Don’t kill man on nitpicky technicality

The people of Florida are preparing to execute a man who would be nowhere near Death Row had he been tried under present law. Michael Lambrix will be killed tomorrow unless the federal courts intervene.

Florida governors have the power, with consent of the Cabinet, to commute death sentences to life in prison. None have done so since Bob Graham did in 1983. It’s as if the courts are infallible.

If ever there was a time for a governor to halt a miscarriage of justice, it is now. If ever the Supreme Court owed a duty to fundamental fairness, it is now.

Lambrix, 57, is one of 164 prisoners fated to die because their sentences were considered final before an arbitrary date chosen by the Florida Supreme Court: June 24, 2002. That’s when the U.S. Supreme Court’s decision in an Arizona case foretold that Florida’s death law would also be held unconstitutional for allowing a judge rather than a jury to decide what facts warrant execution.

“The Sixth Amendment,” wrote Justice Sonya Sottomayor in the 2016 decision of Hurst v. Florida, “requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”

As a result, some 160 other prisoners, whose convictions and first round of appeals were considered final after the 2002 date, have been ruled eligible for case-bycase consideration of new sentencing hearings. The others were out of luck.

The Glades County jury that convicted Lambrix of two murders 33 years ago did not recommend death unanimously, as Florida now requires because of the 2016 U.S. Supreme Court decision. The vote was 9-3 in one case and 8-4 in the other.

Evidence of intent relied on a former girlfriend who confessed to having had a sexual affair with a state attorney’s investigator while the case was in progress, and who did not witness the killings. Lambrix’s version of the events, a claim of innocence, is beside the point for now. The immediate and urgent concern is that he will die under circumstances indistinguishable from those that have given so many other Death Row inmates the chance to live out their lives in prison.

The U.S. Supreme Court is partly responsible for this travesty. When it struck down the Florida law under which Lambrix had been sentenced — the case is Hurst v. Florida — it left it to the state’s courts to decide whether other flawed sentences could be upheld on the grounds of “harmless error.”

It’s hard to conceive that a jury’s split decision — or a jury’s inability to report the aggravating factors needed to justify a death sentence — could be dismissed as “harmless error.” But because the old law didn’t require jury unanimity or specificity, that’s the state’s position.

Because of the Florida Supreme Court’s bizarre fixation on the date of the high court’s first ruling, one prisoner, Mark James Asay, has already been put to death. Dissenting in his case, Justice James E.C. Perrry, about to retire, called the arbitrary distinction unconstitutional and said the entire Florida death process remains “biased and discriminatory … even today.”

Asay had refused to let his lawyers appeal the sentence. “He couldn’t face life on Death Row any longer,” one of his attorneys said. Lambrix is a fighter, though. At the least, the U.S. Supreme Court should stay his execution while it ponders the mess Florida has made. Gov. Rick Scott, meanwhile, has a moral obligation to commute Lambrix’s sentence or explain why he will not.

Lamentably, the entire clemency process is exempt from Florida’s Sunshine Law.

Lambrix last had a hearing, a cursory one held by a parole officer, before Gov. Bob Martinez signed his first death warrant in 1987.

In 2014, N. Adam Tebrugge, a Bradenton attorney, submitted another petition. It was well supported, well documented and, to most reasonable people, compelling. But there was no new hearing. Scott gave his answer by signing another death warrant.

There is a new petition before Scott, filed pro bono by Miami attorney Roseanne Eckert. It asks the governor to “give serious consideration” to commuting his sentence given the recent Hurst decision and the arbitrary cut-off date subsequently created.

Today, she said, a jury “would hear an incredible redemption story, admissible as model prisoner evidence.” Lambrix, an honorably discharged veteran with a disability, “is an accomplished writer whose essays demonstrate growth and compassion.”

Pictures of Lambrix and of his writings are scheduled to be displayed next year at the Oslo Peace Center in Norway in a photographic exhibit entitled “Noble is Man.”

Florida would have to explain to an unforgiving world why it executed him on an arbitrary technicality.

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Elana Simms, Andy Reid, Deborah Ramirez and Editor-in-Chief Howard Saltz.