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Refusing to see injustice

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By MARTIN DYCKMAN, Times Perspective Columnist

© St. Petersburg Times
published June 30, 2002


TALLAHASSEE -- This may come as news to Sen. Locke Burt, a legislator who is running for attorney general, but people whose criminal convictions are overturned are just as innocent, in every legal sense, as he is.

The bedrock of American criminal justice is the presumption of innocence unless and until guilt is proven beyond any reasonable doubt. If you have ever been called for jury duty you may still be hearing that in your sleep. They wouldn't let you serve unless you swore to give the defendant the benefit of that doubt, even if you thought he might be guilty.

Burt got himself some hard-to-come-by headlines last week when, on behalf of the Florida Commission on Capitol Cases, which he chairs, he disparaged the widely reported statistic that 23 innocent people have been set free from Florida's death row. In only four cases, he said, was their guilt "ever truly doubted."

Those are Wilbert Pitts and Freddie Lee, pardoned by Gov. Reubin Askew; James Richardson, set free after 21 years in prison for the poisoning deaths of his six children who were more likely murdered by their babysitter; and Frank Lee Smith, who died 11 months before DNA testing proved that someone else had committed the rape and murder for which he had been condemned.

However, in only four of those 23 cases -- four different cases -- is legal innocence not presumptive. After their capital convictions were overturned, Sonia Jacobs, William Jent, Ernest Miller and Joseph Spaziano made plea bargains on lesser charges. Only Spaziano remains in prison. Apart from some prosecutors who take defeat poorly, most people familiar with the cases believe all four were factually innocent all along.

That leaves 14 or more people who Burt would have us believe are still guilty no matter what the law says. I think he might be right about two or three, but it's beside the point. Whatever the reasons each conviction was overturned, all had in common that higher courts found them to have been poorly investigated, poorly tried or both. Whether truly innocent or not, they were all wrongfully convicted.

It is scandalous that Florida has had more of these than any other death-penalty state. If you assume, as Burt does, that most really were guilty, then Florida is the cop that can't shoot straight. If you accept that most were factually as well as legally innocent, it means they were cruelly mistreated while guilty people continued to rape and kill. One fellow came within 15 hours of the electric chair. Pitts and Lee were on death row for nine years and remained behind bars two years more. Frank Lee Smith was wrongfully imprisoned for 14 years before death freed him.

There is not much point in quibbling with Burt over how many of the 23 were really guilty or really innocent because the real question is how Florida manufactures so many death-penalty cases that simply can't stand up.

But with regard to at least one of the people Burt writes off as probably guilty, he plainly doesn't understand the case. It's that of Dave Roby Keaton, one of the so-called "Quincy 5" at Tallahassee in the 1970s. They were exonerated, to the satisfaction of nearly everybody, after three other men were properly convicted of the murder. But rather than admit that they had first nailed the wrong guys, the prosecution said it meant that eight people must have been robbing the small grocery store where an off duty-deputy was fatally shot. A jury didn't buy the big-gang theory. Neither did the Supreme Court.

Keaton was involved in a robbery, but not that one. The same polygraph examiner who had gotten Pitts and Lee tricked Keaton into confessing and implicating four other young men. One of them was a squeaky-clean kid, Johnny Frederick, whom Keaton hardly knew. Burt's staff report makes much of the fact that Keaton and Frederick confessed, but if Burt had read those so-called confessions, he'd realize they were at serious odds with the unquestioned facts.

One of the discrepancies was that no crime scene fingerprints matched any of the Quincy 5. So the interrogators asked Keaton, "Did you wear gloves?"

"I guess we wore gloves," he said.

Rare good luck saved the Quincy 5. The defense got a jail-house tip from someone who had been with three other men when they cased the grocery store prior to robbing it. A private investigator came up with their names and passed them on to the prosecution. Their fingerprints had littered the crime scene.

The cover statement on Burt's staff report mistakenly said that "no case has had a subsequent suspect arrested and convicted." In the Quincy 5 case, three subsequent suspects were tried and fairly convicted. Even then, higher courts had to knock heads before the local prosecutor grudgingly gave up the Quincy 5 case, never conceding he had been wrong.

Mistaken eyewitnesses and coerced false confessions encouraged his mistake. They are common problems, and will account for many more miscarriages of justices so long as politicians like Burt persist in trying to spin them away.

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