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What's more important than righting a wrong?

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By MARTIN DYCKMAN, Times Associate Editor

© St. Petersburg Times
published April 28, 2002

TALLAHASSEE -- Death row prisoners who claim to be innocent sometimes turn out to be telling the truth. This has happened so often in Florida -- 22 to 24 times depending on who's counting -- that we lead the nation, if not the world, in that regard. The governor of Illinois needed only 13 cases to convince him that something was dreadfully wrong with the capital punishment process in his state. Here, however, it's business as usual.

For the Florida Supreme Court, that means consciously deciding to kill a man who would probably be acquitted if they let a jury hear the evidence that someone else did the crime. What could be more important?

His attorneys came up with the evidence too late.

That is an old line with that court, but one would hope that the justices would have been shamed out of it by now.

The latest example is Roy Clifton Swafford, 55, who has been on death row since 1985 for the 1982 rape and murder of Brenda Rucker, a Daytona Beach service station attendant. The court heard his case for a fifth time in September 1999, and just this month got around to deciding it against him, 4-3. As the issues were not at all complicated, the 31-month delay probably signifies that there was a pitched backstage battle over a swing vote. If so, the swing vote was that of Justice R. Fred Lewis, who concurred "in result only." That meant he agreed that Swafford should die, but he didn't say why.

The three who prevailed -- Leander Shaw Jr., Major Harding and Chief Justice Charles Wells -- upheld the ruling of a trial judge that Swafford's attorneys had been too slow in tracking down a missing witness whose testimony might clear him. The trial judge also disputed that the testimony would do that, but Shaw, Harding and Wells did not even address that issue in pontificating that it came too late to be heard.

This left the dissenting justices -- Harry Lee Anstead, Peggy Quince and Barbara Pariente -- to protest without rebuttal that the court "has summarily brushed aside on wholly speculative grounds a colorable claim of actual innocence and a possible serious miscarriage of justice."

That's strong language for judges. Not quite as strong, perhaps, as the late Harry Blackmun's complaint that "the execution of a person who can show that he is innocent comes perilously close to simple murder," but strong enough by Florida standards.

It's noteworthy which side Quince took. She came to the court from the attorney general's office, where she had spent three of her 13 years there handling death cases exclusively. She's no knee-jerk liberal; when Peggy Quince says the defense attorneys didn't foul up, everyone ought to listen. Arguing for the state, Quince was often paired against the same agency that represents Swafford, the Office of the Capital Collateral Representative , and she knew how understaffed and overworked its attorneys were.

Swafford was convicted entirely on circumstantial evidence that placed him near the service station when the victim vanished and that linked him to the murder weapon, which he allegedly had disposed of in a restroom at an adult club being raided by the police. But the connection wasn't made until a year later, when one of Swafford's buddies, in jail on another charge, called the police to make a deal. He not only got out of jail, but also reaped a $10,000 reward.

Witnesses disagreed, however, as to which restroom it was in which they had seen a man plant the gun, and it was less than certain that the man was Swafford. Moreover, one of the dancers testified that she and Swafford had been having sexual relations for three hours just before Rucker's abduction. Would he still have the energy and interest to kidnap and rape another woman? Not likely, but the jury suspended disbelief.

Unknown to the defense, the police had investigated another strong suspect, one James Michael Walsh, who had been implicated by a buddy of his own, one Michael Lestz. Walsh, too, had been near the scene of a crime, supposedly with stolen guns, one of which he had dumped at the same bar. Most suspiciously, Walsh had been conspicuously interested in pamphlets describing Rucker's murder, and he had a habit of burning sexual partners with cigarettes, just as someone had done to Rucker. But with Swafford in hand, the police wrote Walsh off.

When CCR lawyers finally learned about Lestz -- after Swafford had come so close to execution that he was being prepared for the chair before a federal appeals court reprieved him -- they couldn't find him. Lestz had gone underground. He eventually filed for bankruptcy, and the tracing agency swiftly found him in Illinois, with CCR lawyers close behind. But it had taken more than two years, which is the deadline for asserting newly discovered evidence. On this technicality, the Supreme Court is content to let Swafford die. CCR's lawyers should have dropped everything else to personally pursue the elusive Lestz throughout rural Illinois.

To Quince, this an "illogical conclusion . . . anchored in a foundation of hindsight." The majority, she said, "looks at what CCR did not do, rather than looking at the actions CCR took," which in her view included "systematic and continuous efforts" to find Lestz and Walsh. For a new jury to hear Lestz's affidavit, Quince concludes, "would probably produce an acquittal at trial."

It is plain from the record that CCR tried hard, perhaps even more diligently than anybody could have expected on the part of the state's most overworked agency. To kill Swafford simply because CCR did not accomplish the impossible would indeed come perilously close to simple murder.

Swafford is no choir boy. He was already in prison when his buddy sold him out. He and another prisoner escaped from the Volusia County jail and took at least 32 people hostage at a hospital before surrendering peacefully. He'll serve life for that whatever else happens.

But if he did not kill Rucker then he should not die for it. Beyond the huge injustice of that, it would leave the real killer forever unpunished. If the Florida judiciary cared half as much for the truth as for enforcing arbitrary procedural rules, there would not be such doubt as to who that real killer was.

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