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,
Bill