Will Florida execute an innocent man?

STATEMENT OF THE CASE AND FACTS

Factual Background

On March 23, 1983, Lisa DeCarr and Kathy Stevens were expelled from school after they were discovered outside smoking under a tree. Lisa and Kathy were in special classes for emotionally troubled students. Pot was found in Kathy’s purse. Lisa was told that she could not return to school until she was accompanied by a parent.

On the afternoon of the next day, March 24, 1983, Lisa’s mother contacted the police and filed a missing persons report. That police report is a two-page report dated March 24, 1983 at

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5:30 PM. The first page lists the complainant, the date and the time of the incident being reported. The "Date Time Occurred" showed "24 Mar 83 1330-1400". The report listed Barbara DeCarr as the complainant/parent. On the first page of the report in the reconstruction section was handwritten, "Mrs. DeCarr stated her daughter ran away from home for no apparent reason." The second page of the report listed Wendy Chancey as a witness. The report then contained the following in the narrative section:

Compl. stated she last saw Lisa at the listed residenceat the listed time. Compl. stated that everything wasfine at home and has had no trouble with Lisa runningaway or anything. Compl. stated that Lisa was havingsome trouble in school but nothing to cause her to

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It is clear from the police report that Mrs. DeCarrreported Lisa missing within a couple of hours after she was lastseen getting into a car. It is also clear from the police reportthat Mrs. DeCarr was aware of "some trouble in school."

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runaway. Compl. checked was Lisa’s friends and schoolfor information as to where she might be with negativeresults. Compl. stated that one of Lisa’s friends toldher that Lisa asked about Beach Place, but Compl.checked with Beach Place with negative results. Compl.stated Lisa did not take any of her belongings and gaveno indication of wanting to leave.

The report showed the "listed time" as 1:30-2:00 on March 24,

1983. The "listed residence" was shown as 1225 E. Osborne St.

According to the report, Mrs. DeCarr last saw her daughter, Lisa,

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at 1:30-2:00 PM on March 24, 1983. The report further indicated that a witness, Wendy Chancey, stated "she observed Lisa get into the suspect vehicle at 12^{th St. And Osborne and was last seen heading north on 12th St." The two-page police report indicated that Lisa was wearing "blue jeans, maroon shirt, diamond ring, cross earrings." Implicit in the report was the fact that this was the attire Lisa was wearing at the time she was last seen by the complainant, Barbara DeCarr, when she last saw Lisa at 1:30}

^{2:00 PM.}

^{For over a year after this police report was dated, Mrs. DeCarr maintained that Lisa had run away. This was documented by}

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numerous police reports. Det. Gullo logged calls from Mrs.

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Since Mrs. Decarr was making representations to the policewhile filing a missing persons report, presumably she subjectedherself to prosecution if the police report was false. Kist v.State, 787 So. 2d 106 (Fla. 2nd DCA 2001).

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^{School records reveal that there was a March 24th phoneconference with Barbara DeCarr "who called to inform that Lisa had left." This was the day after Lisa had been expelled and toldthat she could not return unless accompanied by a parent. Therecords also show that on March 25th, "mom says child ran away}

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DeCarr reporting that others claimed to have seen Lisa. However, she did not provide names for any of the individuals she said had told her they had seen Lisa after her disappearance. For example, the September 2, 1983 entry stated: I received a phone call from Mrs. DeCarr who stated that she was told by friends of Lisa that they had seen Lisa on East 7th Ave. at about 46th St. Lisa was standing in the Jewel "T" parking lot speaking with two or three other w/f’s. The informants told Mrs. DeCarr that Lisa might be living in a trailer park which is across the street. Mrs. DeCarr told the informants that they should call the police the next time they see her. Mrs. DeCarr was advised that they didn’t want to get involved with the police.

The only name Mrs. DeCarr supplied Det. Gullo was when she indicated Kathy Stevens had reported that Lisa had called from New York. Yet when providing that information, Mrs. DeCarr misreported Kathy’s last name. She said Kathy’s last name was Sample. As a result, Det. Gullo did not locate Kathy.

When she testified at trial, Mrs. DeCarr denied practicing witchcraft: "I am a Catholic." (R. at 234) In her deposition, Barbara said her daughter would be lying if she had said that Barbara had engaged in sex acts with "little boys" (DeCarr depo.

yesterday (24th). Thinks child may be pregnant." Similarly,records from the Missing Child organization indicated thatBarbara contacted the organization on March 29, 1983, andreported Lisa as missing, saying, "She may be on drugs and shemay be pregnant." Barbara DeCarr did not mention to Det. Gullo,the policeman looking for Lisa, Lisa’s possible pregnancy untilApril 26^th.

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at 65). At trial, Judge Coe refused to allow Mrs. DeCarr to be

asked about her sexual relationships with 12 and 13 year old boys

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(R. 235).

In May of 1984 while she was voluntarily committed in a

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mental hospital, Mrs. DeCarr contacted a psychic. Donald Snell

testified at trial that he met Mrs. DeCarr in May, 1984 (R. 123

24). Snell headed a volunteer group that located missing

children, and employed the services of a psychic to do so (R.

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Detective Burke’s report dated June 22, 1984, noted that"Jenice DeCarr who is, the stepdaughter of Barbara DeCarr"stated, "that Barbara DeCarr was heavily into Witchcraft andwhile living in New York, Barbara participated in witchcraft to agreat extent." Jenice also reported "that her brother HaroldDeCarr, Jr. was seduced by Barbara when he was 12 yrs. old." Det.Burke noted that "this was confirmed by Harold as we were on athree party telephone conversation at the time. He stated that hewas in fact, 12 yrs old when this took place."

Det. Burke reported that Michelle Hayes, "the sister to LisaDeCarr and the daughter of Mrs. DeCarr," made similar statements.Michelle "stated she knew of one time that her mother had at least three or four young boys in her bedroom locked up with herranging from ages 12 to 14 yrs and that she knew that there wassex acts going on and that one of the subjs that was in thebedroom with her mother was Harold, Jr., her stepbrother. Shestated that she is certain that they were involved in some typeof sex act with their mother. She said it got so bad, that the 12and 14 yrs old boys would get in a fight over who was to have hermother’s affections."

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In the period between March, 1982, to June, 1984, Mrs.DeCarr had three other boyfriends in addition to Wayne Tompkins

(R. 227). As to one, Gary Francis, she denied that she moved outof the trailer park because Gary had harmed Lisa (Id.). But Mrs.DeCarr did acknowledge that a man named Bob McElvin hadpropositioned Lisa, saying he would do "certain things for herfor sexual favors" (Id.).Mrs. DeCarr found out in 1984 that Mr. Tompkins had gone tobed with another woman. However, in her testimony, she deniedthat she was angry over Mr. Tompkins’ affair with another woman

(R. 237).

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124). A second meeting occurred in early June of 1984, when Mrs. DeCarr assigned him power of attorney to search for Lisa (R. 129). On or around June 6, 1984, Snell’s organization conducted a

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search of Barbara’s former house (R. 130-31). Snell recounted that "the house was raised in the front part" and when they looked under it, "we could see a depression which we were sure was a grave." Id. When someone reached under the house, "the earth gave way" and "saw the bones" (R. 132). The depression was "on the right hand side under the front part, the front section, what was the porch" and was about "two to three feet under the house" (R. 133; 135). The police were then contacted (R. 135). Snell said that it was not difficult to go under the house to see where the depression was located, and that there were houses on both sides of the DeCarr house, and people from those houses could see what they were doing (R. 138-39). Snell did not know if Barbara knew where the body was before he went there, but "just didn't believe that she was telling me the whole truth" (R. 138; 40).

After the body was found, Mrs. DeCarr told the police that Wayne Tompkins, her ex-boyfriend, was the last person to see Lisa alive on the morning of March 24, 1983, the day she disappeared. Based upon Mrs. DeCarr’s claims and the discovery of the body, Mr. Tompkins was indicted. In early 1985, Mrs. DeCarr was deposed

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Mrs. DeCarr and her family moved from that residence over ayear before, weeks after Lisa disappeared.

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by Mr. Tompkins’ counsel. Immediately afterwards, the prosecutor

started looking for more evidence or another witness. He

contacted Kathy Stevens in March of 1985. At first she maintained

that her statements to school officials were true, that Lisa had

runaway to New York and kept in touch with Kathy. Kathy said that

after laying awake and talking to her pillow, she called the

prosecutor. After she was given authorization to visit a

boyfriend who was incarcerated, she changed her story and claimed

that she witnessed Lisa being strangled by Mr. Tompkins on the

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morning of March 24, 1983, at around 8:30 AM.

Thereafter, the prosecutor located a jail house informant,

Kenneth Turco, who claimed that Mr. Tompkins had confessed the

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murder. Mr. Turco’s testimony so matched Kathy Stevens’ story

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Kathy’s new version of the facts included her sneaking intoLisa’s bedroom window at 6:30 AM on March 24^{th because she and Lisa were planning to run away after getting in trouble atschool. In the early morning meeting, Kathy said that Lisaannounced she was not running away after all. So Kathy left.Later, she realized that she left her purse and had to go back toget it. When she got there at around 8:30 AM, the front door wasopen. She went in and saw Mr. Tompkins strangling Lisa. Lisacalled out for her to call the police. But instead, she went thenearby store and ran into Lisa’s boyfriend, Junior Davis. Whenshe told him what she had just witnessed, he seemed unconcerned.So, Kathy put the incident behind her and went to school. In hertrial testimony, Kathy said that she went back later with hergirlfriend, Kim Lisenby. It was Kim who knocked at the door, notStevens, and may have spoken with Wayne Tompkins (R. 255).}

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^{Kathy Stevens’ deposition occurred on June 12, 1985.Kenneth Turco’s deposition occurred on July 15, 1985. At thattime, he said that in late June, 1985, he first talked to WayneTompkins about his case, and that about a week and a half beforethe deposition, Mr. Tompkins confessed to him (Turco depo. at 8).}

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that defense counsel argued that the informant had obtained

access to Ms. Stevens’ deposition or statement and used it to

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mold his testimony.

Following Kathy Stevens report that she witnessed Mr.

Tompkins’ strangling Lisa at around 8:30 AM, Mrs. DeCarr was able

to remember that contrary to her earlier statements that she had

left the house before 8:30 AM, and at that time Mr. Tompkins was

still there, as was Lisa. Previously, her recollection was that

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Kenneth Turco was serving a 30 year prison sentence forburglary and grand theft (R. 301-02). Turco also had beenpreviously convicted of grand theft, forgery, and burglary (R.302). Turco acknowledged that there was a confidential informantsystem in prison and he had been part of that for the last 4 or 5years, and that he was "trustworthy" (R. 317). When he was injail with Mr. Tompkins, he had just entered a guilty plea on anescape charge (R. 303). He was waiting to be sentenced (R. 304).While in the jail, he made contact with Wayne Tompkins after he"was placed in the cell with him" (R. 305). After his contactwith Mr. Tompkins, Turco contacted prosecutor Benito, who visitedhim personally, and promised only "my safety in the jail and that[he] would tell the judge at my sentencing hearing that Icooperated and I came forward and testified in a murder trial"

(R. 311).

Turco testified that he was not hopeful that his testimonywould help him on the escape sentence because he would still bedoing time anyway (R. 315). However, it had crossed his mind thathis testimony would help him (Id.).

In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney,testified that he took over Turco’s prosecution two weeks afterWayne Tompkins’ sentence of death. He explained, "I walked downto court. I was about to offer Mr. Turco a negotiation. I got inhere and I looked at Mr. Turco and I said, ‘This guy showed a lotof guts coming forward as a jailhouse informant to testify as towhat Mr. Tompkins told him.’" (PC-R. 235). So, Benito "got up andwalked down here and announced the case, and said, ‘I nol-prosit.’" A grateful Turco "looked at [Benito] like he had just beenhanded his first bicycle at Christmas." (PC-R. 236).

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Mr. Tompkins left to take one of her sons to school and wasn’t

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home when she left after 9:00 AM.

At trial, Wendy Chancey was unavailable and defense counsel was precluded from cross-examining Mrs. DeCarr regarding the statements attributed to her in the March 24, 1983, police

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report. The State’s theory of the case was outlined in its opening statement. According to the State Wayne Tompkins and Mrs. DeCarr were boyfriend and girlfriend in March of 1983. Mr. Tompkins was living with DeCarr, along with her three children, including 15-year old Lisa (R. 107-08). On the morning of March 24, 1983, Barbara went to Mr. Tompkins’ mother’s house to help her move; before she left the house between 8:30 and 9:00 AM, she checked in on Lisa, who was in bed and was wearing a pink bathrobe (R. 110). After Barbara left, Kathy arrived somewhere between 8:30 and 9:00 AM and saw Mr. Tompkins strangling Lisa.

During Mr. Tompkins’ trial, the prosecutor relied upon Stevens’ testimony to urge the jury to convict Mr. Tompkins,

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Although it presented 8 witnesses at trial, the Stateadvised the jury that "the key testimony will come from three []witnesses"--Barbara DeCarr (the victim's mother), Kathy Stevens(the victim’s best friend), and Kenneth Turco (the jailhousesnitch)--and that "[t]hose three will provide the overwhelmingevidence" that Mr. Tompkins killed Lisa DeCarr on the morning ofMarch 24, 1983 (R. 108).

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The jury did not learn of the information provided Mrs.DeCarr and Wendy Chancey to a police officer regarding theirobservations of Lisa on the afternoon of March 24, 1983, whichwas inconsistent with the testimony of Kathy Stevens, BarbaraDeCarr, and Kenneth Turco.

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arguing, "[h]er testimony alone . . . convicts this man" (R. 346; see also R. 346-49, 360). The prosecutor relied upon Stevens’ testimony to urge the jury to recommend a death sentence (R. 44445). Thereafter, the jury convicted and recommended a sentence of death. The trial judge relied upon Stevens’ testimony to support the "committed during a felony" aggravating circumstance (R. 679).

In the course of the collateral proceedings, withheld exculpatory evidence has surfaced, along with witnesses and documents that were not presented by the defense which demonstrated that Kathy’s story - the basis of the prosecution’s theory of the case - could have been thoroughly impeached and shown to not be true. For example, in 2001, the State disclosed a June 8, 1984, police report concerning an interview of an individual named Maureen Sweeney taken on June 8, 1984, at 2130 hrs:

SWEENEY advised that it was very strange theexplanation given surrounding LISA'S disappearance. Sheadvised that she was told that LISA had come home,found Wayne sitting at the kitchen table with hermother and asked 'what the hell is he doing here!' Hermother, BARBARA, explained that he had no place to goand that she was going to let him move in with them,until he could get on his feet. At that point LISA ranout the back door. According to MAUREEN it was veryunusual for LISA to be outside without her makeup andsupposedly she had been outside then come back insideand then gone out again without her makeup. Lisa'sbrother BILLY left the house to go find her and cameback to take care of JAMIE.

The sequence of events that Sweeney reported is consistent with what Mrs. DeCarr had told the police on March 24, 1983, and is

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inconsistent with the State’s theory of the case, that murder occurred between 8:00 and 9:00 AM on March 24^th.

^{It was only in the post-conviction proceedings that Mr. Tompkins or his counsel learned that the prosecutor had written file memos memorializing Kathy’s statements to him when he first contacted her and that she changed her story. It was only after receiving this memos that Mr. Tompkins learned that Kathy Stevens, a mentally troubled teen, was given access to her incarcerated boyfriend that she had not been allowed to see only after she changed her story and incriminated Mr. Tompkins.}

^{Similarly, Kathy Stevens’ testimony was contradicted by "Junior" Davis, Lisa DeCarr’s boyfriend at the time of her disappearance when he was located in 2002. After years of searching and after the State finally provided previously undisclosed documents about Davis in 2001, Mr. Tompkins’ counsel located "Junior" Davis in April of 2002. "Junior" Davis’s full name is James M. Davis, Jr. Upon being contacted, Mr. Davis reported that he had been Lisa DeCarr’s boyfriend in March of 1983. In a sworn affidavit, Mr. Davis stated, "[t]he story of Kathy running into me at the store the day Lisa disappeared is not true. If anyone had told me that Wayne was attacking Lisa and she was screaming for someone to call the police, I would have gone directly there" (Affidavit of James M. Davis, Jr., paragraph 6, 4PC-R. 130). Mr. Davis elaborated:}

^{If I thought there was anyway I could have helped}

^{[Lisa], I would have, especially if she were in}

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trouble. This is why what Kathy said is not true. Inever saw Kathy on the morning that Lisa disappeared,nor did Kathy ever tell me that she had just seen Lisabeing attacked by Wayne. In fact, the first time Iheard of anything having possibly happened to Lisa waswhen I heard on the radio she was missing.

(Affidavit of James M. Davis, Jr., paragraph 8, 4PC-R. 130).

Throughout the history of this case, Mr. Tompkins has

maintained that he did not commit the murder for which he stands

convicted. He has always maintained his innocence.