understands it.

So, on Thursday, October 5, around 6:00 in the evening, in the lethal injection chamber at Florida State Prison in Bradford County, nobody is going to execute Michael Lambrix.


Death Row inmate launches hunger strike

Florida Death Row inmate Cary Michael Lambrix is going on a hunger strike as a protest for his upcoming execution, set for Oct. 5.

Lambrix was sentenced to death after he was convicted of killing Aleisha Bryant and Clarence Moore in 1983 after escaping from a work-release program.

Gov. Rick Scott ordered Lambrix to be put to death last year, but a series of court rulings overturning Florida’s death sentencing system put the execution on hold. Scott reset Lambrix’s execution date earlier this month.

But Lambrix’s lawyers and supporters say the state lacks evidence that he committed the crimes.

Save Innocents, an organization based in France that provides assistance to prisoners condemned to death, issued a press release this morning announcing Lambrix’s hunger strike.

“I have been forced into a non-win situation in which the vast resources of the State of Florida are being employed to put me to death for a crime I am actually innocent of. I cannot stop anyone from executing me. But I am constitutionally entitled to protest against this injustice by declaring and maintaining a hunger strike as an expression of the free speech without governmental intrusion,” Lambrix is quoted in the release.


According to court documents, Lambrix met Bryant and Moore at a LaBelle bar and invited the pair to his mobile home for a spaghetti dinner. Lambrix went outside with Bryant and Moore individually, then returned to finish the dinner with his girlfriend. Bryant’s and Moore’s bodies were found buried near Lambrix’s trailer. Lambrix was originally scheduled to be executed in 1988, but the Florida Supreme Court issued a stay of that execution. A federal judge lifted the stay in 1992.

UPDATE: Hurricane Irma prompts Death Row lawyer to seek filing delay: “We have families, we have homes.”

LambrixUPDATE: Siding with lawyers for the condemned killer, the Florida Supreme Court extended the deadlines for appeals and other briefs for a week, due to Hurricane Irma.

Hurricane Irma has prompted lawyers for Cary Michael Lambrix to ask the Florida Supreme Court to postpone filing deadlines for appeals, imposed after Gov. Rick Scott set an Oct. 4 execution date for the convicted killer.

Lambrix, who’s spent more than 33 years on Florida’s Death Row, was slated to die by lethal injection last year, but the court put his execution hold after the U.S. Supreme Court, in a case known as Hurst v. Florida, overturned the state’s death penalty sentencing system.

In a motion filed this morning with the state Supreme Court, Lambrix’s lawyer Marty McClain requested an extension of next week’s deadlines. The court established the schedule Friday, after Scott signed a new death warrant for Lambrix.

McClain and his colleagues, who are located in Broward County, are preparing for Hurricane Irma and may have to evacuate, the lawyers wrote.

In his motion, McClain quoted Gov. Rick Scott, who on Thursday called Irma “an incredibly dangerous storm,” and warned that “I think right now, everybody has to assume you’re going to get impacted.”

Lambrix’s entire litigation team is in the path of the “potentially catastrophic storm” and has to put aside work on his case while preparing for the hurricane, according to McClain.

“We have families, we have homes, and we have to prepare as Governor Scott directed,” he wrote.

As of Friday morning, projections showed Irma “scraping the coast of Florida” which could bring a “huge storm surge” and “massive flooding” to Broward, McClain pointed out.

“This is as scary as it gets for those who are supposed to be focused on representing Mr. Lambrix pursuant to this court’s scheduling order,” he wrote.

“Quite frankly in these circumstances, Mr. Lambrix is without representation because those assigned to his case have simply had to turn their attention to saving their families, themselves and their property as best they can,” McClain argued.

But, Irma or no Irma, the state isn’t willing to give McClain and his team more time.

Senior Assistant Attorney General Scott Browne urged the Florida Supreme Court — which ordered all courts to be closed on Friday, due to the hurricane — to turn down the request.

The state’s lawyers “are sympathetic to the plight of Lambrix’s attorneys and anyone else in the potential path of Hurricane Irma,” Browne wrote.

But, he added, “The hurricane has not yet had any impact upon Florida’s weather and its impact may be days away.”

Browne noted that Lambrix’s legal team can “phone into” case management conference and file pleadings electronically, and that it’s “unlikely” the defense lawyers will have to travel to make any court appearances next week.

Lambrix was convicted of the 1983 murders of Aleisha Bryant and Clarence Moore in Glades County. According to court documents, Lambrix met the couple at a LaBelle bar and invited them to his mobile home for a spaghetti dinner.

Lambrix went outside with Bryant and Moore individually, then returned to finish the dinner with his girlfriend. Bryant’s and Moore’s bodies were found buried near Lambrix’s trailer.

Lambrix was originally scheduled to be executed in 1988, but the Florida Supreme Court issued a stay of that execution. A federal judge lifted the stay in 1992.

We’ll update if the court issues a ruling regarding the scheduling order.

Prisoner slated to die today: “I never intended to murder him”


Mark James Asay, who’s spent nearly three decades on Death Row, is slated to die by lethal injection later today, in Florida’s first execution in more than a year and a half.

Asay, portrayed as a white supremacist by the prosecution, was convicted in 1988 of shooting deaths of Robert Booker, who was black, and Robert McDowell.

In a lengthy interview with News4Jax anchor Tom Wills, Asay — who would be the first white man executed for killing a black victim — admitted to killing McDowell but maintained his innocence regarding the murder of Booker.

Asay told Wills he was very drunk when he shot McDowell in downtown Jacksonville.

“That just happened as I was having a meltdown apparently. That’s all I can say. I knew Robert McDowell as Rene. I had previous encounters with him, and we were sociable, and he did take money from me one time. I had said, in my mind, ‘When I see him, I’m going to kick his ass.’ But I never intended to murder him. It just happened,” Asay said.

Asay will be the first Florida Death Row inmate executed with an untested lethal injection protocol that’s been the focus of a tangled legal battle.

Asay also denied being a white supremacist, despite having tattoos that indicate otherwise.

Asay said he got the tattoos while locked up in Texas.

“I was 19 years old, forced to survive in a hostile prison environment, and I got these tattoos in that environment so that I could blend in so that I could be safe in that environment. They are not representative at all of who I am, but they are tattoos, and they’re not easily removed. They’re easy to put on but they’re not easy to remove, and so I’ve had to live with them. I have covered them up. I had a swastika on my elbow; I covered that up. I had an SWP on my arm; I burned it off. I’ve removed every racial tattoo I had, except for the ones that I can’t reach,” he said.

When asked if he was a white supremacist, Asay was adamant.

“Never have been. I’ve had African-American friends all my life. But I’ve had to live in very hostile environments, and I’ve had to manage the best I could. While it’s a poor choice, it’s a choice I made, and I can’t undo it,” he said.

RIP: Death penalty defense doyenne Scharlette Holdman,”Mistress of Delay”

The New York Times’ eloquent obituary of Scharlette Holdman, a non-lawyer who was a “force for the defense on Death Row,” featured a few words about Ms. Holdman’s role in Florida death penalty history.

Holdman, who died at age 70 on July 12, “was a revered figure, a nonlawyer who taught her peers how to persuade jurors and prosecutors to spare the lives of men and women convicted of heinous crimes,” Maurice Chammah wrote in the Times piece published Saturday.

After the death penalty was reinstated in the 1970s, Holdman went to work for the Florida Clearinghouse on Criminal Justice in Tallahassee, “where she tried to find lawyers for convicts as their execution dates approached,” Chammah wrote.

“She was like a medic performing triage at a train wreck,” Chammah quotes from David Von Drehle’s profile of Holdman, included in his book “Among the Lowest of the Dead: The Culture of Death Row. “The first job was to determine who was closest to dying.”

Read more from the Times here.