Tuesday, June 28, 2005

June 22, 2005

Dear Sis~

I've been schlepping along, working my way through my first draft of my certiorari petition. I've written about half of it (I figure it'll end up being around 25 typed pages) but now I've had to pause to read a big stack of cases. These are mostly US Supreme Court cases, and all of them are capital cases. Some I've read before, years ago, but now I have to really analyze them, picking out and writing down the specific quotes & holdings & legal analysis that supports the particular points I'm arguing to the Court. It's tedious work but made easier by my recognition of what's at stake for me with this, my last legal hurrah...

Earlier today I was taking a break, just sort of daydreaming, when it occurred to me that your birthday is just a few weeks away. And, I'll be 51 two months after that. It's still hard for me to think of myself as 50 years old, 'cuz although I've lived/endured enough for 3 lifetimes, I just don't feel 50. I live by that well-worn cliche that age is just a number, and I remain young at heart. And thankfully I've been blessed with a healthy & strong body. Anyway, as I reflected on the passage of time, I had to smile as I recalled myself as a young man. At age 20, like most of us, I was full of myself, certain that I was wise, mature & smarter than your average bear...Then, when I hit 30, I realized just how little I'd really known about life. Still, at 30, I figured, "Well, now I'm pretty mature and worldly-wise"... Then I turned 40, and once again I realized how much I'd learned in the previous 10 years ... And, of course, when I hit the half-century mark I understand how far I'd come in the last 10 years. The bottom line is that each of us is a work in progress & we never stop growing, learning & evolving. The worst thing, in my opinion, is to become self-satisfied and complacent, thinking we've learned as much as we can, thinking we already know it all. I'm not the same person I was 10 years ago, and hopefully (assuming I haven't ditched my skin suit by then) I won't be the same person 10 years from now. In the interim I just try to squeeze the most out of every day (who among us isn't possessed of the nagging feeling that we daily live less fully than we are capable of? Certainly, being on death row, you feel that imperative pressing against you more acutely than the average person does).

Rob is still schdeuled to be executed on July 11th, just 19 days from now. And the moment he breathes his last breath & his spirit flys away, not a single citizen of the Commonwealth of Virginia will be any better off. Nothing will be gained, nothing improved, by this deliberate taking of a human life. Rather, in my opinion, everyone will be diminished; each execution is a denial of the potential for change & goodness in every soul, and becomes another black mark against us as a nation...

That's it for now, Sis. Keep smiling and give the dogs a hug for me.

Love & Peace,

Monday, June 20, 2005

June 16, 2005

Dear Sis

We are on full lockdown, and have been since four days ago. This is a regular "quarterly lockdown" which usually lasts 14-18 days, during which the entire prison is locked down while a large "shakedown crew" of 20-30 guards goes from building to building, cellblock to cellblock, to search every cell, every office, every shop, area and/or room. In my 30+ years in prison this is the only joint I've ever seen that has regular, consistent, easily-timed mass shakedowns. They come every 90 days, regular as clockwork, to utilize an overused cliche, so everyone knows they're coming. From a security standpoint this is very poorly thought out. I mean, you know when they're coming, so you can hide your contraband ahead of time. Then, when they're gone, you know you're good to go for another 90 days. Some bureaucrat thought up this brilliant plan, you can believe that...Anyway, with no "yard" to go to I have even more time to work on my certiorari petition. I'll have 90 days to file it in the US Supreme Court, once the Florida Supreme Court (predictably) denies my motion for rehearing. That will occur in another 4-5 weeks, which means the cert will be due roughly in mid October. I intend to have my draft written and in my lawyer's hands even before our rehearing is denied, which will give us that 90 day grace period to edit/polish it, and to run it by a couple of constitutional & death penalty expert attorneys we know...As I told you in an earlier letter, Robin Lovitt is scheduled to be executed July 11th and when you're scheduled to die in this state (commonwealth, actually), well you die. None of that TV or movie bullshit here, no dramatic last minute stays - not in Virginia. Once they take you to Greensville, where the execution chamber is, which occurs 4 days prior to execution, you don't come back. This state is dead serious about the business of killing! When I was at Florida State Prison it was relatively common for some court (either state or federal) to grant a stay of execution even up to just one or two hours prior to death. But in my almost 6 years here I've only seen 3 guys go to Greensville and then come back, and 2 of them were executed shortly thereafter. The other guy, who murdered six people, got off the row and is now in open population somewhere. And, the few times that guys do get stays of execution, the stay invariably comes from a federal court, never the Virginia Supreme Court. This Supreme Court seems to pride itself on never giving any death row prisoners any legal relief, no matter how meritorious their claims may be. Things (errors) that would get you a new trial (or resentencing) in every other state in the nation (even in Texas!) get the stamp of approval by the Virginia Supreme Court. At any rate, Rob's fate is up to the US Supreme Court, and they've got about 25 days to decide whether they'll let Rob live or die. To them, Rob is just a faceless case, a name; but when you've been around someone for 5 years, every day, all day, when you've laughed with them, played chess with them, talked with their visitors, when you've seen their essential humanity (notwithstanding the grievous nature of all of our offenses), you understand at the most rudimentary, primal level that the State is going to cold-bloodedly kill a living, breathing human being...Oh, Rob does have one other possible avenue of relief. The governor has ordered a review of the results of the Virginia Crime Lab's results from DNA testing in 150+ criminal cases because it's been established that the Lab fabricated DNA evidence against Earl Washington, an ex-death row prisoner who has since been totally exonerated (I briefly wrote about Earl's case in my essay titled My Turn). Rob's case is supposed to be at the top of the list, but the Commission has stated that they won't even begin reviewing cases until the end of next month, by which time Rob will be dead, absent some intervention. Moreover, as you know, all of the evidence in Rob's case has been destroyed, so it's unclear how this is going to play out. This (DNA testing) is not in the realm of the courts, so the only way Rob can or will get a stay based upon that is if the Governor intervenes. In Virginia, you don't want your life depending upon executive grace... OK Sis, I'm outta here; it's past midnight & I'm gonna hit the hay. I suspect the shakedown crew will be here in the morning, tearing up our cells.

Love & Peace,

Thursday, June 09, 2005

June 5, 2005

Dear Sis,

I just learned that Rob Lovitt's death warrant has been signed and his execution date is set for July 11th. You may recall that in an earlier letter I told you a little bit about him and his case; he's the guy who is now represented by Kenneth Starr. His main appellate issue was (and remains) the fact that immediately following his trial the clerk, in direct violation of a specific Virginia law, destroyed all of the evidence in his case. I told you then that Rob's death warrant would be signed soon, and now it has been. Unless the U.S. Supreme Court grants his certiorari petition and agrees to review his case, he will be put to death in five weeks. The State's machinery of death here in Virginia is relentless and implacable, and is very rarely deterred. It's almost impossible to win an appeal in this state, or in Federal Court within the Fourth Circuit, no matter how meritorious your legal issues are. This is the most conservative state, legal-wise, and lies within the most conservative Federal appellate court jurisdiction, in the nation. In this state of Virginia the state (i.e., the prosecution and police) is always right...

Last week I saw the move The Aviator, the biopic about Howard Hughes. The quality of the movie-production values, photography, etc., - was excellent, as was the acting and story line. Ever since I was very young I'd always admired Howard Hughes; not because he was rich, but because he was a true pioneer of aviation (you know how much I love anything associated with aviation) and he was such an innovative thinker. Hughes always thought outside the box, and he dared to not only put his money where he mouth was, but to risk his life, literally, to prove his beliefs. Most people remember Hughes as some crazy wild man who was rich as Croesus, a man consumed by his bizarre, idiosyncratic behavior, but he was, in the 1920's, 30's and 40's, a brilliant aeronautical designer and a fearless pilot. He was a man ahead of his time and his peers...Speaking of movies, just last night NBC showed Bambi which, to my knowledge, has never been shown on TV. Well, it must have struck a nostalgic chord in me 'cuz I actually watched it. I don't know if you recall when Dad took you and me to a movie theatre to watch it? I was probably 4 or 5, so I guess it would have been 1958 or '59. I still recall how stunned I was when the hunter shot and killed Bambi's mother. There I was, all happy and grinning as the movie infolded, than, wham! out of nowhere it turns dark and sinister as the unseen but ruthless hunter kills Bambi's mom. It made me cry at the time. Of course, as an adult, I now understand how that resonated with me since our own mother had just died, and I was struggling to come to grips with the fact that I had no mother. Anyway, as I watched it again last night, after not seeing it for 45 years, I was struck by how lush and beautiful the animation was. Those artists were real craftsmen, and even today their work stands the test of time, being equal or superior to, whatever you see today (notwithstanding all of the computer assistance). Of course, back then every single frame, every cell (thousands and thousands of them) were meticulously hand-drawn and painted...I've gotta get back to work on my case, sis. Our motion for rehearing has been filed; they're almost always a waste of time, but it gives me another month of delay, breathing room to refine my certiorari issue(s). I feel much more confident now about the strength of my issues than I did on the day my appeal was denied. Having studied that opinion at length, and having researched and read a ream of relevant U.S. Supreme Court decisions in that area of the law, I now know precisely how to frame my issues and I feel much better about the merits of those claims. Whether the U.S. Supreme Court accepts review is a different matter. They have their own agenda and criteria in picking the cases they want to review. You can have the greatest issue in the world, but if it doesn't fit in with what the Supreme Court is looking for, it won't get heard. The Court only accepts 80-110 cases per year, out of 15,000+ certiorari petitions filed, so you can do the math yourself.

That's it from Virginia. Keep smiling & wear your helmet when you ride!

Love & Peace,

Saturday, June 04, 2005

May 29, 2005

Dear Sis:

Last week, in a 6-1 decision, the Florida Supreme Court denied my appeal and affirmed my death sentence once again. Although the denial itself was disappointing and surprising, given the facts and the legal issue involved, it was the Court's basis for their decision (or lack thereof) which is astounding. Just to recap, you know that I was sentenced to death by a jury and judge that had been misled to believe (by the prosecutor) that I was the triggerman. On my direct appeal the Florida Supreme Court, in 1990, found that there was insufficient evidence to sustain a finding that I was the triggerman, and insufficient evidence that the homicide was premeditated. The Court went on to find that there was sufficient evidence to sustain a conviction for felony murder, and then, addressing my death sentence held that, even though I wasn't the triggerman, my death sentence could be upheld under the proportionality analysis mandated by Tison v. Arizona. What the Court failed to do was to consider how the jury's and judge's erroneous reliance upon the "fact" that I was the triggerman impacted upon, or affected their decision to sentence me to death. In legal jargon this is called a "jury taint" where a jury's death recommendation is "tainted" by their reliance upon the "facts" which later prove to be wrong. In a long line of cases, from the U.S Supreme Court on down, the Courts have held that the appropriate remedy in such cases is to vacate the death sentence and to conduct a new penalty phase proceeding so that a new jury and judge - free of the previous taint - can decide whether the defendant deserves to live or die. So, for the last 15 years, I've been trying to convince the courts to reconsider my death sentence in this light. In the interim, the State, through its many court filings, has openly conceded that I wasn't the triggerman, that they know Frank Valdes was the triggerman. And, of course, I've been saying, "Hey, that isn't what you told my jury and judge in 1988!" The bottom line, Sis, is that I was recommended for death and sentenced to death by a jury and judge who based their decision, at least in part, upon the mistaken, erroneous "facts" that have now been proven to be wrong. (Keep in mind that my 1988 prosecutor vigorously argued, and tried to prove, that I was the triggerman, even while he knew that I wasn't, and while he suppressed evidence that would have proven that I wasn't. The same prosecutor prosecuted Frank 18 months later and during Frank's trial that prosecutor argued that Frank was the triggerman.)

Anyway, flash forward to 2003 when, pursuant to a new law regarding the right to have DNA testing conducted, we filed our motion asserting that newly discovered evidence (in the form of the victim's blood evidence on Frank's clothes combined with no blood on mine) proves conclusively that I was not the triggerman. I want to use this "newly discovered evidence" to resurrect my "jury taint" claim (which has never been conclusively ruled upon). The State responded by saying "we know Van Poyck did not kill the victim, but it does not matter because the Florida Supreme Court already upheld his death sentence." The trial judge denied the motion and, of course, I appealed. Now I had the State openly conceding on the record that I was not the triggerman and their only defense was "it does not matter." Now, here's what you need to understand: in order for me to prevail on my claim I was required to demonstrate that "there is a reasonable probability that I would have received a different sentence had my jury and judge known about the "newly discovered evidence." In other words, is there a "reasonable probability" that I would not have been sentenced to death had my jury and judge known I was not the triggerman? This is called the "reasonable probability" test, and it's a common analysis or standard in criminal law jurisprudence. Luckily for me, I was armed with several previous decisions from the Florida Supreme Court granting relief in almost identical situations. In these previous death penalty cases the Court had ordered new penalty phases where the defendant produced "newly discovered evidence" showing that he was not the triggerman. The Florida Supreme Court had repeatedly held that the issue of the triggerman was a crucial determining factor in deciding whether a defendant should live or die. Accordingly, that Court held, when a defendant produces "newly discovered evidence" showing that he might not have been the triggerman, he meets the "reasonable probability" test and the remedy is to vacate the death sentence and conduct a new penalty phase. So, armed with these cases (State v. Mills being the prime case) I felt reasonably confident on my appeal. After all, I wasn't asking for much, just to have a fresh jury decide my fate based upon the true facts.

In their 6-1 decision the Florida Supreme Court said the fact that I was not the triggerman did not matter. Specifically, they said that "there is no reasonable probability that Van Poyck would have received a different sentence had his jury and judge known that he was not the triggerman." The Court did not (because it could not) cite one single case to support this remarkable statement, and they simply ignored State v. Mills and all the other cases I cited in support of my decision. Justice Anstead dissented and wrote a 3-page dissenting opinion wherein he blistered the majority's decision, but once again I'm on the wrong side of a split decision by the Florida Supreme Court (I've had two 4-3 decisions in years past). When you read the majority opinion, Sis, two things become clear: The Court (they said as much) tailored this decision just for me; and second, this Court is absolutely determined to have me executed, no matter what, and they're not going to let the "law" or the "facts" stand in their way. It's really hard to understand this resolute determination when you know (as I pointed out to the Court) how many cold-blooded killers they've let off the row, guys who've personally killed multiple victims in heinous and atrocious ways. In my appellate brief I pointed out the many such cases like these where the same Court said that death was not an appropriate sentence. And yet, in my case, where I did not even kill anyone, the Court refuses to even consider allowing a new jury and/or judge to reconsider my sentence and make a judgment based upon the true facts...

OK, Sis, I've gotta go. I've got a lot of work ahead of me as I cobble together a certiorari petition, in the hopes that the U.S. Supreme Court will view this matter differently. Enjoy the Memorial Day weekend. I hope you'll be rooting for Danica Patrick in today's Indianapolis 500. She's a spunky gal and a fine driver.

Love & Peace,