Florida Inmate Facing Imminent Execution Despite Evidence of Witness Tampering by Prosecution

http://www.waynetompkins.us/legal/TompkinsPR.pdf

For Immediate Release

Contact: Corinne Farrell

cfarrell@deathpenaltyinfo.org
(202) 289-2275

Tuesday, November 11, 2008

Florida Inmate Facing Imminent Execution Despite
Evidence of Witness Tampering by Prosecution

Dissent in Florida Supreme Court Would Grant Wayne Tompkins
Hearing after "Bombshell Disclosure" by Jailhouse Informant
Washington, D.C.

–Florida may execute Wayne Tompkins soon despite
new revelations that the state prompted a trial witness to lie. Tompkins was to
be executed in Florida on October 28, 2008, but was granted a stay of execution to
allow time for the state Supreme Court to review his case.

On November 7, the
court denied Tompkins' appeal, even though the court acknowledged that a state
witness admitted to providing false testimony at Tompkins' original trial in 1985.
Justice Harry Anstead dissented from the court's ruling and underscored the
gravity of the new information: If a trial witness was fed information by the
prosecution, it "could change the jury's entire evaluation of the case," he wrote.

Tompkins was convicted of murdering his girlfriend's daughter, Lisa
DeCarr, and burying her under a house in Tampa in 1983. He has always
maintained his innocence.

One of the key witnesses who testified against
Tompkins was an inmate who shared a jail cell with him while Tompkins was
awaiting trial. That inmate, Kenneth Turco, recently admitted that the
prosecutor prompted him to give false testimony about the victim's purse during
the trial. Turco claims that the rest of his testimony, in which he recounted an
alleged confession by Tompkins, was true.

Justice Anstead would have granted Tompkins an evidentiary hearing
regarding what he called "flagrant misconduct" by the state.

He said that the
prosecutor's actions, if true, amounted to tampering with a witness. "Imagine
here a jury already concerned with the credibility of a jailhouse snitch now being
told that a critical part of his testimony was fabricated by the state's prosecutor,"
he wrote. "Surely, common sense would tell us this is the kind of 'bombshell'
disclosure that could change the jury's entire evaluation of the case." (Tompkins v.
Florida, Nos. SC 08-992, -1979, -2000, Nov. 7, 2008) (Anstead, J., dissenting in
part)
.
Tompkins' stay of execution expires on Nov. 18.

For further information
about Tompkins' case, contact his attorney, Martin McClain, 305-984-8344, email:
martymcclain@earthlink.net.

For other death penalty information, contact
DPIC's Executive Director, Richard Dieter,
202-289-2275,
email: rdieter@deathpenaltyinfo.org.
####

Exonerated Wilton Dedge inspired Dillon

Exonerated Wilton Dedge inspired Dillon

BY JOHN A. TORRES • FLORIDA TODAY • November 20, 2008

As William Dillon hugged family members seconds after being released from jail on bond Tuesday night, an unassuming and unexpected visitor showed up to join the celebration

Wilton Dedge drove down from Titusville and arrived seconds before Dillon strolled out of the Brevard County Detention Center.

"Goodness gracious, I get one from you, too?" Dillon asked Dedge as their handshake became a hug. "Now I know this is magical."

Dedge was exonerated in 2004 after spending 22 years in prison for a rape he did not commit. He met Dillon in prison years ago at Sumter Correctional Institution when the two inmates played ball together.

It was Dedge's exoneration that inspired Dillon to try to get his own case back into court, Dillon said.

Dillon was released after Circuit Judge David Dugan vacated Dillon's life sentence and granted him a new trial based on DNA evidence. He had spent the last 27 years in prison. In 1981, Dillon was sentenced to life in prison in the murder of James Dvorak of Indian Harbour Beach.

The Innocence Project of Florida played a pivotal role in both cases.

"It was cool meeting him again," Dillon said Wednesday afternoon. "I didn't recognize him at first with that long hair."

Dedge asked Dillon on Tuesday how he was doing.

"I don't know how I'm doing, but I feel great," Dillon said with a smile. Then he asked Dedge a question.

"Is the air any different out there?" Dillon said.

Though the crimes were different, the Dedge and Dillon cases share many similarities:

Both suspects' convictions were based on discredited dog handler John Preston's expert testimony that his dog tied the men to the crime.

Both cases involved the testimony of jailhouse informants.

Both cases involved questionable testimony from witnesses.

Both original verdicts were overturned because of the discovery of DNA evidence.

Unlike in Dedge's case, Dillon's freedom could be only temporary. The state said it planned to move forward and retry him on the murder charges shortly after the new year.

The 49-year-old spent his first night of freedom eating lasagna, playing the guitar and singing songs for his family. On Wednesday, he drove past the park where Dvorak was killed. Dillon said he nearly got sick.

"I felt like my heart was about to split," he said. "It brought back a sadness inside me. That was the start of all my sadness."

Seth Miller of the Innocence Project of Florida said he hoped the brief encounter between Dedge and Dillon would lay the groundwork for a mutual support system.

"These guys have a shared experience," Miller said. "It's important for them to share this solidarity together."

Dillon's father, Joe Dillon, said it was nice meeting Dedge and his mother.

"They spoke to us about what to look for and what to expect," he said. "Wasn't that nice?"

Contact Torres at 242-3649 or jtorres@floridatoday.com.

http://www.deathpenaltyinfo.org/florida-inmate-facing-imminent-execution-despite-evidence-witness-tampering-prosecution

Florida Inmate Facing Imminent Execution Despite Evidence of Witness Tampering by Prosecution

Posted: November 11, 2008

in

• Arbitrariness
• Innocence
• What's New

A Florida inmate faces execution despite new revelations that the state prompted a trial witness to lie. Inmate Wayne Tompkins was to be executed in Florida on October 28, 2008, but was granted a stay of execution to allow time for the state Supreme Court to review his case. On November 7, the court denied Tompkins' appeal, even though the court acknowledged that a state witness, a jailhouse informant, admitted to providing false testimony at Tompkins' original trial in 1985.

Justice Harry Anstead dissented from the court's ruling, noting that jailhouse informants are often unreliable, and in this case the informant was apparently prompted to lie. He wrote, "Indeed, if the claim is true, we have a state prosecutor who committed a criminal act in tampering with a witness. Surely, common sense would tell us this is the kind of 'bombshell' disclosure that could change the jury's entire evaluation of the case." Tompkins' attorney Martin McClain cited numerous concerns about the state's case. "This is one of the most troubling cases that I have," he said. "The evidence against Mr. Tompkins is just absurd." Tompkins' stay of execution expires on Nov. 18.

(C. Jenkins, “Tampa killer loses death row appeal,” November 8, 2008). See Innocence and Arbitrariness. DPIC’s Press Release on the story may be found here.

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©2008 Death Penalty Information Center

State supreme court blocks ex-cop's execution date

State supreme court blocks ex-cop's execution date

12:19 PM CST on Wednesday, November 26, 2008

Associated Press

NEW ORLEANS -- Louisiana's Supreme Court has blocked the scheduled
Dec. 8 execution of a former police officer convicted of three murders.
Antoinette Frank was convicted and sentenced to death months after
she and an 18-year-old accomplice killed her fellow police officer
and two others during the robbery of a New Orleans restaurant in 1995.

Her first round of appeals lasted 12 years, amid court fights over
whether she had received sufficient expert legal assistance during
the penalty phase of her 1995 trial. In a new round of appeals,
defense attorneys said they have had too little time to reveiew
voluminous documents arising from the case.

The state Supreme Court ruling, made public Wednesday, effectively
cancels a death warrant signed by a state judge in September.

(Copyright 2008 by The Associated Press. All Rights Reserved.)

http://www.wwltv.com/local/stories/wwl112608cbexec.4b4e260.html

When this is harmless error in Florida, what is not .... Florida prosecutor`s use of SNITCHES.

Kenneth Turco testified Tompkins confided details of the murder while they were cellmates including that he buried the victim under his girlfriend’s house with some clothing and her pocketbook to make it appear she had run away.

Turco said in sworn statement last week that prosecutor Michael Benito told him before he testified “don’t forget the purse.” Turco said his testimony was truthful except for his statement about the purse.

The high court majority wrote in an unsigned opinion that even if the state knowingly presented false testimony it was harmless error because “there is no reasonable possibility that it could have affected the jury’s verdict.”

A Times Editorial

Florida can't cut corners in death cases

In print: Saturday, November 8, 2008

http://www.tampabay.com/opinion/editorials/article894919.ece

The Florida Supreme Court has set aside the Legislature's latest and hopefully final attempt to provide death row inmates with representation on the cheap. The high court recently ruled that attorneys appointed to represent death row inmates in postconviction appeals may not be punished if they charge the state for hours worked beyond a set limit established by law.

The ruling is the culmination of years of failed attempts by the Legislature and former Gov. Jeb Bush to constrain the amount of effort death penalty attorneys may exert on behalf of their clients. If the state wants to maintain the death penalty, it is now clear that death row inmates are going to have to be given a lawyer who isn't told to skimp on their defense.

Before 2003, the state had three highly specialized offices of Capital Collateral Regional Counsel where attorneys well versed in the complex area of postconviction death penalty litigation represented the state's death row inmates. But Bush and the Republican-led Legislature were irritated by just how successful these CCRC offices were at delaying executions and getting death sentences set aside.

Bush wanted all of the offices closed, but he was successful in only getting one of the CCRC offices shuttered and replaced with a registry of private attorneys. This was supposed to be an experiment to see if private counsel could do the job for less money. Attorneys who signed up for the registry had to promise to limit their representation to 840 compensated hours.

But the average death penalty client takes closer to 3,000 hours to represent. That meant that the attorneys who signed up for the registry were less likely to do a thorough job and provide their client with a full defense.

The result was predictable. Former Florida Supreme Court Justice Raoul Cantero testified that the legal work done by the attorneys on the registry was "some of the worst lawyering I've seen." The bad lawyering led to innumerable delays as courts worked to sift legitimate claims from frivolous ones.

Many of the private lawyers were simply not capable of navigating the complicated area of postconviction death penalty work. In at least 25 cases, registry lawyers have missed their filing deadlines in federal court, according to Neal Dupree, who heads up CCRC South.

The experiment demonstrates unequivocally that the CCRC system is the best way for the postconviction process to run smoothly, efficiently and professionally. There was a noble push in 2007 to reopen the northern CCRC office with Sen. Victor Crist, R-Tampa, leading the effort, but it didn't succeed. Next session, the Legislature should try again.

In the meantime, the Florida Supreme Court has abrogated a legislative attempt to order the removal from the registry of any attorney who exceeds the 840-hour cap and requests compensation beyond the statutory limits. The high court said in Maas vs. Olive that state law must be applied in a way that "ensures effective and competent representation in complex and unusual capital postconviction proceedings."

Due process is an expensive proposition. But it is also the only way to ensure that the ultimate penalty is dispensed fairly.

Innocence Project of Florida pressrelease on William Dillon

FOR IMMEDIATE RELEASE

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November 18, 2008 PRESS ADVISORY

Contacts:

Seth Miller, Esq.: 202.341.2127

David Menschel, Esq.: 203.671.3792

Melissa Montle, Esq.: 561.843.9304

WILLIAM DILLON TO BE RELEASED

PRESS CONFERENCE TODAY

Today at approximately 5:00 p.m., William Dillon will walk out of the Brevard County Jail (860 Camp Rd. in Cocoa, Florida) a free man for the first time in 27 years, proved innocent through DNA testing.

The Innocence Project of Florida (IPF) and the Dillon family will hold a press conference at the jail immediately following Mr. Dillon's release. Mr. Dillon will make a statement. IPF will also hand out written information on the case.

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

Innocence Project of Florida, Inc.

1100 East Park Avenue, Tallahassee, FL 32301

Telephone 850.561.6767 Fax 850.561.5077

For Immediate Release PRESS RELEASE

November 18, 2008

Contacts:

Seth Miller, Esq.: 202.341.2127

David Menschel, Esq.: 203.671.3792

Melissa Montle, Esq.: 561.843.9304

Innocent Man Released After 27 Years

DNA Reveals Widespread Corruption in Brevard County

Today, at approximately 5 p.m., William Dillon will walk out of Brevard County Jail after being freed pending trial. Last Friday, the Eighteenth Judicial Circuit Court vacated his murder conviction after DNA testing proved his innocence. The Innocence Project of Florida (IPF) paid for the DNA testing and drafted the post-conviction pleadings in Dillon's case.

Dillon's 27 years of wrongful incarceration equals the longest time served by any of the 223 DNA exonerees nationwide. He will be the third man to be exonerated in Brevard County in recent years.

The State Attorney's Office asserts that it plans to retry Mr. Dillon, though if it could or will do so remains to be seen. "I don't see how they could re-try this case. All they have is a fraud, an admitted perjurer, a snitch, and a half-blind eyewitness," said Melissa Montle, Staff Attorney with IPF.

At today's bail hearing, the State asserted that at re-trial it planned to rely heavily on the testimony of Donna Parrish, Dillon's sometime sexual partner, who, at trial, suggested that she saw Dillon at the scene of the crime hours after the murder. During the investigation, Parrish was both threatened by and had a sexual liaison with the Sherriff's Office lead investigator. Parrish recanted her trial testimony, in full, under oath, less than a month after trial. "After changing her story so many times, Donna Parrish's testimony has no credibility," said David Menschel, Legal Director of IPF. "Rather than putting Parrish back on the stand, the State should prosecute her for perjury." Most disturbingly, it appears that the State continues its efforts to manipulate Parrish's testimony to this day .

Dillon's case is also troubling because it involved the now-discredited testimony of dog handler John Preston, a man who has been exposed as a fraud by both courts and the national media. But, as Menschel explained, "This is not just a case about a corrupt dog handler. There was a conspiracy between that dog handler and the Brevard County Sheriff's Office. There is a culture of corruption in Brevard County. They care more about convicting the suspect than convicting the right person - and they're willing to manufacture evidence in order to do it."

Both Wilton Dedge and Juan Ramos were also wrongfully convicted on the basis of Preston's testimony. Seth Miller, Executive Director of the IPF, called for an investigation into the conduct of the Brevard County State Attorney's Office and Sheriff's Office as well as a comprehensive review of the dozens of cases in which John Preston testified: "Governor Crist needs to take a hard look at what's been going on in Brevard County and restore public confidence in Florida's criminal justice system. Our organization would be happy to assist the Governor in these efforts."

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.

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Statement of Facts: State of Florida v. William Dillon

On December 4, 1981, William Dillon was convicted of first degree felony murder and was sentenced to life in prison by the Eighteenth Judicial Circuit Court in Brevard County, Florida. 27 years later, on November 14, 2008, that same Court vacated Dillon's conviction and ordered a new trial based on DNA evidence which demonstrated his actual innocence. Dillon's 27 years equals the longest time served by any of the 223 DNA exonorees nationwide. He will be the third man to be exonerated in BrevardCounty in recent years.

The DNA: DNA evidence that demonstrates Dillon's innocence came as a result of a 2007 motion filed by Dillon's attorneys, Mike Pirolo and the Innocence Project of Florida ("IPF"). The testing was paid for by IPF and performed at Orchid Cellmark, a lab in Farmer's Branch, Texas. It revealed that DNA from sweat on the State's key piece of evidence at trial, a bloody yellow t-shirt worn by the killer, came from someone other than Dillon, thus confirming that someone other than Dillon committed the murder.

The Crime: On the morning of August 17, 1981, James Dvorak was found murdered at CanovaBeach. He had been brutally beaten to death and left in a wooded area, an apparent homosexual meeting place near the beach.

Dillon became a suspect because several days after the murder, he was hanging out at CanovaBeach and was approached by police who were questioning people about the crime. Dillon had read about the murder in the newspaper and had seen the yellow police tape in a wooded area near the beach. He told police that he assumed the taped area was where the crime occurred. Perhaps because they had no other suspects, police inferred from this that Dillon had further information about the crime and subsequently brought him in for questioning. After several days and multiple interrogations, police arrested Dillon.

The Trial: The State's case was based largely on the testimony of four key witnesses-an admitted perjurer, a fraudulent dog scent expert, a snitch whose charges were dropped in return for his testimony, and a half-blind eyewitness-as well as a t-shirt worn by the killer, which now reveals that Dillon was not the murderer.

(1) Donna Parrish: the Admitted Perjurer: Parrish, Dillon's sometime sexual partner, was the only witness to testify that she saw Dillon at the crime scene. However, she did not witness the murder itself. She gave inconsistent statements to police throughout the investigation and gave implausible, confused testimony at trial, which seemed to suggest that she had stumbled upon the already-dead body independent of Dillon, told no one, and later followed him back to the body. She also claimed that on the night in question, Dillon was wearing the yellow t-shirt.

Less than a month after trial, Parrish recanted her trial testimony in its entirety, under oath, stating that she had been pressured by the Sheriff's Office and the State Attorney's Office and threatened with 25 years in prison. In particular, she said that she had lied about following Dillon to the body and had lied when she said that he had worn or even owned the yellow t-shirt. In fact, she said that she and Dillon had spent the night in question at a motel room with acquaintances, and her entire trial testimony regarding their whereabouts was a fabrication. Furthermore, Florida Today newspaper reported that, during the investigation, Parrish and the lead investigator, Sgt. Charles Slaughter, had a sexual li aison. Slaughter was suspended and eventually resigned as a result.

(2) John Preston: the Fraud: Preston, a purported expert in scent tracking hired by the State, testified that his dog, Harass II, had, prior to trial, linked Dillon to the crime scene and the yellow t-shirt. Preston's claims have been thoroughly discredited by experts in the field of scent tracking, media reports (including an expose on the tv show 20/20), multiple state supreme courts (including the Arizona Supreme Court, which called him a "charlatan"), police training manuals, and law review articles. Even the current elected State Attorney in BrevardCounty, Norman Wolfinger, knows Preston is a fraud. In 1984, when he was a capital defense attorney, Wo lfinger said, "I wouldn't want my life to depend on what [Preston's] dog says."

More disturbingly, it now appears that Preston was engaged in a conspiracy with the Brevard County Sheriff's Office wherein they fed him information in order to produce false evidence that would help convict whomever was the suspect. Furthermore, it appears that the State Attorney's Office believed that Preston's testimony was false and the result of such a conspiracy, and presented him as a witness nevertheless.

(3) Roger Dale Chapman: the Snitch: According to the Justice Project, jailhouse snitch testimony is regarded as "the least reliable type of testimony" and at trial he was the State's least convincing witness. Chapman's testimony was suspect from the outset. He said that Dillon confessed to the murder and reenacted it in the middle of the jail dining hall. Despite the presence of other inmates, however, there were no other witnesses to t his alleged confession. Furthermore, Chapman's report of the confession included numerous details that were at odds with the facts of the case. For example, Chapman said that Dillon had told him that the crime occurred on a beach miles away from the beach where it actually occurred, CanovaBeach.

After Chapman agreed to testify against Dillon, the State dropped pending charges against him for the rape of a sixteen-year-old girl. Despite arrests on more than twenty-five charges in BrevardCounty, Chapman appears to have served little or no prison time on a Brevard case. The State has even provided him assistance in cases beyond BrevardCounty; in a highly unusual gesture, in 1993, ASA Mike Hunt testified on Chapman's behalf in an Aggravated Assault and Stalking case in Indian RiverCounty.

(4) John Parker: the Half-Blind Eyewitness: Parker testified that on the night of the murder, he picked up a sweaty, bloody man hitchhiking near the scene of the crime and the two had oral sex. The man, who called himself "Jim," left behind a bloody yellow t-shirt that Parker later turned over to police. At trial, Parker identified that man as Dillon.

There has always been ample reason to doubt Parker's identification. He was legally blind in one eye and his description of the assailant differed markedly from Dillon's actual characteristics. Furthermore, at trial, Parker conceded that he wasn't sure that Dillon was, in fact, the man he picked up.

(5) The Yellow T-shirt: the State's Key Piece of Physical Evidence: At trial, the State's theory was clear: the killer wore the yellow t-shirt during the crime and later left it in Parker's truck. The State referenced the t-shirt dozens of times throughout trial. By repeatedly linking the t-shirt to the crime scene and Dillon to the t-shirt, the State was able to link Dillon to the crime scene. For example, Parker testified that he picked up the hitchhiker with the t-shirt near the scene of the crime and Parrish testified that Dillon was wearing the t-shirt on the ev ening of the murder. In addition, through a convoluted series of scent lineups and scent detections, Preston's dog was able to link Dillon to the t-shirt and to the crime scene.

Conclusion: In its closing statement at Dillon's trial, the State said "[i]n order to believe the Defendant . . . you must believe that all of [the witnesses] are either mistaken or lying and that the physical evidence is wrong." This statement was effective, because at the time, it seemed preposterous that the State's case was no more than a collection of lies, mistakes, and unreliable evidence. Now, the DNA evidence and other evidence that has emerged since trial reveals that Parrish was a liar who perjured herself at trial, Preston was a fraud masquerading as a scientist, Chapman was a snitch who gave false testimony, and Parker's identification was mistaken. Most importantly, DNA testing shows that the yellow t-shirt that the State used as the lynchpin of its case linking Dillon to the crime scene and corroborating the testimony of various witnesses was actually powerful, affirmative evidence of his innocence.

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BrevardCounty: A Culture of Corruption

Bill Dillon's wrongful conviction is not an aberration; it is emblematic of a culture of corruption in BrevardCounty. Once the Sheriff's Office and State Attorney's Office develop a suspect, they appear willing to do just about anything-mischaracterize the facts, fabricate evidence, even engage in lawless conduct-in order to obtain and preserve a conviction.

The Innocence Project of Florida believes that the following should be investigated because of possible unethical and unlawful behavior by members of the BrevardCounty Sheriff's Office and State Attorney's Office:

Suborning Perjury: At trial, Donna Parrish, the State's star witness and Dillon's sometime sexual partner, repeatedly came undone and gave implausible testimony which she herself described as "confused." Tellingly, ten days later, she recanted her trial testimony in full and under oath. She admitted that she had lied at trial and fabricated the story about seeing Dillon at the crime scene and wearing the yellow t-shirt.

Her admitted perjury-to this day unprosecuted-resulted from the Brevard County Sheriff's Office threatening her with 25 years in prison if she failed to implicate Dillon. Furthermore, Sgt. Charles Slaughter, the lead investigator and 20 years her senior, had an affair with Parrish during the investigation. Most disturbingly, there is evidence that the State seeks to manipulate her testimony to this day.

Fraud and Conspiracy: For years, John Preston, now universally understood to be a fraud by his own colleagues, the national media, and the American judicial system, regularly provided investigative services for the Sheriff's Office and alleged neutral, scientific expert testimony for the State Attorney's Office. In the Dillon case, like in scores of other BrevardCounty cases, Preston used his dog's purported miraculous scent tracking abilities to connect suspects to evidence and convict them of crimes. As it turns out, Preston's dog wasn't following s cents at all, instead, Preston was directing the dog so as to implicate the suspect. In the case of one now-executed defendant, Preston obscenely claimed that his dog connected the defendant to a crime scene 8 years after the crime occurred.

Some members of the Sheriff's Office and the State Attorney's Office knew Preston was a fraud, others suspected it, and yet they continued to use him as an expert witness. Furthermore, Preston was only able to do what he did because he was fed information by at least one officer whose identity is widely known. In other words, the Sheriff's Office was engaged in a criminal conspiracy with John Preston to manufacture false evidence. Though these facts are widely known in the county, to this day, no county or state agency has ever investigated these crimes or punished the officers involved.

Reckless Use of Snitches: In the Dillon case, Roger Dale Chapman, a jailhouse snitch, gave testimony about how Dillon had confessed to him and re-enacted the crime in the middle of a crowded jail dining hall, even though there are no other witnesses to this purported confession. In return for naming Dillon, the State Attorney's office dropped pending charges against Chapman for the rape of a sixteen-year-old girl. Despite arrests on more than twenty-five charges in BrevardCounty, Chapman appears to have served little or no prison time on a Brevard cas e. In 1993, in a highly unusual gesture, ASA Mike Hunt testified on Chapman's behalf in an Aggravated Assault and Stalking case in Indian RiverCounty.

BrevardCounty is notorious for its use of jailhouse snitches even though snitches are commonly understood to be among the least reliable witnesses. For example, in the case of Wilton Dedge, serial snitch Clarence Zacke claimed Dedge confessed to him and testified that he was motivated to cooperate with the State not because he received any special treatment, but merely because he hated men who mistreated women. Zacke did in fact receive a sentence reduction after testifying against Dedge and, all the while, Zacke had been raping his own daughters. DNA testing subsequently exonerated Wilton Dedge.

Shifting Theories: At trial, the State argued that the killer wore the yellow t-shirt and the State referenced the t-shirt dozens of times. Yet, when the Defense moved the Court to DNA test the t-shirt to prove that Dillon was not the killer, the State-afraid of what the DNA testing would show-claimed that the t-shirt was not relevant to the murder at all and opposed testing it. The State's willingness to invent an entirely new theory regarding its primary piece of physical evidence decades after the trial demonstrates a cavalier relationship with the facts of its own conviction and a naked oppo rtunism that is inconsistent with the ethical obligations of officers of the court.

Mischaracterizing Evidence: Even at the time of trial, there was evidence to suggest that the yellow t-shirt belonged to someone other than Dillon and that, therefore, Dillon was not the murderer. The State's own lab concluded that hair found on the t-shirt "did not originate" from Dillon, the victim, or any of the other characters in this case, thus suggesting that the t-shirt was worn by someone other than Dillon. Yet, in its closing statement at trial, the State mischaracterized that result as "inconclusive" and falsely stated that Dillon "could not be ruled out" as the source of that hair.

Losing Evidence: Several important pieces of evidence in the Dillon case were lost by the State under mysterious circumstances. According to an FDLE property receipt, an assistant state attorney and sheriff's investigator received numerous items of evidence, some of which were properly returned and some of which, including the victim's fingernail scrapings and hairs from the infamous yellow t-shirt, disappeared. To this day, the State has been unable to account for these items. Despite the fact that the Sta te lost this evidence, in statements to the Orlando Weekly,the State nevertheless publicly blamed the Defense for not testing it.

In short, in BrevardCounty, there is a pattern of behavior in which some law enforcement officers and prosecutors appear more concerned with getting convictions than convicting the right person. More disturbingly, this behavior is widely known, tolerated, and even rewarded.

Because BrevardCounty seems unwilling to police itself, Governor Crist needs to step in and do it for them. The Innocence Project of Florida calls on the Governor to initiate an investigation to determine whether crimes have been committed and punish the perpetrators. Furthermore, he should establish a commission, armed with subpoena power, to review all cases in which John Preston participated and any other case in which criminal defendants allege substantial wrongdoing by Brevard County officials. The Innocence Project of Florida would be happy to assist the Governor in these efforts.

Supreme Court denies condemned inmate's appeals

http://www.abcactionnews.com/news/local/story.aspx?content_id=5a76360a-39c8-43d1-9666-5513b737f36f Last Update: 11/07 8:49 pm

Wayne Tompkins will be put to death for the murder of 15-year-old Lisa DeCarr in Tampa 25 years. (Florida Department of Corrections) TALLAHASSEE, Fla. (AP) -- A death row inmate seeking to stave off execution for killing his girlfriend's teenage daughter lost three separate appeals Friday in the Florida Supreme Court. Wayne Tompkins, 57, murdered Lisa DeCarr, the 15-year-old daughter of his girlfriend, 25 years ago in Tampa. Tompkins is under a stay of execution that's due to expire Nov. 18. A new execution date has not yet been been set. Appeals by the convicted murderer included a claim the state's lethal injection procedure is unconstitutional because it inflicts cruel and unusual punishment. The state justices and U.S. Supreme Court rejected similar appeals by two other Florida death row inmates, who were executed earlier this year. The high court unanimously denied all of his claims except one, which it turned aside on a 4-1 vote. Chief Justice Peggy Quince and Justice Charles Canady recused themselves from all three cases. Justice Harry Lee Anstead wrote in dissent that he would have granted Tompkins' request for an evidentiary hearing on a claim of prosecutorial misconduct. Tompkins alleged a former inmate's trial testimony was tainted because a prosecutor told him to give the jury false information. A friend of the victim, Kathy Stevens, testified she saw Tompkins atop the teen on a couch at the DeCarr home on March 24, 1983. DeCarr asked her to call police as she struggled and hit Tompkins, who was trying to remove her clothing. Stevens said she left but did not call police. Tompkins claimed the teen ran away from home. He was charged with first-degree murder when her skeletal remains were found 15 months later, buried under the house. DeCarr's bathrobe sash was tied around her neck bones. Kenneth Turco testified Tompkins confided details of the murder while they were cellmates including that he buried the victim under his girlfriend's house with some clothing and her pocketbook to make it appear she had run away. Turco said in sworn statement last week that prosecutor Michael Benito told him before he testified "don't forget the purse." Turco said his testimony was truthful except for his statement about the purse. The high court majority wrote in an unsigned opinion that even if the state knowingly presented false testimony it was harmless error because "there is no reasonable possibility that it could have affected the jury's verdict." Anstead disagreed. "Imagine here a jury already concerned with the credibility of a jailhouse snitch now being told that a critical part of his testimony was fabricated by the state's prosecutor," he wrote. "Surely, common sense would tell us this is the kind of 'bombshell' disclosure that could change the jury's entire evaluation of the case." Capital Collateral Regional Representative Neal Dupree, whose office is representing Tompkins, said he was disappointed and agreed with Anstead's dissent. Another appeal is pending in U.S. District Court in Tampa. Dupree said that court may be asked to also consider the issues in the state appeals or they might be taken directly to the U.S. Supreme Court. Other rejected claims included that Gov. Charlie Crist lacked the authority to reset Tompkins' execution -- originally scheduled in 2004 but delayed by appeals -- and the extra four years on death row were cruel and unusual punishment.

Dillon free on $100,000 bond

Dillon free on $100,000 bond

Sentenced to life in slaying, man, family reunite after 27 years

BY JOHN A. TORRES
FLORIDA TODAY

After nearly 28 years in prison, William Dillon hopes to spend the next few days making his first cell phone call, watching a DVD and eating some "real" food.

Then, he has to prepare for a trial.

His wish to go for a swim will have to wait for now, due to a GPS monitor attached around his leg.

"Golly, goodness gracious," an emotional Dillon said as he emerged from custody for the first time in nearly three decades to hug his parents, brothers and sister, and to meet nieces and nephews who were born after his incarceration. "This is a beautiful thing."

Circuit Judge David Dugan granted Dillon's request for bond on Tuesday morning, setting it at $100,000 -- or $25,000 in cash. The judge also added some stipulations, including global positioning system monitoring, a curfew, no alcohol and no contact with any witnesses in the case.

Dillon, a former Satellite Beach resident, has been in prison since 1981 for the beating death of James Dvorak of Indian Harbour Beach. The 49-year-old was granted a new trial on Friday because of new DNA evidence.

"We didn't think we'd be living to see him come home," said Dillon's mother, Amy. "The first thing I'm going to do is hold him."

The Innocence Project of Florida, a nonprofit organization that facilitated and paid for the DNA testing, helped the family come up with the bond amount needed. Dillon is staying in his brother's Palm Bay home.

Dugan set curfew for the hours between 8 p.m. and 7 a.m. He did make an exception for Thanksgiving Day, in which Dillon will be allowed to be out from 6 a.m. to 11:59 p.m.

"It's been 28 years since we have all been together," said Dillon's teary-eyed brother, Joe. "We just want to love on him and show him that we are here for him and are going to support him. We're going to show him a DVD for the first time, let him use a cell phone, and he's probably going to jump in my cold pool that I told my dad I would turn the heat on for him, but I don't think it would matter to him."

During an interview in prison, William Dillon told FLORIDA TODAY that what he missed most was the feeling of swimming.

The swimming, it turns out, will have to wait, because of the GPS monitoring.

Moments after being released, Dillon said he felt overwhelmed and was not sure what he was going to do.

He also said that he let go of bitterness more than a decade ago in prison.

"I settled all this in my heart more than 10 years ago," Dillon said outside the jail, pausing momentarily to compose himself and keep back the tears. "This is something I've thought about and dreamed about for years and years. I don't care what anyone says. God made this happen through all these special people."

Retrial status

Lawyers for Dillon and those with Innocence Project of Florida said they did not believe the state would go forward with the planned January retrial, citing lack of evidence and witnesses in light of the newly discovered DNA findings.

But Assistant State Attorney Rob Parker said the state planned to call Dillon's ex-girlfriend, Donna Parrish, to the stand during the trial.

In 1981, Parrish testified that Dillon committed the crime, then recanted her testimony in court a few weeks later.

Judge Stanley Wolfman denied Dillon's motion for a new trial back then based on Parrish's recantation.

"She's a known perjurer," said David Menschel, legal director for the Innocence Project of Florida. "Why haven't they prosecuted her for perjury? Instead of putting her on the stand they should be prosecuting her perjury."

DNA results

Dillon's attorneys say DNA test results released during the summer exclude Dillon from the key piece of evidence used to convict him. His DNA could not be found -- and someone else's was -- on a bloody yellow T-shirt stained with Dvorak's blood.

During his trial, prosecutors said the killer wore the yellow shirt. Additionally, a since-discredited dog handler testified that his dog connected Dillon to the shirt.

On Tuesday, Dugan said he would grant bond, although the absence of Dillon's DNA from the yellow T-shirt did not automatically exonerate him. He suggested that Dillon's DNA may have once been on the shirt, 28 years ago.

"We do know that another male's DNA is on the shirt," Dugan said.

Assistant State Attorney Rob Parker questioned why only certain areas of the shirt -- the neckline and armpits -- were tested.

But Assistant Public Defender Mike Pirolo defended the evidence.

"To believe that some mysterious person's DNA survived these 28 years and Mr. Dillon's DNA has degraded is really a stretch," Pirolo said. "The armpit and neck areas are crucial. It's common sense. That's where people sweat during a hot, humid night when they are pummeling someone to death."

Dog handler

Pirolo has threatened to expose what he calls a conspiracy with the State Attorney's Office and Brevard County Sheriff's Office to pin convictions on innocent people like Wilton Dedge, Juan Ramos and now, Pirolo says, William Dillon.

This claim is supported by members of the Innocence Project of Florida, who claim to have sworn affidavits from people knowledgeable of the alleged fraud.

At issue is discredited expert witness and dog handler John Preston, who was exposed as a fraud in court and on national television.

Preston testified against Dedge, Ramos and Dillon, among others. Many convictions throughout the country that relied on testimony from Preston have been overturned.

Dedge, a Port St. John man, was exonerated of rape charges by DNA after spending more than 20 years in prison. He was at the jail to greet and hug Dillon.

"I know this is a magical moment now," Dillon exclaimed.

Parker told Dugan on Tuesday morning that the state had no plans to reintroduce the dog evidence during Dillon's retrial.

But Pirolo said Dillon's first conviction was due to Preston's testimony and how he tied Dillon to the bloody yellow T-shirt.

"We will open that door," Pirolo said. "At the end of the day, the witnesses canceled each other out during the trial. All that was left was John Preston's testimony. That's what convicted Dillon."

Call for investigation

Last week, Pirolo said he would call for a full investigation of this case and others by Gov. Charlie Crist of what he calls fraud and collusion committed by the State Attorney's Office.

The Innocence Project of Florida echoed those sentiments Tuesday.

"The fact they are entertaining a retrial is preposterous," said Seth Miller, executive director of the Innocence Project of Florida. "It's high time the state drops the charges and sends Dillon home to his family."

The organization issued a statement calling Brevard County a "culture of corruption."

"Because Brevard County has been unwilling to police itself, Gov. Crist needs to step in and do it for them," the statement reads. "(We) call on the governor to initiate the investigation to determine whether crimes have been committed and punish the perpetrators."

The group also asked Crist to establish a commission to review all cases in which Preston participated.

Contact Torres at 242-3649 or jtorres@floridatoday.com.

Additional Facts

What's next

There is a pretrial scheduling hearing for William Dillon's retrial on Jan. 7.

http://www.floridatoday.com/article/20081119/NEWS01/811190321/-1/?source=nletter-news

William Dillon to be released after 27 years for crime he didn’t commit - FLORIDA

November 18th, 2008

From the blog Capital Defense Weekly :

William Dillon to be released after 27 years for crime he didn’t commit

http://www.capitaldefenseweekly.com/blog/?p=3911

William Dillon will be released today following 27 years for a murder DNA says he didn’t commit in Breward County, Florida.

Shortly after Mr Dillon’s release, in an unrelated case marred by prosecutorial misconduct, the state of Florida will execute Wayne Tompkins. Updates to follow.

[via iphone]

Justice Anstead, Florida Supreme Court, dissent in Wayne Tompkins

http://www.waynetompkins.us/legal/FSCopinionWaynedenied.htm

For the reasons discussed above, we affirm the trial court‘s summary denial of Tompkins‘s fourth and fifth successive motions for postconviction relief and we - 39 -

also deny his petition for all writs jurisdiction, or alternatively for writ of habeas corpus, or both.20 It is so ordered. WELLS, PARIENTE, LEWIS, and POLSTON, JJ., concur.

ANSTEAD, J., concurs in part and dissents in part with an opinion. QUINCE, C.J., and CANADY, J., recused. NO MOTION FOR REHEARING WILL BE ALLOWED.

ANSTEAD, J., concurring in part and dissenting in part.

I cannot agree with the majority‘s summary rejection of the defendant‘s unrefuted claim that the State unlawfully manufactured critical evidence against him. It is apparent on the face of the claim that its proper resolution requires evidentiary development before a trier of fact who, among other things, can make credibility determinations.

20. We summarily deny Tompkins‘s petition without further discussion because each of the five claims are identical to the issues raised in the appeals of the orders currently before us in this opinion. The petition raised the following five claims: (1) the Governor‘s failure to comply with section 922.06(2) concerning the rescheduling of his execution; (2) Tompkins‘s prolonged time on death row; (3) ineffective assistance of collateral counsel for failing to obtain a legible copy of the March 24, 1985, police report; (4) actual innocence; and (5) Florida‘s lethal injection procedure constitutes cruel and unusual punishment under the Eighth Amendment. - 40 -

In Craig v. State, 685 So. 2d 1224 (Fla. 1997), we reversed a death sentence and explained just how serious a Giglio claim asserting prosecutorial misconduct should be treated:

To establish a Giglio violation, Craig must show: (1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material. Id. If there is a reasonable possibility that the false evidence may have affected the judgment of the jury, a new trial is required. Giglio, 405 U.S. at 154, 92 S. Ct. at 765; Routly, 590 So. 2d at 400. We noted in Routly that under Giglio and Bagley, ―the prosecutor has a duty to correct testimony he or she knows is false when a witness conceals bias against the defendant through that false testimony.‖ 590 So. 2d at 400; see also United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.), cert. denied, 493 U.S. 932, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). We further stated, ―The thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony, and that the prosecutor not fraudulently conceal such facts from the jury.‖ Id. (quoting Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S. Ct. 510, 78 L. Ed. 2d 699 (1983)); accord Alderman v. Zant, 22 F.3d 1541, 1554 (11th Cir. 1994). [N.4]

[N.4] See also Dupart v. United States, 541 F.2d 1148 (5th Cir. 1976), wherein the Fifth Circuit analyzed the testimony of a government witness in light of the Giglio standard and further noted that ―assuming the allegations to be true, such a formalistic exchange of testimony even though technically not prejurious, would surely be highly misleading to the jury, a body generally untrained in such artful distinctions.‖ Id. Accord United States v. Ruiz, 711 F. Supp. 145 (S.D.N.Y. 1989) (restating the Giglio rule that ―if conviction was obtained through the use of false or misleading evidence which was known to be so by the government, the conviction cannot stand.‖), aff‘d, 894 F.2d 501 (2d Cir. 1990). - 41 -

Id. at 1226-27. Because of the important and unique significance of a claim of prosecutorial misconduct, the United States Supreme Court held in Giglio that only a ―reasonable possibility‖ of an effect on the jury need be demonstrated to merit relief. See Ruiz, 711 F. Supp. at 147 (―[I]f the conviction was obtained through the use of false or misleading evidence which was known to be so by the government, the conviction cannot stand.‖).

Initially, we should consider the seriousness of the flagrant misconduct that has been disclosed by the State to the defendant and that forms the basis of the constitutional claim. No one disputes that the most critical evidence of defendant‘s guilt was presented by a witness commonly referred to as a ―jailhouse snitch.‖ Of course, the credibility of such a witness is questionable at best, although the State has to take the evidence as it finds it. However, we now find out from the State itself that this crucial witness‘s evidence was unlawfully tampered with by the State‘s prosecutor. The record reflects that the prosecutor believed that it would be very important to the State‘s case for the defendant to have told the jailhouse snitch that he buried the victim‘s purse with the victim. The snitch did not remember being told this by the defendant, but upon urging by the prosecutor added this important, but false, evidence to his testimony. But now, if we are to accept the State‘s most recent interview with this crucial witness, the snitch‘s evidence about the purse was a fabrication, a lie supplied by the State‘s prosecutor. Indeed, if the - 42 -

claim is true we have a state prosecutor who committed a criminal act in tampering with a witness. The majority, instead of allowing a trial judge, as a trier of fact, to receive and consider this evidence of the prosecutor‘s misconduct as well as evaluating whether the snitch may have lied about other matters, simply concludes that the snitch‘s credibility remains intact about his other testimony and, hence, that inculpatory evidence has not been affected. The majority just surgically removes this false evidence from the case against the defendant and then concludes that enough evidence still remains to convict. In my view, however, that is not the standard for analysis that our case law requires when a Giglio violation is asserted, and, especially when such a claim is not only unrefuted, but is, in fact, disclosed by the State.

Imagine here a jury already concerned with the credibility of a jailhouse snitch now being told that a critical part of his testimony was fabricated by the State‘s prosecutor. Surely, common sense would tell us this is the kind of ―bombshell‖ disclosure that could change the jury‘s entire evaluation of the case. In the face of such a disclosure a jury would not only reevaluate the evidence of the snitch, it would naturally give extra scrutiny to a case presented by a prosecutor who has fabricated evidence and tampered with a witness. Surely, at the very least, - 43 -

there is a reasonable possibility this dramatic disclosure would affect the jury‘s evaluation of the State‘s case. For all these reasons, I cannot join in the majority‘s summary rejection of this claim of prosecutorial misconduct, especially under the circumstances of this case where the defendant is under a pending warrant of execution.

Three Cases: Two Appeals from the Circuit Court in and for Hillsborough County, Daniel Howard Sleet, Judge - Case No. 84-CF-010538 And an Original Proceeding – All Writs Neal Dupree, Capital Collateral Regional Counsel, Fort Lauderdale, Florida, and Martin J. McClain, Special Assistant CCR Counsel, Southern Region, Wilton Manors, Florida, for Appellant/Appellant/Petitioner Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee/Appellee/Respondent

Despite Obama Victory, Will Supreme Court Justices Sit Tight?

Despite Obama Victory, Will Supreme Court Justices Sit Tight?

Tony Mauro
11-11-2008

At her law clerks' reunion last June, Supreme Court Justice Ruth Bader Ginsburg put the word out in no uncertain terms.

"If anyone asks you, 'When is she retiring?'" Ginsburg said, according to several who were there, "tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88."

Apparently, not enough people asked, so tucked away at the end of a speech at Columbia University on Oct. 25, she made the point again. Referring to the legendary Justice Louis Brandeis, Ginsburg said he "became a justice at age 60, as I did. He remained on the bench until age 83. My hope and expectation is to hold my office at least that long."

Now 75, Ginsburg would have to remain on the Court until 2016 to match Brandeis and 2021 to match Stevens.

Prognosticators and pundits have other ideas for her. Conventional wisdom, accelerated by Barack Obama's victory Nov. 4, has Ginsburg, Stevens and Justice David Souter, all on the moderate-liberal wing of the Court, heading for the exits during Obama's first term.

As the theory goes, all three justices would be happier being replaced under Democrat Obama than they would have been under Republicans John McCain or, for the last eight years, President George W. Bush. Names of possible replacements for the three are bandied about as often as candidates for Obama's Cabinet.

But as Ginsburg's broadly dropped hints suggest, justices don't always follow political timetables for their departures. They often remain as long as they feel their health and their work product are still good. The political persuasion of the president, while sometimes a factor justices consider in timing their departures, rarely is decisive.

"I don't think justices retire strategically, by and large," says University of Missouri-Kansas City political scientist David Atkinson, author of a book on why justices retire. "As long as they are in good health and feel happy and indispensable, they tend to stay."

Take David Souter, for example. According to a 2005 biography by Tinsley Yarbrough, Souter once told a friend that he has "the world's best job in the world's worst city." Souter heads to his beloved New Hampshire as soon as the Court's term is over in June and does not return until he has to in September. Friends portray him as eager to remain in New Hampshire year-round -- and ready to leave, now that a liberal has been elected to succeed Bush. But still vigorous at age 69, some of his friends insist he is willing to endure Washington a few years more.

Stevens, too, still is sharp and agile at 88 and, according to former clerks, has made comments similar to Ginsburg's about staying on the Court as long as he still enjoys writing his own opinions -- which he clearly still does.

That said, it is Stevens, perhaps more than other justices, who may view Obama's election as a signal at least to reconsider plans, according to one longtime friend who asked to remain anonymous.

Stevens is deeply loyal to his native Chicago, returning whenever he can to address Chicago bar groups and once throwing out the first ball at a Cubs game. One of his oldest Chicago friends is former congressman, appeals court judge, and White House counsel Abner Mikva, who is also a mentor and adviser to Obama. Obama's Chicago connections, as much as his politics, might increase Stevens' comfort level about retiring during Obama's tenure.

Such personal connections, while not determinative, count for something. When Byron White retired in 1993, he conveyed word to the Clinton White House, not through conventional channels but through one of his former clerks, Ron Klain, then an associate White House counsel. If Stevens wants to leave the Court under Obama, it might be Mikva who conveys the news to the new president.

Assuming that Stevens leaves the Court first for health or whatever reason, institutional constraints may also affect how many others leave, and when, according to Northern Illinois University political scientist Artemus Ward, who also wrote a book on Supreme Court retirements. Justices don't like to retire at a pace of more than one per term, so as to minimize the time the Court is at less than full strength. And they don't retire, unless absolutely necessary, during a presidential election year, to keep the vacancy from becoming a campaign issue.

As a result, Souter and Ginsburg may check with each other and with Stevens before making their own decisions during a window of opportunity that would shut in 2011, a year before the next presidential election.

Even for liberal Thurgood Marshall, one of the most political of all Supreme Court justices, politics did not determine when he left. He passed up President Jimmy Carter's term as a chance to retire. In 1980, after Ronald Reagan's election, rumors circulated that Marshall would resign immediately to allow the lame duck Carter to nominate his successor before Reagan was sworn in. Marshall angrily told a reporter, "I was appointed for life, and I intend to serve out my full term!"

Marshall remained on the Court in declining health until 1991, when he was replaced, to his chagrin, by President George H.W. Bush's nominee Clarence Thomas.

http://www.law.com/jsp/article.jsp?id=1202425933868