Wednesday, 25 February 2009
Wednesday, 18 February 2009
Joshua Charles Kezer spent more than 14 years in prison for a murder that he insisted he didn't commit.
On Tuesday, Kezer was vindicated.
A Cole County judge overturned Kezer's conviction for second-degree murder and armed criminal action and affirmed Kezer's claim of actual innocence. The judge also concluded that the original prosecutor in the case, Kenny Hulshof, the former six-term Missouri congressman, withheld evidence.
"This is proof that God is real," Kezer said from prison. "This is proof. This is wonderful."
Kezer has been serving a 60-year sentence at the Jefferson City Correctional Center for the 1992 killing of Angela Mischelle Lawless, a 19-year-old college student. Lawless was found shot to death in her car just off Interstate 55 near Benton, Mo.
No physical evidence — DNA, fingerprints or murder weapon — linked Kezer to the crime. There were no eyewitnesses. Friends and family said Kezer was 350 miles away in Kankakee, Ill., on the night of the murder.
In a rare move by law enforcement, Scott County Sheriff Rick Walter reopened the closed murder case in 2006. The Post-Dispatch published a report in November 2007 about the Kezer case and Walter's suspicions that Lawless' killer was still at large. Kezer was granted an evidentiary hearing in December.
By then, the only prosecution witness to place Kezer near the murder scene had recanted. The defense also argued that prosecutors in the original case didn't provide several pieces of exculpatory evidence to Kezer's attorneys.
In ruling that Kezer's case meets the legal standard of actual innocence, Judge Richard Callahan concluded that no reasonable juror would convict the defendant in light of newly discovered facts. The judge ordered Kezer to be released from Jefferson City Correctional Center within 10 days unless Scott County Prosecutor Paul Boyd decides to retry him.
For now, Boyd's plans remain unclear. He did not return calls seeking comment.
"I can't imagine they could retry him on this case," said Charlie Weiss, one of the attorneys from the St. Louis law firm Bryan Cave who represented Kezer. "They have nothing. They have no physical evidence whatsoever, and the snitches have no credibility.
Kezer, now 34, is the 17th inmate to be exonerated in Missouri since 1982, according to the Midwestern Innocence Project, based in Kansas City.
"I've been laughing and crying since I heard the news," Kezer's mother, Joni Kezer said. "God is great. That's all we had to gone on. We never lost hope because we always had faith."
Lawless' brother, Jason, said that he was sickened to know that an innocent man was convicted for the murder of his little sister. "Mostly I just feel sorry for him, I really do," said Jason Lawless of Scott City. "He sat in there all this time for something he didn't do, which is horrible for him."
During the December hearing, defense attorneys presented witness testimony that the judge said undermined the case against Kezer:
— Chantelle Crider, who originally said she saw Kezer argue with the victim at a Halloween party one week before the murder, now says she was mistaken.
— Cape Girardeau Detective William Bohnert described a statement given to him by Mark Abbott, the only person to claim Kezer was near the crime scene. According to Bohnert, Abbott told him in 1997 that he saw one of his married friends shoot Lawless because of an affair he was having with her. Abbott is serving a 20-year sentence in federal prison for methamphetamine trafficking.
— Two southeast Missouri residents — Cathy Fowler and Ron Burton — said they heard Abbott and his friend boast about killing Lawless after the trial concluded in 1994.
In his 44-page ruling, the judge said Kezer was betrayed by almost every level of the judicial process.
"There is little about this case which recommends our criminal justice system," Callahan wrote. "The system failed in the investigative and charging stage, it failed at trial, it failed at the post trial review and it failed during the appellate process."
Hulshof, now an attorney at Polsinelli Shughart law firm in Kansas City, said in a statement Tuesday that he stands by Kezer's conviction.
"The jury came to a unanimous decision that Mr. Kezer's alibi witnesses were not credible and that the state had proven beyond a reasonable doubt," Hulshof said. "My biggest regret is that the family of Mischelle Lawless is experiencing a travesty of justice."
Callahan criticized Hulshof, who prosecuted the case for the attorney general's office, over issues of evidence. The judge said several pieces of evidence should have been made available to Kezer's original trial attorneys, including:
— A police report in which Mark Abbott named Ray Ring, not Joshua Kezer, as the driver of a white car he saw near the murder scene. A Scott County sheriff's detective found this report paper-clipped to the back of the original investigation file in 2007.
— A notebook kept by Scott County deputy Brenda Schiwitz was found by Walter during his investigation. The notebook showed that Mark Abbott had been considered a suspect early on, though Schiwitz testified at trial that Abbott was never a suspect and that she had destroyed her notes. Schiwitz gave a deposition in 2008 that she gave her notes to Hulshof and his investigator. Hulshof, the Republican nominee for governor who lost to Jay Nixon last year, did not address the judge's conclusion that evidence was withheld from the defense. He declined to be interviewed.
Callahan said there is a reasonable probability that the outcome of the trial would have been different if any of the withheld evidence had been disclosed to Kezer's defense. Sheriff Walter was the "only bright note" in the case, the judge added.
"Largely through (Walter's) efforts, along with those of petitioner's counsel, is the system finally righting itself with respect to Josh Kezer," Callahan wrote.
Contacted Tuesday, Walter said he believes the wrong man was put behind bars. "We never set out to free Josh," the sheriff said. "We set out to find out who the other killers were."
And that's why, Walter said, the Lawless murder case remains open.
Monday, 16 February 2009
Innocence Project of Florida,
Inc.1100 East Park Avenue, Tallahassee,
For Immediate Release
February 16, 2009
Contacts:Seth Miller, Esq.: 202.341.2127
Innocence Project of Florida Plans to Test Tompkins Evidence
Tompkins could be First Ever Executed Man to be Proven Innocent
Today the Innocence Project of Florida (IPF) reiterated its intent to test the remaining DNA evidence in the case of Wayne Tompkins. Mr. Tompkins was executed on Wednesday, February 11th, in Raiford, Florida after being found guilty of murdering Lisa DeCarr in 1983. IPF believes that further testing in the case could reveal that the body did not belong to the alleged victim, meaning Mr. Tompkins had been convicted of a murder that did not take place.
“We have a remarkable case with Mr. Tompkins,” said Seth Miller, Executive Director of the Innocence Project of Florida. “The State supported this match between the body and the victim with a partial dental record, which was pretty unconvincing. But on top of that, several people have signed affidavits saying that they’ve seen her alive since the murder.
If that’s the case, then Florida just killed an innocent man.
”If it were found that Mr. Tompkins was innocent of the 1983 murder, it would be the first case in American history of an executed man being scientifically proven innocent posthumously. In 2000, Frank Lee Smith was exonerated by DNA testing 11 months after he died of cancer on Florida’s Death Row.
IPF sent a letter to Florida Governor Charlie Crist on Tuesday, February 10th, urging him to stay Tompkins’ execution. On the next day IPF filed a motion asking a judge to notify the appropriate authorities of their statutory obligation to preserve the evidence in Mr. Tompkins’ case for 60 days after his execution. The Thirteenth Circuit Court granted that motion the same day.
“These agencies need to know we’re serious about going forward with testing, and we want to make sure they are preserving all of the evidence pursuant to Florida law,” said Miller. “If the State Attorney is convinced that Mr. Tompkins was guilty, they should support testing to put the doubts to rest. We’ll pay for it, they just need to give us access to the evidence.”
“We look forward to working with the State Attorney’s Office to get the DNA testing,” added Miller. “We’re going to make sure we discover the truth in this case.”
The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons. IPF consulted on the DNA issues in the case of Wayne Tompkins.
Innocence Project of Florida
1100 East Park Ave
Saturday, 14 February 2009
"It's difficult," says Watkins. "I still walk around the office gently because I know there are a lot of people who still don't want me here.
" But, he says, every time justice is done, we "restore credibility that law enforcement can work for everyone."
APRIL 4 (Sat) 7:00 - 8:30pm
Univ. of Alabama at BIRMINGHAM - Hill University Center
1. Making DNA evidence available to all convicted felons
2. "Convict at all Costs", what does that mean?
3. Should the legislature abolish judicial override
Event is open to the publicPanel discussion at UAB, sponsored by the Dept of Justice Sciences and the Justice Committee of the Universal Unitarian Church of Birmingham.
Panelists & Profiles:
1. Dallas Texas DA, Craig Watkins. (Elected 2006) - First African American to be elected, District Attorney in the state of Texas. http://www.dallasda
.com/index. html2. Jefferson County, Family Court Presiding Judge, Brian Huff - http://10jc.Program Director: alacourt. gov/bh.html
3. Attorney, Richard Jaffe, Birmingham, AL - http://www.rjaffela
w.com/Bio/ RichardJaffe. asp
Dr. John Sloan, III, Chair of the Dept of Justice Sciences, UAB
uab.edu/show. asp?durki= 73267
Co-Chair, Justice Committee
Universal Unitarian Church, Birmingham, AL
More Information on "Who is Craig Watkins":
com/watch? v=OkdbZ6_ jkcg
Special Guest: The Honorable Craig Watkins, Dallas Tx Dist Atty.
Internationally known for his unprecedented act of opening the prosecutor's office to the Texas Innocence Project for the purpose of undoing wrongful convictions.
Mr. Watkins' innovative strategies have garnered him local, national and international attention from CNN, ABC's "Good Morning America," German TV, Dallas Morning News, New York Times, Washington Post, L. A. Times and Chicago Tribune, to name a few.
Craig Watkins, a Dallas native, was inaugurated on January 1, 2007, as the Criminal District Attorney (DA) for Dallas County, Texas. He is the first African-American elected to that position in Texas. As DA for Dallas County, his "smart on crime" philosophy engages innovative strategies throughout the prosecutorial process and seeks to address the root causes of why offenders commit crime. DA Watkins' interest in conviction integrity led to partnering with the Innocence Project of Texas to aid the wrongfully convicted.
District Attorney Watkins was educated in the local public school system, received a Bachelor of Arts degree in political science from Prairie View A&M University and a Juris Doctorate degree from Texas Wesleyan University School of Law.
He is a member of Friendship-West Baptist Church, Kappa Alpha Psi Fraternity Inc., Prairie View A&M University Alumni Association and is affiliated with several professional and civic organizations. Mr. Watkins has received numerous honors and awards for his outstanding accomplishments in the community from an array of organizations and groups.
Dallas Urban League Torch Award
- One of Eclipse Magazine's "Super Lawyers" January 2007
- District Attorney Watkins was featured in the March 5, 2007 issue of JET.
- District Attorney Watkins was featured in the May 2007 issue of Ebony Magazine as one of THE EBONY POWER 150 as the next generation of African-American leaders.
- Featured in the September 2007 issue of Texas Monthly
- District Attorney Watkins' innovative strategies as the new DA in Dallas County have garnered him local, national and international attention from CNN, ABC's "Good Morning America," German TV, Dallas Morning News, New York Times, Washington Post, L. A. Times and Chicago Tribune, to name a few.
DA Watkins and wife Tanya have three children — Chad, Cale and Taryn.
Exoneration ManNovember 2008 By JOHN BUNTIN | Photograph by Danny Turner
Most district attorneys make a name for themselves by winning convictions. Craig Watkins has done it by reversing convictions that never should have happened.
>> Craig Watkins, 39
>> District Attorney, Dallas County, Texas
>> Video: Watch Craig Watkins accept award
>> When he worked as a public defender, Watkins found that even the innocent felt pressured to plead guilty rather than take their chances before a jury. "That happened a lot," Watkins says. "It did such a disservice to the notion of justice."
From 1951 to 1987, the Dallas County district attorney's office was the domain of Henry Wade, a legendary prosecutor who personally never lost a case — and who rarely missed an opportunity to seek the maximum punishment for criminals. But in impoverished, predominantly African-American South Dallas, Wade's hardball tactics created resentment and distrust.
"Affluent people, people accepted by society, loved law enforcement. All of the other people who were economically disadvantaged, they didn't trust it — and I think rightly so," says Watkins. So in 2002, Watkins ran for D.A. Despite having no name recognition outside of South Dallas, Watkins came within 10,000 votes of winning. Four years later, he tried again and won, in the process becoming Texas's first elected African-American district attorney.
Watkins had a lot to prove. More than 200 of the 267 attorneys Watkins began managing had actively campaigned for his opponent because they didn't think Watkins had enough trial experience. At the same time, he believed he had a mandate to rectify past injustices. In February 2007, a mere one month after taking office, Watkins found himself face to face with a momentous decision.
The occasion was a court hearing for James Giles, who had spent 10 years in prison for a rape that subsequent DNA testing showed he did not commit. Giles was released. Afterwards, attorneys Barry Scheck and Jeff Blackburn — nonprofit leaders who work to free the wrongfully convicted from prison — presented Watkins with an unprecedented proposal. They volunteered to help Watkins' office review the files of more than 350 inmates, some dating back to as early as 1970, where physical evidence existed that could either confirm the inmate's guilt or establish his innocence.
A riskier step for a novice D.A. would be hard to imagine. Watkins agreed to it. That spring, he went to the Dallas County court of commissioners and won $450,000 to create a conviction-integrit
y unit to reinvestigate old cases. Since then, the unit has reviewed more than 180 case files, of which 21 have been flagged for DNA testing or further investigation. So far, a total of 19 Dallas County prisoners have been exonerated or freed. What Watkins has shown is that there's as much justice in clearing the names of the innocent as there is in putting the guilty behind bars.
"It's difficult," says Watkins. "I still walk around the office gently because I know there are a lot of people who still don't want me here." But, he says, every time justice is done, we "restore credibility that law enforcement can work for everyone."
The Daily Progress/Andrew Shurtleff
Marvin Lamont Anderson, the first person to be exonerated in Virginia after post-conviction DNA testing, speaks during the Virginia State Bar’s 39th aCriminal Law Seminar at the Doubletree Hotel.
By Tasha Kates
Published: February 14, 2009
By Tasha Kates
As an 18-year-old in Hanover County, Marvin Lamont Anderson was living his life one fire call at a time.
Anderson was in training to be a firefighter in the early 1980s, but it will be next month before he finally graduates from the Hanover County Fire Academy.
It is a dream fulfilled for Anderson, albeit 26 years late. Falsely convicted of raping a woman in 1982 and sentenced to 210 years behind bars, he spent 15 years in prison and five years on parole before he was exonerated by DNA evidence.
Anderson, who is the first Virginian and the 99th person nationwide to be exonerated by DNA, shared some of his insights Friday at the Virginia State Bar’s 39th Annual Criminal Law Seminar. The event took place at the Doubletree Hotel Charlottesville.
“Usually, most people ask how did I survive,” Anderson said. “My mother. God and my mother. Why I’m not crazy, that’s a different story.”
Anderson, who said Friday was the first time he had addressed a group of lawyers and judges, said he typically tells law students that they should go into law with an open heart and remember that their clients are human beings. He gave the established lawyers a different task.
“As lawyers and judges, you have the opportunity to change the system,” Anderson said, “but you have to have it in your heart and mind to correct the system.”
Since he was exonerated, Anderson said he has seen some positive changes in Virginia. He cited the changes in the state’s “21-day rule,” which used to prevent judges from considering evidence submitted to the court if 21 days had passed after sentencing. Defendants who maintain their innocence now may present strong evidence, such as DNA, after that deadline.
David P. Baugh, chairman of the state bar’s Criminal Law Section, said Anderson’s story is a good reminder that clients often face long-term consequences.
“It doesn’t make sense to talk law to lawyers,” Baugh said. “They need to see the end product.”
Anderson shared a few pieces of advice with the crowd, including his grandmother’s reminder that “trouble is easy to get in, but hard to get out.” He told the audience that if he could be falsely convicted of a crime, so could they.
A few months before he was arrested, Anderson’s fire engine went to refuel after responding to a house fire. The refueling station was near the jail.
Anderson told the audience that he looked at the jail and said to his colleague, “That is one place I’d never be.”
“Four months later, I was there.”
Wednesday, February 11, 2009
Innocence Project of Florida Moves to Preserve Evidence in Tompkins’ Case
For Immediate Release
Innocence Project of Florida Moves to Preserve Evidence in Tompkins’ Case
Says DNA TestingCould Reveal that Man Scheduled for Execution is Innocent of Murder
Today the Innocence Project of Florida (IPF) is filing a motion to preserve evidence in the case of Wayne Tompkins, who is scheduled to be executed at 6 PM EST by lethal injection.
Tompkins was convicted of murdering Lisa DeCarr in 1983, though doubts persist as to the true identity of the victim. IPF believes a new round of DNA testing should be conducted in order to banish all doubt, and today’s action represents the first step toward acquiring that testing.
“If the victim in this case wasn’t Lisa DeCarr after all, that means Wayne Tompkins was convicted of a murder that never took place. It’s pretty bizarre that the Governor is about to execute a person when these kinds of questions remain,” said Seth Miller, Executive Director of the Innocence Project of Florida. Several individuals have signed affidavits claiming to have seen DeCarr alive since the alleged murder.
“The Governor should remember two other cases, Frank Lee Smith and Ricky McGuinn,” said Miller. Frank Lee Smith died on death row in Florida before DNA testing proved he was innocent. In Ricky McGuinn’s case, his Texas execution was stayed, then DNA testing proved his guilt, and his execution was reset. In both cases, DNA testing proved vital to the establishment of culpability.
IPF is moving a court to notify the appropriate institutions that they have a statutory obligation to preserve all evidence pertaining to Tompkins’ case for 60 days, even if he should be executed. IPF wants a robe, a sash, and samples of the victim’s bones to be preserved, with confidence that a new round of DNA testing, using methods that have not been used in this case, will likely yield the identity of the victim.
Miller added, “There are serious doubts left in this case, and we fully intend to get to the bottom of what really happened. Tompkins shouldn’t be executed when such important questions as the identity of the victim remain. Some day soon, we will make sure the truth comes out.”
The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.
IPF consulted on the DNA issues in the case of Wayne Tompkins.
# # #Download the press release here.
Visit IPF's Website here;
sign up to volunteer here;
contribute to our work here.
You can read about the Wayne Tompkins case on the Florida blog here :
Tuesday, 10 February 2009
The letter from Florida Innocence Project to Governor Crist - the case of Wayne Tompkins
Innocence Project of Florida,
Inc.1100 East Park Avenue,
Tallahassee, FL 32301
For Immediate Release
February 10, 2009
Contacts:Seth Miller, Esq.: 202.341.2127
Innocence Project of Florida Urges Governor to Stay Wayne Tompkins’ Execution
New Round of DNA Testing Could Answer Lingering Questions about Victim’s Identity
The Innocence Project of Florida (IPF), in a letter signed by their Executive Director Seth Miller, today urged Florida Governor Charlie Crist to stay the execution of Wayne Tompkins, who is scheduled to be killed on Wednesday by lethal injection. Serious doubts persist about the identity of the victim, and IPF believes a new round of DNA testing is likely to answer these important questions.
“We still harbor grave concerns about the legitimacy of Mr. Tompkins’ guilty verdict,” said Miller in his letter. “We feel strongly that more time is necessary to look into this case.”
Mr. Tompkins was found guilty of murdering Lisa DeCarr in 1983. The evidence against him was circumstantial and consisted of three witnesses, including one jailhouse snitch. The nature of this case is also uncommon because the identity of the victim herself is also in doubt.
The victim’s alleged identity was supported at trial by a comparison with dental records which Miller says was “wholly unpersuasive.” Since then, several individuals have signed affidavits claiming to have seen her alive since the murder.
“Because the dead body’s identity is an issue, [late last year] you ordered DNA testing on bones from that dead body as well as a robe and sash found with the dead body,” Miller wrote to Crist. “We presume you did so in order to remove any remaining questions about whether the State of Florida was about to execute an innocent man.” That round of testing came back inconclusive, says Miller. But he adds that,“the facts of the case have not changed. The uncertainty surrounding the identity of the alleged victim that led to the last round of DNA testing still exists. There should be clarity about the identity of the alleged victim before we execute a potentially innocent man. That clarity is obtainable in Mr. Tompkins’case.”
IPF believes that a new round of DNA testing, involving methods that have not yet been tried in this case, would likely yield results.
Miller pledged to work with Governor Crist to “answer these remaining questions and finally obtain closure in this case,” urging patience in order to avoid executing a potentially innocent man on Wednesday.
The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocentpeople in Florida prisons.
IPF consulted on the DNA issues in the case of Wayne Tompkins.# # #
Accused of robbery, rape, Floridian is glad for day ‘a long time coming’
Alan Crotzer throws his arms in the air Monday as he leaves the Hillsborough County Courthouse in Tampa, Fla.
TAMPA, Fla. - Alan Crotzer stepped into the warm sunlight outside the courthouse Monday and raised his arms to the sky, celebrating his freedom after more than 24 years behind bars for crimes he didn’t commit.
A judge freed the 45-year-old Crotzer after DNA testing and other evidence convinced prosecutors he was not involved in the 1981 armed robbery and rapes that led to his 130-year prison sentence.
“It’s been a long time coming,” said Crotzer, his black hair graying at the temples. “Thank God for this day.”
“Are you ready for what you waited so long to hear?” Circuit Judge J. Rogers Padgett said to Crotzer during the brief hearing. “Motion granted — you’re a free man.”
Members of Crotzer’s family and other courtroom spectators clapped and cheered as a bailiff removed the shackles from his wrists and ankles.
Hailed by prosecutor
DNA has been used to clear at least 172 people wrongly convicted of crimes in 31 states since 1989, according to the Innocence Project.
Crotzer and brothers Douglas James and Corlenzo James were convicted of robbing a Tampa family in 1981. Douglas James and Crotzer were also found guilty of kidnapping and raping a 38-year-old woman and her 12-year-old girl at gunpoint.
A victim picked Crotzer out of a photo lineup. But Douglas James says Crotzer is innocent. He said he and his brother were the rapists and a childhood friend was their accomplice.
Crotzer, who has never held a paying job, said he will go live with a sister in St. Petersburg and try to find work. His attorneys said they will seek compensation from the state for him.
‘I’m not bitter’
“There ain’t no compensation for what they done to me,” said Crotzer, whose mother died while he was in prison. “But I’m not bitter.”
Crotzer said he was looking forward to a barbecue with his family, who promised him his favorites — pork chops and banana pudding. Then, he said, he wanted to take a bath in a real bathtub.
“I want to soak,” he said. “I want to get some of this off me.”
IN THE CIRCUIT COURT OF THE
THIRTEENTH JUDICIAL CIRCUIT,
IN AND FOR HILLSBOROUGH
CASE NO. 84-CF-010538
STATE OF FLORIDA,
NOTICE OF APPEAL
WAYNE TOMPKINS, Defendant in the above-captioned action, files this,
his notice of appeal, in order to appeal to the Florida Supreme Court the February
10, 2009, order that denied Mr. Tompkins’ motion to vacate judgment and
sentence and that denied Mr. Tompkins’ motion for DNA testing of evidence in
the possession of the State. Mr. Tompkins also appeals to the Florida Supreme
Court all adverse rulings made by the circuit court during the pendency of Mr.
Tompkins’ motion to for post conviction relief that was initially served on
February 5, 2009, and adverse rulings made by the circuit court during the
pendency of Mr. Tompkins’ motion for DNA testing that was initially served on
December 1, 2008.
I HEREBY CERTIFY that a true copy of the foregoing Notice of Appeal
has been furnished by mail, to Jalal Harb, Assistant State Attorney, Office of the
State Attorney, 800 East Kennedy Blvd., 5th Floor, Tampa, FL 33602-4148; Scott
Browne, Assistant Attorney General, Department of Legal Affairs, 3507 Frontage
Road, Suite 200, Tampa, FL 33607 on February 10, 2009.
Special Assistant CCRC-South
Florida Bar No. 0754773
141 N.E. 30th Street
Wilton Manors, FL 33334
101 NE 3rd Ave., Suite 400
Fort Lauderdale, FL 33301
Counsel for Mr. Tompkins
Former Tampa man close to execution for killing teenager
By Colleen Jenkins, Times Staff Writer
Posted: Feb 10, 2009 01:19 PM
TAMPA — After 23 years on death row, Wayne Tompkins has a day to live.
Barring any last-minute relief from his pending state and federal appeals, the 51-year-old former Tampa resident will be executed at 6 p.m. Wednesday for strangling his girlfriend's daughter and burying her body beneath the home where they lived.
Prosecutors say Tompkins tried to force himself on 15-year-old Lisa DeCarr and killed her when she resisted. With no physical evidence linking him to the murder, the state relied on testimony from three key witnesses to win a conviction.
Therein lies the problem, say Tompkins' lawyers, who have long attacked the credibility of those witnesses and the reliability of what they said.
"The evidence against Mr. Tompkins is just absurd," attorney Martin McClain said.
Jurors didn't think so. Neither did the circuit judge who sentenced Tompkins to death, nor the long list of state and federal judges who have denied the inmate's litany of appeals.
McClain says none of them had the benefit of DNA testing that was conducted only recently and that he argues remains incomplete. He believes the keys to the case could be locked inside this biological material. He's running out of time to prove it.•••
Lisa DeCarr was initially reported as a runaway after she disappeared on March 24, 1983, from her Southeast Seminole Heights home. She had been suspended from school for smoking; those close to her thought she might be pregnant.
Perceptions changed in June 1984 with the discovery of a shallow grave below the porch of her home at 1225 E Osborne Ave. In about a foot of dirt, searchers found skeletal remains in a pink bathrobe, its sash tied tightly around the neck bones.
The robe belonged to Lisa, her mother said. She told police that Tompkins, her live-in boyfriend, had been at home alone with Lisa the day she disappeared.
Tompkins, then 27, was arrested that fall and put on trial a year later. By then, he had already pleaded guilty and was serving time for abducting and raping two convenience store clerks in Pasco County.
Prosecutors said three witnesses would provide "the overwhelming evidence" that he killed Lisa: her mother, who said she had last seen her daughter in a pink robe; her best friend, who said she had seen Tompkins and Lisa struggling on the couch as he tried to take off her clothes on the day prosecutors say she died; and a jail cell mate, who said Tompkins told him the details of the killing, down to how he buried her with her purse and clothes to make it look as if she'd run away.
But last November, the former cell mate claimed that the prosecutor, Mike Benito, had instructed him to include the purse detail in his testimony even though the informer didn't recall hearing that from Tompkins.
Benito denied doing so.
Florida Supreme Court Justice Harry Lee Anstead said the disclosure could have changed a jury's evaluation of the case. His colleagues disagreed, saying the main thrust of the informer's testimony had not changed, and denied Tompkins' appeal.
Appeals courts have shot down most of Tompkins' arguments. He got his best chance at life in April 2001, when Hillsborough Circuit Judge Daniel Perry granted him a new sentencing hearing just two weeks before he was scheduled to be executed. Perry ruled that the trial judge — the late Harry Lee Coe, nicknamed "Hanging Harry" and known for handing down harsh punishments quickly — had improperly handled the sentencing.
But in 2003, the state Supreme Court ruled that no new hearing was necessary. Tompkins continued to pursue appeals.
It wasn't until December that Gov. Charlie Crist ordered the DNA testing Tompkins' attorneys had been seeking for years. As part of their efforts to exonerate Tompkins, who has always maintained his innocence, McClain and his colleague, Neal Dupree, want proof that the remains are actually Lisa's. Their suspicion stems from reports that people saw or heard from Lisa after the date that prosecutors contend she died, claims that have never been substantiated in court.
"Pink bathrobes are pretty much a dime a dozen," McClain said, referring to one of the key pieces of evidence used to identify Lisa.
The attorneys also wonder if hair and blood evidence that they only recently learned existed might point to a different killer.
So far, that hasn't happened. The DNA test results from the FBI and Florida Department of Law Enforcement came back last month as inconclusive.
On Monday, McClain and Dupree requested a stay of execution. They need more time, they said, to pursue further testing.
In a pointed response, prosecutors noted that the Florida Supreme Court has ruled that such DNA tests would have "no reasonable probability" of vindicating Tompkins.
"This eleventh hour application is clearly without merit and simply represents another attempt to delay Tompkins' long overdue execution," Assistant Attorney General Scott A. Browne wrote.
Not true, McClain said.
He points to the case of Alan Crotzer, of St. Petersburg, who spent 24 years in prison for two rapes he did not commit. DNA evidence exonerated him in 2006.
It took three rounds of testing by independent labs before one was able to produce meaningful results.
Colleen Jenkins can be reached at firstname.lastname@example.org or (813) 226-3337.
Last modified: Feb 10, 2009 02:11 PM
Monday, 9 February 2009
From the stay petition in Wayne Tompkins :
On December 1, 2008, Mr. Tompkins filed a motion for DNA
testing in this Court. On December 15, 2008, after Mr. Tompkins
had filed this motion for DNA testing, Governor Crist ordered the
evidence in the State’s possession that Mr. Tompkins wished to
have tested, to be collected and sent off to FDLE so that DNA
testing could be conducted. On January 28, 2009, the State
served an additional notice of discovery which included reports
from the FBI and FDLE explaining that the DNA testing produced
inconclusive results. In explaining these results, the reports
revealed that there was considerably more biological material
bearing DNA than was previously known - this included hair that
had been found on clothing that was in the grave with the body
(in 2001 the State presented testimony that the hair found in the
grave was missing or destroyed).1 However, the techniques and
procedures used by the FBI and FDLE were unable to unlock the DNA
sequence and learn what information could be gleaned from the DNA
1The discovery revealed that the clothing had tested positive for the presence of blood, a fact that was previously unknown. As Mr. Tompkins has explained in his amended motion for DNA testing that was filed in the circuit court, there are more sensitive and more sophisticated tests and procedures (albeit more expensive) than the government funded testing done by the FBI and FDLE which have repeatedly been unable to unlock the DNA sequence that when government funded testing was used produced inconclusive results.
sequences that were present in the biological material.2
On February 2, 2009, Governor Crist rescheduled Mr.
Tompkins’ execution for February 11, 2009. On February 5, 2009,
Mr. Tompkins submitted an amended motion for DNA testing in
circuit court in light of the additional discovery provided by
the State. Also on February 5, 2009, Mr. Tompkins submitted a
Rule 3.851 motion to the circuit court.
Thus, there are two collateral actions currently pending in
the circuit court. Mr. Tompkins will certainly appeal any
adverse ruling in those actions. At this point in time, the
circuit court has not conducted a case management hearing, nor
indicated in any fashion when a ruling will be forthcoming.
This Court has consistently maintained an especially
vigilant control over capital cases, exercising a special scope
of review. Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977);
Wilson v. Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985). This
Court has not hesitated in exercising its inherent jurisdiction
to review issues arising in the course of capital post-conviction
2The result of the DNA testing conducted by the FBI and FDLEwhich produced inconclusive results were disclosed on January
28 , less than 14 days ago. Normally in a criminal case when
DNA testing is conducted and the results are disclosed to the
defendant, he is granted time to process the information, consult
with experts, and obtain second opinions. Ake v. Oklahoma, 105
S. Ct. 1087 (1985). Given that, it is not unreasonable for Mr.
Tompkins or the circuit court or this Court to need to digest the
information and be prepared with the assistance of knowledgeable
experts to address the meaning of the DNA results and what
additional testing is warranted.
Sunday, 8 February 2009
From the DNA motion filed in Wayne Tompkins wrongful conviction case :
GOOD CAUSE EXISTS TO ORDER THE DNA TESTING AT A PRIVATE LAB AT THE
of good cause,” a court may order testing by a laboratory other than FDLE so long
as the other laboratory is certified by the American Society of Crime Laboratory
Directors or the National Forensic Science Training Center. “Good cause” is
established in this case because FDLE does not currently perform several types of
DNA testing that will be necessary to adequately examine the biological evidence
at issue, i.e., Y-Chromosome, miniSTR, and/or mitochondrial DNA testing.
Nevertheless, these types of DNA testing are admissible and widely used in
criminal cases, and certified laboratories such as Orchid Cellmark in Farmers
Branch, Texas, and MitoTyping Technologies in State College, Pennsylvania, do
perform such testing.20 Mr. Tompkins and his counsel agree to pay all costs for
Defendant’s Motion for DNA Testing, it find that “good cause” exists to order that
such testing be conducted by either Orchid Cellmark, in Farmers Branch, Texas, or
MitoTyping Technologies, in State College, Pennsylvania, certified laboratories
capable of performing such testing, at the expense of Mr. Tompkins or his counsel.
provide defendants with a means by which to challenge convictions when there is
a ‘credible concern that an injustice may have occurred and DNA testing may
resolve the issue.’” Zollman v. State, 820 So. 2d 1059, 1062 (Fla. 2d DCA 2002)
(quoting In re Amendment to Florida Rules of Criminal Procedure Creating Rule
this case, there is such a credible concern: this are numerous reports and sworn
testimony that Lisa DeCarr was seen alive after the State’s witnesses testified that
20Orchid Cellmark and Mitotyping Technologies are widely respected
she was dead. This Court should grant this Motion for DNA testing, as favorable
results will demonstrate that Mr. Tompkins is innocent and may lead to the
apprehension of the true perpetrator.
requests this Court grant this Motion for DNA Testing and order DNA testing of
the requested items that would exonerate the Defendant, and order that “good
cause” exists for such testing to be performed at a private laboratory at the expense
of Defendant or his counsel, and order the State to produce the evidence identified
herein for DNA testing, and to conduct a thorough search for the above evidence
at the Tampa Police Department and at any other place where evidence is
customarily stored in Hillsborough County.
has been furnished by mail, to Jalal Harb, Assistant State Attorney, Office of the
State Attorney, 800 East Kennedy Blvd., 5th Floor, Tampa, FL 33602-4148; Robert
Landry, Assistant Attorney General, Department of Legal Affairs, 3507 Frontage
Road, Suite 200, Tampa, FL 33607 on December 1, 2008.
Special Assistant CCRC-SouthFlorida Bar No. 0754773
141 N.E. 30th Street
Wilton Manors, FL 33334
Tel: (305) 984-8344Fax: (954) 564-5412
101 NE 3rd Ave., Suite 400
Fort Lauderdale, FL 33301
Tel: (954) 713-1284
Fla. Bar No. 0806471
Member of New York Bar
INNOCENCE PROJECT OF FLORIDA
1100 East Park Avenue
Tallahassee, Florida 32301
Tel: (850) 561-6769Fax: (850) 561-5077
MEMORANDUM: DEATH WARRANT IN THE CASE OF WAYNE TOMPKINS
February 2, 2009
GOVERNOR’S PRESS OFFICE
TO: Interested Media
FROM: Erin Isaac, Governor’s Communications Director
RE: Death Warrant in the Case of Wayne Tompkins
Governor Charlie Crist today sent the attached transmittal letter to Warden Randall Bryant regarding the carrying out of the sentence in the case of Wayne Tompkins.
Pursuant to Section 922.052, Florida Statutes, Governor Crist has designated the week beginning at 12:00 noon on Friday, February 6, 2009, through 12:00 noon on Friday, February 13, 2009, for the execution.
In accordance with Section 922.11, Florida Statutes, Florida State Prison Warden Bryant has set the execution for Wayne Tompkins on Wednesday, February 11, 2009, at 6:00 p.m.
Please find attached the transmittal letter sent today, as well as the October 2, 2008, transmittal letter, death warrant, and final judgment and sentence from the Thirteenth Judicial Circuit.
Governor’s Letter Regarding Wayne Tompkins
Death Warrant for Wayne Tompkins
If you have any questions or need additional information, please call the Governor’s press office at (850) 488-5394.
v. CASE NO. 67974
STATE OF FLORIDA
STATUS REPORT FROM WAYNE TOMPKINS= COUNSEL
Yesterday, February 3, 2009, counsel for WAYNE TOMPKINS was advised that this
Court had directed a status report to be filed. However, this Court=s order is not available online,
nor has counsel received the report in any other fashion. When the State filed it=s report it
referenced the above-entitled case number. And from the online docket it is apparent that this
Court did enter yesterday=s order in the above-captioned case, which unfortunately is not included
on the death warrant page and thus is not available to be reviewed online.
requesting DNA testing. Even though the State opposed any testing, the Governor ordered DNA
testing to be conducted of a number of items. Bone fragments from the body, a bathrobe found
with the body, a sash found around the victims neck, a pajama top, and a piece of a barrette were
obtained by FDLE and sent to the FBI on December 16, 2008.
January 2, 2009, only one of the three bone fragments submitted was tested for mitochondrial
DNA. As to the one fragment that was tested, there was an insufficient quantity of mitochondrial
DNA found and thus no DNA sequence was obtained. Beyond testing just the one bone fragment,
A[n]o other mtDNA examinations were conducted.@ No explanation was provided a to why the
other bone fragments were not tested.
December 23, 2008, besides the submission of three bone fragments, the FBI was provided a piece
of barrette, a robe, a pajama top, and a robe sash. However, no reports concerning any testing of
these items by the FBI has been provided to counsel. Counsel has merely received an FDLE
report indicating that these items were returned to the FDLE on January 20, 2009.
However, an FDLE report dated January 27, 2009, reveals that FDLE did an analysis of the
bathrobe, the sash, and the pajama top. According to the FDLE report, the bathrobe, the sash and
the pajama top all gave chemical indications for the presence of blood. Also according to the
FDLE report, hair and debris were collected from each item, i.e. the bathrobe, the sash, and the
pajama top. However as to this hair debris that was collected, A[n]o analysis was performed@.
ASamples@ from the bathrobe, the sash, and the pajama top were submitted for DNA
analysis. However according to the January 27th report, a ADNA profile was not obtained from
the STR analysis@ of the items.
been consulting with appropriate experts as to what thee reports mean and/or reveal. At a
minimum, it is clear that hair and debris found with the victim exists, the existence of which was
not previously known. There is biological material on the bathrobe, the sash, and the pajama top,
which by definition must contain DNA, but which the methods used by FDLE were not
sophisticated enough to produce a DNA sequence. And, there remains bone fragments which the
FBI did not test for mitochondrial DNA, but which could be tested by analyst of Mr. Tompkins=
Given that the reports revealing this information was disclosed exactly one week ago
today, counsel has not had time to further digest this information and determine what avenues to
pursue on behalf of Mr. Tompkins. Counsel is consulting with Mr. Tompkins today and is trying
to prepare the appropriate legal papers for filing as soon as they are completed.
As for federal proceedings currently pending, Mr. Tompkins has filed a notice of appeal
from the dismissal of federal habeas petition. Currently an application for a certificate of
appealability is pending in the Eleventh Circuit.
Mr. Tompkins is also pursuing certiorari review in the United States Supreme Court. An
application for a extension of time was sent to the U.S. Supreme Court on Saturday, January 31,
2009, obviously before counsel was advised of the new execution date.
I HEREBY CERTIFY that a true copy of the foregoing status report has been furnished
by United States Mail, first class postage prepaid, to Jalal Harb, Assistant State Attorney, Office of
the State Attorney, Courthouse Annex, 800 East Twiggs Street; Tampa, FL 33602; Scott
Browne, Assistant Attorney General, Concourse Center 4, 3507 E. Frontage Road, Suite 200,
Tampa, FL 33607-7013 on February 4, 2009.
MARTIN J. MCCLAIN
Florida Bar No. 0754773
Special Assistant CCRC-South
101 NE Third Ave.
Fort Lauderdale, FL 33301
Attorney for Mr. Tompkins
Tompkins execution scheduled Feb. 11
The Associated Press
TALLAHASSEE, Fla. -- An inmate who killed a Tampa teenager more than 25 years ago is facing execution Wednesday, Feb. 11.
Gov. Charlie Crist scheduled the execution of Wayne Tompkins for the March 1983 murder of 15-year-old Lisa DeCarr. Tompkins, 51, was originally scheduled to die Oct. 28, but appeals caused delays.
He is scheduled to die at 6 p.m. on Feb. 11 at Florida State Prison near Starke.
Attorney General Bill McCollum certified to Crist on Monday that all stays had been lifted and the governor is required to set a new execution date within 10 days.
Martin McClain, an attorney representing Tompkins, said the scheduling is very upsetting, because Tompkins is innocent.
On Dec. 5, the Florida Supreme Court rejected another request from Tompkins to let his lawyers investigate and present constitutional challenges based on a new sworn statement by a key witness.
A former inmate who testified Tompkins admitted to him he was the killer now says a prosecutor told him to give the jury false information. The justices offered no explanation for their decision, but previously called the false testimony a harmless error.
McClain said the revelation should be grounds for a new trial.
It was not immediately know what appeals Tompkins has remaining.
Tompkins' death warrant has been signed by two previous Florida governors, Bob Martinez in 1989 and Jeb Bush in 2001, but his case has gone through a series of appeals.
Two other inmates have been executed since Crist took office: Mark Dean Schwab on July 1, 2008, and Richard Henyard on Sept. 23, 2008.
Schwab was executed for the 1991 slaying of 11-year-old Junny Rios-Martinez in Cocoa.
Henyard was condemned for the 1993 deaths of two young girls, ages 3 and 7, after he and another man carjacked their mother's car. The mother was raped and shot, but survived.
A total of 66 inmates have been executed in Florida since the state resumed the death penalty in 1979, 44 of them in the electric chair.