Sunday, 24 February 2008

Triumph, tragedy mark lives of men exonerated in '88 murder

Chris Ochoa, in his law office in downtown Madison, Wis., went on to earn a law degree from the University of Wisconsin, whose Innocence Project helped release him from a life sentence in prison.

In 1988, one man confessed to a murder he didn't commit – and accused an innocent friend

01:13 AM CST on Sunday, February 24, 2008

By DIANE JENNINGS / The Dallas Morning News

MADISON, Wis. – How could you do it? The question dogs Christopher Ochoa. It always will.

In 1988, Mr. Ochoa, then a naive 22-year-old, confessed to a brutal rape and murder he didn't commit, and accused an innocent friend, Richard Danziger, of the same crime to avoid the death penalty.

The two men were sentenced to life in prison. Twelve years later, they were exonerated by DNA evidence and among the first of a parade of people who have made Texas the national leader in acknowledging wrongful convictions. Their shocking tale still reverberates around the state Capitol, where legislators keep passing laws to fix flaws that the case revealed in the criminal justice system.

Mr. Ochoa, now 41, triumphed over his past. He is now a criminal defense attorney, having graduated from the University of Wisconsin Law School – the same school that helped free him. Thanks to a multimillion-dollar civil settlement, he has set up a modest office across from the scenic Wisconsin Capitol, where he can pick and choose cases. He's planning to buy a house and get married.

"This is what I dreamed of" during years hemmed in by guards and razor wire, he says softly.
But Mr. Danziger's story is one of tragedy. Mr. Danziger, who always maintained his innocence, suffered brain damage when another inmate repeatedly kicked him in the head with steel-toed boots. He now lives under his sister's guardianship in Florida, his multimillion-dollar settlements providing medical care and personal assistance.

"Everybody involved in this case has drug himself through the desert behind a Jeep trying to figure out what happened," says Travis County District Attorney Ronnie Earle. "It is far and away the strangest case I can remember."
The real killer came forward and is in prison. The criminal justice system has changed for the better. But many affected by the Ochoa-Danziger case say their faith in the system was permanently shaken.

"In the end, justice did prevail," says John Pray, a law professor at the University of Wisconsin. But "you look at both those [men] and you don't know what to make of it. ... One is very exhilarating, and the other is just downright depressing."

The confession

How could you do it?
It's one thing to make a false confession about yourself; it's another to implicate someone else.

Mr. Ochoa responds patiently. Being threatened with the death penalty during interrogation, the choice seemed clear: lie or die.

Shy by nature, Mr. Ochoa says, "I never liked conflict. I always wanted to make people happy."
He'd been a good student at an El Paso high school, never in trouble with the law.
He moved to Austin to make money for college, getting a job at Pizza Hut. He shared an apartment with fellow employee Richard Danziger, 18, and another restaurant worker.

In the fall of 1988, Austin was buzzing about the brutal rape and murder of 20-year-old Nancy DePriest. Early one October morning, the young wife and mother was assaulted while alone mixing dough at a different Pizza Hut. She was bound, raped and shot in the back of the head.

A couple of weeks later, Mr. Danziger suggested that after work, he and Mr. Ochoa grab a beer at the restaurant where the killing occurred. "I found that strange," Mr. Ochoa says. "I just wanted to go home."

But he went along, joining Mr. Danziger in a toast to the dead woman's memory. Mr. Ochoa says he was nervous because Mr. Danziger was underage.

On their way out, Mr. Danziger chatted with a security guard about the killing.

Suspicious employees called the police.

When officers approached Mr. Ochoa two days later on a Friday at work, he assumed they were interviewing all employees. He went willingly to the police station.

"Aren't we all taught that police officers are there to protect you, if you haven't done nothing wrong?" he said. "And I hadn't done nothing wrong."

In an interview room, Mr. Ochoa says, one detective introduced himself by slamming his fist on the table and telling him he was known as el cucuy on the streets – "the boogeyman" in Spanish.

Officers asked him why he and Mr. Danziger had inquired about the robbery.

"Just curious," Mr. Ochoa responded.

"Nobody is just curious," an officer replied. "You've got to know something."

The detectives soon told him "somebody's gotta die" in such a highly publicized case.

"Police officers form a tunnel vision that they think, 'This is our guy,' " Mr. Ochoa explains with the clarity of hindsight. "They're not looking for the truth. They're just trying to find something."

Mr. Ochoa doesn't know how long he sat in the interrogation room because it was "like Vegas casinos – no clocks."

He says he asked for an attorney, but he was wrongly told he couldn't have one unless charged.

Finally, an exhausted Ochoa told them Mr. Danziger had told him about the crime. "At some point you think, 'If I just get out of here, if this will just stop, I can go talk to an attorney,' " he now says.

That night, he says, the officers took him to a motel for his safety because he'd "cooperated."

When the two officers picked him up Monday morning, Mr. Ochoa still hoped the system – a judge, a prosecutor, a defense attorney, somebody – would realize a mistake was being made.

But that morning, officers suggested he'd been the lookout. As his denials continued, so did the specter of the death penalty.

"By then, I am really mentally exhausted," Mr. Ochoa recalls. "I think back on this and sometimes it just gives me the chills."

The hours dragged on.

Through the two days of interrogation, detectives showed him autopsy pictures, pointed to the vein where the lethal injection would be administered, told him that he'd never hug his mother again and that he'd be "fresh meat to prisoners."

"I kept telling them I didn't know what they were talking about," Mr. Ochoa says.

Once, an officer threw a chair, which bounced off the wall above Mr. Ochoa's head. "That scared me even more."

When another officer offered to "bring out the typewriter and help you with your statement," Mr. Ochoa finally gave in.

His second statement was written with details about the crime apparently provided by the police – such as how the restaurant had been flooded in an effort to destroy evidence. When Mr. Ochoa got a detail wrong, he said, officers went over it with him until it fit the evidence.

That second statement said Mr. Ochoa and Mr. Danziger entered the building, tied Ms. DePriest's hands behind her back, and raped her repeatedly. Mr. Danziger shot Ms. DePriest, Mr. Ochoa said.

That statement came after two days and at least 15 hours of interrogations.

Mr. Ochoa says he knows people look at him expecting to see shame or guilt for confessing falsely. "But you know what?" he says. "In your mind, you were trying to survive."

An Austin Police Department review later found "strong indications that investigators supplied Ochoa with information," but there wasn't enough evidence to prove that the confession was coerced.

Two of the detectives could not be reached for comment. A third has since died.

Jamie Balagia, a police officer-turned-defense attorney and the brother of the deceased detective who interviewed Mr. Ochoa, frequently represents police officers. Courts have ruled that it's acceptable for officers "to yell, to scream, to threaten the death penalty," he says, "but never, ever should an officer feed not even one detail."

Michael Burnett, who represented another of the detectives in subsequent civil suits, which were settled by the city and county with no admission of wrongdoing, said some of the blame lies with Mr. Ochoa. Some also lies with the Police Department "for having an understaffed homicide department that relied too heavily on confessions."

Any mistakes were unintentional, both men say.

The plea bargain

Even after his arrest, Mr. Ochoa thought someone in the criminal justice system would realize an injustice was occurring.

He says he told his court-appointed attorney, Erik Goodman, why he'd confessed. But he says Mr. Goodman told him there was "no way an innocent person would give such a detailed statement."

Mr. Goodman declined to comment.

Mr. Ochoa says he also told a second attorney he was innocent.

That attorney, Nate Stark, says he can't recall Mr. Ochoa telling him he had falsely confessed. "That's far too long ago," he says.

But "I never believed that anyone would, No. 1, testify against another person in the compelling way he did and also testify basically against himself, unless a person's committed the crime," Mr. Stark says.

Mr. Ochoa had already confessed when Mr. Stark took the case. Mr. Stark says he performed his job as he should have.

Mr. Ochoa says he felt pressured by his attorneys to plead guilty, "probably because they believed I was guilty – but also because it was easier for them; it was less work," he says. And he admits, "They were trying to save my life."

Mr. Stark denies pressuring any client to plead.

Mr. Ochoa's mother, who believed in his innocence, also encouraged him to take a plea bargain, he says, because "they're going to kill you." When her health deteriorated, possibly from stress, Mr. Ochoa said, he finally agreed.

Four months after his confession, Mr. Ochoa took a polygraph exam as part of the plea bargain, Mr. Stark says. When the examiner reported "deception" to the question of whether Mr. Danziger had been the shooter, Mr. Ochoa changed his confession yet again: He identified himself as the killer.

Mr. Ochoa was offered a life sentence if he testified at Mr. Danziger's trial for aggravated sexual assault. "It was a really hard decision," he says.

He took it.

The trial

Chris Ochoa was a meek, mild-mannered young man. Richard Danziger was an angry one.

Mr. Danziger is the youngest of four in a military family. His world collapsed when his parents waged a nasty divorce, says his sister, Barbara Oakley.

Ms. Oakley declined an interview on her brother's behalf. He "doesn't talk to the media," she explains. "He finds them just as much at fault as he does Chris."

Mr. Danziger dropped out of high school in Beeville but earned a GED. His criminal record was short: five years' probation for forging a $55 check from his mother.

She pressed charges because "she was trying to prove a point to him," Ms. Oakley says. "I think it just made him angrier."

That anger probably kept him from caving in when questioned about the murder. "He was more angry than Chris was," Ms. Oakley says. "More defiant, less willing to give in to authority."

But with the naiveté of youth, Mr. Danziger didn't seem overly concerned when charged. His attitude was, "I didn't do it, so don't worry about it," Ms. Oakley says.
He told police he was asleep with his girlfriend at the time of the murder.
Ms. Oakley, who is five years older, knew her brother wasn't capable of that kind of violence. "You figure the system is going to work," she says.

It didn't.

When the state's star witness took the stand to lie about his friend, press accounts, largely from the Austin American-Statesman, painted Mr. Ochoa's testimony as riveting. According to reports about trial testimony, he concocted an elaborate, excruciating tale:
Mr. Danziger planned the robbery, because he needed cash. Mr. Danziger told Ms. DePriest "to shut up and give him the money." He pointed the gun at her, hit her, pulled off her pants and blouse and made her lie down.

Mr. Ochoa tied Ms. DePriest's hands with her bra and Mr. Danziger raped her. "He got me to sit down on her shoulders. ... She was kicking. He told her not to move or he'd blow her away."
Then Mr. Danziger told him, "It's your turn now. ... You're going to have fun with her, too."
"She was scared, she was crying. She was asking for help. ... Mr. Danziger said, 'You kill her.' ... I pulled the trigger." Then, he said the two men raped her again.

In contrast, when Mr. Danziger took the stand – wearing a bulletproof vest because of death threats – he was "flat, no passion there," says Judge Bob Perkins, who presided over the trial.
"I just thought, 'Man, this guy is a coldblooded killer.' "

Mr. Danziger simply told jurors he didn't know why Mr. Ochoa and other witnesses were lying.
In about three hours, jurors returned a guilty verdict; they took less than eight minutes to sentence Mr. Danziger to life in prison.
Days later, Mr. Ochoa received the life sentence he expected.

Life in prison

After his conviction, Mr. Danziger's letters home were mostly about working out. The mind-numbing monotony of daily prison life didn't have much chance to sink in because, about a year after he was sentenced, "he got hurt," Ms. Oakley says.

"Hurt" doesn't begin to describe what happened to Mr. Danziger, who, while watching TV, was attacked from behind by another inmate in a case of mistaken identity. The inmate kicked him in the head repeatedly with steel-toed boots.
He survived brain surgery, but he wasn't the same cocky young man. Part of his brain had been removed, leaving him subject to seizures, impairing his mobility, causing memory lapses and slurred speech.

Back in prison, Mr. Danziger found coping difficult. Sometimes he fell out of his bunk, once fracturing his skull. At other times he would get lost, and guards would find him crying in a corner. Sometimes he refused to shower because he was afraid of other inmates. If he didn't take his medication, he suffered from depression and hallucinations.

In December 1991, Mr. Danziger cut his wrist. Other suicide attempts followed.
Meanwhile, Mr. Ochoa learned to survive prison life. He was warned to be ready to fight, but it only happened once. "Then they respect you and you settle down," he says.
His low point came in December 1996. For years, he'd marked the weddings, births and job promotions of old friends through his hometown newspaper.

"A man usually looks at life when he's 30 and [asks] ... 'What have you done? Where are you at? How successful are you?' " he says. "I was a failure but not through fault of my own."
When Christmas Eve came and went without a card from his family, Mr. Ochoa says, he broke open a razor and planned to kill himself. A cut across the wrist is "a cry for help," he explains dispassionately. "Up [the arm] will do it."

But he remembered Catholic nuns telling him no one had the right to take a life, including his own.
"I dropped the blade in the toilet water, and the rest of the night I just cried," he says.
Despite his circumstances, Mr. Ochoa managed to make a life in prison. He renewed his faith, joined a prison choir and earned an associate's degree.

Today, no prison mementos decorate his law office. But a large, framed picture of an eagle in flight – a gift from law school friends – dominates one wall.
"When I was in prison, I would think how nice it would be to be an eagle," Mr. Ochoa says softly, "to be able to go wherever I wanted."

The real killer

Mr. Danziger and Mr. Ochoa were not the only inmates struggling because of the DePriest murder. So was Achim Josef Marino. But Mr. Marino wrestled with guilt.
That morning in 1988, Mr. Marino, an assistant manager at a flower shop, posed as a soda machine repairman. He talked his way into the Pizza Hut, bound Ms. DePriest's arms with handcuffs, raped her and shot her in the head as she knelt beside a sink.

Ms. DePriest was selected at random, Mr. Marino says. The killing was part of a satanic ritual, as well as an effort "to get back at society."
Mr. Marino says he showed symptoms of mental illness – torturing animals, destroying property, assaulting others – from an early age. He's been in and out of the legal system for decades.

In an interview at the South Texas prison where he's serving multiple life sentences, Mr. Marino, who has thick black glasses and the pasty complexion of someone who rarely sees the sun, was articulate and quick. But he's no criminal mastermind.
Still, no one ever suspected him in the DePriest killing.

Shortly after the murder, he was arrested in El Paso for carrying a weapon, which is illegal for ex-felons. The gun was the one used to kill Ms. DePriest, but no connection was made.
A couple of years later, Mr. Marino landed in the Travis County Jail. He received two life sentences for robbery and three more 10-year sentences for sexual assault, possession of a firearm and retaliation.

While in jail, another inmate told him about the confession in the DePriest killing.
"That's impossible," he says he replied. "I know the person who did that."
In prison, he joined Narcotics and Alcoholics Anonymous and embraced Christianity. Both groups and his new faith mandated that he "make amends to the persons you have hurt in the past."

Prison conversions aren't unusual, but they don't always last. Mr. Marino says he "decided to make a real conversion, not a shallow one."
In 1996, he wrote to Austin police and the American-Statesman, confessing to the DePriest rape and murder. "Chris and Richard needed to get out of prison," he says. "They didn't belong here."
"I don't like innocent people being hurt," he says, in spite of what he did to Ms. DePriest.
In his letter, Mr. Marino told police where to find the bank bag and handcuffs used in the attack. Authorities collected the evidence – but inexplicably did nothing else.

Two years later, the Travis County district attorney received a letter.

"I do not know these men nor why they plead guilty to a crime they never committed. I can only assume that they must have been facing a capital murder trial with a poor chance of acquittal," Mr. Marino wrote. "But I tell you this sir, I did this awful crime and I was alone."

Mr. Marino surmises Mr. Ochoa confessed after aggressive questioning. He's never met Mr. Ochoa but believes "he was very weak and not very assertive."
The district attorney's office interviewed Mr. Ochoa in prison. Without mentioning Mr. Marino's name, new investigators asked Mr. Ochoa about a third party to the crime.

Mr. Ochoa told them there was none. "I did this crime," he reiterated. "I did it, and let me do my time."
Mr. Ochoa says he stuck to his confession because acknowledgement of your crime helps at parole reviews. He says he also feared that remaining evidence might be destroyed if police realized they'd made a mistake. "I just wanted them to think I'm guilty" while getting help from outside the system.

In June 1999, he contacted the Innocence Project at the University of Wisconsin. Most requests for assistance are rejected because evidence often isn't available, says co-director John Pray. But in Mr. Ochoa's case, DNA was available.
False confessions are "a leading cause of wrongful convictions," Mr. Pray says. "We also knew that the reason that Chris gave was the death penalty. ... In Texas, it's not an idle threat. ... I can see how you confess to try to save your own life."

After the Innocence Project located the DNA evidence, the district attorney's office tested the material. About then, Mr. Ochoa's lawyers learned that someone else had confessed to the crime.
In September 2000, Mr. Ochoa was notified that DNA tests excluded him and Mr. Danziger. But they included Mr. Marino.

Mr. Ochoa was confused.
"Who's Marino?" he asked.

Authorities eventually sifted through all the evidence and conflicting stories, and in January 2001, Mr. Ochoa walked out of a courtroom and into the arms of his mother.
"She was happy," Mr. Ochoa remembers. "She was crying. She wouldn't let go of me."

Danziger's life

Richard Danziger's mother was not there to watch her son walk free a few weeks later. His release took longer because officials had to find a place for Mr. Danziger to stay until guardianship could be arranged. His mother had died three months earlier.

"What happened to you was horribly wrong," Judge Perkins told Mr. Danziger, according to the American-Statesman. "I can't say it enough, but we are sorry for what happened to you."

Mr. Danziger, who recovered more than anyone expected, said he didn't want "to be an object of pity."
When asked about Mr. Ochoa, he told reporters that he was "a pretty stupid dude."

Mr. Ochoa soon met with him and his sister to "make peace."
"Richard wouldn't talk to him," Ms. Oakley says. "Richard was in the room but he wouldn't acknowledge him."

Today, Mr. Danziger "has the best quality of life that he's capable of having," Ms. Oakley says. He can't drive and suffers from short-term memory loss. He may leave the stove on or forget to take his medication.

Mr. Danziger now lives a few blocks away from her, where he has a staff to look after him. That was made possible by civil lawsuit settlements – $9 million from the city of Austin, $950,000 from Travis County and $500,000 from Mr. Ochoa. A suit against the state is pending.
The money pays for not only medical care but for the video games he enjoys. Sometimes Mr. Danziger visits a friend at the Skyview prison in Rusk, Texas.

"Most of the staff there knows him," Ms. Oakley says. "They go out of their way to be polite to him. But when he goes to the bathroom, he still goes to the guards to ask permission. It makes me mad."

Ms. Oakley would like to thank Mr. Marino for his role in releasing her brother.
Despite the likelihood that he'll die in prison because of his confession, Mr. Marino says, he doesn't regret it. "No, I was deep in the faith," he says.
He's never heard from either Mr. Ochoa or Mr. Danziger.
Mr. Ochoa has no desire to contact him.

"I'm not a fan," he says. "He still took a life. And it was because of him ... me and Danziger lost our freedom."

Ochoa's life

As soon as Mr. Ochoa regained his freedom, he got an inkling of how the outside world had changed when a student handed him a cellphone. "I'm like, 'Whoa, this is cool. I'm talking on this little thing without a cord," he remembers.

The thrills kept coming – quiet moments at church; a steak instead of prison 'meat substitute'; a trip to Wal-Mart, where he marveled at the merchandise; his first new pair of pants with pockets and a belt.
"In prison, you don't have pockets" says law professor John Pray. "That was a moment of amazing joy."

After Mr. Ochoa's release, the only place he felt comfortable was in the company of lawyers, so he applied to the University of Wisconsin Law School.

His settlement money paid for school and made it possible to open his practice.

Today, he enjoys a few luxuries such as his $40,000 truck, a flat-screen TV and international travel. But he occasionally flashes back to his days behind bars. If he's pulled over for a traffic violation, he gets nervous. And walking into a police station makes him uncomfortable.
Gradually, with therapy, he's put those prison years behind him.

He'll always be an exoneree, he says. "But I want to be respected as an attorney first. ... I want to do more."
Practicing criminal law with his unique perspective is one way to do that, he says. He also speaks about his experience, about how false confessions occur, and makes occasional appearances with Nancy DePriest's mother, now a friend, in opposition to the death penalty.

Everyone agrees the person most wronged was Mr. Danziger.

"What happened to Richard Danziger is a crime," Judge Perkins says. He blames the injustice primarily on police officers who crossed the line by feeding details to Mr. Ochoa to fit the evidence, and partially to Mr. Ochoa, who made the confession.
The system "worked ultimately," Judge Perkins says, "but it took way too long."

Mr. Danziger's sister is angry at the system that failed her brother, but not at Mr. Ochoa.
She says she understands Mr. Ochoa feared for his life, but "it's not right to lie and destroy somebody else's life."
Still, Ms. Oakley is glad Mr. Ochoa has done well after exonerationbecoming a criminal defense lawyer.
"Maybe Chris can help somebody else," she says, "to where they're not in the same situation him and Richard were."

Mr. Balagia, the brother of one of the detectives, says Mr. Ochoa bears some responsibility for the lost years. "If Ochoa had just said, 'Screw you, get your needle,' he couldn't have been convicted," he says.
Mr. Ochoa says the police are to blame, but he's reflected on how much responsibility he bears. "I used to wrestle with it," he says. "Two percent? Three percent? That's logical, right?"

The murder of Nancy DePriest left a trail of broken lives – but it also changed the criminal justice system. "Everybody has a horror of convicting the wrong person," says Ronnie Earle, Travis County district attorney.

Changes include:
Austin Police Department: After a series of troubling cases, reforms had already begun in Austin by the time Christopher Ochoa and Richard Danziger were exonerated. Today, Austin is one of a handful of departments that videotapes interrogations. Unlike some states, Texas has not passed a law requiring taping.

Travis County district attorney's office: After the Ochoa/Danziger wrongful convictions, and two others, Mr. Earle's office reviewed 445 cases dating to the 1970s where DNA evidence had been preserved. No other mistakes were found. The office also established a protocol to examine innocence claims.

State of Texas: Texas is one of 22 states, plus the federal government and the District of Columbia, that provides financial compensation for wrongful convictions. The compensation was increased last year after Mr. Ochoa and others testified before the state Legislature. Today, Texas offers $50,000 for each year of wrongful imprisonment – $100,000 if time is served on death row. The state also provides some funding for mental health counseling, medical expenses, child support and attorney fees.

SOURCE: Dallas Morning News research

Number of people exonerated by post-conviction DNA testing nationwide since 1989: 213

Number of states with DNA exonerations: 31

Number of people exonerated in Texas: 32

Number of people exonerated in Dallas: 15

Average length of time served by exonerees: 12 years

Average age at time of wrongful conviction: 26

Factors in wrongful convictions:

77% include eyewitness testimony
65% include lab error or junk science
25% include false confessions
15% include jailhouse informants

SOURCES: The Innocence Project; Dallas Morning News research

Life after exoneration:
About 66% are not financially independent

Almost 50% depend on others for living arrangements

About 25% suffer from some form of anxiety, depression or post-traumatic stress disorder

SOURCE: Life After Exoneration Program 2005 study

The ruling in 2nd DCA - Michael Mordenti








Appellant, )


v. ) Case No. 2D05-4407




Appellee. )

_____________________________________ )

Opinion filed February 22, 2008.

Appeal from the Circuit Court for Hillsborough

County; Barbara Fleischer, Judge.

James Marion Moorman, Public Defender,

and Terri L. Backhus, Special Assistant Public

Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee,

and Richard M. Fishkin, Assistant Attorney

General, Tampa, for Appellee.

HARRIS, CHARLES M., Associate Senior


The issue in this case is whether the trial court erred in excluding

statements made by the alleged coconspirator, deceased at the time of trial, which, if

believed by the jury, would exonerate Michael Mordenti. We hold that the trial court did

err and reverse.

- 2 -

Mordenti was first convicted of first-degree murder in 1991, at which time

he received the death penalty. Mordenti's conviction and sentence was affirmed by the

Florida Supreme Court in 1994. However, on review of a denied motion for

postconviction relief, that court reversed the conviction and sentence because of a

Brady1 violation. Mordenti v. State, 894 So. 2d 161 (Fla. 2004). A second trial resulted

in a mistrial (hung jury). Mordenti was tried once again, resulting in a second conviction

and this appeal.

Larry Royston, the victim's husband, was immediately the prime suspect in

the case. Because he had an alibi (he was with the victim's mother at the time of the

murder), law enforcement believed a hired killer was involved. Through Royston's

telephone records, the police were led to Gail Mordenti Milligan. When she was called

in for questioning, Mrs. Milligan demanded immunity for her cooperation, and apparently

without any additional investigation, she received it. She then told the investigators that

indeed she was the go-between in setting up this murder-for-hire. Royston offered

$10,000 for the murder of his wife, and Mrs. Milligan set out to find a contract killer.

Mrs. Milligan told authorities that her former husband, Michael Mordenti, after initially

refusing, had agreed to do the murder. This was her testimony at trial, and it was the

only material evidence against Mordenti.

The Florida Supreme Court in reversing Mordenti's original conviction

noted how critical Mrs. Milligan's testimony was in obtaining the conviction:2

1 Brady v. Maryland, 373 U.S. 83 (1963).

2 Had Mrs. Milligan testified that her boyfriend had committed the murder, there

would have been some corroboration because independent witnesses stated that two

people were seen in the vicinity of the murder at or near the appropriate time and that

- 3 -

Mordenti was convicted primarily on the testimony of

one woman, Gail Mordenti Milligan. No physical evidence

was produced linking Mordenti to the murder, and Gail was

the only witness who was able to place Mordenti at the

scene of the murder. There was no money trail, no

eyewitnesses, no confession, no murder weapon, no blood,

no footprints, and no DNA evidence linking Mordenti to the

murder. The prosecution's entire case relied solely on Gail's

testimony, and the jury crediting that testimony.

894 So. 2d at 168.

The testimony in the case indicates that Royston never met Mordenti.

This is important because when Royston first saw Mordenti in court, he blurted out to

his attorney in a crowded courtroom, "That's not the guy" or "That's not him."3 This

statement, as well as others, was not discovered until after Royston committed suicide

shortly before his trial.4 The prosecutors of Mordenti convinced a judge that Royston's

attorney-client privilege ended with his death and obtained an ex parte order requiring

Royston's attorney, Trevena, to respond to the State's questions. Although the above

quoted courtroom statement was not specifically mentioned, the Florida Supreme Court

discussed the importance of Trevena's testimony in its decision overturning Mordenti's


After Royston committed suicide, the State obtained an ex parte order

signed by the trial judge stating that the attorney-client privilege did not

apply and ordering Trevena to submit to an interview with the State. . . .

while neither met the description of Mordenti, one did meet the description of Mrs.

Milligan's boyfriend.

3 Royston's attorney testified on proffer that Royston had been "adamant that

[Mordenti] had absolutely nothing to do with [the murder]."

4 Suppose Mordenti had been executed following his first conviction and

sentence before this information was revealed by the State? What confidence would

the public have in the criminal justice system?

- 4 -

During the evidentiary hearing [on the motion for

postconviction relief] the trial court ruled that Trevena's

testimony with regard to the information he received from his

deceased client in preparation for his murder trial was

inadmissible hearsay. However, the trial court permitted

postconviction counsel to proffer Trevena's testimony. The

proffer indicated that Trevena conveyed to the prosecution

that Larry Royston believed that "Gail Mordenti had

orchestrated [the murder]." Trevena informed the State that

"Mr. Royston had indicated to [him] that [Royston] did have a

sexual affair with Gail Mordenti, and that she wanted to

continue that affair." Trevena further informed the State that

Gail "wanted Mr. Royston freed up so that she could share . . .

in his assets." Finally, Trevena communicated to the State

that Royston maintained that the thirteen-minute cellular

phone call on June 7, 1989, the day of the murder, from

Royston to Mordenti was "innocent in nature and that it was

relating to some type of a boat or motor vehicle," and "[t]here

was no discussion concerning any homicide or violence, . . . it

was related to business and . . . the call had been set up by


Id. at 173 (some alteration in original).

Even though the credibility of Mrs. Milligan was the central issue of this

case, the trial court refused to allow Trevena's testimony on the basis of hearsay and

privilege. There was simply no privilege remaining at the time of the third trial. If the

privilege ever existed (the statement was blurted out in a crowded courtroom for anyone

to hear), it was waived when the State inappropriately required Trevena to respond to

its questions. The statement then became public information. The Florida Supreme

Court made this abundantly clear in its decision. The court did not treat the information

as privileged and discussed its potential admissibility. That has become the law of the

case as it relates to privilege.

With regard to the application of the hearsay rule, the United States

Supreme Court has stated that "where constitutional rights directly affecting the

- 5 -

ascertainment of guilt are implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. 284,

302 (1973). The uncorroborated statement of a coconspirator raises such concerns.

The one who took the money, picked the murderer, and was given immunity must be

subject to the closest scrutiny during cross-examination. Mrs. Milligan was not. The

Florida Supreme Court discussed the potential problem of hearsay in its decision and

suggested it should be available for impeachment of Mrs. Milligan who, for example,

had denied a sexual relationship with Royston. Royston's statement also meets the

spontaneous statement exception as well as the statement against interest exception to

the hearsay rule.

It may well be that the jury will not believe Mr. Trevena or may put some

other construction on Mr. Royston's statements. But the jury should have that


Reversed and remanded for a new trial.

DAVIS, J., Concurs with opinion.

STRINGER, J., Dissents with opinion.

DAVIS, J., Concurs specially with opinion.

I concur with Judge Harris' conclusion that the trial court committed

reversible error in determining that the testimony of the attorney who represented Larry

Royston prior to his death was inadmissible in the third Mordenti trial. However, I write

to explain why I believe that the attorney-client privilege does not apply in this case.

- 6 -

The issue presented in this case is whether the privilege should now

preclude the use of Royston's attorney's testimony given the unique procedural posture

presented here. That is, the issue of whether the trial court was correct when it

originally determined that the privilege did not apply is not germane to our current


The purpose of the privilege is to bar the disclosure of information; it is not

a test of admissibility. See § 90.502(2), Fla. Stat. (2006) ("A client has a privilege to

refuse to disclose, and to prevent any other person from disclosing, the contents of

confidential communications . . . ."); see also E. Colonial Refuse Serv., Inc. v. Velocci,

416 So. 2d 1276, 1277-78 (Fla. 5th DCA 1982) (stating that although testimony may be

relevant and admissible, the information sought "may be privileged and therefore

beyond permissible discovery"). Once it is determined that a privilege does not prohibit

the disclosure of information, the question of whether it is admissible is determined by

the rules of evidence.

In the instant case, after Royston's death but prior to Mordenti's first trial,

the State obtained a ruling from the trial court that Royston's attorney could not assert

the privilege to keep from disclosing the conversations he had with this client.6

Royston's attorney never appealed this ruling, but rather complied by answering the

5 I recognize that section 90.508, Florida Statutes (2006), renders inadmissible

those disclosures that are erroneously compelled by the court; however, this section

does not apply to these facts because the statements here are not sought to be

admitted against the holder of the privilege, Larry Royston.

6 Because the State was the party that sought the ruling originally, an argument

can be made that the State should now be collaterally estopped from arguing that the

privilege should bar the use of the testimony at the retrial. However, the State does not

have standing to assert the privilege. See § 90.502(3).

- 7 -

State's questions regarding the information shared with him by his client prior to the

client's death.

After discovering that the State had obtained this information but had

failed to disclose it to his counsel prior to trial, Mordenti sought postconviction relief

alleging a Brady7 violation. In reversing the postconviction court's denial of relief, the

Florida Supreme Court reviewed the information disclosed by the attorney pursuant to

the trial court's determination that the privilege did not apply and found that the State

had, in fact, committed a Brady violation by not providing the information to Mordenti's

counsel. Mordenti v. State, 894 So. 2d 161, 174 (Fla. 2004). The court granted

Mordenti a new trial, impliedly concluding that the defense should be provided the same

information that the State had obtained from Royston's attorney. Id. at 177.

Despite the fact that Royston's attorney never sought appellate review of

the trial court's determination of the inapplicability of the privilege, the Florida Supreme

Court, by ordering the further disclosure of the attorney-client conversation, implicitly

affirmed the trial court's determination that the privilege did not apply. Although the

privilege issue was not before the supreme court in this postconviction proceeding, the

practical effect of the court's order directing that the information again be disclosed to

Mordenti's counsel was that the conversations between Royston and his attorney were

no longer protected by the attorney-client privilege. Thus, as Mordenti argues on

appeal, this became the law of the case, and the trial court erred in determining that the

7 Brady v. Maryland, 373 U.S. 83 (1963).

- 8 -

testimony was inadmissible at Mordenti's third trial because of the privilege.8 See Smith

v. City of Fort Myers, 944 So. 2d 1092, 1094 (Fla. 2d DCA 2006) (" 'The doctrine of the

law of the case requires that questions of law actually decided on appeal must govern

the case in the same court and the trial court, through all subsequent stages of the

proceedings.' " (quoting Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla.


Having determined that the attorney-client privilege was not a proper basis

to exclude the attorney's testimony, I would further agree with Judge Harris' opinion in

concluding that the three portions of testimony at issue were admissible. The

spontaneous statement made by Royston to his attorney in open court that Mordenti

was "not the guy" would meet the statement against interest exception to the hearsay

rule. See § 90.804(2)(c). The other two statements would be admissible as

impeachment testimony. See § 90.608. I would therefore concur with Judge Harris that

the trial court erred in excluding the testimony and agree that the case should be

remanded for a new trial.

STRINGER, J., Dissents with opinion.

I respectfully dissent. I would affirm Mordenti's conviction because

Mordenti has not established any reversible error from the trial court's determination that

Trevena's testimony was protected by the attorney-client privilege. Let me begin by

stating that while the statements at issue would certainly assist in Mordenti's defense,

8 As mentioned in Judge Harris' opinion, it is not clear that the privilege was the

actual basis for the trial court's ruling. In fact, upon remand, the trial court entered

another order directing the attorney to answer the questions of Mordenti's counsel.

- 9 -

those statements do not amount to a "smoking gun" that would exonerate Mordenti. In

order to understand the importance of the statements to Mordenti's defense, a better

explanation of the background facts is required. The facts adduced at Mordenti's third

trial have not changed substantially from those reported in Mordenti's first appeal by the

Florida Supreme Court:

This case involves the murder of Thelma Royston.

The victim's husband, Larry Royston (Royston), allegedly

hired Mordenti to commit the murder. Royston and Mordenti

were charged with the victim's murder after Royston's

cellular phone records led detectives to Mordenti's former

wife, Gail Mordenti,[9] who subsequently confessed that she

had acted as the contact person between Mordenti and

Royston. After Royston and Mordenti were charged,

Royston committed suicide. Consequently, his version of

the events at issue was not available. At trial, Mordenti's

defense was that he was some place else when the murder


Testimony at trial revealed the following details

regarding the murder. The victim, Thelma Royston, lived

with her mother and her husband. On the night of the

murder, Royston told the victim that the lights were off in the

barn. Because the Roystons' horse business required the

barn lights to be left on until 10:00 or 11:00 each night, the

victim and her mother went outside to turn on the lights.

When they went outside, they noticed an unidentified man

off in the distance. The victim went to talk to him and called

back to her mother that the man was there to discuss a

horse Royston had for sale. The victim's mother went back

inside to tell Royston that the man was there, but when her

dog began barking she went back out to investigate. Upon

doing so, she discovered the victim's body in the barn. The

victim had suffered multiple gunshot and stab wounds.

Because it was night and the man had been so far off in the

distance, the victim's mother was unable to furnish a

description of him to the police.

9 Gail Mordenti married sometime after the events at issue and became Gail


- 10 -

Because the victim suffered multiple gunshot and

stab wounds, the medical examiner was unable to

determine from which wounds the victim had died or

whether she had died instantaneously. However, there

were no defensive wounds and no indication that anything

had been taken or that the victim had been sexually


Additional testimony revealed that the victim and

Royston had been contemplating divorce, but that Royston

thought the victim was asking for too much money. A

former girlfriend of Royston's testified that Royston had

asked her to kill his wife by either shooting or stabbing her

to make it look like a burglary, but the former girlfriend had

refused. Mordenti's former wife, Gail Mordenti, testified that

Royston asked her if she knew of anyone who would "get rid

of his wife" for $10,000. Gail Mordenti stated that she

subsequently asked Mordenti if he knew of anyone who

would kill Royston's wife and he responded: "Oh, hell, for

that kind of money, I'll probably do it myself." Gail Mordenti

explained that she acted as the middle person between

Royston and Mordenti by conveying information about the

best time and place for the murder and by supplying a

photograph of the victim and a map of the ranch.

Gail Mordenti further testified that, when she first

approached Mordenti about murdering the victim, he

informed her that it would be impossible to commit the

murder as Royston wanted and that he would not do it.

However, Royston continued to insist to Gail Mordenti that

he wanted the murder committed. Gail Mordenti finally

placed Royston directly in touch with Mordenti. Royston's

cellular phone records reflected that he made a thirteenminute

telephone call to Mordenti's number on the day of

the murder. After the murder, Gail Mordenti delivered

payments totaling $17,000 from Royston to Mordenti.

According to her, the amount had risen from $10,000 to

$17,000 because Mordenti had to get rid of a car. Mordenti

gave Gail Mordenti between $5,000 and $6,000 of the

$17,000 over time to help her pay her bills. Additionally,

Gail Mordenti testified that Mordenti described the murder to

her, stating that the victim "put up quite a fight" and that he

"shot her in the head with a .22." He also told Gail Mordenti

that the victim had a lot of jewelry on and that he felt really

bad that he couldn't take it. She also testified that Mordenti

had a number of guns that he kept as "throw away" pieces

- 11 -

and that she knew he was associated with some "shady"

people. (A cellmate of Mordenti's also testified that

Mordenti told him he was "in the mob.") For her testimony,

Gail Mordenti was offered complete immunity.

No physical evidence was produced linking Mordenti

to the crime, and Gail Mordenti was the only witness who

was able to place him at the scene of the murder. However,

her testimony was consistent with what police knew about

the murder and some of her testimony matched information

about the murder that had not been made public.

In his defense, Mordenti produced three witnesses

who stated that he had attended an automobile auction on

the night of the murder. Mordenti was a used car dealer

and frequently attended auctions where he purchased cars

for resale. The prosecution, however, was able to point to a

number of inconsistencies in the witnesses' testimony.

Additionally, one of the three witnesses was one of

Mordenti's girlfriends, and the other two witnesses had

testified only after being contacted by the girlfriend over a

year after the murder and after being reminded by the

girlfriend that the night of the murder was the same night

Mordenti had attended the auction.

Mordenti v. State, 630 So. 2d 1080, 1082-83 (Fla. 1994) (alteration in original). In the

appeal of the denial of Mordenti's motion for postconviction relief, the supreme court set

forth the statements Royston made to attorney Trevena during the initial proffer as


The proffer indicated that Trevena conveyed to the

prosecution that Larry Royston believed that "Gail Mordenti

had orchestrated [the murder]." Trevena informed the State

that "Mr. Royston had indicated to [him] that [Royston] did

have a sexual affair with Gail Mordenti, and that she wanted

to continue that affair." Trevena further informed the State

that Gail "wanted Mr. Royston freed up so that she could

share . . . in his assets." Finally, Trevena communicated to

the State that Royston maintained that the thirteen-minute

cellular phone call on June 7, 1989, the day of the murder,

from Royston to Mordenti was "innocent in nature and that it

was relating to some type of a boat or motor vehicle," and

"[t]here was no discussion concerning any homicide or

- 12 -

violence, . . . it was related to business and . . . the call had

been set up by Gail." The defense was not privy to any of

this information.

Mordenti v. State, 894 So. 2d 161, 173 (Fla. 2004). In his proffer before the court at his

third trial, Trevena also explained that Royston did not admit any culpability in the

victim's death and insisted that Mordenti also had nothing to do with it. Trevena also

acknowledged that Royston blurted out to him in court, "That's not the guy," when

Royston saw Mordenti. While Trevena believed this statement may have been an

admission that Royston was involved in the offense, Trevena and Royston did not

discuss the matter further.

As I previously stated, Royston's statements would certainly assist in

Mordenti's defense, but I do not believe that the statements are the equivalent of a

"smoking gun" that will exonerate Mordenti. As the trial court below noted, "This is a

defendant who's talking to his defense attorney making what are clearly obviously selfserving

statements." Nothing Royston said to his attorney proves that Gail Milligan was

lying when she testified that Royston hired Mordenti to murder the victim.

Turning to the merits, the majority appears to hold that the State waived

the attorney-client privilege when it obtained an ex parte order ruling that the privilege

was not applicable to Royston's statements and ordering Trevena to participate in an

interview with the State in 1991. However, it was not the State who sought to assert the

privilege at Mordenti's third trial in 2005; it was attorney Trevena. Furthermore, the

State did not have the authority to waive or assert the attorney-client privilege. See §

90.502(3), Fla. Stat. (2005); Restatement (Third) of the Law Governing Lawyers § 86


- 13 -

Moreover, I respectfully disagree with the suggestion in both the majority

and the concurring opinion that the trial court's 1991 ex parte ruling that the testimony at

issue was not protected by the attorney-client privilege became law of the case when

the supreme court reversed the denial of Mordenti's motion for postconviction relief in

2004. The issue before the supreme court was whether the postconviction court erred

in denying relief on Mordenti's claim that the State committed a Brady violation by failing

to disclose the statements Trevena made at the interview that followed the ex parte

order at issue. See Mordenti, 894 So. 2d at 173. In order to analyze this issue, the

supreme court determined (1) that Trevena's statements in the interview were favorable,

(2) that the State suppressed the evidence, and (3) that the State's failure to disclose

the evidence prejudiced Mordenti. Id. at 173-74. The supreme court did not have

before it the issue of whether Royston's statements to Trevena were protected by

attorney-client privilege. The doctrine of law of the case applies only to those issues "

'actually decided on appeal.' " State v. McBride, 848 So. 2d 287, 289 (Fla. 2003)

(quoting Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (emphasis


I reject the concurring opinion's suggestion that the supreme court in

Mordenti implicitly affirmed the trial court's ex parte ruling that the attorney-client

privilege did not apply. It was not necessary for the supreme court to rule on the

privilege issue for its determination of whether the State committed a Brady violation in

failing to disclose the statements. Furthermore, I do not believe that Trevena had a duty

to seek review of the trial court's ex parte order in order to preserve his ability to claim

the privilege in a separate judicial proceeding. Without appellate review of the trial

- 14 -

court's order, the trial court's order cannot become the law of the case. See McBride,

848 So. 2d at 290.

Nor do I believe that publication of Royston's privileged statements by the

Florida Supreme Court constitutes a sort of abrogation of the privilege. It is true that the

cat is out of the bag, so to speak, and the content of Royston's confidential statements

to attorney Trevena has been made public. However, the fact that the information is

public does not mean that the information is discoverable for trial. Because the privilege

has not been waived by anyone authorized to do so, the fact that Trevena's proffer was

subsequently published should not abrogate the privilege.

Finally, I reject the majority's suggestion that Royston may have waived

the attorney-client privilege by communicating to his attorney via courtroom "outburst."

The majority notes that Royston "blurted out" the communication in a crowded

courtroom where he could have been overheard. However, this issue was not raised by

Mordenti on appeal, and we are precluded from addressing it for that reason. See

Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995); Grimsley v. State, 939 So. 2d 123,

125 (Fla. 2d DCA 2006). Furthermore, there is no evidence that the statement was

heard by anyone other than attorney Trevena.

My determination that Mordenti has not established any error in excluding

the statements at issue as privileged renders moot a determination of whether the

statements constituted inadmissible hearsay. However, I do not share the majority's

concern with the application of the hearsay rule "to defeat the ends of justice" in this

case. In fact, the admission of a codefendant's self-serving hearsay statements to his

attorney, which were made to assist a defense that was seeking to avoid the death

- 15 -

penalty and which were not subject to cross-examination, gives me greater concern for

the ends of justice.

Accordingly, I conclude that Mordenti has not established any reversible

error from the trial court's determination that Trevena's testimony was protected by the

attorney-client privilege. Therefore, I would affirm Mordenti's conviction.

Michael Mordenti - 2nd conviction overturned

An appeals court finds statements were improperly excluded

By Colleen Jenkins, Times Staff Writer
Published February 23, 2008

TAMPA - Before he committed suicide, Larry Royston told his attorney that prosecutors had charged the wrong man with killing Royston's wife in a 1989 murder-for-hire plot.

But three separate juries never heard his claim.

Twice, St. Petersburg used car dealer Michael Mordenti was convicted of taking $17,000 from Royston to carry out the hit.

The Florida Supreme Court overturned the first conviction, saving Mordenti from death row. A second trial ended with a hung jury, and a third trial brought a life prison sentence with the possibility of parole after 25 years.

On Friday, the testimony jurors never heard won Mordenti his fourth shot at redemption.

In a 2-1 decision, an appellate panel overturned his conviction, saying Royston's statements to attorney John Trevena should have been admitted at trial and would exonerate Mordenti if believed by a jury.

"It may well be that the jury will not believe Mr. Trevena or may put some other construction on Mr. Royston's statements," wrote 2nd District Court of Appeal Associate Senior Judge Charles M. Harris. "But the jury should have that opportunity."

Judge Thomas E. Stringer dissented. He acknowledged that the statements would help Mordenti but said they did not amount to a "smoking gun."

Attorney Marty McClain, who represented Mordenti during his second and third trials, found that stance hard to believe.

"I think that this is just powerful stuff," he said. "I don't know how much more of a smoking gun you need."

Prosecutors will review their options in light of the ruling, said Assistant State Attorney Pam Bondi, who helped convict Mordenti in 2005.

Now 66, he has been imprisoned since his 1991 conviction.

Prosecutors said he shot and stabbed 54-year-old Thelma Royston in her Odessa horse barn June 7, 1989. They said her husband paid Mordenti to do it.

They based their case against Mordenti on the testimony of his ex-wife, Gail Mordenti Milligan. The Largo woman told authorities that she acted as the go-between for the contract killing; she received immunity in exchange for naming Mordenti.

No physical evidence, no money trail, no eyewitnesses and no confession tied Mordenti to the crime. Because the prosecution's case against Mordenti relied solely on his ex-wife's account of events, her credibility was a central issue in the case, the appellate judges said.

"The one who took the money, picked the murderer and was given immunity must be subject to the closest scrutiny during cross-examination," the opinion stated. "Mrs. Milligan was not."

The appellate judges' concern: Jurors never heard statements that could raise questions about Milligan's truthfulness.

Trevena said his client claimed Milligan orchestrated the murder because she was having an affair with Royston and wanted him "freed up so that she could share ... in his assets."

When Royston first saw Mordenti in court, he had blurted out, "That's not the guy," to his attorney.

Royston killed himself before his own trial. Milligan denied any romantic link.

Trevena also said Royston maintained that a 13-minute cell phone call between Royston and Mordenti a few hours before the murder was set up by Milligan and was "innocent in nature and that it was relating to some type of a boat or motor vehicle." He said there was no discussion concerninghomicide or violence.

In an unusual move, prosecutors persuaded a judge to allow them to interview Trevena in private before Mordenti's first trial. They did not share the attorney's recounting of his client's statements with the defense - an omission that helped get Mordenti's death sentence reversed.

Hillsborough Circuit Judge Barbara Fleischer considered the testimony multiple times during the two subsequent trials, and prosecutors argued strenuously to keep it out. Each time, the judge refused Trevena's testimony on the basis that it was hearsay and subject to attorney-client privilege.

"If I'm wrong," Fleischer said in May 2005, "the Supreme Court will tell me."

Instead, she heard from the 2nd District Court of Appeal. The ruling Friday did not surprise Trevena, who will now testify should Mordenti's case get retried.

"I just scratched my head in disbelief when Fleischer said she wouldn't allow it," Trevena said. "It's just another case where an innocent guy has rotted in prison for 20 years."

Colleen Jenkins can be reached at or (813) 226-3337.


On June 7, 1989, at around 9:00 p.m., Thelma Royston was murdered in a horse barn located on the property she owned with husband Larry Royston. At the time of murder, Mr. Royston was inside the family residence with Thelma’s mother. Because of marital difficulties, law enforcement immediately suspected that Larry Royston had perhaps arranged the murder. However, the State could not put a case against Mr. Royston together until March of 1990. At that time, word on the street was that Gail Mordenti had been looking to hire someone to kill Ms. Royston. This word reignited the investigation into the murder. In late February and early March, law enforcement interviewed a number of persons connected with Gail Mordenti.

On March 8, 1990, law enforcement swooped down on Gail Mordenti’s residence to execute a State Attorney subpoena requiring her appearance before an assistant state attorney to give a sworn statement. When they arrived at 7:00 a.m., they expected to find Gail and her live-in boyfriend, Michael Milligan. However, Gail was alone; she reported that Michael Milligan had spent the night elsewhere. She later testified that when she was picked up by Detectives Baker and Kroll, on March 8, 1990, "they said they had the power - - that they could grant me immunity if I would tell them everything that I knew, and I said that if they could do that, then I would tell them everything that I knew about it, and they said fine. And then nothing else was said until we got here." At the State Attorney’s Office, she was given immunity. In return, she gave a sworn statement that Larry Royston asked her to find someone to kill his wife and that her ex-husband, Michael Mordenti, committed the murder.

Pursuant to her immunity, Gail Mordenti was not charged and remained free. Shortly after she gave her statement, she married Michael Milligan, on April 20, 1990.

Both Larry Royston and Michael Mordenti were arrested on murder charges. They were both released on bond pending trial. Mr. Royston’s trial was scheduled to go first in March of 1991. However on the eve of trial, Mr. Royston committed suicide.

Mr. Mordenti’s case then proceeded to trial in July of 1991. Mr. Mordenti was convicted and sentenced to death. Even though Mr. Mordenti presented an alibi for the time of the murder, the jury rejected the alibi based upon the testimony of Gail Mordenti Milligan.

The Florida Supreme Court acknowledged on direct appeal that "[n]o physical evidence was produced linking Mordenti to the crime, and Gail Mordenti [Milligan] was the only witness who was able to place him at the scene of the murder." Mordenti v. State, 630 So.2d 1080, 1083 (Fla. 1994). Thus, the State’s case rested entirely upon the credibility of Gail Mordenti Milligan, who testified that "as long as I told the truth, that I had total immunity." Gail elaborated in cross-examination at trial that "as long as I told the truth, the whole truth, that I had immunity."

At an evidentiary hearing in the fall of 2001, new evidence surfaced which established that Gail Mordenti Milligan had not told the whole truth at trial. At trial, Gail testified Larry Royston came to her house for lunch "it was either late February, or the beginning of March [of 1989]." At that luncheon, Larry Royston asked Gail if she knew anyone who could kill his wife. When Gail testified at the evidentiary hearing on November of 2001, she acknowledged that her date-book established that the luncheon with Larry Royston was not in February or March of 1989, but was on April 11, 1989. Gail testified at the evidentiary hearing when confronted with her trial testimony about the lunch with Larry: "If my book says that it was April 11th, then I was wrong." Gail also acknowledged that on April 11th, she had the first conversation she had with Larry Royston about his desire to find someone to kill Thelma. Accordingly, prior to April 11, 1989, she had undertaken no actions in search of a killer. Thus, she admitted her trial testimony was not the truth, the whole truth.

Interestingly, Gail Mordenti Milligan admitted at the evidentiary hearing that on April 12, 1989, the day after Larry Royston came to a luncheon at her house at her invitation, she gave a statement to law enforcement regarding an investigation into an allegation that she had stolen $200,000. According to her testimony at the evidentiary hearing, she had been notified prior to April 12th that the police wanted to talk to her about $200,000 that was missing from her prior place of business. Because defense counsel was not provided access to the date-book, he did not know to inquire about the proximity of the luncheon to the police questioning of Gail Mordenti Milligan regarding the missing money. However, the State did have the date book and did not share it with the defense.

At trial, Gail testified that prior to contacting Michael Mordenti about killing Thelma Royston, she had unsuccessfully sought to recruit three other individuals to do the murder. After some time had passed and she was unsuccessful in recruiting a killer, Gail testified that she turned to Michael Mordenti within a couple of weeks of the luncheon with Larry "which took place sometime, I think, in February, or the beginning of March." According to Gail’s trial testimony, Michael Mordenti wanted to scope out the Royston place in the daytime. Gail testified that later Michael Mordenti wanted to take a second drive out to the Royston’s place, this time at night. According to Gail’s trial testimony, Michael Mordenti went to Gail’s house in the middle of the night. Gail and Michael Mordenti then went and checked into a motel near the Royston place. In regard to this second trip (maybe a month after the first trip) that she and Michael Mordenti made to the Royston place, Gail testified that it occurred before Michael Milligan moved in to her house "either the end of March or beginning of April." Thus, the date-book reveals that Gail’s trial testimony was completely wrong about the timing sequence and provides a basis for arguing that Michael Milligan, her live-in boyfriend at the time, was the more likely accomplice on a late night trip in late April or May to scope out the Royston place.

Since the luncheon was not until April 11th, Michael Milligan had already moved in with her, thus it is unlikely that Michael Mordenti, as her trial testimony conceded, arrived at her house in the middle of the night to rouse her to go to the Royston place after Milligan had moved in. Since Gail was facing a mountain of debt and lawsuits as she revealed in 2001, it is certainly plausible that she turned to the man with whom she was living and going to marry, Michael Milligan for help in killing Royston’s wife. Interestingly, Milligan’s description matches that of one of the men seen near the Royston place on the night of the murder shortly before the murder.

Gail’s entry for June 7, 1989, the day Thelma Royston was murder included, "Call on ticket for Michael." And later, "Make calls again to Bus Co." In 2001, Gail Mordenti Milligan has testified that the entry "Call on ticket for Michael" refers to Michael Milligan, the man she was living with and would marry in April of 1990. She testified that this was in reference to a "speeding ticket." When asked how she knew that, she answered "[b]ecause he got a lot of them." She had no explanation for the entry "Make calls again to Bus Co."

Meanwhile, the trial prosecutor, Karen Cox, identified her handwritten notes documenting a 2/10/91 interview of Michael Milligan.. The notes reveal that Milligan worked for Michael Flynn of Flynn Motors as a transportation representative since 1985, that he met Gail in 1988 and starting seeing her in March 1989. The notes further indicated, "6/89- mordenti called him & had car picked up w was used in bank robbery from New Mexico." Thus, this note reveals that Michael Milligan told the prosecutor that he went to New Mexico in June of 1989, the month of Thelma Royston’s murder. At trial, Gail Mordenti Milligan indicated that the car used in the murder was left on the Mexican border. In his undisclosed statement to Karen Cox, Michael Milligan placed himself in New Mexico, relatively near the Mexico border, at the time that Gail says the car was being left at the Mexican border.

At trial, Gail testified that Michael Mordenti had given her a gun. "Michael gave it back to me after the murder, and I had it at the house." (R. 662). Gail gave the gun to the police in March of 1990, and evidence was introduced at trial regarding the FBI’s metallurgical examination of the bullets that were in the gun, finding them metallurgical similar to the bullets used in the homicide. The prosecution argued that this linked the bullets to the murder. On cross-examination at trial, Gail testified that Michael Mordenti gave her the gun while she worked at Carlisle which was "from October of ‘89 until April of ‘90, and it had to have been during that time." Thus, making her receipt of the gun after Ms. Royston’s homicide.

Previously in her March 8, 1990, sworn statement, Gail indicated that she received the gun "January, February, March [ ] 89." Gail had explained on March 8, 1990, "yeah, it was kind of a long time ago." This sworn statement placed the receipt of the gun before Thelma Royston’s murder. When asked at trial in cross-examination about this prior statement, Gail testified "I don’t remember making [that statement], no. I can read it, but I don’t remember making it."

In 2001, Gail recanted her trial testimony and acknowledged that she did not know when she received the gun, before or after the murder.

By the time of the 2001 hearing, both the lead prosecutor, Karen Cox, and the lead defense attorney, John Atti, have been suspended from the practicing of law by the Florida Bar.

The 2nd DCA granted Michael Mordenti a new trial

The 2nd DCA granted Michael Mordenti a new trial

This is an innocence case

Saturday, 23 February 2008

Ex-death row inmate shares story with law students

Once sentenced to die, Ray Krone with Witness to Innocence spoke at U of L's law school yesterday. (By Chris Hall, The Courier-Journal)

He was exonerated by DNA evidence

By Jessie Halladay
The Courier-Journal

Ray Krone knew Kim Ancona casually because she worked in a Phoenix bar where he went to play darts and have drinks.

Despite adamantly denying any involvement in her murder, Krone was sentenced to death in 1991 in her case. After an appeal was granted and he was given another trial, he was found guilty a second time.

But after 10 years in prison, Krone walked out a free man -- exonerated by DNA evidence that linked the crime to another man.

Yesterday, Krone told his story to a group of students and others at the University of Louisville law school.

"I want you to remember my story," he said. "I want you to think about it when you're representing someone. I want you to give (your clients) your very best."

Krone's speech was co-sponsored by the Kentucky Coalition to Abolish the Death Penalty. He also was to speak at Centre College in Danville last evening.

Krone became the 100th person who had faced the death penalty to be exonerated with evidence of their innocence. Since 1973, 126 people have been exonerated by new evidence.

Since his release, Krone has spoken about his experience as a way to motivate people to think about what he describes as a flawed justice system. He is the director of communication and training for Witness to Innocence.

Krone said he doesn't set out to change people's minds, but rather to get them to think about the issue.

"Anything that can take your liberty or your freedom from you, you ought to know a lot about," he said during his talk.

The Rev. Patrick Delahanty of the coalition said he found Krone's story a powerful example of how the justice system can malfunction and the need for reforms.

"When there's a system that is as broken as this one is, we don't understand how people wouldn't want to fix it," Delahanty said.

For Catina Cochran, Krone's story of life in prison while trying to fight for his freedom gave her new perspective on the death penalty.

"I used to be for the death penalty, but now I'm taking a second look at my views," said Cochran, a U of L junior who hopes to go to law school.

Krone's "personal story did make an impact on me, how he persevered and never gave up," she said.

Reporter Jessie Halladay can be reached at (502) 582-4081.

Tuesday, 19 February 2008

DNA tests fuel urgency to free the innocent

Charles Chatman, shown at his new apartment in Carrollton, Texas, was convicted of sexual assault in 1981, when DNA testing wasn't available.

By Kevin Johnson, USA TODAY

CARROLLTON, Texas — After spending nearly 27 years buried in the vast Texas prison system for a crime he did not commit, Charles Chatman's first weeks of freedom have been overwhelming.

Each of the six rooms in his new apartment, including the bathroom, is larger than any of his previous cells. The gleaming entertainment system and sleek laptop from family, friends and attorneys might as well be hollow props on a movie set, because Chatman, 47, has little idea how to operate them — testimony to more than a generation lost behind bars.

Chatman was exonerated last month by DNA testing while serving a 99-year sentence for sexual assault. His release Jan. 3 marked the 15th such exoneration in Dallas County during the past five years, the most of any county in the nation. Aside from New York and Illinois, Dallas County also has produced more exonerations than any state.

As DNA technology and investigations identify a mounting number of wrongful convictions, the urgency to find others like Chatman is increasing. From Virginia to California, local prosecutors, law students and defense attorneys are combing through hundreds of thousands of old files in search of flawed convictions.

Last week, two men were cleared of separate murder convictions in Mississippi after new DNA testing led authorities to another man now charged in both slayings. It was the first time post-conviction DNA testing had led to an exoneration in Mississippi, one of eight states that does not have a law allowing for such testing. Lawyers with the Innocence Project pushed the state to move forward with the testing.

FIND MORE STORIES IN: New York Arizona Illinois Virginia Mississippi African-American Peter Neufeld Innocence Project of Texas Charles Chatman

Since 1989, there have been 213 post-conviction DNA exonerations in the USA. Of those, 149 came in the past seven years, according to the Innocence Project, the parent organization of a far-flung network that helps prisoners obtain DNA testing or other evidence that could prove their innocence.

Among efforts to ferret out the wrongfully convicted:

•In Virginia, officials are conducting a sweeping examination of more than 534,000 files, the largest such review in U.S. history. Three years and five exonerations after the effort began, authorities have identified 2,215 more cases they say are worthy of scrutiny.

"If we identified (only) one guy who shouldn't be in prison, would it be worth it? I say yes," says Pete Marone, who as director of the state's Department of Forensic Science is helping to direct the review.

•A team of attorneys and law students at California Western Law School, part of the national Innocence Project network, fields up to 1,000 inmate requests for help each year.

Jeff Chinn, assistant director of the Southern California Innocence Project, says 5% to 10% of those requests are selected for further investigation. Since the program began in 2000, five have been exonerated, including Timothy Atkins, who was freed last year after serving 20 years in prison for a wrongful murder conviction.

•In Arizona, volunteer lawyers, law students and investigators have screened more than 2,500 cases in the past decade and secured one exoneration: Byron Lacy, freed in 2003 after serving six years for killing a security guard and wounding another man. About 20 other prisoners have won some kind of post-conviction relief, such as a shorter sentence.

•In what may be the most aggressive move by a local prosecutor, Dallas County District Attorney Craig Watkins has turned over more than 400 files to law students working for the Innocence Project of Texas. The students are reviewing decisions by previous administrations to reject requests for DNA testing.

Watkins, Dallas County's first African-American district attorney, says opening the files may have been his easiest decision since being sworn in last year, even in a state where politicians have a reputation for supporting aggressive law-and-order policies.

"The reason I'm here is a result of what happened in the past," Watkins says. He cites a tradition of aggressive prosecution in Dallas and routine denials of prisoners' requests for post-conviction reviews, which he says shrouded past errors. Those errors have emerged, Watkins says, largely because the local forensics laboratory preserved the biological evidence at issue in many of the recent challenges by prisoners.

For many places, a review of convictions such as that in Dallas County is not possible because physical evidence has not been preserved. The lack of uniform preservation standards is a big concern among advocates for post-conviction challenges, says Peter Neufeld, co-founder of the Innocence Project.

But for Watkins, the available evidence offered "an opportunity to restore the credibility of this office."

Judge takes interest in case

In 17 years on the bench, Dallas Judge John Creuzot has heard countless defendants declare their innocence. But Chatman's 2001 application for post-conviction DNA testing was different.

"I noticed the guy had been inside for a long, long time," Creuzot says. At the time, Chatman had served 20 years of his 99-year sentence for rape.

It is rare for a prisoner to pursue a challenge after so long behind bars. Creuzot thought of boxer Rubin "Hurricane" Carter, freed after spending about 20 years in prison for the slayings of three men in New Jersey. Carter's case inspired the movie Hurricane.

"Maybe it was the movie," the judge says. "Something about (Chatman's case) caught me."

Chatman had lived in the same neighborhood as the rape victim. He was nearing the end of a four-year term of probation for a 1978 burglary conviction when she was attacked, and he was included in a police lineup of possible suspects. The victim identified him as her attacker, and he was convicted in 1981.

As Creuzot reviewed the file, the possible existence of untested DNA evidence and the identification of Chatman in the lineup — both among the most common reasons for a wrongful conviction — seemed to demand more scrutiny.

Months later, during Chatman's first appearance in Creuzot's courtroom, the judge says something else struck him, and raised questions about Chatman's guilt. "I can just remember his face when he said: 'I didn't do this. I didn't do this,' " he says.

A first attempt at DNA testing of the assailant's biological sample by the Texas Department of Public Safety did not produce a result, according to a chronology of the case prepared by the district attorney's office.

Chatman feared that further testing also would prove inconclusive and consume the biological sample — and with it, any chance of exoneration. Chatman and Michelle Moore, his attorney from the Innocence Project of Texas, asked that additional analysis be suspended in 2004 until testing technology improved.

Moore says Chatman showed remarkable judgment — and patience — in seeking the delay. "How many people would have done that?" she asks.

The opportunity for more reliable testing came last December, when the judge ordered a new analysis using a method known as YSTR testing at Orchid Cellmark Inc., in nearby Farmers Branch, Texas. The new testing allows for better identification of male DNA profiles in samples in which female genetic material often is present, says Robert Giles, Orchid Cellmark's executive director of research and development.

Before ordering the test, Creuzot brought Chatman back to his office to see whether he wished to go forward, knowing that the new test — if inconclusive — likely would leave no more material to analyze.

"I asked him, 'Are you sure? This is it.' "

"Yes," Chatman responded. "I didn't do this."

At 8:30 a.m. on Jan. 2, weeks before results were due, the phone rang in Creuzot's office. Chatman's DNA was "not a match." Creuzot summoned an anxious Chatman from the county jail, where he was staying temporarily while awaiting the results.

"I knew what the test should say, but I still had that little doubt," Chatman says. "I had been a hard-luck guy for a long time."

When Chatman arrived, Creuzot stuck out his hand and said: "Man, Happy New Year!"

"He looked confused at first," the judge says. "I asked if he wanted to call somebody; I handed him my phone. He had never used a cellphone before, so I had to dial the number for him."

There was so much paperwork to process, Creuzot couldn't release Chatman immediately, so he ordered a celebratory lunch.

"I asked what kind of steak he wanted; he didn't know what to say, except to request that he wanted it 'cooked a lot,' " Creuzot says.

Chatman sat with the judge's 7-year-old son, Ethan, at a table in Creuzot's locked courtroom. (Ethan, on a holiday break from school, had accompanied his father to the office.) Chatman hadn't used a knife in years and began tearing the meat with his hands.

Lunch was one small measure of the seismic change in Chatman's world — a change Creuzot made official that day. He called the prison to inform the warden that Chatman was not coming back.

A 'logistical nightmare'

Creuzot was instrumental in securing Chatman's release, but not all of the wrongfully convicted have found similar advocates.

Lack of funding for post-conviction analysis, including DNA testing and expert testimony, has hamstrung prisoner-assistance campaigns. The percentage of overturned cases is small, and the challenges are daunting.

Virginia's Marone calls the historic effort there to review thousands of old cases a "logistical nightmare."

The broad review, ordered more than two years ago by then-governor Mark Warner, was triggered in part by the discovery of blood and other potential biological evidence attached to old case files, some dating to 1973. The evidence had never been disclosed. The state began reviewing all of the files from 1973 to 1988, the time period at issue.

Because the files were not automated during that time, much of the project has required a hand-search of the documents in a labor-intensive and increasingly expensive examination. Marone says the analysis has cost about $1.4 million, and money is running out.

Virginia and the cash-strapped Arizona Justice Project had hoped to win some of the millions of dollars Congress set aside in 2006 to assist in DNA testing. Late last year, USA TODAY disclosed that the Justice Department had not distributed any of the money.

"That is wrong," Senate Judiciary Chairman Patrick Leahy said last month at a hearing to address the issue. "That is irresponsible."

The Justice Department, which pledges to resolve the problem, had said that rules imposed by Congress made it difficult for states to qualify.

For example, the law requires that states' attorneys general compel police departments to preserve biological evidence for testing. However, attorneys general don't always have authority over the operations of all police agencies.

In Dallas County, much of the work to identify the wrongfully convicted is falling to law students and volunteer lawyers. Crowded into a small jury room in the Frank Crowley Courts Building, they leaf through thick case files, some more than three decades old.

Many of the students, drawn from local law schools, get no formal credit for the work. They work on all aspects of the cases, from re-interviewing witnesses to ensuring that those who are freed have new clothing when they leave prison.

Jessica Mines, 27, a second-year law student at Texas Wesleyan, says seeing the release of a prisoner like Chatman is "priceless."

Considering a lawsuit

Since Chatman's release, he has traveled to Washington, where he was welcomed at a Senate hearing and met briefly with Leahy, a vocal backer of legislation to help free the wrongfully convicted.

Chatman is eligible for up to $50,000 per year from the state for each of the 27 years of lost time. He is weighing a lawsuit over his incarceration and will get the state money only if he decides not to sue.

His family and attorneys provide much of what he has — the apartment, furniture and a new pickup. He earned a general educational development (GED) certificate in prison and is considering enrolling in college, or pursuing a career as a welder or auto mechanic.

For now, the new truck mostly sits in a parking space because he fears he'll lose his way if he strays too far from his sprawling apartment complex. But there are plenty of other options for life outside his cell.

"I can just go take a bath," he says, "and lay in the tub any time I want."

Contributing: Chris Joyner, The (Jackson, Miss.) Clarion-Ledger

Thursday, 14 February 2008

Mom Exonerated After 13 Years in Prison

Lynn Dejac, right, along with her defense attorney, Andrew LoTempio, listen to Judge John Michalski's bail hearing ruling in the State Supreme Court in Buffalo, N.Y. on Wednesday, Nov. 28, 2007. The judge ruled in favor of Lynn DeJac's motion to have her second-degree murder conviction thrown out after newly tested DNA evidence revealed a man was at the crime scene. (Don Heupel/AP Photo)

Carolyn Thompson, AP Writer

BUFFALO — A woman who spent 13 years in prison after being convicted of strangling her 13-year-old daughter has been exonerated by forensic evidence showing she died of a cocaine overdose, a prosecutor in the case said Wednesday.

But even as the district attorney announced that the death of Crystallynn Girard was not a homicide and could not be prosecuted, her now 44-year-old mother, Lynn DeJac, insisted that a former boyfriend was responsible.

"It's not going to stay like this. My daughter was not a drug user ... My daughter was murdered. There's no question my daughter was murdered," she said, adding she has not yet considered whether to sue anyone over her conviction.

She was released from prison and her second-degree murder conviction overturned in November after newly analyzed DNA evidence placed DeJac's former boyfriend, Dennis Donahue, in the bedroom of her daughter around the time the girl died.

Prosecutors had been planning to retry her this spring, saying the DNA found in her daughter's body and bed did nothing to refute the circumstantial evidence that led a jury to convict DeJac of killing the girl after a night of heavy drinking.

It was in reviewing evidence for the upcoming trial that the prosecution's forensics experts made the stunning find that the girl died of "acute cocaine intoxication" and was not slain, Erie County District Attorney Frank Clark announced.

Cocaine was found in the girl's system at the time of her death, he said, but it was ignored at trial because prosecution and defense lawyers thought the amount too small to be relevant.

All charges against DeJac will be dismissed, Clark said.

Donahue remains in custody awaiting trial in the strangulation of a woman in 1993 and has been described as a person of interest in a 1975 strangling. He couldn't have been prosecuted in Crystallynn's case anyway because he had immunity for testifying against DeJac in 1993.

An emotional DeJac said she was relieved to be cleared of the charges but remained convinced that Donahue killed her daughter. And she said she would do "anything and everything" to clear Crystallynn's name.

"It was definitely not drugs. It is not the case," she said.

Dr. Michael Baden, a respected state police forensics expert called by Clark in December, said that the first medical examiner may have misinterpreted a mark on the girl's neck made by her chin as a thumbprint, and that frothing from her mouth and nose — a strong indicator of a drug overdose — may have been wiped away by the time the autopsy was done.

With DeJac adamant that her daughter never used cocaine, her attorney Steven Cohen theorized the drug might have transferred to Crystallynn's body during an attack by Donahue.

Donahue's attorney, Joseph Agro, said Wednesday that he had not had time to review the new findings.

"We have, however, from the beginning stated to the media and public that people should not rush to judgment, nor should they speculate," Agro said.

DeJac, meanwhile, said she was trying to put her life back together, including spending time with her teenage twin sons, who were born soon after she went to prison. When asked whether she felt at all responsible for Crystallynn's death she said: "I feel 100 percent guilty for leaving her home alone."

"Back then it was things you did, there were latchkey kids all over the place," she said. "I've paid in my own mind for doing that."