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Innocent lives depend on luck to save them

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© St. Petersburg Times, published June 18, 2000

TALLAHASSEE -- The news that two of every three death sentences have had to be done over has politicians searching for flaws in the 28-state study and for a silver lining in what seems to be a very dismal cloud.

The reversal rate, some want to believe, is good news. It means that the innocent are being culled out and only the worst of the guilty are eventually put to death.

But that's no more necessarily true than for a factory to claim that the recall of two of every three of its automobiles or airplanes means that the rest are okay to buy.

Examples abound of people who were saved not by the system but by unpredictable strokes of luck.

A locally famous case known as the Quincy 5 comes to mind.

It was named for the hometown of the defendants, who are probably the most Floridians ever falsely accused of the same crime.

Khomas Revels, an off-duty Leon County sheriff's deputy, was shot to death during a holdup at Luke's Grocery, a Tallahassee convenience store. His colleagues had no suspects until some of the men from Quincy were implicated in another robbery. But what seemed to be suddenly going right was actually going seriously wrong.

With threats and lies, including the misuse of polygraph data, investigators sweated Dave Roby Keaton for three days until he confessed to the crime at Luke's. He also implicated Johnnie Frederick, whom he hardly knew. Both eventually signed confessions that conflicted on at least 21 points with the actual facts of the crime. Neither had lawyers. They were unsophisticated black men in the grip of white cops who were sure, absolutely sure, that they were bringing their buddy's killers to justice.

The jury didn't believe their claims to innocence. Keaton and Frederick didn't think their lawyer did either. Keaton went to death row. Frederick went to prison for life. David Charles Smith and two other Quincy defendants still awaited trial.

On appeal, Keaton and Frederick had new lawyers. Kent Spriggs was one of them. He remembers Keaton explaining that he had picked on Frederick, who was "clean as a whistle," in the wild belief that a judge and jury would easily see the entire "stupid story" to be false.

Meanwhile, another man was trying to win his attorney's confidence. His name was Benjamin Franklin Pye. The proof of his truthfulness would be that he knew who did the Luke's job, and it wasn't any of the Quincy 5.

The men were from Jacksonville and Pye knew only their street names. But he knew the motel where they had stayed, the dates, and what kind of rental car they were driving. He was with them when they talked about robbing Florida A&M University during registration and, having given that up, cased Luke's to rob it later.

Pye's lawyer gave the tip to Smith's court-appointed lawyers, Will Varn, a former U.S. attorney, and his associate, E.C. "Deeno" Kitchen. Varn got money from the judge to hire a private investigator, Joe Aloi, who came up with names that fit Pye's story.

The names also fit the crime scene fingerprints that hadn't matched any of the Quincy 5. One by one, the three Jacksonville men were tried and convicted.

Amazingly, the state continued to insist that the Quincy 5 were guilty, too. Neither the deputies nor prosecutor Harry Morrison could admit the gross original mistakes.

When Smith came to trial, five white eyewitnesses swore he was guilty. But Varn and Kitchen had the conflicting fingerprints and convictions, Pye's testimony, and a good alibi for Smith. An all-white jury acquitted him. The Supreme Court took note and ordered new trials for Keaton and Frederick. Morrison found an excuse to drop the charges instead.

Smith and Keaton had more time to do on unrelated charges but have not been in trouble since. Frederick went free, but with never even a penny from the state for the more than two years that he'd been caged because Keaton counted on the courts to recognize an entirely innocent man when they saw one.

The case was atypical in the superior quality of Smith's defense but sadly familiar in almost every other way that a death case can go bad. Coerced confessions. Mistaken eyewitnesses. Cocksure cops and prosecutors who can't be bothered by the evidence that doesn't fit their case. Paradoxically, it was only the jailhouse snitch whose evidence turned out to be irrefutably true.

Almost 18 years later, Kitchen and Spriggs say that without Pye, the Quincy 5 probably would never have been cleared of Revels' murder and the real killers would never have paid for it.

"Until we had the ability to point to someone else, we would be sitting there trying to cross-examine five eyewitnesses, which we could have done, but not as effectively as when we had three other guys," says Kitchen. The odds of Smith's conviction "would have been overwhelming."

"It was almost a miracle," says Spriggs, a "highly improbable" stroke of luck.

A defendant's life shouldn't depend on luck. That's what's wrong with the death penalty in the United States.

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