Hitchcock v. Florida, No. SC03-2203

CRIMINAL LAW & PROCEDURE, EVIDENCE, HABEAS CORPUS, PER CURIAM, SENTENCING

Hitchcock v. Florida, No. SC03-2203
Denial of a motion to vacate a first degree murder conviction and a sentence of death is affirmed, and a petition for habeas corpus is denied, over claims of error regarding: 1) ineffective assistance of counsel; 2) destruction of exculpatory evidence by the state; 3) newly discovered evidence; 4) the state's failure to disclose deficiencies of the hair analyst and then knowingly presenting incompetent and false testimony; 5) defendant's failure to be present at a bench conference where peremptory challenges were exercised; and 6) a failure of counsel to properly investigate and present statutory mitigating circumstances. Read more...

http://caselaw.lp.findlaw.com/data2/floridastatecases/5_2008/sc03-2203.pdf

an update

James is still waiting for an opinion, so nothing is new in his case or his situation.

Britta

An update on my case and a thank you to all of you outside there

Thought I would check in and update you on life and case. I hope this finds all of you enjoying life !

To begin - the state court judge turned down my request for relief on the 3.850 hearing as expected. Again his decision was an error filled joke. Not even a pretence at fairness. Almost as if the prosecutor wrote the decision.

As I told you before, state judges at that level are elected to office. Though they pretend its based on law. Their decisions are based on votes !

But he did me a favor with his error filled decision. Plus two slurs at the Florida Supreme Court in one page mandate he sent back for directions, saying he did not understand it, nor what was supposed to be done.

Actually the mandate was simplicity ! I understood it, and I am only of average intelligence *smile*

The order simply said, the judge was to hold a hearing on all innocence issuses from the 1977 trial, plus all the new evidence of innocence, and whatever else I chose to add to substantiate these issuses. The hearing was be held within 180 days and rule on the merits of each issue and return the case to the Florida Supreme Court. Simple isn't it ?

But I have found that, when an order is sent back down to a lower court that goes against the state and judge. They either get temporary amnesia or become deaf and dumb…over night. It is a mysterious ailment that only clears up after they render one unconscious with their decision. And the case is then passed back to the Florida Supreme Court to sort out, hopefully recognize that ailment and make an appropriate decision. This ailment is only beneficial in that it helps the state judge and prosecutor not to give any good decisions, thereby not angering voters or the good old boy network. Ok ! Enough sarcasm ! *smile* But you have to look at these decisions with a sense of humor.

The decision began with the judge saying, he believed what the three witnesses I called said and thereby denied my issue of ineffective assistance of counsel from 1977.
Sounds simple ! Except I did not call these witnesses, the state called them to testify against me. Anyway, you get the idea with what I’ve already told you. So I will not belabor the point.

So now I will soon file the brief with Florida Supreme Court, where I believe my conviction will finally be overturned. I should get a decision sometime early next year. So, no real surprises and I am ok. I can not be disappointed when what I believed would occur did.
And to be honest, I will be ok. Regardless. I made up my mind long ago – to make the best of whatever comes ! Not to allow – bad decisions by a messed up system nor this prison change or rearrange me. Not my mood nor who I am !

I came back to death row just before Christmas. Settled back in on a good floor. On the good side, early this year, another man walked out the front gate – free, the court saying there was never sufficient evidence to convict him. Another may go free any day.

Also two new rulings by the U.S. Supreme Court were just handed down, both a blow to the death penalty. “Hill vs. McDonough” saying death row inmates could pursue challenges against the method of executions. Here in Florida that means the drugs used in lethal injection. It has been proven that the drugs used cause pain and have been forbidden to use to put animals to sleep. In California also doctors refused to participate in taking a life. It goes against the oath they take to save lives, which should be applauded. Anyway, the issue can now be raised.

In “House vs. Bell” more doors are opened for us to raise innocence issues in Federal court. I’m sure it will be filter down to lower courts as well.

In a separate situation the Florida Supreme Court sent an advisory report to the Florida legislature, to change part of the capital punishment law, to bring Florida courts in line with recent rulings. That would make it so it would take an unanimous decision – jury vote of 12-0 to give a death sentence and it mandate that the judge follows the jury vote ! So only a jury decides if a person gets the death sentence. A couple of legislators tried to introduce such a bill, but not enough lawmakers backed the motion – bill. So, they snubbed the Florida Supreme Court's advice. This advisory letter was authored by Jeb Bush, Governor and Judge Cantero.
After these 2 latest decisions Jeb Bush was interviewed. He said pretty much - that the death penalty was irrelevant. Men on death row lived out life sentences there. If he realizes the irrelevancy of the death penalty why doesn’t he just end it and the frustrations of it all ?

What he says is true. Guys do live out life sentences on death row, their whole life. One died recently, age and disease. He had been here over 20 years. It made me look around and notice that many of the men I’ve know a long time had grown old. And I just turned 50. Strange, I remember being young when I came here. I was referred to as the young buck, at age 20 now I’m one of the old guys. How the hell did that happen ? *smile* But seriously, I know only too well, time stands still for no one.

However the death penalty is under siege. By the court system and by the groups outside – who have and are educating people all over the world. They have opened eyes which were closed till you guys showed then a flawed system. The way courts rule has a lot to do with the view the public has on issues !

Though victories are being won – one by one, there’s still much to do ! Because, there are still those, who refuse change. They cling to outdated ideas and use them to boost their political careers. A time will come when the death penalty is history. It's archaic and draconian and belongs in the dark ages !

You know when I began to write this Average Joe piece – without a name – it was so all could focus on the issue not one person, to maybe shed some light on life on death row. I wanted to share some thoughts and ideas and an appreciation for those of you outside who fight the good fight. It is the first time I’ve attempted to write in such a way, so I had no idea exactly what to write.

I have asked myself if I’m qualified to do it. The answer is probably not ! *smile* But, sometimes there is a need, and a job falls into the hands of someone who is not really qualified to do it, an Average Joe – who does not have any experience, does not know where to begin, not the most intelligent who deals with a subject that’s so huge.

It seemed impossible that I might be able to make a difference at all, but I think, that maybe that’s the way most of us feel at first. So, I decided I would just do the best I could, do my little part. If enough of us Average Joes and James or whatever name you choose does just their little parts it will make a difference.

There are many little parts we play that add up and finds us all working together. It's not such an impossible job nor a high hill to climb. You do not need to be the most able, most intelligent. You just take the job that falls in to your hands and do the best you can. You know what ? That is how most things get done.

And on an average day – anything is possible ! *smile* Just some thoughts to share. And if anyone has any questions for me feel free to write and ask. If I can answer them I will. If I can not – I will say so and why I can not.

I can tell you this – I write because you guys inspire me. The work you do, because you do not have to do it, you choose to do it. There’s a difference there I recognize it !

Stay strong and make life what you choose it to be

Sincerely
Average Joe

Some thoughts about this and that

Hey Guys, I´m back at U.C.I. while jail was a riot and a real head trip, time here is easier done. Its kind of a trade off. There I had this really great view. People always coming and going - the phone. Good canteen.

But, absolutely no privacy. Here I do. And you know we all need time to be alone. Out of sight. I´m around friends. If I choose to talk, I can. Got my T.V. A cold soda or two once a week - when I can afford !
I have a weakness for Coke Cola :)

And I will not miss the mental patients I was about at jail - with all their noise and bad smells !

As I write this, I´m still awaiting the states court´s decision. Which I do not expect to be in my favor. Oh, we showed more than enough testimony and errors to overturn my case. But, state judges are elected to office. I believe he will be more concerned with reelection than doing whats right. It ´s strange, isn´t it ? That a case would be decided on whether a man is innocent or guilty. But, that`s true reality. So I expect nothing there. However I do believe once it goes to Florida Supreme Court for review. I will get my case overturned. They do not have to worry about being reelected. So, can render a good - or fair decision.

Anyway, the two months at jail was a good break from routine and we got some good legal work done. Now we wait and see if it all pays off. This of course is just an update of where I am at.

On the other topics; as you may know two warrants were signed in Florida. Both got stays in the US Supreme Court, which holds all executions till that decision is reached. The issue - whether the drugs used to execute people are cruel and unusual punishment. I was surprised they accepted the issue. But glad it saved two lives - maybe more, for awhile longer. And as the saying goes: while still alive there is hope.

There is another issue which was heard recently, whether or not the length of time a man is held on death row - before execution - is cruel and unusual punishment. The justices said no. If a person wished they could have always dropped their appeals and been executed sooner ! Or that´s what it all comes down to. They did not mention - why - or how a person who is not guilty - would even consider such a stupid idea. In fact the whole ruling was stupid. To me that´s the same as saying - if a person outside has a bad life - and does not wish to grow old in such circumstances - go ahead and commit suicide. Yet suicide is illegal.

You would or should expect - from 9 highly educated men and women something more philosopical or enlighting. But then, what could they have said and still said no. That would of been an itelligent response. Not, not all the justices said nor ruled that way. Only the hard liners. Right wingers. But, this is what I´ve told people for many years. If Republican presidents got to appoint the majority of the US Supreme Court would be. They have done it now. And filled the federal appeals courts with their appointments also. I think we will now see much more harsh decisions. It makes it much harder to receive justice unless you are rich or influential - or a politican. Thats always been true though.

Now, as for Coleman in Virginia. His DNA tests came back positive. I´ve read and heard many say it´s blow to death penalty opponents. Not that much ! I don´t think so anyway. One bad test...when hundreds have been freed by DNA. Of course the state and pro death penalty people will use it to well see. But, its just one test. There are many that came back negative. Two weeks ago a man in Florida was cleared by DNA after 25 years in prison. So, don´t let one bad test get you down. Its just a matter of time before one test will show some innocent person was executed. I have absolutely no doubts its true. And whether an innocent man is executed or just lost 10 - 20 - 30 years of his life. It´s the same to me. You can´t give a 50 year old man back 25 - 30 years of their life. And how much has a person lost in that many years: a chance at a career, a family, travel, just living those lost years would and could of been. I mean isn´t that bad enough ? ! And on the reverse side. Living those years in prison.

And here´s the kicker ! When a person who´s had that much of their life stolen the state and politicians say, oh well too bad, but, we still don´t think you deserve any compensation or if compensated at all - it´s not much. No one is held responsible. No one pays for such crimes as false conviction and imprisonment. More or less the person is set free and told - deal with it.

To me, it says a lot more. It says there is something wrong with society itself and the system. If I were outside, just an average citizen and I read and saw this happen it would piss me off. I would want to know why ! I would want to know how this could happen to a person. I would want to know who was responsible ! And why this person was not at the very least compensated fairly. Then, I would want whatever part of the system that allows these things to happen - changed ! I think most of you guys understand this ! Maybe its part of why you guys fight - to change things. Question is why arent there more out side seeing this. Or do they see it and just say - not my problem ?

Anyway, just some thoughts to share with you. And a thought I´ve had for some time now. That being, maybe what´s needed is for groups to unite. To link up through the internets - via phone - whatever way. And speak with one very loud voice !

I know it could be difficult. But think on it. A few people make a difference - imagine if you had a few million voices at once ! As I said consider it there are among you - minds better than mine, to perhaps find a way to make such a thing possible.

Anyway, do not allow one setback to discourage you. That´s all it is in reality. Just one ! Its not the end of the story, not even a major scene ! Don´t allow the pro death penalty people make you think over wise. They tend to use whatever excuse they can to justify - injustice !

Its a long hard struggle. We´ll win some - lose some. But, in the end we will win the only victory which counts. The end of executions ! And thats what it´s all about.

Take care of yourselves and others when you can !
Till later
Sincerely
Average Joe !

Greetings from Average Joe

Hey Guys,
here I sit - not on death row for the time being, rather at the Orange Country Jail. Back for a court hearing. One to hopefully get my sentence thrown out and maybe win freedom.

I say maybe, because you never know with the courts or the political climate. But, still I have the chance. Which is surprising after 29 years, or amazing. To be seen though !

The jail is a fish bowl type of jail. Round, plexi glass across the front and back of each cell. You can see all the way across the floor. Every cell. So suffice to say - there is no privacy. Add to that cameras everywhere. Yet, now that I´ve been here for a month, I ignore them - go with my life each day. Unlike at UCI.

I have an incredible view. I´m on the 5th floor - overlooking the parking lot and roads - where visitors come and go ! Busy every day. And when it rains or storms I can watch the rain comming from a mile away. Clouds nearby. Lightening - right in front of my eyes. Birds gliding and landing on the roof in front of me. Life going on. Makes me want to be a part of it ! I´m smiling as I say that. Its so close ! Freedom just outside my window. Grrrrrowllll !

I´m in an 8 man pod. Locked in my cell all day - except for the use of phone or shower. And no one to talk to ! Rest of the pod is inhabited by mental patients. Oh I´ve tried a couple of times while out for the phone. One guy asks, don´t I know you ? I ask where from ? He says, last week at the Miami Dolphins football game. Row 10 ! I looked - felt odd for a second. Cause it was so rediculous. But the guy had this hopeful look on his face. Almost as if - if I remember these things I am ok. Right. I thought for a second and smiled. Said yeah. Hell of a game wasn´t it. He smiled so big. Seemed relieved or grateful. Saying yeah - yeah - sure was.

The second one called me a queer for 2 weeks each time I was out of my cell. He called everyone that. Finally I talked to him and he changed. Even apologized for calling me a queer ect. He was just angry ! He was arrested for a crap charge. Trespassing at a train or bus station. He had a ticket ect. So as of today he´s been locked up for 26 days. Turned out to a pretty cool guy. They have him taking Lithium and Haldol. Psychotrophics.
He´ll be free soon. I gave him my website address.

So, Brian, if you`re reading this...Hey, hope you`re eating pizza and enjoying life again !

But I see others in pods across the way. One naked 24-7- dances and plays with himself. Others just sleep. A couple are angry, beat and bang. It´s sad really. But, what can be done ? They actually treat them fairly decent - for a jail. Most will cycle over to the mental hospital. Some back on the street. No where to go. They will recycle through jails and shelters - maybe end up at the mental ward - or worse. It´s so much different than death row. Yet still prison. Court, cat and mouse. We present one side. The state tries to make it seem harmless. Even though they know it´s not. But, my case - jail - is not why I choose to write at this time. That´s just an update on my life at present.

No, the real reason is I heard on my walkman radio this morning that North Carolina would or maybe executing the 1,000th person on Dec. 2nd. since the death penalty was reinstated in 1976. It wasn´t significant as a man would be executed. The only significance was that he would be No. 1,000.

I thought - a thousand - really ? I keep up pretty well with death penalty related issues. But if someone had asked me how many had been executed since 1976, I would not have known. Nor would I have guessed so many. You just do not hear about executions anymore - unless its some serial killer or someone that had really good issues and still was put to death.

And it takes me back to when I was 22 years old. When I did my only newspaper interview. The debate then was which would be better: the electric chair or lethal injection.

The reporter asked me that question. I said it doesn´t matter how you are killed - the method - dead is dead. You will not wake up later and say - wow that electric chair hurt, wish it had been lethal injection. I added lethal injection would only make it easier to accept the death penalty as more humane. And make it easier on those who hand out and administer it. And that it would become acceptable - that executions would become mundane. Not news worthy. And look where we are now. 1,000 deaths - and you do not even hear about them on the news. So many - its just not news worthy.

Oh, when the article came out all it said for what I said was - Hitchcock said it didn´t matter or he didn´t care which. The rest was just tossed out. And no, I was not that smart at 22 - nor prophetic. I had just discussed it with many others before hand. And what I said was what I spoke with thoughtout and had been agreed on.

But, it was true ! And the fact that the 1,000th death was a surprise to me. Reminded me I must be more aware also. Not allow things to become so mundane that I forget to notice too !

Did that number surprise any of you also ? You have done a lot of good, guys ! You have made a difference. It could have been the 5,000th if not for your voices raised in opposition. Oh believe me, if it were not for you guys out there who oppose and fight for a better system, it would be. They would be executing 2 or 3 every day ! So take heart in the fact that a thousand in 30 years is alot but, it could be so many more ! And those who have been freed would not have been !

So what now ? Well simple. We fight till that number - or the number that are executed - becomes smaller and smaller. Till there are none !! Till one morning those who are for executions and make them happen hear on the radio or T.V. that the number of executions is down to zero ! And it catches them by surprise. Or there´s just not enough people who are for the death penalty for there to be one !

Anyway, just an update for now. And to share an eye opener ! Speaking of which, for those who do not receive it yet, email for the newsletter "Legal in USA". They update a list of all the upcoming executions and - show the recent court rulings - and news bits from each state!
Email: Legalinusa1@aol.com

You guys take care of yourselves and each other ! I´ll tell you how this court thing goes - when I know !

Till later as ever
Average Joe

State Executions

After I wrote my first article last year www.axisoflogic.com/cgi-bin/exec/view.pl?archive=84&num=14577
Average Joe and some others of my friends asked me to write again.

So here we are:
www.axisoflogic.com/artman/publish/article_19664.shtml

Britta