Court should move on murder case

DYCKMAN E-mail: Click here Archive

By MARTIN DYCKMAN

© St. Petersburg Times, published June 6, 2000

Crime doesn't get worse than what Joe Elton Nixon did. He kidnapped a woman who was helping him start his stalled car, tied her to a tree with her jumper cables, and burned her beyond recognition. He stole her car and pawned her rings. He confessed to it all on tape, sealing an already ironclad case.

Everyone said he was guilty. Even his public defender.

"There won't be any question, none whatsoever," that Nixon did it, defense attorney Michael Corin said. Rather, he explained, "This case is about the death of Joe Elton Nixon and whether it should occur within the next few years by electrocution or maybe its natural expiration after a lifetime of confinement."

The strategic gamble failed. The sentence was death. But 16 years after the savage murder of Jeanne Bickner near Tallahassee and 15 years after his trial, Nixon is almost certain to get a new trial, starting the appeals process all over again.

It's because nothing in the record shows that Nixon consented to what the Supreme Court says was "the functional equivalent of a guilty plea."

A case with such "bad facts," as lawyers would describe it, promises nothing for the court but more political flogging from Gov. Jeb Bush and the death claque in the Legislature.

But the primary fault, it seems clear, lies elsewhere. Nixon could have been retried and returned to death row long ago if the court had been given the answer to a question it first asked in 1987: Did Nixon consent?

This January, the court ruled 4-2 that if the answer is no, there was a fundamental violation of his constitutional right to effective counsel.

That's not new law. It applies what the U.S. Supreme Court has said.

Nixon's appellate counsel invoked the precedent in his direct appeal. In 1987, the Florida Supreme court sent the case back to the trial judge for a hearing on whether Nixon, who had refused to attend his trial, had agreed to the defense strategy. Two years later, Leon County Circuit Judge J. Lewis Hall ruled that Nixon's new lawyer hadn't proved lack of consent. (Corin himself was unable to say much because Nixon wouldn't waive attorney client privilege.) This didn't settle the question for the Supreme Court which, in November 1990, put it off by upholding Nixon's conviction and inviting him to raise it again in a subsequent appeal.

But Nixon couldn't file that appeal until the U.S. Supreme Court had disposed of his first appeal and he had found a new lawyer. It was in October 1993, eight years after the trial and sentence, when attorney Jonathan Lang of New York, a volunteer, raised the consent question and six other issues in a collateral appeal that was assigned to a different circuit judge, L. Ralph Smith Jr.

Still the case dragged on. It took two more years for Smith to order the Attorney General's Office to file a brief within 30 days, six months for the state to comply, and another 17 months before Smith denied the appeal without a hearing on the evidence. By then, 12 years had passed.

The Supreme Court's latest decisions was scathing. Referring to what it had said in 1990 about the unanswered question, the court complained, "Implicit within that invitation was that the postconviction court conduct another evidentiary hearing, without the risk of the attorney-client privilege, to determine whether Nixon consented to the strategy. Despite this, the circuit court . . . refused to grant an evidentiary hearing, and this court still does not have the answer that it has been seeking for the last 11 years. Therefore, we remand this case for an evidentiary hearing on this issue. Due process demands this result."

To avoid similar problems, the court added, a trial judge "who ever suspects that a similar strategy is being attempted by counsel for the defense . . . should stop the proceedings and question the defendant on the record as to whether he or she consents to counsel's strategy . . . "

But that is no help for the Nixon case, which is still at the Supreme Court because the state is asking for reconsideration. The two dissenters may be arguing feverishly to bring another vote around. Otherwise, as Justice Charles Wells noted in his dissent, a new trial is inevitable.

"The record has been clear for the 15 years since this trial," he wrote, "that during the trial Nixon set about not to "explicitly accept' anything. That was part and parcel of his disruptive and noncooperative conduct."

I suspect Lewis is right about that. The state should just concede Nixon his new trial now and get on with it. Or must another 15 years go by?

© St. Petersburg Times. All rights reserved.