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    Delays in death row case irk governor

    Bush may order a review of the case because of a long-delayed police report and recantations by two witnesses that led to a release.

    By DAVID KARP, Times Staff Writer
    © St. Petersburg Times
    published January 28, 2003


    TALLAHASSEE -- On Aug. 13, 1992, an investigator working for death row inmate Rudolph Holton asked for all Tampa police records on his murder case.

    It took eight years and seven months for Holton's lawyers to get the key police report, which led to his release from death row.

    [Times photo: John Pendygraft]
    Rudolph Holton, 49, weeps as attorney Linda McDermott tells the story of his case at a news conference Monday in Tallahassee: He spent 16 years on death row in connection with the rape and slaying of a 17-year-old. But after the Florida Supreme Court threw out his conviction and two witnesses against him recanted, he was released.

    On Monday, Gov. Jeb Bush asked why it took so long for evidence to surface. "This could have been found earlier," Bush said. "You don't have to wait 16 years to deal with this issue.

    "The fact that someone would have to wait for 16 years is part of our problem."

    Bush said he may order an investigation into Holton's case -- specifically, why two witnesses who testified against Holton in 1986 recanted in 2001.

    The recantations made it impossible for Hillsborough State Attorney Mark Ober to try Holton again after the Florida Supreme Court threw out his conviction last month.

    "I may ask for an investigation about why it is that witnesses would recant so dramatically after swearing under oath," Bush said.

    He called it an "incredible reversal of testimony."

    Bush said he began considering an investigation after reading about Holton's case in the newspapers Saturday.

    Bush has ruled out a wide-ranging study of the death penalty such as the one that former Illinois Gov. George Ryan ordered in 2000. Ryan declared a moratorium on the death penalty and then commuted the sentences of all death row inmates this month.

    "I can tell you of the people I have signed death warrants for, they have all been deserving of the toughest penalty that can be given out," Bush said.

    Holton's lawyers agreed that it shouldn't have taken 16 years to free him.

    "Something went wrong in this case, I can tell you that," said Linda McDermott, an attorney for the state agency that represents death row inmates, which Bush has proposed eliminating.

    "There were things that didn't get to the defense that got to us -- and that was the difference in the case."

    Seventeen-year-old Katrina Graddy had complained to police that a man she knew, David Pearson, had choked her and raped her anally. Just 10 days later she was found dead in a condemned crack house near downtown Tampa. She had been strangled and raped, anally, with a beer bottle.

    In late 1986, Holton was convicted of murdering Graddy.

    Tampa police never went back to question Pearson, and the state never gave Holton's trial attorney the police report about the rape.

    Hillsborough Circuit Judge Daniel Perry ruled in 2001 that police didn't mean to keep records from the defense. The mistake was inadvertent, the judge ruled, but it meant Holton deserved a new trial.

    Ober said police did not have a system in 1986 to cross-reference police reports or locate reports about suspects that used an alias or false name. Given resources in 1986, Ober said, "I believe the Tampa Police Department did a very thorough job."

    Holton attorney Martin McClain doesn't see it that way.

    "It is on some level shocking or a huge oversight for the police reports to be in the department, and the detectives not to know about it," he said.

    In the 16 years it took to find the records, Holton waited on death row.

    "It gets so hot in there, the walls sweat," he said Monday.

    Holton grew so despondent that he asked former Gov. Lawton Chiles to sign his death warrant. "For some reason, it never happened," he said.

    In the meantime, his lawyers tracked down two witnesses: Flemmie Birkins, a homeless man once accused of murder, and Johnny Lee Newsome, another felon they found in state prison.

    At Holton's trial in December 1986, Newsome testified that he had seen Holton walking with Graddy the night of her murder. In 2001, Newsome said he really had seen Holton, alone, near the condemned house three days before the murder.

    Birkins, a jail trusty facing life in prison, testified in 1986 that Holton had confessed to him. For his cooperation, Birkins got probation instead.

    In 2001, Birkins, who had known Holton all his life, admitted he made up his testimony to get a deal.

    "I grew up with him," Holton said Monday. "I knew he was a snitch."

    Prosecutors say Birkins changed his story again last month. Now they say he maintains that his original testimony was the truth. They won't say if they intend to charge him with perjury.

    McClain said authorities shouldn't rely on anything Birkins says. "I think the only conclusion you should make is: He is a liar," McClain said. "The question is, should you send someone to death row on the basis of that?"

    Holton, 49, said he just wants to move on.

    "I don't care if they give me an apology or not," he said. "That's something I know I am not going to get. It doesn't matter. I'm out and I'm happy."

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