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    Freed after years on death row

    A man convicted of a 1986 murder is released; the state says it lacks enough evidence to retry him.

    By DAVID KARP, Times Staff Writer
    © St. Petersburg Times
    published January 25, 2003


    RAIFORD -- Rudolph Holton, who spent 16 years, six months and 29 days in prison waiting to be put to death for a murder he said he did not commit, walked off Florida's death row Friday.

    Waiting for him at the prison's entrance were his lawyers, Linda McDermott and Martin McClain, and investigators Jeff Walsh and David Mack, who found the witnesses that helped win Holton's freedom. He had $100 in his pocket, courtesy of the state of Florida.

    Wearing sunglasses, Holton shook slightly as he leaned against his lawyer's car and addressed reporters and four antideath penalty protesters. He said he is innocent, and his lawyers proved it.

    "I forgive everybody," he said. "I am sorry for all the people I hurt, doing burglaries, doing drugs ...

    "I forgive the system for what they did to me."

    * * *

    Holton is the 24th person released from Florida's death row since the state reinstituted the death penalty in 1976; 54 people have been executed. That makes roughly one condemned man released for every 21/4 the state has killed.

    Is he really innocent, or did he just get off because of some mistake along the way?

    Supreme Court Justice Barbara J. Pariente called it "one of the closest cases to potential for actual innocence that I have seen."

    Hillsborough State Attorney Mark Ober wouldn't say what he thought, only that his professional responsibility is clear. He doesn't have enough evidence to try the 16-year-old case.

    "The state of Florida does not have a reasonable likelihood of obtaining a conviction. Therefore, I am ethically precluded from going forward," Ober said. "It does not mean he is innocent."

    McClain said it doesn't matter what prosecutors think. "They can say whatever they want. The truth is as a matter of law he is innocent. He is innocent just like you or I."

    The man who prosecuted Holton, Joe Episcopo, said he should be free. "I am sorry it happened. At the time I believed what I was doing."

    In late 1986, Holton was convicted of murdering Katrina Graddy, a 17-year-old prostitute who was raped with a beer bottle, strangled and set on fire in an abandoned crack house near downtown Tampa.

    Holton was a high school dropout with a $1,000-a-day drug habit and a long record of burglaries and thefts.

    No physical evidence linked him to the murder. At trial, Episcopo said a hair found in the victim's mouth had to be his; recently conducted DNA tests proved it was not.

    The key witness was Flemmie Birkins, a Hillsborough jail inmate who testified that Holton admitted to him that he strangled a girl and set her on fire. Facing life in prison on his own charges, he got probation after he testified.

    Years later, Holton's attorneys tracked him down and he said he made up Holton's confession to save himself from prison.

    Ober said Friday that Birkins has changed his tune again and is back to saying that his original story really was true. Ober would not say why Birkins changed his story and would not say if he would bring perjury charges against Birkins for lying.

    Gov. Jeb Bush's spokeswoman, Elizabeth Hirst, said the governor "is considering whether an investigation is warranted related to the conditions under which the witnesses recanted their trial testimony."

    Said McClain: "He can investigate all he wants. He is relying on something Flemmie Birkins said because someone threatened him with jail."

    Holton's release came two weeks after former Illinois Gov. George Ryan commuted the death sentences of all 156 prisoners on that state's death row. Ryan cited the use of jailhouse informants as one of the reasons he declared a moratorium on the death penalty in 2000.

    The Illinois Commission on Capital Punishment recommended that prosecutors be required to put all deals with informants in writing, and urged judges to read juries special instructions about how to evaluate informant testimony.

    * * *

    A prison lieutenant came to Holton's cell Friday morning and told him to put his stuff in his locker. He assumed he was being transported to Tampa for a hearing. As he was led out, he told the other inmates he'd see them when he got back.

    "If you want, you can come back," the lieutenant said. "You're a free man."

    "I just broke down and started crying," Holton said.

    Outside, he zipped up the winter coat his attorney bought him at JCPenney after Christmas.

    What did freedom feel like?

    "Oh, man, it's cold."

    Did he want to stop for ice cream?

    "I want a Klondike bar."

    "I am ready to get a job." He said he might work as a longshoreman or maybe work for the circus as a clown.

    What did he think of the death penalty?

    "It has a lot of holes in it, and it don't work," Holton said. "I hope the governor takes a real good look at it."

    * * *

    "I don't know how to explain my mixed feelings," McClain said. He is thrilled that Holton is free. But ..."Sixteen years are gone. That is just a feeling of happiness mixed with a sense of injustice."

    Holton's release comes the same week that Gov. Bush proposed eliminating the state agency that represents death row inmates. The governor says it will save money to pay private lawyers to do the job.

    "It seems a recipe for chaos," McClain said. Holton's case, where a lawyer from the state agency (McDermott) dogged the case for six years, "speaks for the fact that there is a need for full-time attorneys on the job."

    Ober pointed to problems in how the late Hillsborough Circuit Judge Harry Lee Coe III conducted Holton's trial. The case went to a jury five months after Holton's arrest. Most murder trials take at least a year's preparation.

    "In a case of this magnitude, no one should rush to justice," Ober said.

    He referred to the way Coe handled one defense witness statement as a "hatchet job."

    Holton's defense lawyers identified an alternate suspect, David Pearson. Just 10 days before she was murdered, Graddy told police that Pearson had raped her. A witness also heard Pearson threaten her.

    Hillsborough Circuit Judge Daniel Perry ruled that Holton should get a new trial because prosecutors failed to give Holton's trial lawyer the police reports about Pearson. Last month, the state Supreme Court agreed with Perry.

    Pearson says he didn't kill Graddy, and he gave prosecutors a saliva sample.

    Holton's lawyers called Pearson the real killer. "Maybe (Ober) does not know" who did it, McClain said. "But I know. Rudolph Holton didn't do it. David Pearson did."

    * * *

    Holton does not want to return to Tampa, he says he's afraid police will be after him. He says he wants to find a quiet home far away, work in his yard, play basketball and barbecue. He says he wants to enroll in a drug treatment center to guard against a relapse.

    He was 33 when he was arrested, he is 49 now. His children, a daughter who was 15 and a son who was 13, are 31 and 27. He has six grandchildren he has never seen. His lawyers left him in a hotel room in Tallahassee on Friday night, and his family is scheduled to come meet him.

    Graddy's mother, Eva Lee, still lives in the Central Park Village housing project where she lived with Katrina when she was killed 16 summers ago. She's not sure who did it any more, she just wants police to find her daughter's killer.

    "I sure do," she said. "Because somebody did it."

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