The 3 "credible" key witnesses of one Florida innocence case

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.

This statement contradicted Mr. DeCarr’s prior statements to police. Previously, her recollection
was that Mr. Tompkins left to take one of her sons to school and

Mrs. DeCarr’s shifting the time line of her account was
necessary because her previous story made Kathy’s story
impossible (between 8:00 AM and 9:00 AM, Barbara had said she was
home and Mr. Tompkins wasn’t and that he did not return to the
house until after 10:00 AM, while Kathy said before going to
school at 8:30 AM or so she saw Mr. Tompkins was assaulting Lisa
on the couch).

Although it presented eight witnesses at trial, the State
advised 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 jailhouse
snitch)--and that “[t]hose three will provide the overwhelming
evidence” that Mr. Tompkins killed Lisa DeCarr on the morning of
March 24, 1983 (R. 108).

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

According to an undated typed statement of Mrs. DeCarr that was provided to the
police before Kathy Stevens claimed to have witnessed Mr.
Tompkins strangling Lisa. In that statement, Mrs. DeCarr said,
“Wayne had taken Jamie (my youngest son) to school just before
8:00 a.m. and then went to his mother’s house for breakfast and
coffee. He stayed at his mother’s house until approximately 10:00
a.m. when he left to get some newspapers to pack dishes with.”
wasn’t home when she left after 9:00 AM.12

At trial,13 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
report.14

The State’s theory of the case was outlined in its
opening statement. According to the State, Wayne Tompkins and

At the 1989 hearing, the trial prosecutor, Mike Benito,
confirmed that his theory was that the offense occurred at about
9:30 or 10:00 a.m. on that date (PC-R. 87).

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.15

During Mr. Tompkins’ trial, the prosecutor relied upon
Stevens’ testimony to urge the jury to convict Mr. Tompkins,
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. 444-
45). 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
demonstrate 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:

The Exonerated

The Exonerated

That's the title of Texas Monthly Senior Editor Michael Hall's report in the November TM. The subtitle is, "
These 37 men spent 525 years in prison for crimes they didn’t commit. Then came the hard part: freedom."

Here's an excerpt from the introduction. The article then profiles the 37 exonerees.

The first thing you notice is the eyes—they all have the same look in them, the look of men accustomed to waking up every morning in a prison cell. These 37 men spent years, and in some cases decades, staring through bars at a world that believed they were guilty of terrible crimes. But they weren’t. Each was convicted of doing something he did not do. It’s hard to characterize the look in their eyes. There’s anger, obviously, and pride at having survived hell, but there’s also hurt, and a question: “Why me?”

The short answer is simple: People make mistakes. Most of these cases share a common story line: A woman, usually a traumatized rape victim, wrongly identifies her attacker. Sometimes her testimony is backed by rudimentary serology tests. Sometimes the cases are pushed too hard by aggressive police officers or prosecutors. Sometimes the accused already has a criminal record and becomes a suspect in an unsolved case in which he resembles (or is the same race as) the perpetrator. Almost every man here had a solid alibi, but cops, prosecutors, and juries chose not to believe it.

So why do we believe it now? How can we be so certain these men are innocent? DNA testing, which over the past two decades has changed the way we convict the guilty—and free the innocent. This is especially true in Texas, which has had more DNA exonerations—37 in all—than any other state (there have been 222 nationwide according to the Innocence Project, a nonprofit advocacy group for the wrongly convicted). Dallas County alone is responsible for 19 exonerations, more than every state except Illinois and New York. Unlike most jurisdictions, which discarded evidence after the appeals in a case were exhausted, Dallas County had a policy of saving it in storage lockers at the Southwestern Institute of Forensic Sciences, in the belief that it might someday be used to reaffirm a criminal’s guilt. As for the other 18 Texas exonerations, it was mostly dumb luck that prevented the old swabs from being thrown away. (In 13 of these cases, the guilty man was eventually fingered.)

Texas Monthly has two multimedia features online, "Conviction: Slide Show," and "A True Crime: Video."

Texas Monthly and Southern Methodist University will co-sponsor a panel discussion, Thursday, November 6, on the SMU Campus. It is open to the public, but an RSVP is required.

Using a snitch to get a wrongful conviction in Florida - The innocence case of Wayne Tompkins

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

Thereafter, the prosecutor located a jail house informant,
Kenneth Turco, who claimed that Mr. Tompkins had confessed to the
murder.10 Mr. Turco’s testimony so matched Kathy Stevens’ story
that defense counsel argued that the informant had obtained
access to Ms. Stevens’ deposition or statement and used it to

11Kenneth Turco was serving a 30-year prison sentence for
burglary and grand theft (R. 301-02). Turco also had been
previously convicted of grand theft, forgery, and burglary (R.
302). Turco acknowledged that there was a confidential informant
system in prison and he had been part of that for the last 4 or 5
years, and that he was “trustworthy” (R. 317). When he was in
jail with Mr. Tompkins, he had just entered a guilty plea on an
escape 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 contact
with Mr. Tompkins, Turco contacted prosecutor Benito, who visited
him personally, and promised only “my safety in the jail and that
[he] would tell the judge at my sentencing hearing that I
cooperated and I came forward and testified in a murder trial”
(R. 311).

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

In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney,
testified that he took over Turco’s prosecution two weeks after
Wayne Tompkins’ sentence of death. He explained, “I walked down
to court. I was about to offer Mr. Turco a negotiation. I got in
here and I looked at Mr. Turco and I said, ‘This guy showed a lot
of guts coming forward as a jailhouse informant to testify as to
what Mr. Tompkins told him.’” (PC-R. 235). So, Benito “got up and
walked down here and announced the case, and said, ‘I nol-pros
it.’” A grateful Turco “looked at [Benito] like he had just been
handed his first bicycle at Christmas.” (PC-R. 236).

mold his testimony.11

The non-credible testimony of prosecution witness Kathy Stevens - The innocence case of Wayne Tompkins

Benito first called Kathy Stevens on March 7, 1985. This
was two days after Barbara DeCarr’s March 5th deposition in which
she indicated she went to Mr. Tompkins’ mother’s house at
“approximately 9:00 am.” (DeCarr depo. at 16). In her undated
statement, she further indicated that Mr. Tompkins had already
arrived at his mother’s house and “stayed at his mother’s house
until approximately 10:00 am when he left to get some newspapers
to pack dishes with.” In her deposition, she indicated Mr.
Tompkins “could have been” gone “[t]wenty minutes, half an hour.”
(DeCarr depo. at 20). He subsequently left again with his
stepfather (DeCarr depo. at 21).

Kathy’s new version of the facts included her sneaking into
Lisa’s bedroom window at 6:30 AM on March 24th because she and
Lisa were planning to run away after getting in trouble at
school. In the early morning meeting, Kathy said that Lisa

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
by Mr. Tompkins’ counsel. Immediately afterwards, the prosecutor,
Mike Benito, started looking for more evidence or another
witness. He contacted Kathy Stevens in March of 1985.8 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 morning of March 24, 1983, at around 8:30 AM.9

announced she was not running away after all. So Kathy left.
Later, she realized that she left her purse and had to go back to
get it. When she got there at around 8:30 AM, the front door was
open. She went in and saw Mr. Tompkins strangling Lisa. Lisa
called out for her to call the police. But instead, she went to
the nearby store and ran into Lisa’s boyfriend, Junior Davis.
When she told him what she had just witnessed, he seemed
unconcerned. So, Kathy put the incident behind her and went to
school. In her trial testimony, Kathy said that she went back
later to get her purse with her girlfriend, Kim Lisenby. It was
then Kim who knocked at the door, not Kathy, and may have spoken
with Mr. Tompkins. Kathy indicated that this conversation was
between Kim and Tompkins while she “was at the corner waiting.”
She stated, “I did not hear it” (Stevens depo. at 14).

In her deposition, Kathy gave a different version.

There,
she said that Kim Lisenby was with her when she saw Lisa being
strangled. After Lisa told her to call the police, she “grabbed
[her] purse and [ ] left.” (Stevens depo. at 10) “I shut the
door. And I told Kim, I said, ‘Come on, Kim we got to call the
police.’ She said, ‘Don’t get involved.’ And I said, ‘Why?’ And
she said, ‘Because you don’t need to.’ And I said, ‘Okay.’

And I went to the store and that’s when I ran into Junior.” Id.

In her deposition, Kathy indicated that she “grabbed her
purse” when she left at 8:00 am. (Stevens depo at 10). She also
indicated that after she talked to Junior, “me and [Kim] went
back to the school. I cleaned out my locker, and I went to my
stepmother’s and sat on her porch until she got back.

And then I met Kim at school at 2:00 o’clock.

And she cut class. And we went
to go check on Lisa” (Stevens depo. at 14). “It takes about
twenty minutes to get from the school to her house. It was about
2:20, 2:30, something like that.” Id.

The missing teen and the conflicting testimony - The innocence case of Wayne Tompkins

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
5:30 PM.1 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 residence
at the listed time. Compl. stated that everything was
fine at home and has had no trouble with Lisa running
away or anything. Compl. stated that Lisa was having
some trouble in school but nothing to cause her to

1It is clear from the police report that Mrs. DeCarr
reported Lisa missing within a couple of hours after she was last
seen getting into a car. It is also clear from the police report
that Mrs. DeCarr was aware of “some trouble in school.”


runaway. Compl. checked was Lisa’s friends and school
for information as to where she might be with negative
results. Compl. stated that one of Lisa’s friends told
her 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 gave
no indication of wanting to leave.

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

3School records reveal that there was a March 24th phone
conference with Barbara DeCarr “who called to inform that Lisa
had left.” This was the day after Lisa had been expelled and told
that she could not return unless accompanied by a parent. The
records also show that on March 25th, “mom says child ran away



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,
at 1:30-2:00 PM on March 24, 1983.2 The report further indicated
that a witness, Wendy Chancey, stated “she observed Lisa get into
the suspect vehicle at 12th 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
numerous police reports.3 Det. Gullo logged calls from Mrs.


yesterday (24th). Thinks child may be pregnant.” Similarly,
records from the Missing Child organization indicated that
Barbara contacted the organization on March 29, 1983, and
reported Lisa as missing, saying, “She may be on drugs and she
may be pregnant.” Barbara DeCarr did not mention to Det. Gullo,
the policeman looking for Lisa, Lisa’s possible pregnancy until
April 26th.

DeCarr reporting that others claimed to have seen Lisa. However,
she did not give a name 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.” (Id.) 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. at 65). At
trial, Judge Coe refused to allow Mrs. DeCarr to be asked about


4Detective 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 and
while living in New York, Barbara participated in witchcraft to a
great extent.” Jenice also reported “that her brother Harold
DeCarr, Jr. was seduced by Barbara when he was 12 yrs. old.” Det.
Burke noted that “this was confirmed by Harold as we were on a
three party telephone conversation at the time. He stated that he
was in fact, 12 yrs old when this took place.”

Det. Burke reported that Michelle Hayes, “the sister to Lisa
DeCarr 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 her
ranging from ages 12 to 14 yrs and that she knew that there was
sex acts going on and that one of the subjs that was in the
bedroom with her mother was Harold, Jr., her stepbrother. She
stated that she is certain that they were involved in some type
of sex act with their mother. She said it got so bad, that the 12
and 14 yrs old boys would get in a fight over who was to have her
mother’s affections.”

5In 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 out
of the trailer park because Gary had harmed Lisa (Id.). But Mrs.
DeCarr did acknowledge that a man named Bob McElvin had
propositioned Lisa, saying he would do “certain things for her
for sexual favors” (Id.).

Mrs. DeCarr found out in 1984 that Mr. Tompkins had gone to
bed with another woman. However, in her testimony, she denied
that she was angry over Mr. Tompkins’ affair with another woman
(R. 237).

her sexual relationships with 12 and 13 year old boys (R. 235).4

In May of 1984, while she was voluntarily committed in a
mental hospital, Mrs. DeCarr contacted a psychic.5 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.
124). A second meeting occurred in early June of 1984, when Mrs.
DeCarr assigned him power of attorney to search for Lisa (R.


6Mrs. DeCarr and her family moved from that residence over a
year before, weeks after Lisa disappeared.

7Tampa Police Department Sergeant Rademaker testified that
Mrs. DeCarr told him that she believed the body “was someplace on
the property and possibly under the house” (R. 170); even though
this interview was conducted after the discovery of the body, “we
didn’t tell her during the interview. We didn’t tell her until
after we were sure what we had” (Id.)

The medical examiner identified the body as being Lisa based
upon information received from Barbara DeCarr. The trial
prosecutor testified in 1989 that “[o]ther than Mrs. DeCarr’s
description of the strange tooth in her daughter’s mouth” there
was no basis for the dental identification (PC-R. 233). There was
no way to determine how long the body had been in the grave, and
that it is possible it could have been as little as six or seven
months prior to June, 1984 (R. 191).

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 residence, 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;
129). On or around June 6, 1984, Snell’s organization conducted a
search of Barbara’s former house (R. 130-31).6 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.

http://www.star-telegram.com/news/columnists/bob_ray_sanders/story/1003495.html

SANDERS: Shameful record of executions

By BOB RAY SANDERS

bobray@star-telegram.com

STAR-TELEGRAM/M.L. Gray

Barbed wire surrounds the building that houses Death Row inmates at the Polunsky Unit in South Texas. STAR-TELEGRAM/M.L. Gray

Imagine being sentenced to 50 years in the state penitentiary.

Then consider how you might feel — what kind of person you might have become — as you reached the halfway point of your scheduled time in prison, marking off the calendar year 25 of being behind bars.

Now, imagine that you were innocent of the crime for which you had been convicted.

You might think that it couldn’t get any worse than that, right?

Well, picture this: You’re not just in a regular penitentiary cell, but on Death Row and even scheduled to die for a crime you did not commit.

Horrible, nightmarish images all.

Sadly there are too many people in this country, and particularly in Texas, who cannot only envision those and similar scenarios, but have lived them.

Only God knows how many innocent people have been wrongly convicted, although any one would be too many. We do know there is a growing list of individuals who have been exonerated through DNA testing, generally coming after the "victim" of the state already has lost many years of his life locked away from family, friends and society as a whole.

Twenty-four ex-Death Row prisoners from across the country will meet Friday at the state Capitol in Austin to call for a moratorium on executions in Texas and for the creation of a statewide commission on wrongful convictions, said Kurt Rosenberg, executive director of Witness to Innocence, a Philadelphia-based organization of former Death Row inmates and their families.

Their news conference will be at 2 p.m. in the Speaker’s Committee Room.

The men who will appear at the Capitol have served "a combined total of nearly 200 years on death row for crimes they did not commit," Rosenberg said in a statement announcing the news conference.

"Last month, Texas became third in the nation in death-row exonerations when Michael Blair was the 130th person exonerated from death row," he said. "Blair’s exoneration came on the heels of a statement by Dallas County District Attorney Craig Watkins that he will re-examine nearly 40 death penalty convictions and would halt executions, if necessary, to give the reviews time to proceed."

Watkins’ announcement also came in the wake of Dallas County’s record-setting number of overall exonerations — 18 since 2001.

"Witness to Innocence believes the rest of the state should follow Watkins’ lead and halt executions while it studies its broken death penalty system, which has exonerated nine people from death row since 1987, third only to Florida and Illinois in death-row exonerations," Rosenberg said.

More and more leaders are recognizing that we do have a broken system in the Lone Star State.

Last summer the Texas Court of Criminal Appeals announced the creation of a Texas Criminal Justice Integrity Unit to examine weaknesses in the criminal justice system. And, Chief Justice Wallace Jefferson of the Texas Supreme Court is among those calling for a statewide innocence commission.

It makes sense that while we recognize an imperfect system with weaknesses that must be examined and corrected, there ought not to be any more executions in Texas until those issues have been fully addressed.

The Star-Telegram is on record supporting a moratorium on executions.

I, of course, have long been on record calling for the abolition of the death penalty in this state.

Rosenberg points out that, as of Monday, "Texas has executed 417 people since the reinstatement of the death penalty, accounting for nearly 40 percent of all executions nationwide, including 12 so far this year.

An additional 16 executions are scheduled in Texas this fall and winter, and in the next few weeks the state is expected to set a record of 10 executions in 30 days."

That is not a record of which we should be proud.

Instead, it ought to be a badge of shame.

Bob Ray Sanders’ column appears Sundays and Wednesdays. 817-390-7775

Despite the numerous instances of prosecutorial misconduct in Florida capital cases

Despite the numerous instances of prosecutorial misconduct in Florida capital cases, no investigation has been launched nor program instituted to address the prevalence of such misconduct. The ABA’s assessment team stated that to stop prosecutorial abuses, "there must be meaningful sanctions, both criminal and civil, against prosecutors who engage in misconduct." ABA Report on Florida at 108. In fact, the United States Supreme Court has recognized that a prosecutor is:

the representative not of an ordinary party to acontroversy, but of a sovereignty whose obligation togovern impartially is as compelling as its obligationto govern at all; and whose interest, therefore, in acriminal prosecution is not that it shall win a case,but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935). There should be a higher ethical obligation because the prosecutor carries with him power derived from his position which must be held in check, just as each branch of government is subject to checks and balances. Without such checks and balances, Florida’s death penalty scheme "smacks of little more than a lottery system." Furman, 408 U.S. at 293 (Brennan, J., concurring).

Snitch Testimony - The innocence case of Wayne Tompkins, Florida

Snitch Testimony

Testimony from in-custody informants, often referred to as “jailhouse snitches” has been widely used in the American criminal justice system. Unfortunately prosecutors often utilize jailhouse snitches despite their testimony being widely regarded as the least reliable form of evidence in the criminal justice system.

The Justice Project created Jailhouse Snitch Testimony: A Policy Review (pdf) to offer recommendations and solutions for improving the standards of admissibility of jailhouse snitch testimony. The policy review includes information on snitch testimony policy and law, case studies, states and jurisdictions which have enacted successful methods for safeguarding against perjured testimony, a model policy, and key statistics.

The motive to fabricate testimony is inherent in a system that rewards snitching for personal gain. When the state offers a benefit in exchange for testimony, the incentive for an incarcerated person to fabricate evidence dramatically increases. With little to lose and much to gain, jailhouse snitches are often desperate to attain compensation – such as sentence reductions or even an agreement that they not be prosecuted at all – in exchange for testimony against another person.

By improving the standards for admissibility of jailhouse informant evidence at trial, states can help increase the transparency and openness of the process and help ensure that the most reliable evidence is making it into the courtroom and before the jury.

The Justice Project’s Recommendations for Improving Standards for Admissibility of Accomplice and Snitch Testimony Required mandatory, automatic pretrial disclosures of information related to jailhouse snitch testimony, including witness compensation arrangements and other information bearing on witness credibility. Mandated pretrial hearings on the reliability testimony in cases where the prosecution intends to employ a jailhouse snitch. A requirement that jailhouse snitch testimony be corroborated. Cautionary jury instructions alerting the jury to the reliability issues presented by snitch testimony.

Related Studies:

The Snitch System: How Snitch Testimony Sent Randy Steidk and Other Innocent Americans to Death Row, A Center on Wrongful Convictions Survey (pdf), Northwestern University School of Law (Winter 2004-2005).

Steve Mills and Ken Armstrong. “The Failure of the Death Penalty in Illinois - Part 3: The jailhouse Informant.” Chicago Tribune November 16, 1999.

Related Cases

The Marietta Seven
James Creamer and six co-defendants were wrongfully convicted of a murder in Marietta, Georgia almost entirely on the word of a jailhouse snitch, Deborah Ann Kidd. Six of the seven were sentenced to life, and Creamer received a death sentence. Transcripts of inconsistencies in Kidd’s statements were withheld from the defense. In 1975, the convictions of the Marietta Seven were reversed, and the state dropped all charges. Despite the dropped charges, the District Attorney declined to prosecute Kidd for perjury. Read about the Marietta Seven

Wilton Dedge
Arrested at age 20, Wilton Dedge spent 22 years in prison for the rape of a seventeen-year-old Florida woman before DNA testing finally proved his innocence. The prosecution relied heavily on identification testimony by the victim and that of a jailhouse informant who testified that Dedge had confessed to committing the crimes. After years of fighting for a DNA test, Dedge won his freedom in August 2004. Read about Wilton Dedge

A Snitch’s Story
On October 27, 1988, Leslie Vernon White, who has provided testimony in as many as 40 cases, described the process by which inmate informers fabricate evidence. White received widespread attention after an appearance on 60 Minutes (and coverage in other national news sources) where he claimed that he often lied when giving testimony as a jailhouse informant. In an interview with Time Magazine, White, a self-confessed career criminal, had this to say about his prison stints: “Every time I come in here, I inform, and I get back out.Read about Leslie Vernon White

The snitch system

Wilton Dedge

How snitch testimony sent innocent americans to death row

www.law.northwestern.edu/wrongfulconvictions/issues/causesandremedies/snitches/SnitchSystemBooklet.pdf

The prosecutor located a jail house informant - The innocence case of Wayne Tompkins

Kathy Stevens’ deposition occurred on June 12, 1985.

Kenneth Turco’s deposition occurred on July 15, 1985.

At that time, he said that in late June, 1985, he first talked to Wayne
Tompkins about his case, and that about a week and a half before
the deposition, Mr. Tompkins confessed to him (Turco depo. at 8).

Thereafter, the prosecutor located a jail house informant,
Kenneth Turco, who claimed that Mr. Tompkins had confessed to the
murder.

Mr. Turco’s testimony so matched Kathy Stevens’ story
that defense counsel argued that the informant had obtained
access to Ms. Stevens’ deposition or statement and used it to

Kenneth Turco was serving a 30-year prison sentence for
burglary and grand theft (R. 301-02). Turco also had been
previously convicted of grand theft, forgery, and burglary (R.
302).

Turco acknowledged that there was a confidential informant
system in prison and he had been part of that for the last 4 or 5
years, and that he was “trustworthy” (R. 317). When he was in
jail with Mr. Tompkins, he had just entered a guilty plea on an
escape 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 contact
with Mr. Tompkins, Turco contacted prosecutor Benito, who visited
him personally, and promised only “my safety in the jail and that
[he] would tell the judge at my sentencing hearing that I
cooperated and I came forward and testified in a murder trial”
(R. 311).

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

In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney,
testified that he took over Turco’s prosecution two weeks after
Wayne Tompkins’ sentence of death. He explained, “I walked down
to court. I was about to offer Mr. Turco a negotiation. I got in
here and I looked at Mr. Turco and I said, ‘This guy showed a lot
of guts coming forward as a jailhouse informant to testify as to
what Mr. Tompkins told him.’” (PC-R. 235). So, Benito “got up and
walked down here and announced the case, and said, ‘I nol-pros
it.’”

A grateful Turco “looked at [Benito] like he had just been
handed his first bicycle at Christmas.” (PC-R. 236).

mold his testimony.11

People's movement stops execution of Troy Davis

People's movement stops execution of Troy Davis


On Oct. 23, rallies for Troy Davis, an innocent Black man scheduled to be
executed in Georgia, were held in 14 U.S. cities including Atlanta,
Washington, D.C., New York City and San Francisco, and throughout Europe.

Thousands upon thousands of e-mails, letters, phone calls and faxes had
been sent to Georgia officials, media outlets and international bodies
urging immediate action to stop the death sentence from being carried out
on the evening of Oct. 27.

Then, on the morning of Oct. 24, the 11th Circuit Court of Appeals granted
Davis' lawyers a hearing on his emergency appeal based on claims of
innocence. This is a fairly unprecedented move by the appellate court,
which had previously denied an appeal of his conviction.

Davis' case has aroused worldwide outrage. Such well-known figures as
former U.S. President Jimmy Carter, Bishop Desmond Tutu of South Africa,
Pope Benedict XVI as well as the Parliament of the European Union have all
called his trial and death sentence a miscarriage of justice.

Davis was convicted in 1991 of the murder of a white Savannah off-duty
policeman, Mark Allen McPhail, based solely on eyewitness testimony. The
prosecution had no forensic evidence, no physical proof and no weapon to
connect Davis to the shooting.

Seven of the nine eyewitnesses have recanted their trial testimony, many
of them claiming police coercion and intimidation. Teenagers, questioned
for hours without their parents, were told they would be charged as
accessories to the murder if they didnt finger Davis. Other witnesses,
whose testimony implicated another man, were not called to court.
Incredibly, that man, Sylvester Coles, who has a legal record of assaults,
drug charges and weapons possession, is who first went to the police and
named Davis as the shooter.

Davis has always maintained his innocence. His family and especially his
sister, Martina Correia, have traveled the globe telling the story of
police and prosecutorial misconduct that railroaded Davis onto death row
for a killing he did not commit. Davis' case illuminates everything that
is wrong about the death penaltyfrom its inherent racial and class bias
that sends people of color and the poor consistently to the death
chambers, to the flawed judicial system which places process over
innocence.

This is Davis' 3rd reprieve from an execution date in a little over a
year. Just a month ago, he was only an hour away from death when the U.S.
Supreme Court intervened. Inexplicably, on Oct. 14, the court failed to
take his appeal and within a day, Georgia had rescheduled his execution to
Oct. 27.

The widespread mass support for Davis and the avalanche of criticism of
the Georgia and U.S. justice system certainly has played a critical role
in the 11th Circuit Court of Appeals' surprising decision. Davis' lawyers
have 15 days to file their briefs and then the state of Georgia has 10
days to respond. The appeals court will then schedule a hearing.

For Davis' family and his advocates, this is another month to publicize,
organize and mobilize hundreds of thousands of more people to take a stand
for justice.

(source: Worker's World)

Affidavit of James M. Davis, Jr. - The innocence case of Wayne 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
trouble. This is why what Kathy said is not true. I
never saw Kathy on the morning that Lisa disappeared,
nor did Kathy ever tell me that she had just seen Lisa
being attacked by Wayne. In fact, the first time I
heard of anything having possibly happened to Lisa was
when I heard on the radio she was missing.

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

Death Penalty Report Ignored - Reforms recommended two years ago have yet

Oct. 25 FLORIDA:

Death Penalty Report Ignored----Reforms recommended two years ago have yet to occur. 2 years ago, an independent panel made 12 recommendations to reform Florida's death penalty process.

That report has since done little more than gather dust ever since.

None of the proposals from the American Bar Association panel of judges, prosecutors, defense lawyers and college professors has been adopted by the state and it's now unlikely any ever will be.

Some panel members say it all comes down to politics: Gov. Charlie Crist and state lawmakers don't want to appear soft on the death penalty by adopting measures that would be seen as impeding executions.

Some of the recommendations were controversial. One required that juries be unanimous in recommending death and would make it illegal for a judge to overrule a jury that has recommended life in prison instead of death. Currently, a jury's vote is only advisory and can be split.

Other recommendations included requiring better qualifications and pay for appellate lawyers; taking steps to eliminate juror confusion on capital cases; examining racial and geographic disparities in sentencing; and creating commissions to explore the cause of wrongful convictions and review claims of innocence.

Christopher Slobogin, a former University of Florida law professor, was the chairman of the panel. He said state politicians fear that if they took up the panel's recommendations that "would make them look like they were anti-death penalty, which is the kiss of death, so to speak, in Florida politics."

But some legislators defended themselves.

"We've looked at all the recommendations that were available and we've made the necessary changes," said state Sen. Victor Crist, who is not related to the governor. "Our experts tell us we've done everything we need to do. Florida has the most highly advanced, most aggressively funded and most finely tuned death penalty process and representation anywhere in the world." (source: Associated Press)

Court issues stay of execution for Troy Davis

GEORGIA:

Court issues stay of execution for Troy Davis


The federal appeals court in Atlanta on Friday halted Troy Anthony Davis'
execution, the third time his life has been spared shortly before he was
to be put to death.

Davis' claims of innocence, based largely on the recantations of
prosecution witnesses, have attracted international attention and protest.
He was set to be executed by lethal injection Monday evening for the 1989
murder of an off-duty Savannah police officer.

For the 3rd time in 16 months, Troy Davis was granted a stay of
execution.Related links:

The 11th Circuit's ruling is the latest in what has been a roller-coaster
ride of last-ditch appeals in which Davis, 40, has been repeatedly denied
relief only to be spared again and again.

Martina Correia, Davis' sister, said she and her mother, Virginia Davis,
were packing for the trip to death-row when they got the news.

"I've been praying," Correia said. "He deserves to be free. He at least
doesn't deserve to die for something he didn't do."

Since Davis' 1991 trial, 7 of 9 key prosecution witnesses have backed off
their testimony. Others have come forward and implicated another man in
the killing of 27-year-old Savannah Police Officer Mark Allen MacPhail.

The witnesses' recantations have prompted leaders across the globe to call
for Davis' death sentence be commuted. But Chatham County prosecutors say
they are certain Davis is a cop killer and deserves to die for it.

When the 11th Circuit issued its stay, Davis' supporters were holding a
mock funeral at the state Capitol. Demonstrators carried a coffin and a
petition with 140,000 signatures to the state Board of Pardons and
Paroles. Davis' supporters also delivered a letter signed by more than 100
members of Georgias clergy to the Governors office.

Correia talked to Davis after the court issued its stay. "To all the
people around the world working hard and fighting for him, he wants to say
thank you and this fight has to continue," she said.

The officer's 75-year-old mother, Anneliese, expressed fury and
exasperation.

"It's unbelievable," she said. "It's tearing us apart. I'm at the end with
my nerves. I can't sleep, I can't eat. This is ridiculous."

MacPhail's sister, Kathy McQuary, cried when she learned of the stay from
a reporter.

Davis' lawyers expressed hope the stay leads to the new evidence being
presented at a hearing.

"I am extremely relieved that the 11th Circuit, when addressed with such a
grave issue as the innocence of a man set for execution, wants to hear
argument and make a considered judgment," said Tom Dunn, a member of
Davis' legal team.

The state Attorney General's Office canceled Monday's execution, spokesman
Russ Willard said, adding that state attorneys are exploring the their
options.

On Wednesday, Davis asked the 11th Circuit for permission to pursue a new
federal habeas corpus petition - in which an inmate claims he is
unlawfully incarcerated. The Antiterrorism and Effective Death Penalty Act
of 1996 requires a federal appeals court to approve such a request before
such a new lawsuit can be filed.

"Upon our thorough review of the record, we conclude that Davis has met
the burden for a stay of execution," the court said in an order issued by
Judges Joel Dubina, Rosemary Barkett and Stanley Marcus.

The judges called the stay "conditional" and said they want to hear more
from Davis' lawyers and state attorneys.

Davis must clear 2 difficult legal hurdles to win a new round of appeals.

First, he must show that his lawyers could not have previously found the
new evidence supporting his innocence no matter how diligently they looked
for it. And he must show that the new testimony, viewed in light of all
the evidence, is enough to prove "by clear and convincing evidence thatno
reasonable fact finder would have found [him] guilty."

The 11th Circuit added a twist. It asked the parties to address whether
Davis can still be executed if he can establish innocence under the 2nd
standard but cannot satisfy his burden under the first, due-diligence
question.

The court gave Davis' lawyers 15 days to file their legal brief and state
attorneys another 10 days to respond.

In July 2007, the state Board of Pardons and Paroles issued a stay less
than 24 hours before Davis was to be put to death. Last month, the Supreme
Court halted Davis' execution with less than 2 hours to spare.

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

1

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

1

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."

1

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}

³

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

2

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).

3

^{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}

2

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.

3

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

4

(R. 235).

In May of 1984 while she was voluntarily committed in a

5

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.

4

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."

5

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).

4

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

6

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

6

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

5

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

7

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

8

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

7

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).}

6

that defense counsel argued that the informant had obtained

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

9

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

9

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).

7

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

10

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

11

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,

10

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).

11

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

9

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.