Angel Diaz

Healing

2008-07-05T07:58:00.000-07:00

"The death penalty is about revenge and hate, and revenge and hate is why my daughter and those 167 other people are dead today."

Bud Welch, father of Julie Marie Welch,
victim in the Oklahoma City bombing

"I have come to believe that the death penalty is not what will help me heal. Responding to one killing with another killing does not honor my daughter, nor does it help create the kind of society I want to live in, where human life and human rights are valued. I know that an execution creates another grieving family, and causing pain to another family does not lessen my own pain."

MVFHR board member, Vicki Schieber, testifying to the Subcommittee on the Constitution,
Civil Rights and Property Rights; Committee on the Judiciary; US Senate, February 2006

Love from Norway to Terri`s family

2007-01-27T09:31:00.000-08:00

Op-Ed

If Only My Sister Were A Convicted Murderer

By Bobby Schindler

As the mainstream media editorialize outgoing Florida Governor Jeb Bush, I can't help but compare their opposition to the 34-minute execution of convicted killer Angel Diaz with their support of the 14-day execution of my sister, Terri Schiavo....

Orlando Sentinel, 12-28-06

[Governor Jeb Bush's] intervention in the Terri Schiavo fiasco, without even talking to her husband, was unconscionable.

News-press.com, 12-19-06

Governor Jeb Bush was wise to suspend executions and order the review of lethal injection procedures after the bungled execution of a convicted murderer last week.

Miami Herald, 1-8-07

It will be difficult for the public to forget [Bush's] disgraceful performance in the Terri Schiavo case, just one of a number of legal battles in which the ACLU engaged his administration because of his posture that public policy "should err on the side of life.''

FloridaToday.com, 12-20-06

Governor Jeb Bush was correct to impose a hold a hold on death warrants in Florida following the gruesome execution of Angel Diaz.....

Convicted murderer Diaz was put to death by lethal injection, taking 34 minutes to die.... That likely violates the constitutional mandate against cruel and unusual punishment...

An American Bar Association study... cited more than a dozen glaring flaws [with Florida's death penalty process]. Among them...unjustly imposes the death penalty on persons with severe mental disabilities.

--Florida unjustly imposes the death penalty on persons with severe mental disabilities.

Orlando Sentinel, 12-31-06

... Mr. Bush...insisted on intervening in the case of brain-damaged Terri Schiavo.

The Ledger (Associated Press), 12-17-06

Article title: "Doctors: Botched execution likely slow, painful"

Death penalty foes have for years warned of a worst-case scenario in which an inmate being executed by lethal injection could remain conscious, experiencing severe pain as he slowly dies. That day may finally have come.

"It really sounds like [Angel Diaz] was tortured to death,," said Jonathan Groner, associate professor of surgery at the Ohio State Medical School.... "My impression is that it would cause an extreme amount of pain.."...

[W]itnesses reported movement of Diaz as long as 24 minutes after the first injection, with him grimacing, blinking, licing his lips, blowing and attempting to mouth words.. At one point, about midway through the process, he turned his head toward witnesses.... Tampa Tribune, 1-31-07

Family members - and later state lawmakers, with Bush's support - tried to force [Terri's] sustenance. Courts stopped the Legislature, and later Bush, from ordering a feeding tube reinserted..... Despite overwhelming public distate over the government's intervention--- by a 2-1 ratio in one poll - Bush remains unrepentant..

I don't believe in the deliberate killing of any human being.

But if the press is so worried about cruel and unusual punishment of convicted murderers by lethal injection, perhaps they would consider it better to starve and dehydrate them to death.

Because as the press constantly reminded us, death by dehydration and starvation of innocent disabled people who have committed no crime is a "peaceful and painless" way to die. 1-26-07

America turns its back on death penalty after botched lethal injection of killer

2007-01-09T20:19:00.000-08:00

Number of condemned at lowest point for 30 years as opinion begins to change

Suzanne Goldenberg in Washington

Wednesday January 10, 2007

Guardian

It took Angel Nieves Diaz 34 minutes to die from the time the two executioners inserted the IV tubes into each arm and began pumping the chemicals into his body. His eyes widened. His head rolled. He appeared to speak. "It was my observation that he was in pain," Neal Dupree, a lawyer for Diaz and a witness to the execution, wrote in an affidavit. The faint signs of movement from the body strapped to the trolley continued for 24 minutes. "His face was contorted, and he grimaced on several occasions. His Adam's apple bobbed up and down continually, and his jaw was clenched."

Diaz's execution in Florida on December 13 for the murder of the manager of a topless bar was the last in the state for some months to come. Almost immediately after his body was removed from the execution chamber, it became clear that the execution had gone wrong.

The cocktail of three chemicals that was meant to have sent him to oblivion within moments had led to a painful, lingering death. After a report from the medical examiner found 12-inch-long chemical burns on Diaz's arms, the state governor, Jeb Bush, opened an inquiry into his death and suspended all executions, granting more than 370 people on Florida's death row at least a temporary reprieve.

Brutality

Although the brutality of Diaz's death merited attention across America, what has gone almost unnoticed is that the death penalty, once an article of faith for conservatives, is now in retreat.

The penalty remains the law in 38 states, but last year saw the lowest number of executions in a decade - 53 including Diaz. The number of condemned fell to the lowest level since the restoration of capital punishment in 1976: 114, compared with 317 in 1996.

Ten states have suspended executions, and for the first time last week, one state - New Jersey - announced it was leaning towards abolition. "The death penalty is inconsistent with evolving standards of decency," an official commission reported. New Jersey would be the first to take such a step since capital punishment was restored.

"The death penalty is on the defensive," said Richard Dieter, director of the Death Penalty Information Centre in Washington DC. "Its flaws are much more obvious now. If you are for the death penalty you are going to have to say how are we going to avoid executing innocent people."

Mr Dieter attributes much of the declining taste for the death penalty to science, with DNA and other new technologies used to establish innocence in cases where a jury has chosen to convict. More than 120 people have been freed from death row because of doubts about their conviction, including at least a dozen because of DNA testing.

Such doubts led George Ryan, the conservative Republican governor of Illinois, to impose a moratorium on executions seven years ago after more than a dozen wrongful convictions were overturned. His conversion came about when journalism students at Northwestern University produced a taped confession exonerating a man who had been on death row for 17 years. Other inmates on death row were later cleared by DNA, and subsequent investigations.

"Juries make mistakes. Prosecutors make mistakes. If you are for the death penalty you have to say we are going to lose innocent lives but it is worth it," Mr Dieter said.

In Florida, executions are on hold because of public queasiness about lethal injection following Diaz's botched execution. As the medical examiner discovered, technicians missed the veins when they were inserting the intravenous tubes into Diaz's arms, and it took a second injection to kill him. Death penalty opponents say such excruciating deaths are to be expected in American prisons. According to Human Rights Watch, one of the three chemicals in the mix of lethal injections has been banned for use on animals because of fears that it masks, rather than relieves, pain.

In New Jersey, where there have been no executions since the state restored the death penalty 25 years ago, the argument came down to the high cost of legal appeals while keeping people on death row. An official commission last week concluded it did not work. "There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent."

Last defence

The judiciary has also turned against the death penalty, with the supreme court barring the execution of the insane, people with learning difficulties, or minors, and lower courts turning to alternative sentences. Thirty-seven of the 38 states that retain the death penalty now have life without parole.

Death penalty opponents say that such lifelong prison terms make it increasingly difficult to argue that the death penalty is the last defence against a convicted killer going free. In the last few years, juries in celebrated capital cases have balked at imposing the final punishment. Zacarias Moussaoui, convicted last year over the September 11 attacks, got life in a maximum security jail. So did Gary Ridgeway, the Green River serial killer from Washington state, who admitted to murdering 48 people, and received a life term with no parole. If one of the worst serial killers in history does not deserve the death penalty, the argument goes, who does?

Mr Dieter said: "There are indications of change even in places like Texas and Virginia," the states that perform the most executions.

Those developments came too late for Diaz, as did the outrage over lethal injection. But for Suzanne Keffer, of the Capital Collateral Regional Counsel, his lawyer for the past eight years, his suffering may produce some good. "If you can look at it this way, that something good may come out of this ... it certainly may be a benefit."

In memory of Angel Diaz

2006-12-24T05:20:00.000-08:00

Attached is a picture of some flowers that started to bloom on 13th of December just as Britta and I were going to the vigil. they are in memory of Angel Diaz.

Cruel, unusual and in decline Editorial

2006-12-23T09:37:00.000-08:00

Berkshire Eagle
Article Launched:12/23/2006 11:30:47 AM EST
Sunday, December 24

With the holidays upon us, and the year coming to an end, it is heartening to find that imposition of the death penalty declined dramatically in the United States in 2006. It is not reasonable to believe that this barbaric practice, which is far from foolproof and doesn't make society any safer, will continue to fade into disuse in 2007.

According to the year-end report of the Death Penalty Information Center, the annual number of death sentences is at a 30-year low and the number of injections has dropped to the fewest in a decade. For the first time in two decades, the Gallup Poll revealed that more Americans support life without parole than the death penalty for murder convictions. New Jersey joined a growing list of states to declare moratoriums on the death penalty while study commissions review its fairness and accuracy, and New York lawmakers voted against reinstating the state's defunct death penalty. The tide has turned against the death penalty, and we hope for good.

Americans and their elected officials are appalled by the knowledge, supplied by better DNA testing, that a significant number of innocent people have been sentenced to death. It is difficult to compensate someone for years served in jail for a crime he or she didn't commit, but it is impossible to return an innocent person from the grave. Americans and their elected officials are also sickened by the execution of the mentally ill. The American Bar Association has passed a resolution calling for an exemption from the death penalty for the severely mentally ill that should be heeded.

Evidence of the cruelty of the death penalty was provided in all its ugliness earlier this month, when Angel Diaz suffered for 34 minutes before he was finally executed in the state of Florida. Mr. Diaz was given a lethal injection that was supposed to kill him within 15 minutes but after the clock ticked past 30 minutes, during which Mr. Diaz appeared to be struggling to speak, he was given a second injection that finally killed him.

After this medieval exhibition, Florida Governor Jeb Bush suspended executions pending an investigation. On December 15, a U.S. District Court judge in California ruled that the injection procedures in that state are so brutal they violate the Eighth Amendment prohibition against cruel and unusual punishment. Governor Arnold Schwarzenegger says he will address the court's concerns. Better he should push the Legislature to abandon the death penalty altogether.

Massachusetts had a close call during the Cellucci administration when the Legislature came within one vote of enacting a death penalty. That was the closest the state has ever come, and we believe, ever will come, to making that terrible decision. Governor Romney floated what he described as a foolproof death penalty law, but this time the Legislature never even considered it and the death penalty appears dead in Massachusetts.

There are no statistics that back the assertion that the death penalty deters violent crime. There is, however, growing evidence that the death penalty is cruel, error-prone and stacked against minorities. Mr. Diaz was the 53rd and last person executed in the United States in 2006. He should be the last ever.

Botched Execution Shines Light On Barbaric Aspect Of Death Penalty

2006-12-23T09:32:00.000-08:00

On Wednesday, Dec. 13, the state of Florida executed Angel Nieves Diaz. This in itself is unremarkable: his was the 64th execution in the United States in 2006 and the fourth in Florida. His death provoked an outcry, however, since Florida botched his execution. Lethal injection is nominally a humane way to die, but in his case it was anything but. Technicians inserted the needles incorrectly, injecting the caustic drugs into his arm muscles instead of into his veins. He should have been unconscious after five minutes and dead within 15. Instead, he struggled and grimaced for 34 minutes while a second dose of lethal drugs was administered, again incorrectly. The county medical examiner who performed an autopsy after the execution found 12-inch chemical burns on the interior of both his arms.

In the aftermath, Florida Gov. Jeb Bush ordered a moratorium on executions until a special commission can examine lethal injection procedures to ensure they do not violate the constitutional ban on cruel and unusual punishment. But he adamantly defends the death penalty itself and rejected calls for its abolition. Other proponents of the death penalty were quick to defend the system. The more ruthless suggested that Mr. Diaz didn't suffer enough for his crimes; the more sanguine said that his botched execution was unfortunate, but that any sympathy for him or his family was misplaced and should be reserved for his victims and their families.

Despite the heinous nature of Mr. Diaz's crimes, this cold-blooded response is unsettling: Lethal injection was adopted for executions precisely because it was supposed to be more civilized than the alternatives — hanging, the gas chamber, the electric chair, the firing squad. What does it say about us, as a society, that we want to respond to violent crime with the same degree of brutality? It indicates that the death penalty is more about revenge than justice.

Emotional appeal

This defense of the death penalty is a deliberate appeal to our emotions: It works because the crimes were evil and the suffering of the victims and their families real. But death penalty supporters are forced to appeal to anger and pathos since otherwise they have no argument. The death penalty does not provide justice, either for society or for the victims and their families.

Capital punishment is not justice for the "worst of the worst." The application of the death penalty is capricious and bears no connection to the nature of crime itself. In the case of Mr. Diaz, his accomplice is serving a life term for the same crime. Instead, the death penalty singles out the poor and racial minorities. A death sentence is more likely the consequence of racist police and prosecutors and an incompetent lawyer than any other factor. Even worse, capital punishment is often tragically misdirected. Since 1976, at least 123 innocent people have been sentenced to death. They spent years on death row, and some came within hours of being executed, before they were exonerated.

Where's the justice?

Capital punishment does not provide justice for victims' families. It only prolongs their suffering. They are forced to endure the trials and appeals, hoping that the execution will bring closure. But in the end they discover that the death of another does not heal their own wounds. Many victims' family members have turned against the death penalty. Robin Theurkauf, a Connecticut resident whose husband died in the World Trade Center on Sept. 11, 2001, chose to testify for the defense at the sentencing of Zacarias Moussaoui. She wanted Mr. Moussaoui punished, but knew that his death would bring no healing for her or her family.

The botched execution of Angel Diaz is a pale reflection of a grimmer reality: The death penalty is a failure as public policy. It is expensive, does not deter crime, fails to provide justice and punishes victims' families. No amount of tinkering with execution protocols or other details will fix it. The only solution is to abolish it, and it is long past the time for the state of Connecticut to follow Maine, Vermont, Rhode Island, New York and Massachusetts and end the use of the death penalty.

Robert Nave is executive director of Connecticut Network to Abolish the Death Penalty; the state/regional death-penalty abolition coordinator for Amnesty International and the vice chairman of the national steering committee for the Program to Abolish the Death Penalty, National, for Amnesty International .

Cruel, unusual and in decline

2006-12-23T09:28:00.000-08:00

Cruel, unusual and in decline

Editorial

Sunday, December 24

With the holidays upon us, and the year coming to an end, it is heartening to find that imposition of the death penalty declined dramatically in the United States in 2006. It is not reasonable to believe that this barbaric practice, which is far from foolproof and doesn't make society any safer, will continue to fade into disuse in 2007.

According to the year-end report of the Death Penalty Information Center, the annual number of death sentences is at a 30-year low and the number of injections has dropped to the fewest in a decade. For the first time in two decades, the Gallup Poll revealed that more Americans support life without parole than the death penalty for murder convictions. New Jersey joined a growing list of states to declare moratoriums on the death penalty while study commissions review its fairness and accuracy, and New York lawmakers voted against reinstating the state's defunct death penalty. The tide has turned against the death penalty, and we hope for good.

Americans and their elected officials are appalled by the knowledge, supplied by better DNA testing, that a significant number of innocent people have been sentenced to death. It is difficult to compensate someone for years served in jail for a crime he or she didn't commit, but it is impossible to return an innocent person from the grave. Americans and their elected officials are also sickened by the execution of the mentally ill. The American Bar Association has passed a resolution calling for an exemption from the death penalty for the severely mentally ill that should be heeded.

Evidence of the cruelty of the death penalty was provided in all its ugliness earlier this month, when Angel Diaz suffered for 34 minutes before he was finally executed in the state of Florida. Mr. Diaz was given a lethal injection that was supposed to kill him within 15 minutes but after the clock ticked past 30 minutes, during which Mr. Diaz appeared to be struggling to speak, he was given a second injection that finally killed him.

After this medieval exhibition, Florida Governor Jeb Bush suspended executions pending an investigation. On December 15, a U.S. District Court judge in California ruled that the injection procedures in that state are so brutal they violate the Eighth Amendment prohibition against cruel and unusual punishment. Governor Arnold Schwarzenegger says he will address the court's concerns. Better he should push the Legislature to abandon the death penalty altogether

Massachusetts had a close call during the Cellucci administration when the Legislature came within one vote of enacting a death penalty. That was the closest the state has ever come, and we believe, ever will come, to making that terrible decision. Governor Romney floated what he described as a foolproof death penalty law, but this time the Legislature never even considered it and the death penalty appears dead in Massachusetts.

There are no statistics that back the assertion that the death penalty deters violent crime. There is, however, growing evidence that the death penalty is cruel, error-prone and stacked against minorities. Mr. Diaz was the 53rd and last person executed in the United States in 2006. He should be the last ever.

Family denounces botched Florida execution at funeral in Puerto Rico

2006-12-23T07:32:00.000-08:00

The Associated Press

December 22, 2006, 11:57 PM EST

SAN JUAN, Puerto Rico -- Family denounces botched Florida execution at funeral in Puerto Rico.

A Puerto Rican man whose botched execution in Florida renewed opposition to the death penalty in the United States and this island territory was buried Friday in a ceremony attended by about 100 people.

Angel Nieves Diaz, a career criminal condemned for killing a manager of a Miami topless bar 27 years ago, was given a second dose of deadly chemicals as he took more than half an hour to die on Dec. 13.

At the funeral in suburban Rio Piedras, family members said they hoped the notoriety of Diaz's case would boost the international campaign against capital punishment.

"God chose my uncle to change history," said Jackeline Nieves. "Now the death penalty isn't seen as something normal. It's seen as the worst, most inhumane method."

Medical experts said the 55-year-old convict could have experienced severe pain as needles that were supposed to inject drugs into his veins were instead pushed all the way through the blood vessels into surrounding soft tissue.

The case prompted Florida Gov. Jeb Bush to suspend all executions in the state as a commission examines its lethal injection process.

The U.S. Caribbean territory abolished capital punishment in 1929. However, federal prosecutors can seek the death penalty in some cases because Puerto Rico is subject to U.S. federal law.

Editorial: Capital punishment on trial

2006-12-22T12:57:00.000-08:00

THE TRIBUNE-DEMOCRAT (Johnstown, Pa.)

— An editorial: Capital punishment on trial

Opinion: The Tribune-Democrat, Johnstown, Pa.
A botched execution in Florida has given death-penalty opponents new ammunition in their fight to end the practice.

Whether you’re for or against executions, you should be appalled that a normally 15-minute process to end the life of a convicted killer by lethal injection took two doses and 34 minutes, raising speculation that the inmate suffered psychological and physical discomfort while his family experienced extreme anguish.

Angel Nieves Diaz, 55, was put to death for murdering a Miami bar manager 27 years ago. Witnesses said Diaz grimaced before dying, although an autopsy report has not concluded whether, in fact, he did suffer.

What the report did confirm, however, was that needles were wrongly inserted into the flesh of his arms, instead of into his veins as is proper procedure.

Along with a national uproar has come decisions by Florida and California officials to suspend all executions pending further investigations. Both states use lethal injection.

The suspensions and further studies would certainly seem appropriate.

Meanwhile, there has been growing sympathy for Diaz, a man convicted of taking another person’s life, and his family.

"They had to execute him twice," said Mark Elliot, a spokesman for Floridians for Alternatives to the Death Penalty.

"If Floridians could witness the pain and the agony of the executed man’s family, they would end the death penalty."

In a twist of irony, you can just sense that a lawsuit and perhaps a large payout of taxpayer money to the family could be on the horizon.

Rethinking the Death Penalty

2006-12-21T16:43:00.000-08:00

Editorial, Bennington Banner

Thursday, December 21

The United States may be slowly ridding itself of the urge to impose the death penalty, according to a study released last week. A protracted execution in Florida on Wednesday starkly illustrated one of the reasons for the change in attitude.

Angel Diaz was the 53d and last person to be executed in the United States this year. He was strapped onto a gurney and given an injection that was supposed to kill him within 15 minutes, but he lay there squinting and grimacing, and seemed to be trying to speak. Prison officials had to give him a second injection, and it took him 34 minutes to die.

Governor Jeb Bush promised an investigation and suspended executions pending the results, but the exact reason for Diaz's ordeal ignores the wider question of whether execution by any method is right. The murder took place in 1979, and any deterrent effect has vanished.

Thousands of people have been murdered in the state since then, yet only 64 have been executed. This hit-and-miss system offers no protection for society.

Other states are starting to accept this reality, according to a survey by the Death Penalty Information Center in Washington, D.C. The 53 executions this year are down from 60 the year before, and 98 in 1999. The New Jersey Legislature imposed a moratorium on executions, and North Carolina and California began legislative studies of their systems. The issue gained urgency in Califonia last week when a federal judge ruled that the injection procedures followed there were so cruel that they violated the Constitution.

Based on the Florida experience, it's easy to understand why states are wary. Florida abandoned the electric chair in 2000 in favor of lethal injections, but Diaz's prolonged death shows this method to be similarly inhumane. Even if a painless system were devised, the variation of sentencing across multiple jurisdictions is inherently arbitrary.

Support for capital punishment remains steady at two-thirds of those polled nationally, but when details are provided of the executions, that begins to erode. And when given a choice of execution or life without parole, a slight majority in a recent Gallup Poll favored the life sentence. This punishment would protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome.

Before he died, Diaz called his execution an act of vengeance. Perhaps, but given the 27-year lapse between crime and punishment, there was no public outcry for his death. His execution rather shows the capricious nature of a brutal act that should have no place in American society.

— The Boston Globe

Lawyers seek to halt executions

2006-12-21T16:31:00.000-08:00

By Estes Thompson, Associated Press

Ask Easley to spare inmate while death method is studied.

Raleigh Lawyers for a death row inmate scheduled to be executed next month asked Gov. Mike Easley on Wednesday to stop executions in the state so that the method for putting prisoners to death can be studied.

Easley should follow the lead of Gov. Jeb Bush of Florida, who stopped executions there after a botched execution lasted 34 minutes - at least twice as long as usual - before the prisoner died, defense attorney Geoffrey Hosford said.

A federal judge in California imposed a moratorium in that state after Florida halted its executions. And the Maryland Court of Appeals has ruled that state executions cannot proceed until a legislative panel reviews execution protocol."North Carolina follows the same formula as Florida and California," said Hosford, who represents condemned prisoner Marcus Reymond Robinson.Easley's office declined to comment about the request. Easley, a former prosecutor and state Attorney General, has been a steadfast supporter of the death penalty but has commuted two sentences since taking office in 2001. Twenty-seven inmates have been executed in that time.A retired executive director of the state Board of Pharmacy who attended a news conference with Hosford said he received a lesser dose of potassium chloride - the same chemical used to put prisoners to death - after heart surgery."It was so painful that I screamed until the nurse pulled the thing out," David Work said. "I liken it to putting an electric wire in your artery. "Work, a death penalty opponent, suggested that the state instead use morphine drips that would make the prisoners unconscious before stopping their breathing.

Hosford also complained that North Carolina keeps the qualifications and identities of executioners secret and "whether or not the person has any medical training is a question.

"Defense lawyers are scheduled to meet with Easley on Jan. 17 to request clemency. Hosford said he intends to discuss the pain issue with Easley and to introduce it in court filings.Robinson, 33, was sentenced to death in 1994 in Cumberland County for the June 1991 death of 17-year-old Erik Tornblom. Tornblom gave Robinson and Roderick Sylvester Williams Jr. a ride from a Fayetteville convenience store, but he was forced to drive to a field where he was shot in the face with a sawed-off shotgun. Williams, 32, was sentenced to life in prison in 1995.

Robinson's appeal to the U.S. Supreme Court was dismissed Oct. 30, and that triggered the scheduling of his execution.Department of Correction spokesman Keith Acree said Wednesday the execution was still scheduled and that he was "not aware of any efforts or plans by the state to change that."In Florida, the IV needle used to deliver the lethal combination of drugs missed a vein and was inserted into muscle tissue.

Our humane evolution; As long as we have the death penalty, we can’t flinch from its implications.

2006-12-21T16:28:00.000-08:00

The first official death sentence recorded by history happened in 16th century B.C. Egypt, according to Laura Randa, author of “Society’s Final Solution.” The wrongdoer, a member of the nobility, was accused of magic and ordered to take his own life. How very tidy – the state orders a death but is spared the messiness of actually carrying out the execution.

Ever since, society has searched for a more rational and justifiable death penalty and a less “cruel and unusual” way of carrying it out.

The latest agonizing is over the lethal injection of Angel Nieves by the state of Florida earlier this month in what one anti-capital punishment editorial page called a “horrific botched execution.” It took two sets of injections to kill Nieves, and he didn’t die for 34 minutes, twice the usual time it takes for a lethal injection to work. Florida, California and Maryland have now suspended executions until it can be determined if lethal injections are as painless as claimed. At least two recent studies say that the three-drug cocktail used to inject the condemned is often misadministered, causing excruciating pain.

Even if that is so, we have come a long way in how we agonize over the death penalty. At most, Nieves had 34 minutes of pain, after residing on death row for more than 20 years. How do we compare that to the pain and suffering of the person he killed?

And how do we compare it to the past?

In the most often-cited example of cruel and unusual punishment, those convicted of treason in 18th century England were drawn and quartered – dragged through town, hanged but not until dead, cut down and forced to watch their own disembowelment, then cut into fourths. Other official methods of execution have included being boiled alive, crucified, burned at the stake, thrown off cliffs and mutilated by various means. In various jurisdictions at various times, everything from cursing to stealing grapes to cutting down a tree has been a capital crime.

Today, very few crimes are felt to warrant execution. In Indiana, even cold-blooded murder doesn’t qualify unless there are “special circumstances.” And some are consumed with guilt because the last few minutes of the condemned prisoner might have been painful.

The U.S. Constitution forbids cruel and unusual pun- ishment but doesn’t define it, which leaves it necessary to consider the concept in light of society’s current state of evolution. Since that document also recognizes the death penalty, that means the method is what changes. And the pattern has always been the same. A new method comes along that is thought to be more humane – we’ve gone from hanging to the electric chair to lethal injections, with momentary flirtations with the gas chamber and firing squads. But then the humaneness of the new method comes into question, and we have the death penalty debate all over again.

Where is the debate taking us?

Most people live quiet, ordinary lives. Very few of them are rewarded for their decency by getting to enjoy long lives in perfect health, then having death come quickly and painlessly while they’re not paying attention. The end of life often comes with uncertainty, agony, fear, pain and suffering. Many today seem to want better deaths for convicted murderers than for everyone else.

And perhaps that’s where our society is headed. Only 53 people have been executed this year, down from 60 last year and 98 in 1999. We may soon join the 88 other nations that have formally abolished capital punish- ment, leaving life without parole as the maximum penalty possible. Would the criminal justice system then be “humane” enough for modern sensibilities?

Perhaps, but then again . . .
All punishment for major crimes confiscates the time of the criminals. Capital punishment merely takes all of it all at once. Life without parole is just as much a death penalty, taking all of people’s time but stretching out the punishment. The condemned know all their tomorrows will be as bleak and barren as all the days that have come before and that there is no hope of change. That is, in many ways, far more cruel than just immediately killing the killers.

Much of the agonizing about the humaneness of executions is more about our suffering than that of the condemned. We want to mete out punishment, but we don’t want to think about how untidy it might be. Electrocutions were quicker and more reliable than hangings. The gas chamber disfigured the body less. Lethal injections make us believe those executed are just going peacefully to sleep.

It is civilized to have qualms about capital punishment and to worry about whether its use is consistently and fairly applied and whether its forms are overly cruel and unusual. But we will either have that maximum punishment, or we will not. As long as we believe there are crimes for which no other punishment seems suitable – the killing of a guard by someone already serving life without parole, for example, or the torture and killing of children – completely giving it up should be thought about long and hard.

And whatever we decide, we shouldn’t flinch from its implications.

Though “evolving standards of decency” might change how much criminals must endure, the way a civilized society stays civilized is to make sure that those who cause suffering also must suffer.

By Leo Morris for the editorial board

Executions must stop

2006-12-21T12:27:00.000-08:00

Dec. 22, 2006 Editorial

Our View
Executions must stop

When the state of Florida botched Angel Diaz's execution last week, it did so on behalf of all of the citizens of the state, ostensibly in the name of justice. Therefore, we all ought to be ashamed of what happened. It took 34 minutes to kill Diaz, two to three times longer than usual. The needle apparently went through his vein and the drugs ended up in the soft tissue of his arm instead of his bloodstream.

For more information on the Florida bishops' appeal related to Angel Diaz, please see:

http://flacathconf.org/pressreleases/Prsrel06/Diaz12-5-06.htm.

For what the Catechism has to say about the death penalty, see CCC Nos. 2266 and 2267.

Initially, state prison officials tried to blame the lengthy process on a diseased liver, which might have explained a longer time for the drugs to metabolize. The convicted killer's family said they were not aware of any such condition. Later, an autopsy revealed the execution had been mishandled. Gov. Jeb Bush ordered a halt to executions while this incident is investigated and while lethal injection protocols are studied. Results of the investigations are due by March.

The whole incident calls into question not just whether the drugs themselves are a form of cruel and unusual punishment — as has been the subject of recent lawsuits and appeals — but also whether the process of execution itself is flawed.

Florida's bishops called on Bush to stay this execution, noting, "Through life imprisonment without parole, criminals are severely punished for their transgressions against society."

The bishops did not minimize the anguish of the family of the victim in this case. "Our genuine prayers and sincere sympathies are extended to the family and loved ones of Joseph Nagy, the victim of this crime. We pray not only for the relief of their pain, but also that justice is served. Justice is not best served, however, by the taking of another's life."

Justice has certainly not been served in this case, and in fact, another injustice occurred. Because "the state" put Diaz to death on our behalf, from Gov. Bush to each of us in Florida — whether we support capital punishment or not — we all participated in the act that left Diaz on that table for 34 minutes while the chemicals that were to paralyze him and cause his death slowly worked their way through his body. Gov. Bush had the chance to stop this in advance and he did not.

Even though he will be leaving the governor's office soon, we call on Bush to hold these two teams of investigators accountable.We also implore Governor-elect Charlie Crist to stay any further executions, to not rescind Bush's executive order suspending executions and to hold the investigation teams to the same high standard of accountability to which Bush would hold them.

Last week a federal judge in California placed a moratorium on executions in that state, pending a ruling on whether lethal injection may be cruel and unusual punishment.

That case was unrelated to this local fiasco, but the Diaz incident will likely affect such cases nationwide. Clearly, the application of the death penalty has problems.

These are some of the reasons that the U.S. bishops (and the Catechism of the Catholic Church), while acknowledging that the government has a right, in extremely limited circumstances, to use capital punishment, also asks for our country to stop using the death penalty, because it cannot be applied in a way that is foolproof, in a way that is always fair, and in a way that always guarantees that no innocent person will be executed.

Christopher Gunty
Associate Publisher

Death penalty babble

2006-12-18T05:13:00.000-08:00

Death penalty babble

Palm Beach Post Editorial

Friday, December 15, 2006

Who cares if he "suffered?" His victim suffered, so why shouldn't he? And he's dying, for crying out loud. How can you have dying without suffering?

That will be a common reaction to the news that Florida still can't figure out how to kill people efficiently. Wednesday's execution of Angel Diaz took 34 minutes, about twice as long as usual, and required a second dose of lethal drugs. In petitioning the Supreme Court to stay his execution, Diaz had argued that use of the chemicals violated the constitutional ban on cruel and unusual punishment.

Yes, that's an ironic argument, coming from a murderer. But because Florida has the death penalty, odd comments are the rule, whether from the state or the condemned. Sounding vaguely like an insurance agent, Gretl Plessinger of the Florida Department of Corrections explained that Diaz required the second dose because of a preexisting liver condition. He couldn't process the lethal drugs. Ms. Plessinger also concluded that Diaz didn't feel any pain. How would she know?

So, Gov. Bush announced that the state will review its execution procedures, just as the state reviewed them in 1997 after a botched electrocution that led to the switch to lethal injection.

Compared to the death penalty, a maximum sentence of life without possibility of parole is cheaper - fewer costly, taxpayer-financed appeals - swifter - Diaz committed his crime in 1979 - and safer, since it means that the state never will kill the wrong person. Florida leads the nation in exonerations from Death Row.

And in trying to defend itself, the state would sound a lot less bizarre.

Killer's wake planned for Osceola

2006-12-18T04:52:00.000-08:00

http://www.orlandosentinel.com/news/local/osceola/orl-mnieves1806dec18,0,2351486.story?coll=orl-home-headlines

Killer's wake planned for Osceola

The inmate's execution 'tortured, literally crucified' him, his niece says.

Jeannette Rivera-Lyles
Sentinel Staff Writer

December 18, 2006

The family of Angel Nieves Diaz, who was executed by lethal injection Wednesday, is expecting to have his body in Central Florida today for a wake at a Kissimmee-area funeral home.

Sol Otero, Nieves' niece, told the Orlando Sentinel the body will be laid out for a few hours at Funeraria y Crematorio Porta Coeli, off Osceola Parkway, before it is flown to his native Puerto Rico for burial.

"We want to begin healing," Otero said. "We want closure."

The body of Nieves has been retained by the state longer than expected because of irregularities surrounding his death.

Nieves , who was convicted for the 1979 killing of Miami strip-club manager Joseph Nagy, required two doses of the series of drugs used in Florida's lethal-injection executions. It took 34 minutes for him to die. Most executions end in 15 minutes or less.

A spokeswoman with the state's Department of Corrections said the night of the execution that a liver condition had caused the drugs to work slower.

But an autopsy revealed that the liver appeared normal. It also found that the needle carrying the drugs had gone through Nieves' vein and lodged into soft tissue and muscle. A second dose was administered.

Witnesses' accounts indicate that Nieves showed signs of pain, such as grimacing and gasping for air, and that he continued to move after the third and final drug, potassium chloride, was administered the first time. This would indicate that Nieves had not been knocked out by the two previous drugs.

"The pain [caused by potassium chloride] is excruciating," Otero said. "My uncle was tortured, literally crucified, for 34 minutes. Why would they administer it if obviously he was still conscious?"

The chemical compound traumatizes internal organs and stops the heart by provoking a massive heart attack.

Otero said the image of a crucifixion came to her before the execution when she went to see the gurney onto which her uncle's body was going to be strapped. The gurney has two winglike shelves that extend out on each side, to which the inmate's arms are secured.

Gov. Jeb Bush appointed a commission to investigate Nieves' execution and halted all others indefinitely. A report is due by March 1.

Otero said the attorney for the family, Todd Doss, is looking into whether the second series of drugs was administered in its entirety. The family thinks only the third drug -- potassium chloride, used to induce the heart attack -- might have been used in the second injections.

Doss could not be reached Sunday.

The attorney has handled at least one other high-profile death-penalty case. He told The Associated Press he is considering legal action against the state.

Jeannette Rivera-Lyles can be reached at jrivera@orlandosentinel.com or 407-420-5471.

For Angel from Mary

2006-12-16T08:21:00.000-08:00

Angel,

Today I light a candle for you

To guide you on your way

It would be good if you could stay

But if you have to go

Here are some gifts

For your journey

Love of friends and family -----

That can never die

Your body has to stay here

But the rest of you can fly

Sky-high

The little acts of kindness

That make a life worthwhile

May you go quickly and find peace

On the other side.

May angels come to greet you

To meet you there

Provide you with

softness and care.

Fare thee well

Mary Nordkvelle

2.35pm 12 December 2006

Lethal injection BLOG

2006-12-14T15:09:00.000-08:00

The lethal injection BLOG for updates on the botched execution of Angel Diaz

and the pending litigation in Florida and in US

http://lethal-injection-florida.blogspot.com

Jeb Bush and how much he cares for victims - Angel Diaz

2006-12-14T08:20:00.000-08:00

Debbie Nieves, center, daughter of convicted murderer, Angel Nieves Diaz, 55, cries and prays with other family members outside the Florida State Prison in Starke, Fla., moments before her father was executed, Wednesday, Dec. 13, 2006

. Diaz was convicted of murdering a Miami topless bar manager 27 years ago. Diaz died 34 minutes after receiving the first of two doses of chemicals.

Second dose needed to kill inmate - Angel Diaz

2006-12-14T07:27:00.000-08:00

Second dose needed to kill inmate

By CHRIS TISCH and CURTIS KRUEGER
Published December 14, 2006

STARKE - A death row inmate who argued that Florida's execution procedures were cruel punishment needed 34 minutes and two drug doses to die by lethal injection Wednesday evening.

The scene of a grimacing Angel Diaz once again called into question the way the state kills condemned prisoners. Diaz winced, his body shuddered and he remained alive nearly three times as long as the state's two most recent executions.

Department of Corrections officials said they had to take the rare step of giving Diaz a second dose of drugs to kill him. A second dose is part of their protocol and was anticipated because Diaz had liver disease, which they said can slow the time it takes the drugs to metabolize.

But defense lawyers said Diaz's execution was so unusual it could once again disrupt executions in Florida.

"Obviously there was something very wrong here," said Neal Dupree, supervisor of the Capital Collateral Regional Counsel office for South Florida, which represented Diaz in his appeals.

Dupree, who sat in the front row while Diaz was executed, said the procedure appeared botched, particularly when Diaz squinted his eyes and tightened his jaw as if in pain. Twenty-six minutes into the procedure, Diaz's body suddenly jolted.

"It looked like Mr. Diaz was in a lot of pain," Dupree said. "He was gasping for air for 11 minutes. This is a big deal. This is a problem."

Corrections officials acknowledged that 34 minutes was an unusually long time but said no records are kept that would tell if it's the longest in state history. They said they were not sure how many times a second dose has been needed.

Gretl Plessinger, a Department of Corrections spokeswoman, said it's unknown at what times the first and second doses were given because those records are not kept.

The execution team called for the second dose after noticing on heart monitors that Diaz was not dying, she said.

Diaz's cousin Maria Otero said the family had no knowledge of any liver disease.

"Who came down to Earth and gave you the right to kill somebody?" Otero said, referring to Gov. Jeb Bush. "Why a stupid second dose?"

Bush said in a written statement that the Department of Corrections followed all protocols.

"As announced earlier this evening by the department, a preexisting medical condition of the inmate was the reason tonight's procedure took longer than recent procedures carried out this year," the statement said.

Florida voluntarily began using lethal injection in 2000 after a number of gruesome executions in the electric chair put electrocutions at risk of being declared unconstitutionally cruel and unusual punishment.

But capital defense lawyers have contended that lethal injection, which in Florida and most states is given with a three-drug cocktail, has its own cruelty problems.

They cite a recent study that suggests a painkiller administered first wears off before the third and fatal drug kills the person. That third drug can cause excruciating pain, the study said, but no one would know because the second drug in the cocktail paralyzes the person.

Earlier this year, executions in Florida were halted while the Supreme Court considered the case of Clarence Hill, condemned for the 1982 shooting death of a Pensacola police officer. Hill's lawyers argued that lethal injection was cruel and unusual, but the court's ultimately rejected his argument and Hill was executed this fall

Martin McClain, a lawyer who has represented more than 100 death row inmates, called for an investigation into Diaz's execution.

McClain said the state should have disclosed any liver problems in advance and explained its plans for dealing with them

McClain said he questions if Diaz was given the pain-inducing drug potassium chloride before the anesthetic started working.

Lethal injection had been a subject of legal challenges, including one to the U.S. Supreme Court, which put executions in Florida on hold for much of this year. When those legal maneuvers failed, Gov. Bush began signing death warrants.

Diaz, 55, was the fourth person to be executed this year, the most the state has put to death since six were executed in 2000.

Diaz was condemned for the 1979 shooting death of Joseph Nagy, a topless bar manager in Miami. Nagy was killed during a robbery by three men. The case was unsolved for four years before a girlfriend of Diaz's called police to say he was involved.

Diaz had been sentenced to life in prison in Puerto Rico for another murder but escaped and came to the United States. He also escaped from a prison in Connecticut and tried to arrange an escape from jail in Miami.

Though no one witnessed Diaz pull the trigger, a jury convicted him of Nagy's murder and sentenced him to death.

His defense lawyers challe

nged his conviction and death sentence, especially after a jailhouse snitch who said Diaz confessed to him recanted his testimony. But courts let the death sentence stand.

Time line

Diaz's death

What happened in the execution chamber as Angel Diaz was put to death Wednesday night:

6:00 p.m.: The curtain opens. Angel Diaz gives a short last statement claiming he is innocent.

6:02: Diaz begins grimacing and seems to speak, though a microphone is off and none of the witnesses can hear him.

6:06: Diaz squints his eyes and juts his chin as if in pain. He continues this for several minutes.

6:12: Diaz's head slips to the right. He coughs several times and appears to shudder.

6:15: His mouth has appeared to widen and his breathing is deep.

6:18: A member of the execution team hands a phone to another member of the team. What they say on the phone is not revealed. Diaz's mouth and chin move as he breathes deeply.

6:24: Diaz's mouth and chin slowly stop moving. His eyes appear fixed.

6:26: His body suddenly jolts. His eyes appear to be opening more widely. Again, a member of the execution team gets on the phone.

6:34: A doctor wearing a blue hood that covers his face enters the execution chamber and checks Diaz's vital signs. The doctor returns a minute later, checks the vital signs again and nods to a member of the execution team.

6:36: A member of the execution team announces that the sentence of Angel Diaz has been carried out. The curtain closes.

Past controversies

May 4, 1990: Smoke, sparks and flames shoot from behind his mask as Jessie Tafero is executed in the electric chair. A synthetic sponge used to conduct electricity into the brain caught fire.

March 25, 1997: Pedro Medina's head catches fire as he is electrocuted. The leather skullcap burned because copper wiring inside it had not been cleaned.

July 8, 1999: Blood appears on the face and shirt front of 344-pound Allen Lee Davis, for whom a larger electric chair was specially built. Photos later show Davis bleeding from the nose and grimacing.

June 8, 2000: The lethal injection of Bennie Demps is delayed 33 minutes while technicians cut his groin and leg searching for a second injection spot. In his final statement he says, "They butchered me back there."

FLORIDA - Stop your lethal secrecy - Now we want to know - Angel Diaz

2006-12-13T23:42:00.000-08:00

" And the eyes of the world are watching now . . ."

Authorities should conduct a complete investigation to get to the bottom of what went wrong with Diaz’s execution.

FLORIDA SUPPORT

NOT ONCE AGAIN

Allen Lee Davis

Florida

Botched execution - Angel Diaz

2006-12-13T23:24:00.000-08:00

Executed man takes 34 minutes to die

By CHRIS TISCH and CURTIS KRUEGER

Published December 13, 2006

STARKE — A death row inmate who had argued that Florida’s execution procedures were cruel hung on for much longer than usual after his lethal injection Wednesday evening, once again calling into question the way the state kills condemned prisoners.

Angel Diaz winced, his body shuddered and he remained alive for 34 minutes, nearly three times as long as the last two executions.

Department of Corrections officials said they had to take the rare step of giving Diaz a second dose of drugs to kill him.

A second dose is part of their protocol and was anticipated in this case because Diaz had liver disease, which they said can slow the time it takes the drugs to metabolize, they said.

But capital defense lawyers said Diaz’s execution was so unusual that it could once again upend executions in Florida.

“Obviously there was something very wrong here,” said Neal Dupree, supervisor of the capital collateral regional counsel office for South Florida, which represented Diaz in his appeals.

Dupree, who sat in the front row while Diaz was executed, said the procedure appeared botched, particularly when Diaz squinted his eyes and tightened his jaw as if in pain.

Twenty-six minutes into the procedure, Diaz’s body suddenly jolted.

“It looked like Mr. Diaz was in a lot of pain,” Dupree said. “He was gasping for air for 11 minutes. This is a big deal. This is a problem.”

Corrections officials acknowledged that 34 minutes was an unusually long time but said no records are kept that would tell if it’s the longest ever in state history.

They were not sure how many other times a second dose was needed.

Gretl Plessinger, a DOC spokeswoman, said it’s unknown at what times the first and second doses were given because those records are not kept.

Diaz began snoring after the first dose was given and never regained consciousness, she said.

The execution team called for the second dose after noticing on heart monitors that Diaz was not dying, she said.

Diaz’s cousin Maria Otero said the family had no knowledge of any liver disease. She said the execution was political.

“Who came down to earth and gave you the right to kill somebody?” Otero said, referring to Gov. Jeb Bush. “Why a stupid second dose?”

But capital defense lawyers have said lethal injection, which in Florida and most states is given with a three-drug cocktail, has its own cruelty problems. They cite a recent study that shows a painkiller administered first wears off before the third and fatal drug kills the person. That third drug can cause excruciating pain, the study said, but no one would know because the second drug in the cocktail paralyzes the person.

Martin McClain, an attorney who has represented more than 100 death row inmates, said authorities should conduct a complete investigation to get to the bottom of what went wrong with Diaz’s execution.

McClain said the state should have disclosed any liver problems in advance and explained its plans for dealing with them. This scenario makes McClain wonder if Diaz was given the pain-inducing drug potassium chloride before the anesthetic started working.

He said he’s concerned that this could have caused the kind of pain in Diaz that constitutes “”cruel and unusual punishment,’’ outlawed by the U.S. Constitution.

Lethal injection had been a subject of legal challenges, including one to the U.S. Supreme Court, which put executions in Florida on hold for much of this year. But once those legal maneuvers failed, Gov. Jeb Bush began signing death warrants.

Diaz, 55, was the fourth person to be executed this year, the most the state has put to death since six were executed in 2000.

Though no one witnessed Diaz pull the trigger, a jury convicted him of Nagy’s murder and sentenced him to death by an 8-4 vote.

His defense lawyers vigorously challenged his conviction and death sentence, especially after the jailhouse snitch recanted his testimony. But courts let the death sentence stand.

Diaz clung to his innocence in his final statement.

“The state of Florida is killing an innocent person,” Diaz said in Spanish. “The state of Florida is committing a crime because I am innocent. The death penalty is a form of vengeance but also a cowardly act by humans. I am sorry for what is happening to me and my family who have been put through this.”

Execution of Fla. Inmate Takes 34 Min. - Angel Diaz

2006-12-13T23:13:00.000-08:00

Maria Otero Diaz is carried to an EMS van after she was overcome by emotion during the execution of Angel Nieves Diaz, her cousin, outside the Florida Department of Corrections facility in Starke, Fla. Wednesday, Dec. 13, 2006.

Diaz, convicted of murdering the manager of a topless bar 27 years ago was executed by injection Wednesday despite his protests of innocence and requests for clemency made by the governor of his native Puerto Rico. (AP Photo/Phil Sandlin)

STARKE, Fla. | A man convicted of murdering the manager of a topless bar nearly three decades ago was executed by injection Wednesday, appearing to grimace before dying 34 minutes after receiving the first of two doses of chemicals.

The manner of his death will likely rekindle the argument that Florida's method of execution constitutes cruel and unusual punishment.

Angel Nieves Diaz, 55, was pronounced dead at 6:36 p.m., despite his protests of innocence and requests for clemency made by the governor of his native Puerto Rico. He appeared to move for 24 minutes after the first injection. His eyes were open, his mouth opened and closed and his chest rose and fell. He was pronounced dead 10 minutes after his last movement.

In most Florida executions, the prisoner loses consciousness almost immediately and stops moving within five minutes. The entire process usually takes about 15 minutes.

The state of Florida is killing an innocent person, Diaz said from the gurney

2006-12-13T23:02:00.000-08:00

"The state of Florida is killing an innocent person," Diaz said from the gurney.

"The state of Florida is committing a crime, because I am innocent.

The death penalty is not only a form of vengeance, but also a cowardly act by humans.

I'm sorry for what is happening to me and my family who have been put through this."

We should cry, but it should not destroy us - Angel Diaz

2006-12-13T15:09:00.000-08:00

He said man can take away his life, but his spirit will belong to God, - Angel Diaz

2006-12-13T14:55:00.000-08:00

From Angel Diaz to FLORIDA :

He said man can take away his life, but his spirit will belong to God

Puerto Rican officials begged for clemency - Angel Diaz

2006-12-13T14:47:00.000-08:00

STARKE, Fla. (AP) -- A Puerto Rican man convicted of killing a Miami topless bar manager 27 years ago was set for execution Wednesday after the U.S. Supreme Court rejected his final appeal.

Angel Nieves Diaz, 55, was scheduled to be executed by lethal injection at 6 p.m. EST, about an hour after the justices declined to intervene. The news came after Puerto Rican officials begged for clemency and as Diaz's relatives gathering outside Florida State Prison claimed his innocence. State policy prohibits the condemned inmate's family members from witnessing the execution.

We love him so much and we are planning his burial - Angel Diaz

2006-12-13T12:44:00.000-08:00

"We are just overwhelmed. We love him so much and we are planning his burial," Otero-Barahona said.

Another cousin, Maria Magdalena Ortero, said Nieves had asked his relatives to accept his fate.

"He asked us to remain calm, that we understand that he is tired of being jailed alive for 21 years. He said man can take away his life, but his spirit will belong to God," said Maria Magdalena Otero. "Yes, that we should cry, but that it should not destroy us."

Officials in Puerto Rico, including Gov. Acevedo Vila and Senate President Kenneth D. McClintock, have written letters to Gov. Jeb Bush asking him to stop the execution. Puerto Rico, a U.S. territory, abolished capital punishment in 1929.

There are so many problems with Nieves' trial and appeals that the execution should be stopped, Solsirette Otero said.

No one actually witnessed the shooting death of manager Joseph Nagy. Most of the patrons and employees had been confined to a restroom and a dancer hiding under the bar did not see who fired the shoots which killed Nagy, she said.

"Everyone has recanted. Fingerprints were not clear. There were no eyewitnesses and even the shooter says my uncle is an innocent man," Otero said.

The case remained unsolved

Scheduled to die today, killer maintains innocence in Miami strip club case

2006-12-13T08:11:00.000-08:00

``He is at peace with God. He just wants people to know he is innocent,'' said Solsirette Otero-Barahona of Orlando, who calls Nieves her uncle, although he is her father's first cousin.

Otero-Barahona said at one of her last visits with 55-year-old Nieves, he told her ``You know I'm innocent. I know I'm innocent. God knows I'm innocent.''

In an interview with Notiseis television broadcast Tuesday evening in Puerto Rico, Nieves said, ``I feel at peace. Yes, nervous, but without fear because I feel close to God and that helps me feel good.''

You know I'm innocent. I know I'm innocent. God knows I'm innocent - Angel Diaz

2006-12-13T07:57:00.000-08:00

Posted on Wed, Dec. 13, 2006

Strip club manager killer set to die

RON WORD

Associated Press

JACKSONVILLE, Fla. - Family members surrounded Angel Nieves Diaz for likely the last time Wednesday as the death row inmate faced execution for fatally shooting a Miami topless club manager 27 years ago this month.

As his attorney pressed final appeals in the U.S. Supreme Court, Nieves' family members were gathering at Florida State Prison near Starke to say their last goodbyes to a man they know as a loving father, grandfather, brother and uncle. They claim the state is getting ready to unjustly execute him.

He was later be joined by Dale Recinella, a prison chaplain, and was to receive last rites from a priest, Jose Maniyangat.

"He is at peace with God. He just wants people to know he is innocent," said Solsirette Otero-Barahona of Orlando, who calls Nieves her uncle, although he is her father's first cousin.

Otero-Barahona said at one of her last visits with 55-year-old Nieves, he told her "You know I'm innocent. I know I'm innocent. God knows I'm innocent."

In an interview with Notiseis television broadcast Tuesday evening in Puerto Rico, Nieves said, "I feel at peace. Yes, nervous, but without fear because I feel close to God and that helps me feel good."

Funeral services are being planned for Nieves, who wants his body returned to his native Puerto Rico. A prayer service was being held Wednesday evening in front of a church in Old San Juan and family members celebrated Mass on Tuesday night in Maclenny.

"We are just overwhelmed. We love him so much and we are planning his burial," Otero said.

There are so many problems with Nieves' trial and appeals that the execution should be stopped, Otero said.

"Everyone has recanted. Fingerprints were not clear. There were no eyewitnesses and even the shooter says my uncle is an innocent man," Otero said.

The case remained unsolved for four years until 1983, when Nieves' girlfriend told police he was involved in the crimes. Angel "Sammy" Toro and Angel Nieves were charged with murder. A third man, "Willie," was never identified, according to a summary of his case by the Florida Commission on Capital Crimes.

At his trial, where he was forced to wear shackles, Nieves conducted his own defense, with the assistance of counsel. Toro cut a deal with prosecutors and was sentenced to life in prison.

The jury in Nieves' trial recommended he be sentenced to death by an 8-4 vote.

Barring a last-minute reprieve, Nieves would be the 21st man executed under th
e administration of Gov. Jeb Bush and the 64th inmate to die since Florida resumed executions in 1979 after a 15-year hiatus. It would be the fourth execution this year.

Nieves' prior record includes a second-degree murder conviction in his native Puerto Rico and escapes there and in Connecticut.

Nieves did not order a last meal, so he will be served Wednesday's prison of shredded turkey with taco seasoning, shredded cheese, rice, pinto beans, tortilla shells, apple crisp and ice tea, said Gretl Plessinger, a Department of Corrections, spokeswoman.

The court issues raised by Nieves included a challenge to Florida's method of lethal injection. The arguments are similar to those made earlier this year by three other death row inmates who all lost their appeals and were executed.

Each has argued that Florida's three-chemical method is unconstitutional cruel and unusual punishment because it results in extreme pain that an inmate cannot express because one of the drugs is a paralyzing agent.

Putting someone to death on the word of a jailhouse snitch is Unamerican

2006-12-13T06:57:00.000-08:00

Dec. 13 - 2006

FLORIDA----impending execution

Evidence questioned ahead of execution

Jenny Greenburg didn't mince words when talking about the execution of
Angel Nieves Diaz, scheduled today at Florida State Prison.

"Putting someone to death on the word of a jailhouse snitch is
un-American," said Greenburg, director of the Florida Innocence
Initiative.

Nieves, 55, was convicted and sentenced to death for killing Miami topless
club manager Joseph Nagy in 1979. The conviction was largely based on the
testimony of a jailhouse informant, Ralph Gajus, who occupied a nearby
cell and said Nieves who spoke poor English admitted he was the
triggerman by miming the shooting.

Gajus later said he made up the story. But unless the Supreme Court steps
in, Nieves will be executed at 6 p.m. today in the Bradford County prison.
State and federal appeals courts have found the evidence has already been
considered and also rejected Nieves's claim that lethal injection is cruel
and unusual punishment.

Greenberg, who runs the nonprofit seeking to overturn wrongful
convictions, said the case illustrates that jailhouse informants are
notoriously unreliable. Such informants often trade testimony for lesser
sentences or favorable treatment, she said.

Jailhouse informants are the leading cause of wrongful convictions in U.S.
capital cases, according to a report by the Center on Wrongful Convictions
at Northwestern University. The report found that 51 death row inmates
have been exonerated who were initially convicted on the word of jailhouse
informants.

State Attorney Bill Cervone, prosecutor for the 6-county district
including Alachua County, said he's reluctant to rely on the word of a
jailhouse informant. He said he'd be unlikely to base a case on an
informant's word if there was no other evidence.

"We're very cautious about it because there are obvious agendas involved,"
he said.

In the Nieves case, Gajus said police promised to help him with his own
case. He was later sentenced to 20 years for second-degree murder.

Greenburg said one of Florida's best known wrongful convictions was due to
a jailhouse informant. Based on the testimony from convicted murderer
Clarence Zacke, Wilton Dedge was sentenced to life in prison for sexual
battery and other changes in Brevard County.

An investigation by the New York-based Innocence Project found Zacke
received a drastic reduction in his sentence by claiming Dedge confessed
while they were being transported together. DNA evidence proved Dedge
didn't do it, leading to his release after 22 years in prison.

Carolyn Snurkowski, who is representing the state in the Nieves case, said
it's up to a jury to decide whether an informant is reliable. She said she
doesn't have a problem with such testimony being used if jurors are
informed of any deals being given.

"It's in their hands to make a credibility determination," she said.

But Greenburg supports allowing judges to determine credibility before
allowing such testimony.

"The presumption should be this is not credible evidence unless the state
proves otherwise," she said.

Nieves was convicted of 1st-degree murder, 4 counts of kidnapping, 2
counts of armed robbery, 1 count of attempted robbery and 1 count of
possessing a firearm during the commission of a felony for a holdup at a
bar.

Nieves' prior record includes a 2nd-degree murder conviction in his native
Puerto Rico and escapes there and in Connecticut. In 1981, he escaped from
the Hartford Correctional Center by holding 1 guard at knifepoint while
another was beaten as he and 3 other inmates escaped, according to court
records.

(source: The Gainesville Sun)

No. 06A569 USSC - Angel Diaz

2006-12-12T08:23:00.000-08:00

No. 06A569
Title: In Re Angel N. Diaz, Applicant
v.

Docketed:

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 11 2006 Application (06A569) for a stay of execution of sentence of death, submitted to Justice Thomas.

--------------------------------------------------------------------------------

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Suzanne Myers Keffer 101 NE 3rd Avenue Suite 400 (954)-713-1284
Fort Lauderdale, FL 33301

Attorneys for Respondent:
Sandra S. Jaggard Office of the Attorney General (305) 377-5441
Rivergate Plaza, Suite 650, 444 Brickell Ave.
Miami, FL 33131

No. 06A565 - USSC - Angel Diaz

2006-12-12T08:20:00.000-08:00

>No. 06A565
Title:

Angel N. Diaz, Applicant

James McDonough, Secretary, Florida Department of Corrections

Docketed:
Lower Ct: Supreme Court of Florida

Case Nos.:

(06-2313, 06-2259&06-2305, 06-2325)

~~~Date~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 11 2006	Application (06A565) for a stay of execution of sentence of death, submitted to Justice Thomas.
Dec 11 2006	Response to application from respondent James McDonough, Secretary, Florida Department of Corrections filed.

~~Name~~~~~~~~~~~~~~~~~~~~~	~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~
Attorneys for Petitioner:
Suzanne Myers Keffer	101 NE 3rd Avenue Suite 400	(954)-713-1284
	Fort Lauderdale, FL 33301
Party name: Angel N. Diaz

Attorneys for Respondent:
Sandra Sue Jaggard	444 Brickell Avenue Suite 950
	Miami, FL 33131-2407
Party name: James McDonough, Secretary, Florida Department of Corrections

No. 06-8249 USSC docket - Angel Diaz

2006-12-12T08:18:00.000-08:00

No. 06-8249 *** CAPITAL CASE ***
Title: In Re Angel N. Diaz, Petitioner
v.

Docketed: December 11, 2006

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 11 2006 Petition for writ of habeas corpus and motion for leave to proceed in forma pauperis filed.
Dec 11 2006 Application (06A569) for a stay of execution of sentence of death, submitted to Justice Thomas.

--------------------------------------------------------------------------------

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Suzanne Myers Keffer 101 NE 3rd Avenue Suite 400 (954)-713-1284
Fort Lauderdale, FL 33301

Attorneys for Respondent:
Sandra S. Jaggard Office of the Attorney General (305) 377-5441
Rivergate Plaza, Suite 650, 444 Brickell Ave.
Miami, FL 33131

No. 06-8239 USSC docket - Angel Diaz

2006-12-12T08:12:00.000-08:00

06-8239 *** CAPITAL CASE *** Title:

Angel N. Diaz, Petitioner

James R. McDonough, Secretary, Florida Department of Corrections

Docketed: December 11, 2006 Lower Ct: Supreme Court of Florida

Case Nos.:	(06-2313, 06-2259&06-2305, 06-2325)
Decision Date:	December 8, 2006
Discretionary Court
Decision Date:	December 1, 2006

~~~Date~~~	~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 11 2006	Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due January 10, 2007)
Dec 11 2006	Application (06A565) for a stay of execution of sentence of death, submitted to Justice Thomas.
Dec 11 2006	Brief of respondent James R. McDonough, Secretary, Florida Department of Corrections in opposition filed.
Dec 11 2006	Response to application from respondent James McDonough, Secretary, Florida Department of Corrections filed.

~~Name~~~~~~~~~~~~~~~~~~~~~	~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~
Attorneys for Petitioner:
Suzanne Myers Keffer	101 NE 3rd Avenue Suite 400	(954)-713-1284
	Fort Lauderdale, FL 33301
Party name: Angel N. Diaz

Attorneys for Respondent:
Sandra Sue Jaggard	444 Brickell Avenue Suite 950
	Miami, FL 33131-2407
Party name: James R. McDonough, Secretary, Florida Department of Corrections

Challenged Florida's method of lethal injection - Angel Diaz

2006-12-12T07:34:00.000-08:00

According to his state-paid lawyer, Suzanne Myers Keffer, Nieves still had appeals pending with the U.S. Supreme Court.

The appeals filed with the high court also challenged Florida's method of lethal injection. Similar arguments were made earlier this year by three other death row inmates who all lost their appeals and were executed.

Each has argued that Florida's three-chemical method is unconstitutional cruel and unusual punishment because it results in extreme pain that an inmate cannot express because one of the drugs is a paralyzing agent.

Inmate's Attorneys Fight Against Execution

2006-12-12T07:29:00.000-08:00

Inmate's Attorneys Fight Against Execution

POSTED: 3:51 pm EST December 11, 2006

JACKSONVILLE, Fla. -- The convicted killer of a Miami topless club manager has turned to an appeals court in Atlanta and the U.S. Supreme Court in an attempt to stop his scheduled execution Wednesday.

Angel Nieves Diaz, 55, whose state appeals were denied Friday, turned to the federal courts Saturday.

Nieves' attorney, Suzanne Myers Keffer, said Monday she filed a request from the 11th U.S. Circuit Court of Appeals seeking permission to file another appeal and with the U.S. Supreme Court seeking a stay of execution. Neither had ruled by midday Monday.

The new appeals challenge Florida's method of lethal injection. Similar arguments were made earlier this year by three other death row inmates who all lost their appeals and were executed.

Each has argued that Florida's three-chemical method is unconstitutional cruel and unusual punishment because it results in extreme pain that an inmate cannot express because one of the drugs is a paralyzing agent.

Love from Angel for Christmas 2006 - Angel Diaz

2006-12-12T05:30:00.000-08:00

FROM ANGEL WITH LOVE

CHRISTMAS 2006

The option of imposing life imprisonment without the possibility of parole - Angel Diaz

2006-12-12T05:25:00.000-08:00

Bishop Wenski - Column

DEATH PENALTY - JANUARY 2006

Last month while California’s governor contemplated the fate of Stanley Tookie Williams whom he later had executed, Governor Bush signed two death warrants for two men on Florida’s death row. Later this month, Clarence Hill, 47, and Arthur Rutherford, 56, will be also be executed by lethal injection.

Both men were guilty of shedding innocent blood. And both have been imprisoned for some years: their crimes were committed more than 20 years ago. Yet, is it any more necessary for the State of Florida to kill these men than it was for California to kill Williams? Does society really make a coherent statement against killing by killing?

The argument has been made that the application of the death penalty represents the legitimate self defense of society from an unjust aggressor, i.e. the murderer. And, historically, the Church has conceded the point that the State can rightly apply capital punishment when absolutely necessary, i.e. when otherwise impossible to defend society. There is, in Church teaching, no moral equivalence between the execution of the guilty after due process of law and the willful destruction of innocent life that happens with abortion or euthanasia. However, Pope John Paul II has pointed out in Evangelium Vitae (no. 56): given the organization of today’s penal system and the option of imposing life imprisonment without the possibility of parole, such an “absolute necessity” is “practically non-existent”.

Also, it is difficult to defend the “necessity” of executing someone when often his accomplice, in exchange for information or testimony, is given through plea bargaining a lesser sentence. And while some loved ones seek “closure”, it is hard to see how capital punishment as “social retribution” or “institutional vengeance” really serves the purpose of punishment which should be designed to redress the disorder caused by the offense. The death penalty cannot bring the victims back to life.

Even from a purely pragmatic or utilitarian point of view, the death penalty cannot be defended. It is not an effective deterrent to crime. Texas has executed more criminal than any other state; yet, it still has one of the highest murder rates in the nation. And the death penalty is not cost effective. It costs the state less to imprison someone for the remainder of his natural life than to execute him. Given that it is irreversible, society has rightly provided that it be applied only after lengthy and expensive legal appeals. And, in spite of this, there are more than 400 documented cases of wrongly convicted persons executed in the U.S. during the last century.

Willful murder is a heinous crime; it cries to God for justice. Yet, God did not require Cain’s life for having spilt Abel’s blood. While God certainly punished history’s first murderer, he nevertheless put a mark on him to protect Cain from those wishing to kill him to avenge Abel’s murder (cf. Gn 4:15). Like Cain, the condemned prisoner on death row – for all the evil of his crimes – remains a person. Human dignity – that of the convicted as well as our own – is best served by not resorting to this extreme and unnecessary punishment. Modern society has the means to protect itself without the death penalty.

Greetings from Angel Diaz for Christmas 2006

2006-12-12T05:07:00.000-08:00

LOVE FROM ANGEL

TO OUR WORLD

ALL HUMAN LIFE IS SACRED: SCHEDULED EXECUTIONS IN FLORIDA - Angel Diaz

2006-12-12T04:44:00.000-08:00

ALL HUMAN LIFE IS SACRED: SCHEDULED EXECUTIONS IN FLORIDA

Florida death row inmate, Angel Diaz, is scheduled for execution on December 13 ^th at Florida State Prison. Last March, the U. S. Catholic Bishops called all Catholics to participate in a campaign to achieve the abolishment of the death penalty. Again, in November, our Bishops said, "At a time when the sanctity of life is threatened in many ways, taking life is not really a solution but may instead effectively undermine respect for life." This pending execution gives Florida Catholics the opportunity to be a part of the campaign in a very personal way. Our hearts and lives must have special space for the victims and their loved ones as well. But let it be known that "standing with families of victims does not compel us to support the use of the death penalty" (U.S. Bishops).

ACTION STEPS : Write to Governor Bush/elected officials/local media; Participate in a parish prayer service or liturgy the day of the execution; Attend the vigil at the State Prison ( See schedule below); Discuss the issues in a reflection group using Bishop Wenski's letter as a study guide, as well as the other resource materials enclosed; Contact the Diocesan Respect Life Office (407-246-4819) or Diocesan Criminal Justice Office (407-658-1818) for additional resources.

BUS SCHEDULE FOR PRAY VIGIL AT FLORIDA STATE PRISON (Please contact The Parishes below to sign up for the bus – BUS IS FREE)

December 13, 2006 Execution (Angel Diaz)

Pickup Locations

Pickup Times

Deanery

County

Our Lady of Grace

Palm Bay

12:00pm

Southern

Brevard

Our Lady of Lourdes

Daytona

2:00pm

Eastern

Volusia

SAMPLE PETITIONS FOR LITURGY:

For men and women who sit on death row awaiting the end of their life.
For the victims of violence and hatred, that they may be freed from pain and fear.
For the loved ones of those who have suffered death at the hands of another person, may their hearts experience the healing and reconciling power of the Spirit.
For the families of those condemned to die, that the hope of the resurrection and the truth of the Gospel of life might strengthen them in their time of need.
May the witness of the Church to the sacredness of all life, even of those who have done evil acts, serve to call our nation to a new awakening in responding to crime and determining punishment

ATTACHMENTS:

Death-penalty case inspires protest in Puerto Rico

2006-12-12T04:33:00.000-08:00

Death-penalty case inspires protest in Puerto Rico

Jeannette Rivera-Lyles | Sentinel Staff Writer
Posted December 12, 2006

Few people in Central Florida may have heard of Angel Nieves Diaz or know that he's scheduled to be executed Wednesday at a Florida prison.

But family members in Orange and Osceola counties have been working for months to save his life, and they have rallied the support of thousands in his native Puerto Rico.

In fact, the island's governor, Anibal Acevedo Vila, is among those who have petitioned Florida Gov. Jeb Bush for the commutation of his death sentence, citing irregularities in the judicial process and a cultural tradition that rejects capital punishment.

"The people of Puerto Rico have a longstanding, unwavering and broadly accepted commitment against the death penalty for moral, social and religious reasons," Acevedo Vila said in his letter to Bush two weeks ago. "We believe that the death penalty does not deter crime and places innocent people at risk of execution."

Puerto Ricans have long opposed the death penalty, which the commonwealth abolished in 1929. Although federal law applies to the island, because of its status, a Puerto Rican jury has never voted to execute anyone found guilty of a federal capital crime.

Bush turned down Acevedo Vila's petition.

Nieves, 55, was convicted in 1984 for the murder of Joseph Nagy, a South Florida nightclub manager, during a robbery five years earlier. He has been held on death row at Florida State Prison in Starke.

Many of Nieves' extended family, including his legal proxy and spokeswoman, cousin Maggie Otero Diaz, live in east Orange and Osceola counties.

Since March, when Bush signed the execution order, Otero Diaz's home off Econlockhatchee Trail has become the family's headquarters in a desperate race against the clock to save Nieves' life.

From there, they have worked the phones, organized fundraisers and cranked out letters seeking support.

Otero Diaz said she has received unlimited support from many at St. Isaac Jogues Catholic Church who have donated money, cooked meals and prayed with her.

"We never thought we would have this many people helping us," said Sol Otero, Nieves' niece.

The family also has been successful in getting the attention of Amnesty International and the Catholic Bishops of Florida, as well as local Spanish media.

Their efforts to stop the execution have been fruitless. All legal maneuvers have failed, including two motions that were denied Monday by the 11th U.S. Circuit Court of Appeals in Atlanta seeking a stay of execution and a request to file another appeal.

Nieves' state-paid attorney, Suzanne Myers Keffer, said Monday that her client still had appeals pending with the U.S. Supreme Court, The Associated Press reported. Myers Keffer could not be reached Monday by the Orlando Sentinel.

Nieves has come to terms with his impending execution, but his emotions are a roller coaster, Otero Diaz said.

"He's at peace with God. But he's desperate. Although his desperation has more to do with what is happening to us than to him," Otero Diaz said.

"He says a great injustice was committed, and not just against him, but against his family that has had to go through this excruciating process for over 20 years now."

Nieves' family, his attorney and groups such as the island-based Puerto Rican Coalition Against the Death Penalty say Nieves was allowed to defend himself even though he didn't speak English.

He was given an interpreter, but there are discrepancies in the quality and consistency of the translation, they say.

His supporters contend that the only physical evidence linking him to the murder scene is a fingerprint on a matchbox. The witness who identified him as the triggerman has since recanted his testimony.

But the Florida Supreme Court rejected these arguments, saying they already had been examined by a lower court.

Nieves had a criminal record in Puerto Rico, where he had escaped from prison before arriving in Florida.

On the island, there is outrage about the death sentence, a frequent topic on local news. The Puerto Rican media has carried daily reports on Nieves' case.

"This is a farce, a miscarriage of justice," said Osvaldo Burgos, a member of the Puerto Rican Coalition Against the Death Penalty, which is made up of the island's main religious and civic groups.

"The record shows he clearly stated that he did not know the law nor the process. How could he possibly be allowed to defend himself in a language he did not speak?"

Nieves' family members in Central Florida have begun to make funeral arrangements. If he is executed, his body will be brought to Funeraria Porta Coeli in Kissimmee for a wake. The burial will be in Puerto Rico.

Jeannette Rivera-Lyles can be reached at jrivera@orlandosentinel.com or 407-420-5471.

Inmate's attorneys fight against execution

2006-12-11T15:43:00.001-08:00

Inmate's attorneys fight against execution

By RON WORD
Associated Press Writer
December 11. 2006 3:51P

A federal appeals court has refused to stop Wednesday's execution of the convicted killer of a Miami topless club manager.

The 11th U.S. Circuit Court of Appeals in Atlanta denied Monday the motions of Angel Nieves Diaz, 55, for a stay of execution and a request to file another appeal.

According to his state-paid attorney, Suzanne Myers Keffer, Nieves still had appeals pending with the U.S. Supreme Court.

In its five-page ruling, the appeals court turned down Nieves' claim of newly discovered evidence, on whether Nieves or an accomplice, Angel Toro, fatally shot Joseph Nagy while robbing the Velvet Swing in Miami in 1979. Toro received life in prison for second-degree murder as the result of a plea deal.

Nieves submitted a sworn statement from a jailhouse informant, Ralph Gajus, saying that he had lied when he told the jury Nieves admitted to him that he was the shooter.

"Because it does not present any new testimony, the affidavit given by Gajus is not newly discovered evidence," the appeals court ruled.

The appeals filed with the high court also challenged Florida's method of lethal injection. Similar arguments were made earlier this year by three other death row inmates who all lost their appeals and were executed.

Each has argued that Florida's three-chemical method is unconstitutional cruel and unusual punishment because it results in extreme pain that an inmate cannot express because one of the drugs is a paralyzing agent.

Nieves was convicted of first-degree murder, four counts of kidnapping, two counts of armed robbery, one count of attempted robbery and one count of possessing a firearm during the commission of a felony for the holdup at the bar, in which most of the patrons were locked in a restroom.

Nieves' prior record includes a second-degree murder conviction in his native Puerto Rico and escapes there and in Connecticut. In 1981, he escaped from the Hartford Correctional Center by holding one guard at knifepoint while another was beaten as he and three other inmates escaped, according to court records.
http://www.gainesville.com/apps/pbcs.dll/article?AID=/20061211/APN/612112011

To Angel from Norway with love - You'll Never Walk Alone

2006-12-11T13:15:00.000-08:00

When you walk through a storm
Keep your chin up high
And don't be afraid of the dark.
At the end of the storm
Is a golden sky
And the sweet silver song of a lark.

Walk on through the wind,
Walk on through the rain,
Tho' your dreams be tossed and blown.Walk on, walk on
With hope in your heart
And you'll never walk alone,
You'll never walk alone.

11 circuit order December 11, 2006 - Angel Diaz

2006-12-11T11:44:00.000-08:00

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 11, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-16362

________________________

IN RE:

ANGEL NIEVES DIAZ,

Petitioner.

________________________

Application for Leave to File a Second or Successive

Habeas Corpus Petition, 28 U.S.C. § 2244(b)

_________________________

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

Catholic Bishops Implore Governor Bush to Spare the Life of Angel Nieves Diaz

2006-12-09T08:26:00.000-08:00

FOR IMMEDIATE RELEASE
Friday, December 8, 2006

Contact: Sheila S. Hopkins

(850) 205-6826

shopkins@flacathconf.org

Catholic Bishops Implore Governor Bush to Spare the Life of Angel Nieves Diaz

Tallahassee - We, the Catholic Bishops of Florida, implore you, Governor Bush, to stay the execution of Angel Diaz that is scheduled for Wednesday, December 13, 2006.

We also urge that you consider the plea of Governor Acevedo Vila of Puerto Rico, who has expressed his opposition to the State sanctioned killing of Angel Diaz, a native of Puerto Rico, where there is no death sentence, hence no executions. In our own state, the effectiveness and fairness of the death penalty is increasingly being called into question. We sense many are changing their hearts and minds regarding their support for it, and we urge that the State of Florida undertake a careful re-examination of our death penalty system.

As leaders, we are entrusted with setting an example for others to follow. Let it be demonstrated to society, and especially our youth, that the taking of another's life is not a solution to one's problems. By carrying out an execution, the State teaches our citizens that the killing of those who have killed another is acceptable. That message is a wrong one when society can be kept safe from an aggressor. Through life imprisonment without the possibility of parole, criminals are severely punished for their transgressions against society.

Our genuine prayers and sincere sympathies are extended to the family and loved ones of Joseph Nagy, the victim of this crime. We pray not only for the relief of their pain, but also that justice is served. Justice is not best served, however, by the taking of another's life.

Governor Bush, as you conclude your excellent service as Governor of our State, we plead with you to show mercy by staying this execution and commuting the death sentence of Angel Diaz.

Archbishop John C. Favalora
Archdiocese of Miami

Bishop John J. Nevins
Diocese of Venice

Bishop John H. Ricard, SSJ
Diocese of Pensacola/Tallahassee

Bishop Robert N. Lynch
Diocese of St. Petersburg

Bishop Victor Galeone
Diocese of St. Augustine

Bishop Gerald M. Barbarito
Diocese of Palm Beach

Bishop Thomas G. Wenski
Diocese of Orlando

Coadjutor Bishop Frank J. Dewane
Diocese of Venice

Auxiliary Bishop Felipe J. Estévez
Archdiocese of Miami

Auxiliary Bishop John G. Noonan
Archdiocese of Miami

# # #

The Florida Catholic Conference is an agency of the Catholic Bishops of Florida. It speaks for the Church in matters of
public policy, serves as liaison to government and the legislature, and coordinates communications and activities between
the Church and secular agencies. The Bishops of the seven (Arch)dioceses in Florida constitute its Board of Directors.

> Click here for Catholic Teaching on the Death Penalty

CATHOLIC CHURCH TEACHING ON THE DEATH PENALTY

2006-12-09T08:00:00.000-08:00

CATHOLIC CHURCH TEACHING ON THE DEATH PENALTY

Catechism of the Catholic Church

Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of
the church does not exclude recourse to the death penalty, if this is the only possible way of effectively
defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people‘s safety from the aggressor, authority
will limit itself to such means, as these are more in keeping with the concrete conditions of the common good
and more in conformity with the dignity of the human person. (Catechism of the Catholic Church, Second
Edition, 2267)

Pope John Paul II

The new evangelization calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate
and serve the Gospel of Life in every situation. A sign of hope is the increasing recognition that the dignity of
human life must never be taken away, even in the case of someone who has done great evil. Modern society
has the means of protecting itself, without definitively denying criminals the chance to reform. I renew the
appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and
unnecessary. (Pope John Paul II, Mass in St. Louis, MO, January 27, 1999)

Bishops of Florida

The abolition of the death penalty would help to break the cycle of violence. It would manifest belief in the unique
dignity of every individual and the sacredness of human life. It would acknowledge God as the Lord of life and it
would be more consonant with the spirit of the Gospel. (Bishops of Florida, Pastoral Statement, Protection,
Punishment, But Not Death, 1990)

United States Catholic Bishops

Increasingly, our society looks to violent measures to deal with some of our most difficult social problems –
millions of abortions to address problem pregnancies, advocacy of euthanasia and assisted suicide to cope with
the burdens of age and illness, and increased reliance on the death penalty to deal with crime. We are tragically
turning to violence in the search for quick and easy answers to complex human problems . . . We are losing our
respect for human life . . . We cannot teach that killing is wrong by killing. (United States Conference of
Catholic Bishops, Pastoral Statement, Confronting A Culture of Violence: A Catholic Framework for
Action, 1994)

Our witness to respect for life shines most brightly when we demand respect for each and every human life,
including the lives of those who fail to show that respect for others. The antidote to violence is love, not more
violence. (United States Conference of Catholic Bishops, Living the Gospel of Life: A Challenge to
American Catholics, No. 22, 1998)

The death penalty diminishes all of us.

Its use ought to be abandoned not only for what it does to those who are
executed, but what it does to us as a society. We cannot teach respect for life by taking life. (United States
Conference of Catholic Bishops, Catholic Campaign to End the Use of the Death Penalty, 2005)
Catholic Campaign to End the Use of the Death Penalty

For resources to help individuals, parishes and dioceses participate
in this national campaign, visit www.ccedp.org.

For additional information on the death penalty in Florida contact:

Florida Catholic Conference
201 W. Park Ave., Tallahassee, FL 32301-7715
Phone: (850) 222-3803, Web site: www.flacathconf.org

Will Governor Jeb Bush honor The Governor of Puerto Rico?

2006-12-09T07:47:00.000-08:00

http://angel-diaz-florida.blogspot.com/2006/12/clemency-letter-to-jeb-bush-from.html

He expects steady pace of executions

2006-12-09T07:37:00.000-08:00

Crist to uphold death penalty

He expects steady pace of executions

The Associated Press
Posted December 9 2006

JACKSONVILLE · Gov.-elect Charlie Crist expects to continue signing death warranat a similar pace to Gov. Jeb Bush, who signed the black-bordered documents resulting in 20 executions, the most of any governor since the state resumed capital punishment in 1979.

"I support the death penalty," said Crist, who earned the nickname "Chain Gang Charlie" for his support of inmate chain gangs while in the Florida Legislature. "It's a solemn task, but I believe in it, so I will sign them and review that process as the transition moves forward."

Crist said he will be as deliberative as his predecessor.

"It all depends on the cases that come up," he said. "I'll carry out the law, but it is a very solemn task."

Crist expected to continue Bush pace in executions

2006-12-09T07:31:00.000-08:00

Saturday, December 9, 2006

Story last updated at 12:15 a.m. on Saturday, December 9, 2006

Crist expected to continue Bush pace in executions

http://www.jacksonville.com/apnews/stories/120906/D8LT46DG2.shtml

By RON WORD
Associated Press Writer

JACKSONVILLE, Fla. - Gov.-elect Charlie Crist expects to continue signing death warrants at a similar pace to Gov. Jeb Bush, who signed the black-bordered documents resulting in 20 executions, the most of any governor since the state resumed capital punishment in 1979.

"I support the death penalty," said Crist, who earned the moniker "Chain Gang Charlie" for his support of inmate chain gangs while in the Legislature. "It's a solemn task, but I believe in it, so I will sign them and review that process as the transition moves forward."

Crist told The Associated Press he will be as deliberative as his predecessor.

"It all depends on the cases that come up," he said. "I'll carry out the law, but it is a very solemn task."

In his eight years in office, Bush averaged 2.5 executions per year and saw the state move from the electric chair, beset by constitutional challenges, to lethal injection, now under scrutiny for the chemicals used in the process and their proper dosages.

Three inmates have been executed this fall while challenging lethal injection. Another inmate, Angel Diaz, is scheduled to die by injection Wednesday for the murder of a 1979 slaying of Joseph Nagy, a topless bar manager in Miami, marking the 21st execution since Bush became governor in 1999.

In his four years as attorney general, Crist's office was responsible for representing the state in the last-minute appeals of death row inmates. Assistant Attorney General Carolyn Snurkowski was responsible for most of the appeals.

In November 2005, Crist urged the Legislature not to follow a recommendation of the Florida Supreme Court. The high court wanted the state to require an unanimous sentencing recommendation from a jury before an inmate could receive a death sentence. Currently, prosecutors only have to convince a majority of jurors for death penalty recommendations.

Crist noted at the time that serial killers Ted Bundy and Aileen Wuornos would have escaped death sentences because of 10-2 penalty phase verdicts.

"I believe the current system is not only constitutional but appropriate to punish those who murder as well as deter potential future murders," Crist said. The Legislature did not change the law.

The most notorious inmates executed in Bush's eight years in office were Wuornos, who murdered at least six men between 1989 and 1990; abortion doctor killer Paul Hill; and Danny Rolling, the confessed slayer of five college students in Gainesville in 1990.

Bush also viewed signing death warrants as part of the job.

"I have a duty to do this. It does not give me great joy, does not fill my heart with joy. I don't look at this as any easy part of my job," Bush said in October.

Bush, who became a Roman Catholic in 1994 after losing his first race for governor, is at odds with the church over his support of the death penalty.

"It doesn't matter what my personal views are, or what their views are. It's the law of the land and as I said, it's not an easy thing to do, but I've reconciled my own core beliefs with the implementation of the death penalty," Bush said recently.

The Florida Catholic Conference issues a press release prior to each execution, asking the governor to halt it, said Sheila Hopkins, associate for social concerns for the Tallahassee-based conference.

"We implore the governor to listen to the growing chorus of voices calling for a moratorium in Florida and a careful examination of the state's death penalty system," the conference wrote before October's executions of Arthur Rutherford and Rolling.

Hopkins said the Catholic group favors life in prison without the possibility of parole and will continue to issue news releases when Crist, who is a Methodist, signs death warrants.

Bush's execution total pales when compared with that of his older brother. When President George W. Bush was Texas governor for six years, 152 inmates were executed. Under the current Texas governor, Rick Perry, 141 inmates have been executed, including 24 this year.

Since Florida resumed executions after a 15-year hiatus from 1964 to 1979, Gov. Lawton Chiles was second to Bush with 18 executions and Gov. Bob Graham was third with 16. Nine inmates were executed during the four years when Gov. Bob Martinez was in office, including serial killer Ted Bundy in 1989.

Bush signed his first death warrant six months after taking office in 1999 for the execution of Allen Lee "Tiny" Davis, 54, in Florida's electric chair for the 1982 slayings of a pregnant Jacksonville woman and her two young daughters. It would be the first use of a new electric chair designed to handle Davis' 350-pound frame and the last time Florida would put an inmate to death in it, partly because of a nose bleed.

Witnesses saw blood appear on Davis' chest and spread to about the size of a dinner plate, even seeping through the buckle holes on the leather strap.

It was just a nose bleed, but the chair was on the way out. After the U.S. Supreme Court agreed to decide if Florida's electric chair was unconstitutional, a special legislative session gave death row inmates the lethal injection option.

Terry Sims, 58, became the first person to be executed by lethal injection in Florida on Feb. 23, 2000, for the 1977 killing of a volunteer deputy sheriff during a drugstore robbery in Seminole County, in central Florida. Sims died proclaiming his innocence.

Prison officials claim the procedure used in the Sims' execution has not changed in the 18 lethal injections since then.

Mark Elliott, with the anti-death penalty group, Floridians for Alternatives to the Death Penalty, hopes as governor that Crist will not be as active as Bush when signing warrants in light of a recent critical American Bar Association report and controversy over the chemicals used in Florida's lethal injections.

"I don't know what the future is going to hold. I would like to see more courage in the governor's office," Elliott said.

___

Associated Press writer Bill Kaczor in Tallahassee contributed to this report.

Florida Supreme Court opinion in Angel Diaz

2006-12-09T06:42:00.000-08:00

Supreme Court of Florida

____________

Nos. SC06-2259 & SC06-2305

____________

ANGEL NIEVES DIAZ,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

____________

No. SC06-2313

____________

ANGEL NIEVES DIAZ,

Petitioner,

vs.

JAMES MCDONOUGH, etc.

Respondent.

____________

No. SC06-2325

____________

ANGEL NIEVES DIAZ,

Petitioner,

vs.

STATE OF FLORIDA

Respondent.

- 2 -

[December 8, 2006]

PER CURIAM.

http://www.angel-diaz.us/legal/FSCopiniondenied.htm

CONCLUSION

For the reasons stated above, we affirm the trial court’s denial of

postconviction relief under rule 3.851 and the denial of Diaz’s public records

request. We also deny Diaz’s petitions for habeas corpus and all writs relief.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and

BELL, JJ., concur.

NO MOTION FOR REHEARING WILL BE ALLOWED.

Four Cases:

Two Appeals from the Circuit Court in and for Dade County,

Amy Steele Donner, Judge - Case No. 83-18931-B

An Original Proceeding – Habeas Corpus

And an Original Proceeding – All Writs

Neal A. Dupree, Capital Collateral Regional Counsel – Southern Region, Suzanne

Myers Keffer, and Barbara L. Costa, Assistant CCRC, Fort Lauderdale, Florida,

- 38 -

for Appellant/Petitioner

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, and Sandra S. Jaggard,

Assistant Attorney General, Miami, Florida,

for Appellee/Respondent

Florida Supreme Court denies stay - Angel Diaz

2006-12-09T06:40:00.001-08:00

Supreme Court of Florida

FRIDAY, DECEMBER 8, 2006

CASE NOS.: SC06-2259, SC06-2305,

SC06-2325, and SC06-2313

Lower Tribunal No.: 83-18931-B

ANGEL NIEVES DIAZ vs. STATE OF FLORIDA

ANGEL NIEVES DIAZ vs. JAMES R. MCDONOUGH, ETC.

___________________________________________________________________

Appellant/Petitioner(s) Appellee/Respondent(s)

Appellant/Petitioner's motion for stay of execution is hereby denied.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO and

BELL, JJ., concur.

A True Copy

Test:

kb

Served:

PENNY H. BRILL

BARBARA L. COSTA

SUZANNE MYERS KEFFER

SANDRA S. JAGGARD

HON. AMY STEELE DONNER, JUDGE

HON. HARVEY RUVIN, CLERK

Supreme Court rejects appeals of killer set to die Wednesday

2006-12-09T06:05:00.000-08:00

Posted on Fri, Dec. 08, 2006

Supreme Court rejects appeals of killer set to die Wednesday

BILL KACZOR

http://www.bradenton.com/mld/bradenton/news/local/16198378.htm

Associated Press

TALLAHASSEE, Fla. - The convicted killer of a Miami topless club manager remains set for execution next week after the Florida Supreme Court unanimously denied multiple appeals Friday.

The issues raised by Angel Diaz, 55, set to be executed Wednesday, included a challenge to Florida's method of lethal injection similar to arguments made earlier this year by three other death row inmates who all lost their appeals and were executed.

Each has argued that Florida's three-chemical method is unconstitutional cruel and unusual punishment because it results in extreme pain that an inmate cannot express because one of the drugs is a paralyzing agent.

In an unsigned opinion, the justices rejected Diaz's claim of having discovered new information to support his lethal injection challenge. It really consisted of old data that recently had been reinterpreted to reach a "speculative" conclusion, the high court wrote.

The justices also turned aside a claim of new information on whether Diaz or an accomplice, Angel Toro, fatally shot Joseph Nagy while robbing the Velvet Swing in 1979. Toro received life in prison for second-degree murder as the result of a plea deal.

Diaz submitted a sworn statement from a jailhouse snitch, Ralph Gajus, saying that he had lied when he told the jury Diaz admitted to him that he was the shooter.

The Supreme Court, though, noted the recanted testimony was an issue in a prior appeal so it cannot be considered new. They also concluded the absence of Gajus' testimony probably would not have resulted in a life sentence, the only alternative to death for first-degree murder.

Florida law permits death sentences for those who participate in crimes that result in death regardless of who does the killing.

Diaz' lawyer, Suzanne Myers Keffer, did not immediately respond to a telephone message seeking comment.

"He asked me to express his thanks and asked that I let people know he is at peace," Osvaldo Burgos, executive director of the nonprofit Civil Rights Commission in Puerto Rico, said in a statement in Spanish.

"They have removed his things from his cell and have a guard watching him 24 hours a day. He also told me that since they announced his execution that they are treating him with dignity," Burgos said.

The Supreme Court also rejected Diaz's argument that he should not be executed because he is mentally ill.

Finally, the justices turned aside his claim that a law barring state lawyers who represent death row inmates from pursuing civil rights cases is unconstitutional because it has prevented his attorney from challenging the lethal injection method in federal court.

He misinterpreted a U.S. Supreme Court opinion earlier this year as permitting such challenges only through a civil rights law, the Florida justices decided.

They wrote the federal opinion also permits such challenges through another form of appeal known as "habeas corpus" that Diaz earlier had used in the federal courts. He could have included the lethal injection issue then but failed to do so, the justices wrote.

"Thus it was through his own lack of diligence that he missed the opportunity to challenge execution by lethal injection in a federal habeas action," the high court concluded.

Diaz's prior record includes a second-degree murder conviction in his native Puerto Rico and escapes there and in Connecticut.

Death Row inmate appeals to stop execution

2006-12-07T23:31:00.001-08:00

Posted on Thu, Dec. 07, 2006

DEATH ROW
Death Row inmate appeals to stop execution

http://www.miami.com/mld/miamiherald/16189031.htm

A gang member sought to avert his execution next week in a 1979 murder at a Miami topless lounge.

BY MARC CAPUTO

mcaputo@MiamiHerald.com

TALLAHASSEE - Angel Diaz, a murderous prison escapee and suspected member of the ''Machete Men'' Puerto Rican terror gang, made one of his last appeals Thursday to the Florida Supreme Court claiming he was sentenced wrongly to die for his role in the 1979 murder of the manager of a Miami topless lounge.

At the heart of his appeal: ''Jail house snitch'' Ralph Gajus signed an affidavit recanting some of his trial testimony identifying Diaz as the shooter in the murder-robbery at the Velvet Swing lounge on Southwest Eighth Street.

But through their questions, the justices seemed to agree with prosecutors and a lower court judge that Gajus' recantation wasn't really new or outcome-changing.

''The alleged recantation is nothing more than semantics,'' Justice Charlie T. Wells said, reading from a trial-court ruling. ``And it certainly appears to me, from my reading of it, that it's correct.''

Diaz's lawyer, Suzanne Meyers Keffer, said Gajus' affidavit was important because it contradicted statements used to justify sentencing Diaz, now 58. Diaz is scheduled to be executed Dec. 13 by lethal injection, which he says is an unconstitutionally cruel punishment. Amnesty International and some politicians and activists in Puerto Rico have called for a commuted sentence as well.

Amnesty International USA Urges Commutation of Angel Diaz's Death Sentence in Florida

2006-12-07T23:27:00.001-08:00

FOR IMMEDIATE RELEASE
DECEMBER 7, 2006
12:57 PM

CONTACT: Amnesty International USA
Jason Opena Disterhoft, 202-544-0200 ext. 302

Amnesty International USA Urges Commutation of Angel Diaz's Death Sentence in Florida
Execution Scheduled for Dec. 13, Despite Key Witness Recanting His Testimony

WASHINGTON - December 7 - Amnesty International USA (AIUSA) has urged Florida Gov. Jeb Bush to halt the execution of Angel Diaz, which is scheduled to take place on Wednesday, Dec. 13. If it proceeds, the execution would be the last to take place this year and the fourth in Florida in the last two months.

Amnesty International, the world's largest grassroots human rights organization, has issued a worldwide call to action regarding Diaz's case, mobilizing the public to send appeals to Gov. Bush on Diaz's behalf. AIUSA Executive Director Larry Cox has also written Gov. Bush, urging commutation of Diaz's sentence.

"On behalf of more than 320,000 members of Amnesty International USA, I appeal to you to do everything in your power to stop the execution of Puerto Rican national Angel Nieves Diaz," Cox wrote to Bush. "As an international human rights organization, Amnesty International opposes the death penalty in all cases without reservation. While I have tremendous sympathy for the family and friends of Joseph Nagy, I believe capital punishment only perpetuates the cycle of violence."

Anibal Acevedo Vila, governor of Puerto Rico, has also taken the unusual step of writing to Gov. Bush requesting clemency for Diaz, citing Puerto Rico's longstanding opposition to the death penalty.

Look at oral argument in Florida Supreme Court December 7, 2006 - Angel Diaz

2006-12-07T13:53:00.000-08:00

Go here :

http://wfsu.org/rafiles/archives/06-2259.ram

Amnesty International USA Urges Commutation of Angel Diaz's Death Sentence in Florida

2006-12-07T13:38:00.000-08:00

Amnesty International USA Urges Commutation of Angel Diaz's Death Sentence in Florida

Execution Scheduled for Dec. 13, Despite Key Witness Recanting His Testimony

12/7/2006 12:57:00 PM

--------------------------------------------------------------------------------

To: State Desk

Contact: Jason Opena Disterhoft of Amnesty International USA, 202-544-0200 ext. 302

WASHINGTON, Dec. 7 /U.S. Newswire/ -- Amnesty International USA (AIUSA) has urged Florida Gov. Jeb Bush to halt the execution of Angel Diaz, which is scheduled to take place on Wednesday, Dec. 13. If it proceeds, the execution would be the last to take place this year and the fourth in Florida in the last two months.

Amnesty International, the world's largest grassroots human rights organization, has issued a worldwide call to action regarding Diaz's case, mobilizing the public to send appeals to Gov. Bush on Diaz's behalf. AIUSA Executive Director Larry Cox has also written Gov. Bush, urging commutation of Diaz's sentence.

"On behalf of more than 320,000 members of Amnesty International USA, I appeal to you to do everything in your power to stop the execution of Puerto Rican national Angel Nieves Diaz," Cox wrote to Bush. "As an international human rights organization, Amnesty International opposes the death penalty in all cases without reservation. While I have tremendous sympathy for the family and friends of Joseph Nagy, I believe capital punishment only perpetuates the cycle of violence."

Anibal Acevedo Vila, governor of Puerto Rico, has also taken the unusual step of writing to Gov. Bush requesting clemency for Diaz, citing Puerto Rico's longstanding opposition to the death penalty.

Angel Diaz was sentenced to death for the 1979 robbery and murder of bar manager Joseph Nagy. He was allowed to represent himself at trial even though he had limited command of the English language, had no knowledge of how trials were conducted, and had not finished high school. Assessments conducted by mental health experts also suggest that Angel Diaz suffers from various mental disorders.

Although two other men were involved in the robbery of the bar, co-defendant Angel Toro pled guilty to second-degree murder and was sentenced to life in prison. The testimony of Ralph Gajus, a jailhouse informant, was central to the prosecution's allegations that Diaz was the gunman. Gajus has now provided a sworn affidavit stating that his testimony was false and that he knew nothing about the crime.

At the sentencing, it was argued in mitigation against a death sentence that Diaz had only been an accomplice to the crime, but no new evidence of this was presented. Research has repeatedly demonstrated that residual doubt about guilt is a highly mitigating factor in the minds of capital jurors. Although the jury recommended a death sentence for Diaz, it did so only by eight votes to four, indicating possible residual doubt in the minds of the jurors, even with the testimony of Gajus. Without Gajus' testimony, it is possible that more of the jurors would have voted against a death sentence.

Testimony given by people who are themselves in custody or facing criminal prosecution has been shown to be frequently unreliable. Research at Northwestern University in Illinois has revealed that the use of such informants was among the three most prevalent factors in wrongful capital convictions in the United States. A review of 111 such cases from 1973 to 2004 found the use of false testimony in 46 percent of the cases.

"Testimony by jailhouse informants is notoriously unreliable and is a leading cause of wrongful convictions in this country," said Sue Gunawardena-Vaughn, the director of AIUSA's Program to Abolish the Death Penalty. "It would be a travesty of justice for the state of Florida to allow this execution to proceed now that a key piece of the prosecution's case has been called into question."

This case exemplifies many of the concerns raised earlier this fall by the American Bar Association, which conducted a thorough study of Florida's capital punishment policies. Florida is the only state in the country that does not require a jury to be unanimous in recommending the death penalty. Four of the jurors in Diaz's trial did not vote for the death penalty; it is highly likely that without the damaging testimony of Gajus, even more would have voted against a death sentence.

"Gov. Bush's last days in office should not involve the execution of a man who was incompetent to stand trial and who was sentenced largely on the basis of testimony that has since been recanted by a jailhouse snitch," said Mark Elliott, AIUSA's State Death Penalty Abolition Coordinator for Florida. "We call upon the governor to make a final stand for justice and to stop this execution from proceeding."

http://www.usnewswire.com

Gang member seeks to avert execution for '79 topless-bar killing

2006-12-07T08:12:00.000-08:00

Gang member seeks to avert execution for '79 topless-bar killing

By MARC CAPUTO

http://www.bradenton.com/mld/bradenton/news/nation/16185893.htm

mcaputo@MiamiHerald.com

TALLAHASSEE - A week before his scheduled execution, a suspected member of the ''Machete Men'' Puerto Rican terror gang brought one of his final appeals to Florida's Supreme Court today, alleging he was wrongly sentenced for murdering the manbager of a Miami topless lounge.

Angel Diaz, now 58, has submitted an affidavit of a ''jail house snitch'' who is recanting some of his testimony used to convict Diaz in the 1979 murder-robbery at the Velvet Swing lounge.

Prosecutors argue the substance of the affidavit is nothing truly new and that Diaz should still be executed Dec. 13. Through their questions, some of the Supreme Court justices seemed to side with the state, and noted that Diaz was part of the robbery.

Neither Diaz nor two other suspects was clearly identified as the shooter. A topless dancer who ducked behind the bar and customers forcibly locked in the bathroom didn't get a clear look at the triggerman. Diaz left a fingerprint on a matchbook left at the scene.

The case grew cold for four years, and police focused attention elsewhere as the cocaine wars raged in Miami, making it such a violent city at one point that a quarter of all murders were with machine guns. A break in the case came when a killer named Ralph Gajus was in Miami jail in 1984 along with Diaz.

He said Diaz discussed by hand gestures and in broken English the killing of Joseph Nagy at the Velvet Swing. Gajus now says he improperly inferred that Diaz was the shooter after Diaz excluded him from a jail escape plan.

Diaz had been serving a life term in his native Puerto Rico after killing a prison drug rehabilitation director, but had escaped. He also escaped from a Connecticut prison before coming to Miami.

Denying Mr. Diaz an opportunity to address these matters violates Mr. Diaz’s due process rights

2006-12-06T15:13:00.000-08:00

This Court entered an order requiring Respondents to respond by 9:00

a.m. on December 6, 2006, but precluding Mr. Diaz from filing a reply..4.

Just before 9:00 a.m., undersigned received the Respondent’s Response to

Mr. Diaz’s Petition. This Response raises new matters and issues, and contains blatantly

deceptive assertions and arguments. Denying Mr. Diaz an opportunity to address these

matters violates Mr. Diaz’s due process rights, specifically the right to fair notice and

reasonable opportunity to be heard.

5. For example, in the Response the State advances the argument that the

Petition improperly seeks a declaratory judgment.1 Of course, the State made a similar

argument in Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), when it asserted that Mr.

Jones was seeking a declaratory judgment that electrocution was unconstitutional.

However, the State’s position was rejected.

State says justice lack jurisdiction for latest Diaz appeal

2006-12-06T15:03:00.000-08:00

State says justice lack jurisdiction for latest Diaz appeal

Florida Supreme Court lacks jurisdiction to take the latest appeal from a death row inmate facing execution next week, the state says in papers filed with the justices Wednesday.

Angel Diaz, scheduled to die Dec. 13 for murdering a topless club manager in Miami, contends that a law limiting state lawyers who represent death row inmates from pursuing non-criminal cases is unconstitutional because it has prevented his attorney from challenging Florida's lethal injection method in federal court.

That's because the U.S. Supreme Court has permitted such challenges only through a civil rights law in another Florida case earlier this year.

"This court does not have jurisdiction to issue declaratory judgments," Assistant Attorney General Sandra Jaggard wrote.

She also argued Diaz already has challenged his conviction and sentence in other appeals so, therefore, he has not been deprived of access to the courts even though his lawyer cannot challenge the lethal injection method in federal court.

The Supreme Court had prohibited Diaz's lawyer, Suzanne Myers Keffer, who works for the state's Office of the Capital Collateral Regional Counsel-South, from filling a reply. She protested that decision in a motion for an opportunity to be heard.

Keffer wrote that the state's response "raises new matters and issues, and contains blatantly deceptive assertions and arguments." Denying Diaz an opportunity to be heard violates his due process rights, she contended.

Diaz, who has other appeals pending before the high court, was convicted of first-degree murder for the Dec. 22, 1979 shooting death of Joseph Nagy while he and two accomplices robbed the Velvet Swing.

His prior record includes a second-degree murder conviction in his native Puerto Rico and escapes there and in Connecticut.

Three other Florida inmates this year have challenged the lethal injection procedure but federal courts rejected their cases on procedural grounds and all were executed.

MOTION FOR OPPORTUNITY TO BE HEARD

2006-12-06T13:00:00.000-08:00

IN THE SUPREME COURT OF FLORIDA

NO. SC06-2325

EMERGENCY CAPITAL CASE, DEATH WARRANT SIGNED;

EXECUTION SCHEDULED FOR DECEMBER 13, 2006 AT 6:00 P.M.

ANGEL NIEVES DIAZ,

Appellant,

STATE OF FLORIDA,

Appellee.

__________________________/

MOTION FOR OPPORTUNITY TO BE HEARD

COMES NOW, ANGEL NIEVES DIAZ, Petitioner, by and through

undersigned counsel and moves this Court to allow him the opportunity to be heard and

as grounds therefore asserts:

1. Mr. Diaz is presently scheduled to be executed on December 13, 2006, at

6:00 p.m.

2. On December 5, 2006, Mr. Diaz filed a Petition Seeking to Invoke this

Court’s All Writs Jurisdiction, arguing that this Court’s decision in Butterworth v. Kenny,

714 So. 2d 404 (1998), improperly denies Mr. Diaz due process in that it precludes his

collateral counsel from raising an Eighth Amendment claim challenging the method of

his execution in federal court via the only avenue that a federal court has jurisdiction at

this juncture to consider.

3. This Court entered an order requiring Respondents to respond by 9:00

a.m. on December 6, 2006, but precluding Mr. Diaz from filing a reply..4.

Just before 9:00 a.m., undersigned received the Respondent’s Response to

Mr. Diaz’s Petition. This Response raises new matters and issues, and contains blatantly

deceptive assertions and arguments. Denying Mr. Diaz an opportunity to address these

matters violates Mr. Diaz’s due process rights, specifically the right to fair notice and

reasonable opportunity to be heard.

5. For example, in the Response the State advances the argument that the

Petition improperly seeks a declaratory judgment.1 Of course, the State made a similar

argument in Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), when it asserted that Mr.

Jones was seeking a declaratory judgment that electrocution was unconstitutional.

However, the State’s position was rejected.

Now, in its current Response, the State has

developed amnesia as to what occurred in Jones, and instead argues that this Court

implicitly treated that claim as a habeas corpus claim.

However, this Court has

repeatedly said that claims which warrant evidentiary development may not be presented

in a habeas petition, but must be presented in a Rule 3.850 motion.

6. Moreover after Jones, this Court exercised its all writs jurisdiction to

entertain Mr. Provenzano’s claim that electrocution was unconstitutional when he

petitioned this Court the day after Allen Davis’ execution.

This Court also exercised its

all writs jurisdiction earlier this year when it entertained the all writs petition filed by

A.D. Rutherford, compelling the State to disclose the newly adopted execution protocol.

1 Respondent does not explain why a challenge to this Court’s ruling in Butterworth v.

Kenny constitutes a request for a declaratory judgment.

This Court’s decision in

Butterworth occurred in quo warranto proceeding, and this Court at the Attorney General’s

request construed the statute creating CCRC-South.

Since this Court had jurisdiction to

address the issue of statutory construction and construed the statute in a fashion that Mr.

Diaz now argues violates his due process rights, surely this Court has jurisdiction to

reconsider its decision in light of the United States Supreme Court’s recent decision in Hill..

In none of these cases did the Petitioners bring a habeas petition. In fact, in each of these

instances, the Petitioners were precluded from presenting the issue in a habeas petition.

Accordingly, the statement in the Response that "the action that [Mr. Diaz] is attempting

to bring is not a habeas petition; it is a declaratory judgment action," (Response at 2-3)

completely misses the point - this statement ostensibly also applied to Mr. Jones, Mr.

Provenzano, and to Mr. Rutherford; and yet in each of those cases, this Court entertained

the all writs petition and decided the matter on the merits.

Implicit in such actions was

this Court’s determination that it had jurisdiction.2

Accordingly, Mr. Diaz relies upon

this Court’s action in those cases as establishing that this Court has jurisdiction to hear

and decide his petition.3

2 This Court had the jurisdiction to construe the statute in an original quo warranto

proceeding in Butterworth v. Kenny.

Apparently, it is the Attorney General’s position that

this Court has jurisdiction to construe the statute when he requests, but not when a capital

defendant requests that the adopted construction no longer comports with due process

because of changes in federal procedure adopted by the United States Supreme Court. The

Attorney General’s position that the playing field should not be level, may be

understandable in that he wants the field slanted in his favor; however, to so slant the

playing field is itself a violation of due process.

3 Interestingly, the State’s position seems to be advocating that Mr. Diaz, while the death

warrant is pending, should follow the procedure for securing a declaratory judgment.

The

position reflects opposing counsel’s knee jerk reaction to oppose whatever a collateral

attorney files without thought as to the ramifications. It is not unlike years ago when the

State argued that a capital defendant should go to the jurisdiction where public records were

held to challenge a failure to comply with Chapter 119. The State was successful in

convincing this Court in Hoffman v. State that its position was correct, only to spend years

regretting the delay caused by the cumbersome and time consuming process. So too here,

the potential for delay in seeking declaratory judgments will threaten the entire capital

process.

Further, to the extent that the State argues that a declaratory judgment is required, the

State’s position surely must be a concession that CCRC-South may file a declaratory

judgment action, Butterworth v. Kenny notwithstanding; otherwise Mr. Diaz lacks counsel

to pursue the action in any manner other than the all writs route.

Mr. Diaz, as well as all of

CCRC-South’s other clients, certainly can seek a declaratory judgment and the cumbersome

process that obtaining one entails..6.

Moreover, Mr. Diaz needs the opportunity under due process to

demonstrate the serious inconsistencies inherent in the State’s position.

For example, the

State’s claims that this Court has jurisdiction in a habeas petition to hear a challenge to

the method by which an execution is to be carried out. However, this position contradicts

the remainder of the Response, wherein the State asserts that a method of execution

challenge does "not challenge the fact of his execution or the State’s ability to conduct

the execution by lethal injection." Response at 6.

Though the United States Supreme

Court did reach this conclusion in Hill in justifying the procedural ruling there, it was

over the State’s strenuous argument that a challenge to the method was a challenge to the

sentence. Since its position in Hill was rejected, the State has not eschewed this

argument it advanced there in any state court proceedings or before this Court.

In fact,

the State of Florida has never argued that a method of execution challenge may not be

presented in a Rule 3.850 motion because it does not go to the constitutionality of either

the judgment or the sentence. In the Response, the State talks out of two sides of its

mouth.

7. Such inconsistencies exemplify how the State’s entire Response is

premised on the failure to recognize the difference between a substantive constitutional

claim and the procedure for litigating that claim.

Certainly, the State does not contest

that Mr. Diaz has the right to have his state-paid collateral counsel present the substantive

claim challenging the method of his execution. In fact, the entire thrust of the Response

is a concession on this point.

However, the procedural rules adopted by this Court

concerning the manner in which such a substantive constitutional claim may be

presented, and the procedural rules adopted by the United States Supreme Court in Hill.concerning how those claims may be presented, are critically different.

This Court has no

more right to dictate to the United States Supreme Court the procedural rules to be

followed in federal court, than the United States Supreme Court has to dictate to this

Court the procedural rules to be utilized in state court.

The simple truth of the matter,

which State’s counsel ignores in the Response, is that Mr. Diaz has a means of presenting

his substantive claim to the federal courts – he can file a section 1983 action.4

Instead,

the State attempts to get this Court to uphold its previous decision in Butterworth v.

Kenny, which was rendered at a time before the United States Supreme Court recognized

that the substantive Eighth Amendment claim (which this Court has found cognizable in

a Rule 3.850 motion) may be presented in a section 1983, even at a time when Congress

has precluded its presentation in a federal habeas petition.

When Butterworth v. Kenny

was decided, the result in Hill could not and was not anticipated. After Hill, that decision

appears to be an effort to dictate procedure in federal court. As such, it violates Mr.

Diaz’s due process rights, his right to access to the courts, and his right to equal

protection.

8. Further, the State’s position that the attorneys for Mr. Hill and Mr.

Rutherford were precluded from filing a section 1983 on behalf of their clients overlooks

one important fact – THEY WERE NOT PRECLUDED FROM FILING A SECTION

1983 ACTION ON BEHALF OF THEIR CLIENTS. The United States Supreme Court

heard their cases and addressed their claims. That fact is the controlling fact as to

4 If the State is so sure that Mr. Diaz has previously had the opportunity to present his

eighth amendment challenge to the August 16, 2006, lethal injection protocol why is it

attempting to preclude the filing of an action under Hill. Aren’t the arguments made in the

Response on this point, the arguments that the State should be making to the federal court?

If it is so confident of prevailing, why deny Mr. Diaz the opportunity to be heard by the

federal court..whether there is an equal protection violation in Mr. Diaz’s case, and clearly

demonstrates such an equal protection violation.

9. Finally, the State inexplicably argues that Mr. Diaz is not being denied

access to the courts because he previously has had access to the courts.

However, since

the Hill decision, which completely altered the legal landscape, and since the disclosure

that a new lethal injection protocol has been adopted, Mr. Diaz has NOT had access to

the federal courts.

A wealth of new factual and legal developments have occurred

regarding the constitutionality of the lethal injection protocol that Mr. Diaz has not had

the opportunity to present to the federal courts.

These include the new evidence that has

surfaced regarding the substantial Eighth Amendment problems inherent in the lethal

injection procedures first discussed in THE LANCET article, the litigation in Morales v.

Hickman, and the similar litigation in Ohio federal court, etc. The State’s argument that

Mr. Diaz has had the opportunity to litigate these new facts in light of the new law is

simply false.

10. Mr. Diaz respectfully requests that this Court allow him the opportunity to

be heard (a basic component of due process) as to the State’s arguments and false

assertions presented in the Response when it contends that this Court does not have

jurisdiction to hear Mr. Diaz’s petition.

Mr. Diaz must be given an opportunity to

respond to the incorrect factual assertions made by Respondent.

11. At its core, due process means that a party has an opportunity to be heard.

In light of the State’s new arguments submitted this morning, Mr. Diaz must be permitted

to file a reply to the State’s Response..

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished via

facsimile Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650

Miami, Florida 33131 this 6th day of December 2006.

___________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

BARBARA L. COSTA

Staff Attorney

Florida Bar No. 0014244

Capital Collateral Regional

Counsel - South

101 NE Third Avenue, Suite 400

Ft. Lauderdale, FL 33301

(954) 713-1284

Counsel for Defendant

STATE`s RESPONSE TO ALL WRITS PETITION

2006-12-06T07:17:00.000-08:00

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-2325

ANGEL NIEVES DIAZ,

Petitioner,

vs. RESPONSE TO ALL WRITS PETITION

THE STATE OF FLORIDA,

Respondent.

Diaz lawyers: State law unconstitutionally bars federal lawsuit

2006-12-06T06:48:00.000-08:00

Keffer contends in another appeal that Diaz is entitled to a life sentence because that's what co-defendant Angel Toro received for second-degree murder in a plea deal.

The Supreme Court previously rejected that argument, but Keffer argues that was before new information recently was obtained - a sworn statement from jailhouse snitch Ralph Gajus.

In the statement Gajus recanted his trial testimony that Diaz, who spoke poor English, admitted he was triggerman through hand signs.

Gajus said he lied on the stand because he was angry with Diaz about leaving him out of an escape plan and police had promised to help him with his case in return for his testimony. Gajus later was sentenced to 20 years for second-degree murder.

His was the only testimony implying Diaz was the shooter. Other testimony suggested it was Toro.

Death Row inmate fights state law

2006-12-06T06:45:00.000-08:00

Posted on Wed, Dec. 06, 2006

FLORIDA SUPREME COURT

Death Row inmate fights state law

Florida justices ordered the state to respond today to a Death Row inmate's argument that state law unconstitutionally bars a federal lawsuit challenging lethal injection.

BY BILL KACZOR
Associated Press

TALLAHASSEE - Lawyers for a Death Row inmate set for execution next week claimed in an appeal Tuesday that a Florida law is unconstitutional because it bars them from challenging the lethal injection procedure in federal court.

It is the latest appeal Angel Diaz has before the Florida Supreme Court. Another argues he should get a life sentence because that's what another defendant received for the fatal shooting of a Miami topless club manager in 1979.

Diaz is scheduled to die Dec. 13.

The Supreme Court previously ruled a state law prohibits lawyers from the state's Capital Collateral Regional Counsel offices from representing Death Row inmates in civil rights cases, wrote one of his lawyers, Suzanne Myers Keffer.

That violates his due process rights, contended Keffer, who works for the Capital Collateral office covering South Florida.

The U.S. Supreme Court ruled earlier this year in another Florida case that Death Row inmates can challenge execution methods in federal court but only under a civil rights law.

CHALLENGE BARRED

''Counsel for Mr. Diaz is now statutorily precluded from raising a challenge to the manner of his execution through the only means Mr. Diaz has at this point for presenting such a challenge in federal court,'' Keffer wrote.

The Florida justices ordered the state to respond today.

The U.S. Supreme Court made its ruling in the case of Clarence Hill, convicted of fatally shooting a Pensacola police officer.

Hill had a private lawyer who then challenged the state's lethal injection method in the federal courts. They refused to hear the challenge, ruling it should have been filed earlier. Hill was executed Sept. 20.

SAME ARGUMENT

Since then, two other Florida killers have made the same argument. They also lost and were executed.

Keffer contends in another appeal that Diaz is entitled to a life sentence because that's what codefendant Angel Toro received for second-degree murder in a plea deal.

The Supreme Court previously rejected that argument, but Keffer argues that was before new information was obtained recently -- a sworn statement from jailhouse informant Ralph Gajus.

In the statement, Gajus recanted his trial testimony that Diaz, who spoke poor English, admitted he was the shooter through hand signs.

LIED ON STAND

Gajus said he lied on the stand because he was angry with Diaz about leaving him out of an escape plan, and police had promised to help him with his case in return for his testimony.

Gajus later was sentenced to 20 years for second-degree murder.

His was the only testimony implying Diaz was the shooter. Other testimony suggested it was Toro.

Circuit Judge Amy Steel Donner rejected Diaz's argument Friday and Keffer appealed to the Supreme Court on Monday. The state responded Tuesday, arguing he cannot make that argument now because the high court previously rejected it.

Diaz's record includes a murder in his native Puerto Rico and escapes from prisons there and in Connecticut.

Lawyers of death row inmate challenge law

2006-12-06T06:41:00.000-08:00

Posted on Wed, Dec. 06, 2006

Lawyers of death row inmate challenge law

BILL KACZOR
Associated Press

TALLAHASSEE - Lawyers for a death row inmate set for execution next week claimed in an appeal Tuesday that a Florida law is unconstitutional because it bars them from challenging the lethal injection procedure in federal court.

Lawyers File Appeal To Block Execution

2006-12-06T06:40:00.000-08:00

Published Wednesday, December 6, 2006
TALLAHASSEE

Lawyers File Appeal To Block Execution

The Supreme Court previously ruled a state law prohibits lawyers from the state's Capital Collateral Regional Counsel offices from representing death row inmates in civil rights cases, wrote one of his lawyers, Suzanne Myers Keffer. That violates his due process rights, contended Keffer who works for the Capital Collateral office.

Inmate's lawyers: State law illegally bars federal suit

2006-12-06T06:38:00.000-08:00

Inmate's lawyers: State law illegally bars federal suit

It is the latest appeal Angel Diaz has before the Florida Supreme Court. Another argues he should get a life sentence because that's what another defendant received for the fatal shooting of a Miami topless club manager in 1979. Diaz is scheduled to die Dec. 13.

Death-row inmate appeals

2006-12-06T06:34:00.000-08:00

Death-row inmate appeals

TALLAHASSEE -- Lawyers for a death-row inmate set for execution next week claimed in an appeal Tuesday that a Florida law is unconstitutional because it bars them from challenging the lethal-injection procedure in federal court.

Man facing execution puts forth new appeal

2006-12-05T23:37:00.000-08:00

Man facing execution puts forth new appeal

By ASSOCIATED PRESS
Published December 6, 2006

TALLAHASSEE - Lawyers for a death row inmate set for execution next week claimed in an appeal Tuesday that a Florida law is unconstitutional because it bars them from challenging the lethal injection procedure in federal court.

It is the latest appeal Angel Diaz has before the Florida Supreme Court. Another argues he should get a life sentence because that's what another defendant received for the fatal shooting of a Miami topless club manager in 1979. Diaz is scheduled to die a week from today.

The state Supreme Court previously ruled that a state law prohibits lawyers from the state's Capital Collateral Regional Counsel offices from representing death row inmates in civil rights cases, wrote one of his lawyers, Suzanne Myers Keffer. That violates his due process rights, contended Keffer, who works for the Capital Collateral office.

The U.S. Supreme Court ruled earlier this year in another Florida case that death row inmates can challenge execution methods in federal court but only under a civil rights law.

"Counsel for Mr. Diaz is now statutorily precluded from raising a challenge to the manner of his execution through the only means Mr. Diaz has at this point for presenting such a challenge in federal court," Keffer wrote.

The Florida justices ordered the state to respond today.

The U.S. Supreme Court made its ruling in the case of Clarence Hill, convicted of fatally shooting a Pensacola police officer.

Hill had a private lawyer who then challenged the state's lethal injection method in the federal courts. They refused to hear the challenge, ruling it should have been filed earlier. Hill was executed Sept. 20. Since then two other Florida killers made the same argument. They also lost and were executed.

Keffer contends in another appeal that Diaz is entitled to a life sentence because that's what co-defendant Angel Toro received for second-degree murder in a plea deal.

The Supreme Court previously rejected that argument, but Keffer argues that was before recent new information was obtained - a sworn statement from jailhouse snitch Ralph Gajus.

Gajus recanted his trial testimony that Diaz, who spoke poor English, admitted he was triggerman through hand signs.

Circuit Judge Amy Steel Donner rejected Diaz's argument Friday. The state argues that he cannot make that argument now because the high court previously rejected it.

Florida Supreme Court requests State to respond to all writ petition - Angel Diaz

2006-12-05T13:35:00.000-08:00

Supreme Court of Florida

TUESDAY, DECEMBER 5, 2006

CASE NO.: SC06-2325

ANGEL NIEVES DIAZ vs. STATE OF FLORIDA

___________________________________________________________________

Petitioner(s) Respondent(s)

Petitioner has filed a petition seeking to invoke this court's all writs jurisdiction.

Respondent is hereby requested to file a response, if any, to the above-referenced

petition by 9:00 a.m., Wednesday, December 6, 2006. NO REPLY TO RESPONSE

WILL BE ACCEPTED.

A True Copy

Test:

Served:

SUZANNE MYERS KEFFER

BARBARA L. COSTA

SANDRA S. JAGGARD

PETITION SEEKING TO INVOKE THIS COURT’S ALL WRITS JURISDICTION - Angel Diaz

2006-12-05T12:55:00.000-08:00

IN THE SUPREME COURT OF FLORIDA

NO. SC 06-2325

________________________________________________________

ANGEL NIEVES DIAZ,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

__________________________________________________________

DEATH WARRANT SIGNED, EXECUTION SET

FOR December 13, 2006 AT 6:00 P.M.

___________________________________________

PETITION SEEKING TO INVOKE THIS COURT’S ALL WRITS JURISDICTION

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

BARBARA L. COSTA

Staff Attorney

Florida Bar No. 0014244

Capital Collateral Regional Counsel - South

101 NE Third Avenue, Ste. 400

Ft. Lauderdale, FL 33301

(954) 713-1284

Counsel for Petitioner

INTRODUCTION

Angel Nieves Diaz, through undersigned counsel, petitions this Court to invoke its All Writs jurisdiction and address whether this Court’s decision in Butterworth v. Kenny, 714 So. 2d 404 (1998), improperly denies Mr. Diaz due process in that it precludes his collateral counsel from contesting the method of the pending execution in federal court via the only avenue that a federal court has jurisdiction at this juncture to consider. See Hill v. McDonough, 126 S.Ct. 2096 (June 12, 2006).

Providing collateral counsel to litigate Mr. Diaz’s Eighth Amendment challenges to his sentence of death and the State’s method of execution, but limiting the means of presenting a viable method of execution claim in federal court in such a fashion as to guarantee that the claim will not be heard and adjudicated on the merits, violates due process and equal protection of the law. See Steele v. Kehoe, 747 So. 2d 931, 934 (Fla. 1999).

JURISDICTION

This Court’s All Writs jurisdiction has been previously recognized as a proper means of raising a challenge to a method of execution. See Jones v. Butterworth, 691 So.2d 481 (Fla. 1997).

A petition to invoke this Court’s All Writs jurisdiction is an original proceeding in this Court governed by Fla. R. App. P. 9.100. This Court has original jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const.

2

REQUEST FOR ORAL ARGUMENT

Mr. Diaz requests oral argument on this petition.

STATEMENT OF THE CASE AND FACTS

On December 21 1985, Mr. Diaz was convicted of first-degree murder and related offenses in the Circuit Court of the Eleventh Judicial Circuit, Dade County (R. 252-261) and on January 24, 1986, he was sentenced to death (R. 300-309). The judge’s sentencing order, drafted by the state prosecutor, was entered on February 14, 1986 (R. 319-330).

Mr. Diaz’s convictions and sentence of death were affirmed on direct appeal and throughout all subsequent state post-conviction and federal post-conviction proceedings. See Diaz v. State, 513 So. 2d 1045 (Fla. 1987), cert. denied, 484 U.S. 1079 (1988); Diaz v. Dugger, 719 So. 2d 865 (Fla. 1998), cert. denied, 526 U.S. 1100 (1999); Diaz v. Moore, 797 So. 2d. 588 (Fla. 2001); Diaz v. State, 869 So. 2d 538 (Fla. 2003), cert. denied Diaz v. Crosby, 543 U.S. 854 (U.S., Oct. 4, 2004); Diaz v. Secretary of Department of Corrections, 402 F.3d 1136 (11^{th Cir. 2005) cert. denied Diaz v. Crosby, 126 S. Ct. 803 (U.S., Dec. 5, 2005).}

^{Mr. Diaz filed a 3.851 motion in the Circuit Court for the Eleventh Judicial Circuit on September 25, 2006, challenging the constitutionality of Florida’s lethal injection statute and procedure. On November 9, 2006, Mr. Diaz filed an amended}

3

Rule 3.851 motion that included a claim challenging the State’s refusal to disclose public records necessary to fully and fairly present the lethal injection claim.

On November 14, 2006, while the lethal injection claim and related public records demands were still pending in the circuit court, the Governor’s Office signed a death warrant for Mr. Diaz, setting the execution for December 13, 2006.

On November 21, 2006, the circuit court denied Mr. Diaz’s 3.851 motion challenging Florida’s lethal injection procedures under the Eighth Amendment.

On November 22, 2006, Mr. Diaz timely filed his appeal to this Court.

CLAIM FOR RELIEF

SEC. 27.702, FLORIDA STATUTES, IS UNCONSTITUTIONAL FACIALLY AND AS APPLIED, AS ITS RESTRICTION PRECLUDING THE OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL ("CCRC") FROM REPRESENTING ITS CLIENTS IN CIVIL ACTIONS VIOLATES THE RIGHTS OF CCRC-REPRESENTED INMATES TO DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT.

In Hill v. McDonough, 126 S.Ct. 2096 (June 12, 2006), the United States Supreme Court unanimously held that death row inmates seeking to challenge the lethal injection method of execution may pursue the issue in proceedings under 42 U.S.C. § 1983, and are not required to present the claim in a § 2254 federal habeas petition.

Therefore, the Court held, the federal courts had jurisdiction to hear Mr. Hill’s lethal injection challenge under § 1983, even though the federal courts did not have jurisdiction to entertain the same claim in a successive federal habeas

4

, 358 F.3d 1281, 1284 (11petition. In so holding, the Court reversed Eleventh Circuit precedent holding that the only vehicle for raising a lethal injection claim in federal court was a § 2254 habeas corpus petition, and that any pleading that included such a claim no matter how it was styled was in fact a § 2254 habeas corpus petition.1 See, e.g., Robinson v. Crosby^{th Cir. 2004).}

^{Angel Nieves Diaz is a death-sentenced inmate who is represented by attorneys from Capital Collateral Regional Counsel – South ("CCRC-S"). The Office of the Capital Collateral Regional Counsel ("CCRC") is described in § 27.702, F.S., is charged with representing death-sentenced inmates, as follows}
^:

^{Duties of the capital collateral regional counsel […]}

^{(1) The capital collateral regional counsel shall represent each person convicted and sentenced to death in this state for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court. The capital collateral regional counsel and the attorneys appointed pursuant to s. 27.710 shall file only those postconviction or collateral actions authorized by statute.}

^{(Emphasis added). This Court has previously held that the "postconviction or collateral actions authorized by statute" do not include civil rights actions under § 1983. Butterworth v. Kenny, 714 So. 2d 404 (1998). However, that decision issued long before the ruling in Hill v. McDonough, in which the United States}

^{1 As a result, attorneys around the country have instituted § 1983 actions on behalf of their death-sentenced clients.}

5

Supreme Court held that a claim challenging a method of execution as violative of the Eighth Amendment could be presented in a § 1983 action, as opposed to a successor habeas petition that a federal court lacked jurisdiction to hear.

^{2 There really can be no question that CCRC-South as Mr. Diaz’s collateral counsel is entitled to challenge the method of execution under the Eighth Amendment, as this Court has heard many such challenges filed by state-provided counsel in collateral proceedings.

Since the claim has been one recognized as properly made by state-provided counsel, the manner in which the claim is to be presented in federal court should not preclude state-provided counsel’s ability to present the claim, nor should the State be permitted to require the claim to be presented only in a federal proceedings that guarantees the federal court lacks jurisdiction to address the claim
.}
Prior to the Hill decision, the Court’s ruling in Butterworth v. Kenny did not deny CCRC clients the means of raising a claim challenging the method of execution in federal court. However, this has changed by virtue of the Hill decision.

Counsel for Mr. Diaz is now statutorily precluded from raising a challenge to the manner of his execution through the only means Mr. Diaz has at this point for presenting such a challenge in federal court. By restricting collateral counsel in such a manner, the State of Florida is denying Mr. Diaz due process.2

Mr. Diaz has instructed undersigned counsel to file a federal challenge to the method of his execution. However, because the federal courts lack jurisdiction to hear the claim in a § 2254 proceeding, this means the only avenue to present the claim and have it heard by a federal court is in a § 1983 action. See Hill v. McDonough.
Counsel is currently (and unconstitutionally) precluded from

6
^{3 In addition, the statutes precluding CCRC from filing a § 1983 action on behalf of Mr. Diaz is in violation of the requirements for competent post-conviction counsel, as established by the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. 3 See ABA Guidelines, Commentary to Guidelines 1.1; 10.8; 10.15.1. The United States Supreme Court recently recognized that the ABA had promulgated a set of guidelines devoted to setting forth the obligations of defense counsel in capital cases, and found that those guidelines served as a necessary and reliable benchmark in furthering the goal of obtaining a constitutionally adequate adversarial testing. See Rompilla v. Beard, 545 U.S. 374 (2005).}
presenting this recognized collateral claim as a § 1983 action. This violates Mr. Diaz’s right to due process. In Steele v. Kehoe, 747 So.2d 931 (Fla. 1999), this Court found due process violated when a non-capital defendant lost his ability to collaterally challenge his conviction because the attorney he hired to file the collateral challenge failed to file it in a timely fashion.

This Court stated: "if a prisoner is denied the opportunity to challenge his conviction under an appropriate rule only because of the negligence of his attorney, then due process requires a belated filing procedure similar to that allowed in belated appeals." Id. at 933.

Similarly in this case, collateral counsel is charged with presenting Mr. Diaz’s collateral challenges, but is precluded from presenting a challenge to the method of his execution in federal court in the only manner in which that claim may now be presented.

Like the defendant in Steele, Mr. Diaz is confronted with the untenable choice of having a right, but no way to seek a remedy, due to the limitations of his post-conviction attorney.3 Providing Mr. Diaz with counsel, but then stripping counsel of the means of presenting a legitimate and recognized

7

challenge to his the method of his execution in federal court, violates due process under Steele
.

Because Mr. Diaz is represented by CCRC rather than private registry counsel, his attorneys are prohibited from filing a § 1983 action on his behalf in contrast to Mr. Hill by virtue of this Court’s decision in Butterworth v. Kenny.

Such a distinction implicates the equal protection clause of the U.S. Constitution.

Mr. Diaz, through undersigned counsel, respectfully requests this Court to declare the laws unconstitutional and grant Mr. Diaz the right to pursue his challenge to the method of his pending execution in federal court in the only manner which currently provides the federal courts with jurisdiction to hear the claim.

CONCLUSION

For all of the reasons discussed herein, Mr. Diaz respectfully urges the

Court to exercise its All Writs jurisdiction, declare that the limitation upon his collateral counsel’s ability to present his challenge to the method of his execution in federal court is in violation of due process and equal protection, and authorize counsel to litigate the claim in the only fashion currently open to him in federal court under Hill v. McDonough.

8

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by US Mail to Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650, Miami, Florida 33131, this ____ day of December, 2006.

Respectfully Submitted,
SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

BARBARA L. COSTA
Staff Attorney

Florida Bar No. 0014244

Capital Collateral Regional

Counsel - South

101 NE Third Avenue, Suite 400
Ft. Lauderdale, FL 33301 (954) 713-1284

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this petition is typed in Times New Roman 14 point font, in compliance with Fla. R. App. P. 9.210(a)(2).

SUZANNE MYERS KEFFER

State`s response to habeas petition - Angel Diaz

2006-12-05T12:47:00.000-08:00

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-2313

ANGEL NIEVES DIAZ,

Petitioner,

vs.

JAMES MCDONOUGH, Secretary,

Department of Corrections, State of Florida,

Respondent.

RESPONSE

CHARLES J. CRIST, JR.
Attorney General
Tallahassee, Florida

SANDRA S. JAGGARD
Assistant Attorney General
Florida Bar No. 0012068
Office of the Attorney General

Rivergate Plaza -- Suite 650

444 Bricke
ll Avenue

Miami, Florida 33131

PH. (305) 377-5441

FAX (305) 377-5655

ON PETITION FOR
WRIT OF HABEAS CORPUS

State`s response to motion for stay - Angel Diaz

2006-12-05T10:23:00.000-08:00

IN THE SUPREME COURT OF FLORIDA

CASE NOS. SC06-2259, SC06-2305,

SC06-2313

ANGEL NIEVES DIAZ,

Appellant,

vs. RESPONSE TO MOTION FOR STAY

THE STATE OF FLORIDA,

Appellee.

Appellee, THE STATE OF FLORIDA ("State"), hereby responds to Appellant’s motion for stay and respectfully requests that the motion be denied. As grounds, therefore, the State states:

1. As both this Court and the United States Supreme Court have held, a defendant must show that he has presented substantial grounds for relief from his conviction and sentence in order to be entitled to a stay. See Buenoano v. State, 708 So. 2d 941, 951 (Fla. 1998); see also Delo v. Sykes, 495 U.S. 320, 321 (1990); Barefoot v. Estelle, 463 U.S. 880, 895 (1983); Bowersox v. Williams, 517 U.S. 345 (1996).

2. Here as argued in the brief, Appellant has not presented any substantial grounds for relief. As such, the stay should be denied.

WHEREFORE, Appellee respectfully requests that the motion for stay be denied.

Respectfully submitted,

CHARLES J. CRIST, JR.

Attorney General

Tallahassee, Florida

SANDRA S. JAGGARD

Assistant Attorney General

Florida Bar No. 0012068

Office of the Attorney General

Department of Legal Affairs

444 Brickell Avenue, Suite 650

Miami, Florida 33131

(305) 377-5441

Fax (305)377-5655

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished by fax and U.S. mail to Suzanne Myers Keffer, 101 N.E. 3rd Avenue, Suite 400, Fort Lauderdale, Florida 33301, this 4th day of December 2006.

______________________________

SANDRA S. JAGGARD

Assistant Attorney General

CERTIFICATE OF COMPLIANCE

I hereby certify that this response is typed in Courier New 12-point font.

______________________________

SANDRA S. JAGGARD

Assistant Attorney General

Candice Braun's testimony - Angel Diaz

2006-12-05T08:43:00.000-08:00

Further, the testimony implicating Mr. Diaz in the offense fell far short of showing that Mr. Diaz was the shooter.

Indeed, Candace Braun's testimony established the opposite, i.e., that Angel Toro was the shooter, not Angel Diaz.

Braun testified that on the evening of the shooting, she was present in her apartment along with Mr. Diaz, Angel "Sammy" Toro and two other men named Willie and Luisito (R. 880).

Braun testified that

"[h]e [Mr.Diaz] told me that Sammy thought somebody was reaching for a gun and shot a guy during a robbery" (R. 881).

Braun also testified that Sammy Toro, Willie, and Luisito were arguing in the apartment (R. 880), and that the reason she eventually came forward to the police was because she "was under the impression that Angel Toro was blaming the actual murder on Angel Diaz, and from my -- from what I had heard, overheard, and from what Papo [Mr. Diaz] later explained to me, Papo did not shoot anyone" (R. 889-90).

Braun later reiterated that she believed that Mr. Diaz "was being accused of doing the shooting in a robbery that I knew he did not do the shooting in" (R. 896).

Braun also explained that "[e]verybody was yelling at Sammy" (R. 913), and went on to detail the conversation she overheard in her apartment:

THE WITNESS: They were arguing. If they weren't arguing, I probably wouldn't have heard it. If they were talking in a normal voice, I probably wouldn't have heard anything, but they were definitely arguing.

Papo--when I walked into the room at one point, Sammy made a motion like this (indicating). Okay. He said words like, "disparan, tipo panikiado." Disparan is shot, shoot. Tipo is another word for person, for a guy. Panicado is panic.

When he said that, Papo said to him, yelling mad, that that wasn't necessary. That's all.

Q. That what was not necessary?

A. Whatever Sammy did.

Q. What did Sammy do?

A. Apparently he shot somebody.

(R. 912). It cannot be said in light of the facts known at trial and the newly discovered evidence now known, that Mr. Diaz’s death sentence is proportionate.

Additional facts showing that Mr. Diaz was not the shooter

2006-12-05T08:41:00.000-08:00

Additional facts showing that Mr. Diaz was not the shooter are prevalent in the record.

For instance, the prosecution conceded at trial it could not establish that Mr. Diaz was the shooter. In opening statement, the prosecutor said, "there will be no evidence as to who the actual shooter of [the victim] was" (R. 788).

The prosecutor reiterated this concession in closing argument, stating, "I do not believe the evidence has shown that this defendant went in there with the intention of killing anyone," and arguing that the jury should convict based solely on felony murder (R. 1257-58).

Mr. Gajus has now provided a sworn affidavit that his testimony at Mr. Diaz’s trial was untrue

2006-12-05T08:18:00.000-08:00

http://www.angel-diaz.us/legal/habeaspet.htm

(R. 1124). Mr. Gajus’ testimony left the jury to believe that Mr. Diaz had confessed to being the triggerman. In it’s sentencing order the circuit court pointed out that the evidence was conflicting as to who was the actual triggerman, but confirmed that there was evidence from Ralph Gajus, "that the defendant was, in fact, the shooter." (R. 325).

Mr. Gajus has now provided a sworn affidavit that his testimony at Mr. Diaz’s trial was untrue.3 Mr. Gajus’ now admits that Mr. Diaz never told him that he was the shooter. Mr. Gajus further states that at the time he testified he was unsure who the shooter in fact was, but testified that it was Mr. Diaz because he was angry with Mr. Diaz and wanted to gain favor from the State in his own case.

12

2. Angel Diaz spoke English with a very thick accent and used simple words. I sometimes had a hard time understanding Angel Diaz. I did not speak any Spanish. We would communicate by using our hands and with Angel Diaz's broken English. We also would write notes to each other.

3. We would always talk about each other cases. I told him about mine and he always talked about his. Angel Diaz told me about a robbery at a bar with two other guys and amid the commotion a man was shot. Angel Diaz acted out the shooting using his hands. I do not know what really happened or whether Angel Diaz did the shooting. Angel Diaz never told me that he shot anyone.

4. During this time, Angel Diaz and I also talked about planning an escape. We passed notes among the inmates to plan the escape. Before the escape took place I read a note from Angel Diaz to another inmate and I believed I was going to be in danger during the escape. I asked the jail guards to move me and told the jail about the escape plan. I was angry with Angel Diaz because I found out they were not going to take me and I believed I was in danger.

5. After I was moved and told the jail about the escape Detective Smith and another officer came to talk to me about Angel Diaz. When the detective spoke to me about Angel Diaz's case I asked them to help me out with my case. They told me they would make a statement for me to the Judge.

6. I testified at Angel Diaz's trial that Angel Diaz acted out the

shooting and that he shot the man. I testified that Angel Diaz was the shooter. At that time I testified I was unsure who really was the shooter because Angel Diaz never told me and when he acted out the shooting it was very unclear. I testified that I believed that Angel Diaz was the shooter because I was angry about the escape plan and I believed that the police were going to help me with my case.

7. I plead guilty to second degree murder in August or September 1985 and was sentenced in 1986. I recall that Detective Smith testified at my sentencing that I helped with the escape and that I helped in their case against Angel Diaz. I was sentenced to 20 years with a three year mandatory.

13

FURTHER AFFIANT SAYETH NAUGHT

/s/ Ralph Gajus

Ralph Gajus testified at Angel Diaz trial

2006-12-05T07:57:00.000-08:00

The only witness testifying for the state which claimed Mr. Diaz was the shooter was a jailhouse snitch named Ralph Gajus. Mr. Gajus testified that he was in the Dade County Jail at the same time as Mr. Diaz and their cells were located across from each other. During his testimony, Mr. Gajus indicated that Mr. Diaz was able to speak English and that Mr. Gajus "understand(s) very well." (R. 1115). Mr. Gajus went so far as to say that Mr. Diaz spoke English almost as well as himself and the prosecutor (Id.).

As Gajus testified:

I don’t recall the name of the bar, but [Mr. Diaz] was at a bar in the Southwest section, and I believe it was three of them, and he was sitting, he indicated, like in front of a stage at the bar, and

11

3 I, Ralph Gajus, being first duly sworn, depose and say that:

1. In 1984 I was inmate in the Dade County Jail awaiting trial on a first degree murder charge. I was in the jail with Angel Diaz for 6 months. We were on the 6th floor on a wing with 6 cells. Angel Diaz was in the cell directly across from me and we would speak to each other across the hall from each other.

they were committing a robbery, and that while committing the robbery, he, someone came from the back of the bar, and it was either he or him that would die so he went (indicating), and the guy - - he indicated that he shot the man.

(R. 1123). Mr. Gajus further indicated what Mr. Diaz told him:

He said there was a robbery going on before the man came out. They were robbing the people before he came out. He indicated moving by the cash register. Then a man came out from behind, and he had a firearm, and, then that’s what -- he indicated that he had to shoot or the other guy would shoot.

(R. 1124). Mr. Gajus’ testimony left the jury to believe that Mr. Diaz had confessed to being the triggerman. In it’s sentencing order the circuit court pointed out that the evidence was conflicting as to who was the actual triggerman, but confirmed that there was evidence from Ralph Gajus, "that the defendant was, in fact, the shooter." (R. 325).

HIS SENTENCE IS DISPROPORTIONATE IN LIGHT OF NEWLY DISCOVERED EVIDENCE - Angel Diaz

2006-12-05T07:46:00.000-08:00

MR. DIAZ IS ENTITLED TO A LIFE SENTENCE AS HIS SENTENCE IS DISPROPORTIONATE IN LIGHT OF NEWLY DISCOVERED EVIDENCE.

Since his direct appeal, Mr. Diaz has challenged the proportionality review conducted by this court. In his initial petition for writ of habeas corpus to this Court, Mr. Diaz argued that appellate counsel was ineffective for failing to bring to light the facts in the record showing that Mr. Diaz was not the triggerman. Diaz v. Dugger, 719 So. 2d 865 (Fla. 1998), cert. denied, 526 U.S. 1100 (1999). Although presenting a claim that Mr. Diaz's death sentence was disproportionate to that of co-defendant Angel Toro, who received a plea to second degree murder and a life sentence, direct appeal counsel never pointed this Court to the compelling facts in the record showing the injustice of Mr. Diaz's death sentence in comparison to Toro's life sentence. Mr. Diaz again raised the issue of proportionality in his federal habeas petition.

Without these facts, this Court rejected the proportionality argument although noting that a co-defendant's life sentence is a relevant proportionality consideration if the co-defendant is the more culpable actor. Diaz v. State, 513 So. 2d 1045, 1049 (Fla. 1989). It was clear from the

10

direct appeal opinion, in which this Court stated "One of three Spanish-speaking men shot and killed the bar manager during the December 29, 1979, holdup of a Miami bar" that the Court believed Mr. Diaz could have been the shooter. Id. at 1046. In a special concurrence, Justice Barkett noted, however, "if one believed that this defendant was not the actual triggerman, the proportionality argument would have merit." Id. The compelling facts which were not presented by direct appeal counsel, coupled with newly discovered evidence relating to the only witness who testified that Mr. Diaz was the shooter, compel this Court to revisit its previous proportionality review.

The only witness testifying for the state which claimed Mr. Diaz was the shooter was a jailhouse snitch named Ralph Gajus. Mr. Gajus testified that he was in the Dade County Jail at the same time as Mr. Diaz and their cells were located across from each other. During his testimony, Mr. Gajus indicated that Mr. Diaz was able to speak English and that Mr. Gajus "understand(s) very well." (R. 1115). Mr. Gajus went so far as to say that Mr. Diaz spoke English almost as well as himself and the prosecutor (Id.).

MR. DIAZ IS ENTITLED TO A LIFE SENTENCE

2006-12-05T07:40:00.001-08:00

MR. DIAZ IS ENTITLED TO A LIFE SENTENCE
AS HIS SENTENCE IS DISPROPORTIONATE IN LIGHT OF NEWLY DISCOVERED EVIDENCE...

Habeas Petition Filed - Angel Diaz

2006-12-04T15:17:00.000-08:00

DEATH WARRANT SIGNED, EXECUTION SET

FOR December 13, 2006 AT 6:00 P.M.

_________________________________________________

PETITION FOR WRIT OF HABEAS CORPUS AND/OR MOTION TO REOPEN THE DIRECT APPEAL

Suzanne Myers Keffer

Assistant CCRC-South

Florida Bar No.: 0150177

Barbara L. Costa

Staff Attorney CCRC-South

Florida Bar No.: 0014244

Capital Collateral

Regional Counsel-South

101 N.E. 3^{rd Avenue, Suite 400}

Fort Lauderdale, FL 33301

(954) 713-1284

COUNSEL FOR PETITIONER

FSC requests State to respond to habeas petition

2006-12-04T15:13:00.000-08:00

Supreme Court of Florida
MONDAY, DECEMBER 4, 2006
CASE NO.: SC06-2313
ANGEL NIEVES DIAZ vs. JAMES R. MCDONOUGH,
ETC.
___________________________________________________________________
Petitioner(s) Respondent(s)
Petitioner has filed a petition for writ of habeas corpus. Respondent is hereby
requested to serve a response, if any, to the above-referenced petition by 3:00 p.m.,
Tuesday, December 5, 2006. NO REPLY TO RESPONSE WILL BE ACCEPTED.
A True Copy
Test:
kb
Served:
SUZANNE MYERS KEFFER
BARBARA L. COSTA
SANDRA S. JAGGARD

The initial brief filed December 4, 2006 - Angel Diaz

2006-12-04T14:03:00.000-08:00

IN THE SUPREME COURT OF FLORIDA

NO. SC06-2305

________________________________________________________

ANGEL NIEVES DIAZ,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

__________________________________________________________

DEATH WARRANT SIGNED, EXECUTION SET

FOR December 13, 2006 AT 6:00 P.M.

___________________________________________

INITIAL BRIEF

___________________________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

BARBARA L. COSTA

Staff Attorney

Florida Bar No. 0014244

Capital Collateral Regional Counsel - South

101 NE Third Avenue, Ste. 400

Ft. Lauderdale, FL 33301

(954) 713-1284

Counsel for Petitioner

MOTION FOR A STAY OF EXECUTION - Angel Diaz

2006-12-04T13:42:00.000-08:00

IN THE SUPREME COURT OF FLORIDA

NO. SC06-2305; SC06-______

EMERGENCY CAPITAL CASE, DEATH WARRANT SIGNED;

EXECUTION SCHEDULED FOR DECEMBER 13, 2006 AT 6:00 P.M.

ANGEL NIEVES DIAZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

__________________________/

ANGEL NIEVES DIAZ.

Petitioner,

v.

JAMES MCDONOUGH, SECRETARY,

DEPARTMENT OF CORRECTIONS,

STATE OF FLORIDA

Respondent.

__________________________/

MOTION FOR A STAY OF EXECUTION

COMES NOW THE APPELLANT, ANGEL NIEVES DIAZ, by and through his undersigned counsel, and herein requests a stay of execution pending the appeal in this case. In support thereof, Appellant would state:

1. Appellant is currently scheduled to be executed on Wednesday, December 13, 2006, at 6:00 PM.

2. On Tuesday, November 21, 2006, the lower court entered an order summarily denying Mr. Diaz’s Amended Rule 3.851 Motion and Amendment to his Amended 3.851 Motion. Each of those motions set forth claims requiring an evidentiary hearing.

3. On November 27, 2006, Mr. Diaz filed a successive Rule 3.851 motion alleging a substantial claim of newly discovered evidence. On the same date, this Court relinquished jurisdiction to the lower court to consider Mr. Diaz’s successive Rule 3.851 motion.

On Friday, December 1, 2006, the lower court entered an order summarily denying Mr. Diaz’s successive Rule 3.851 motion relating to newly discovered evidence that the jailhouse snitch that provided the only evidence at trial that Mr. Diaz was the victim’s shooter, lied during his testimony. As such, Mr. Diaz asserts that he is entitled to an evidentiary hearing on his newly discovered evidence claim as well the additional claims pled in his 3.851 motion. Mr. Diaz is appealling the lower court’s decisions and files his initial brief on this date.

3. The standards governing the grant of a stay of execution and the granting of an evidentiary hearing are the same. A stay of execution is proper when the defendant presents "enough facts to show . . . that he might be entitled to relief under rule 3.850." State v. Schaeffer, 467 So. 2d 698, 699 (Fla. 1985). When the defendant presents such facts, a trial court has "a valid

an evidentiary hearing. ; basis for exercising jurisdiction" and granting a stay of execution and Id.see also State v. Crews, 477 So. 2d 984, 984-85 (Fla. 1985); State v. Sireci, 502 So. 2d 1221, 1224 (Fla. 1987); O'Callaghan v. State, 461 So. 2d 1354, 1355-56 (Fla. 1984); Lemon v. State, 498 So. 2d 923 (Fla. 1986). If an evidentiary hearing is proper -- as is the case here -- then a stay of execution is proper as well.

4. A Rule 3.851 litigant is entitled to an evidentiary hearing (and a stay of execution) unless "the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief." Fla. R. Crim. P. 3.850; Lemon v. State, 498 So. 2d 923 (Fla. 1986); State v. Crews, 477 So. 2d 984 (Fla. 1985); O'Callaghan v. State, 461 So. 2d 1354 (Fla. 1984); Sireci, 502 So. 2d at 1224; Mason v. State, 489 So. 2d 734, 735-37 (Fla. 1986). See also Groover v. State, 489 So. 2d 15 (Fla. 1986).

Where, as here, a capital postconviction litigant presents a well-pled claim, an evidentiary hearing is warranted. See Roberts v. State, 678 So. 2d 1232 (Fla. 1996); Scott v. State, 657 So. 2d 1129 (Fla. 1995); Johnson v. Singletary, 647 So. 2d 106 (Fla. 1994); Jones v. State, 591 So. 2d 911 (Fla. 1991).

5. In deciding whether to deny a Rule 3.850 motion without an evidentiary hearing and a stay of execution, the Court must first determine "whether the motion on its face conclusively shows that [the defendant] is

entitled to no relief." Squires v. State, 513 So. 2d 138, 139 (Fla. 1987). Mr. Diaz's motion pleads more than sufficient facts to require an evidentiary hearing and a stay of execution. O'Callaghan; Lemon; Sireci.

6. It is certainly altogether reasonable for a capital defendant to request a stay pending the orderly resolution of his claims before the "irremediable act of execution is taken." See generally Shaw v. Martin, 613 F.2d 487, 492 (4th Cir. 1980) cf. Swafford, 679 So. 2d at 740. In State v. Crews, 477 So. 2d 984 (Fla. 1985), the Supreme Court illustrated just how necessary it is for circuit courts to stay executions in order to properly conduct adequate evidentiary hearings.

Crews involved a second Rule 3.850 motion by Stephen Booker. Mr. Booker had been denied relief in his first Rule 3.850 proceeding and the Florida Supreme Court had affirmed that denial. Booker v. State, 441 So. 2d 148 (Fla. 1983). Upon the signing of Mr. Booker's third death warrant, he filed a successor Rule 3.850 motion in the trial court. The trial judge entered a stay of execution and set a date for an evidentiary hearing. The State applied for a writ of prohibition and filed a motion to vacate the stay in the Florida Supreme Court. The Supreme Court denied both.

The Court said once more that the question on stay applications is not whether the defendant will ultimately win a new trial or sentencing proceeding; the

question is whether it can conclusively be said that the defendant will ultimately lose:

The trial court did not err in granting defendant an evidentiary hearing on the claim of ineffective assistance of counsel. The movant is entitled to an evidentiary hearing unless the motion or files and records in the case conclusively show that the movant is entitled to no relief. O'Callaghan v. State, 461 So. 2d 1354, 1355 (Fla. 1984)(citations omitted).

The state has failed to show an abuse of the trial court's discretion in finding that the files and records of the case do not conclusively show that the defendant is entitled to no relief on that ground.

Crews, 477 So. 2d at 984-85. Accord State v. Sireci, 502 So. 2d at 1224.

7. This court has granted stays of executions when situations have warranted it. See King v. Moore, 825 So. 2d 127 (Fla. 2002); Bottoson v. Moore, 824 So. 2d 115 (Fla. 2002); Provenazano v. State, 750 So. 2d 597, 603 (Fla. 1999); Roberts v. State, 678 So. 2d 1363, 1370 (Fla. 1995).

8. Furthermore, Mr. Diaz has made numerous demands for additional public records pursuant to Fla. R. Crim. P. 3.852 (i) and (h)(3). The lower court here abused its discretion in denying public records requests. The court ignored Fla. R. Crim. P. 3.852(h)(3) which provides ten days from the signing of a death warrant for collateral counsel to file demands for additional public records.

Rather, the court imposed its own

arbitrary and unreasonable rule, allowing Mr. Diaz only two days to request records.

Second, the court sustained the State’s "global" objection on behalf of every served agency to Mr. Diaz’s demands without the opportunity to respond specifically to each agency’s objections, relying on factual findings that are demonstrably false.
No reasonable person would take the view adopted by the lower court.

Mr. Diaz’s rights to access to the courts, equal protection and effective legal representation are being denied because the circuit court has denied access to public records to which he is entitled. Because this Court should remand this case to the circuit court for full public records disclosure, a stay of execution is necessary.

9. On this date, Mr. Diaz has also filed a Petition For A Writ Of Habeas Corpus, And/Or Motion To Reopen The Direct Appeal setting forth substantial claims for relief, including a request for this Court to reconsider its proportionality review in this case based on the newly discovered evidence that Mr. Diaz was not the triggerman.

10. In light of these circumstances, a stay of execution is appropriate so that Mr. Diaz’s claims can be presented at a proper evidentiary hearing. The seriousness of this case, and the seriousness of the issues presented in this appeal, militate in favor of appellate review that is

not dictated by the urgent exigencies of an execution which is presently scheduled to be carried out in a mere nine days.

WHEREFORE, Appellant requests a stay of execution.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished via electronic mail and U.S. Mail to Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650 Miami, Florida 33131 this ___ day of ____________ 2006.

SUZANNE MYERS KEFFER
Assistant CCRC
Florida Bar No. 0150177

BARBARA L. COSTA
Staff Attorney
Florida Bar No. 0014244
Capital Collateral Regional
Counsel - South
101 NE Third Avenue, Suite 400
Ft. Lauderdale, FL 33301
(954) 713-1284