Death-penalty case inspires protest in Puerto Rico

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

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

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

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

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

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?

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

He expects steady pace of executions

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

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

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

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

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

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

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

Go here :

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

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

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

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

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

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

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,

v.

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