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A Death Case Gone Wrong

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[Times photo: Pam Royal]
Joseph Green's conviction started to unravel after he had been on death row for more than three years. 

By SYDNEY P. FREEDBERG

© St. Petersburg Times, published December 29, 1999


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Judy Miscally was killed when she stopped to make a phone call.
STARKE -- When the paramedic reached her that night, Judy Miscally was lying in the parking lot of a convenience store, right beside her red pickup truck. A black powder burn circled a hole in her jacket, and her words tumbled out in breathless spurts.

"Dwayne, Dwayne," she gasped. "He shot me."

Dwayne Hardee had known Judy for years. Holding back his emotions, he rigged up an IV, swaddled the 47-year-old woman in jackets and helped lift her onto a stretcher for the siren-screeching ride to the hospital.

Two and a half hours later, Judy died as surgeons removed a .32-caliber bullet from her stomach.

Police didn't have much to go on -- mostly Judy's dying words that a skinny black man in his 20s had tried to rob her -- but they moved quickly. Within 22 hours, they had their man: Joseph Nahume Green Jr., 36.

Green was black and slender. He had a bad reputation and a criminal record. And despite an alibi and his claims of innocence, he was swiftly indicted, tried, convicted and sentenced to die in the electric chair at Florida State Prison, just 11 miles from the convenience store where Judy was gunned down.

For 6 1/2 years, Green waited to die. But bit by bit, the wafer-thin case against him crumbled.

First, the Florida Supreme Court threw out the conviction, saying Green didn't get a fair trial in 1993. After his defense team charged he was a victim of racism in Starke, the justices also ordered that the new trial be moved to Gainesville. Then a judge tossed out the testimony of the state's star eyewitness, ruling he was a demented drug addict who had trouble telling the truth.

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[Times photos: Pam Royal]
Lights have been added and the pay phone removed since the night Judy Miscally was shot at this store. Joseph Green was staying in the building in the background.

Finally, six months ago, Green was released from custody to await legal developments in his case. And now, with virtually no evidence against him, prosecutors are scrambling to save face, trying to orchestrate a way to close the case without admitting a mistake.

Sometime soon, State Attorney Rod Smith concedes, Circuit Judge Robert Cates will likely order a new verdict: not guilty.

If that happens, it will mark the 21st time since 1972 that a person condemned to death in Florida has been freed when it became clear he was innocent, or at least the victim of serious judicial mistakes. No state has set more condemned prisoners free.

In Starke, where Judy Miscally was widely admired, it will also raise a troubling question: If Joseph Green didn't kill Judy, then who did?

Starke is a community of 5,200 that lies astride U.S. 301 halfway between Gainesville and Jacksonville. It is known for its strawberry festival (the "sweetest strawberries this side of heaven," the weekly newspaper brags in its nameplate), its small-town closeness and its proximity to seven state prisons and the electric chair.

Judy Miscally and her husband, Russell, moved there from Jacksonville in the 1970s. They raised two sons, Russell Jr. and Gregory, born three years apart, and tended to hogs on 17 acres outside town. Russ Sr. worked as a firefighter in Jacksonville; Judy was society editor at the Bradford County Telegraph. For extra cash, they operated a street cleaning business.

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Lonnie Thompson, who had an IQ of 67 and memory problems, was the prosecution's key witness. His version of the shooting and description of the killer changed several times during questioning. 
Almost everybody in Starke knew Judy. A stickler for detail, she did things precisely. Everything about her was organized, crisp and polished, right to the top of her clipped, perfectly coiffed hair.

At the Telegraph, she greeted visitors, sold ads, set type, pasted up pages and wrote social items. "She could take over and do anything, and she always did it laughing," says her best friend and Telegraph colleague, Sylvia Wheeler. People fondly referred to Judy as "The Boss."

"We were just enjoying life," Russ says. "And then all of a sudden it happens to you."

It happened to the Miscallys on Dec. 8, 1992, a chilly, damp Tuesday. After dinner, they loaded a big vacuum sweeper onto a trailer behind their Chevy pickup and left to sweep the parking lot at the Bradford County Courthouse.

Something was wrong with the trailer, however. The Miscallys soon realized they needed to call their son to bring another one. About 10 p.m., Russ handed Judy three quarters, and she drove to the nearby MAPCO Express convenience store at the busy intersection of U.S. 301 and State Road 16.

After locking her purse in the truck, Judy walked toward the pay phone. The killer -- or killers -- burst from the side of the building. Words were exchanged. She screamed then struggled with a man pointing a shiny pistol. There was a gunshot.

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ROD SMITH
State attorney
He stands by his office's decision to seek the death penalty for Green. Politics did not play a role, he says.
A handful of people heard the scream and the pop of the gun as Judy stumbled near a garbage dumpster on the dimly lit side of the store. She picked up a stick and seemed to lunge for the gunman, but he already had vanished. As she fell beside her truck, horrified onlookers rushed to help.

Within minutes, nearly all of Starke's 20-member police force, along with Bradford County sheriff's deputies and rescue personnel, were at the scene. One of them was Dwayne Hardee, 36, a paramedic, Starke fire chief and longtime family friend. As he hooked up oxygen and comforted Judy, he peppered her with questions about her assailant.

Fighting to catch her breath, she told him that a skinny black man had sneaked up from behind the dumpster, next to the Starke Motor Court. After shooting her, he fled in the same direction.

Hardee gently pressed for details about the assailant's clothing, facial hair, height. Judy's voice faltered. "The only thing she could really say was a slim black male . . . in his mid-20s," he recalled later.

The bullet had cut through major arteries. Doctors at Bradford Hospital quickly decided to airlift Judy to Jacksonville's University Hospital, the region's showcase trauma center. Hardee lifted her onto the helicopter. He was the last friend she would see.

Judy's blood pressure dropped, and she drifted into shock and unconsciousness on the 50-mile flight to Jacksonville. She died in surgery at 12:40 a.m.

* * *

By then, the Starke Police Department was searching for skinny black males in local hangouts and combing the alley between the convenience store and the motel.

There weren't many clues, and investigators began making mistakes.

When Russ Miscally returned to the convenience store before sunrise, he discovered they had not roped off the crime scene. Judy's pickup was unattended; it had not been dusted for fingerprints. Russ found her purse on the seat of the truck with two of the quarters he had given her.

Lt. E.W. Wilkinson, the lead investigator, took a few photos and made some measurements. But he acknowledged later that no one searched Judy's truck or purse to see if anything was missing.

No one dusted the pay phone for fingerprints, either. No one emptied the dumpster to see if there was any evidence, like a gun, inside. No one took scrapings from Judy's fingernails to search for hair, threads or blood that could tie a suspect to the crime.

In fact, the only evidence police recovered was a .32-caliber casing. Working by flashlight, Officer William Brown found it near the dumpster.

Usually, police don't touch anything at a crime scene. They let specialists pick up potential evidence and carefully label it. But the Starke police, led by Chief Jimmy Epps, decided not to call in crime-scene specialists.

Instead, Brown picked up the casing with a handkerchief and put it in his shirt pocket. Then he picked up the stick Judy had used and tried to stick it into the grass where he found the casing. It broke.

Epps says now he never knew the details of the investigation. He says he put his faith in Maj. William Reno, a bald, hardnosed veteran known around town as "Kojak." Reno, in turn, assigned the case to Wilkinson, who had just been promoted and had never supervised a homicide investigation.

Today neither Reno nor Wilkinson want to talk about the Green case. The story of their investigation comes from police reports, depositions and trial testimony.

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WILLIAM CERVONE
Assistant state attorney
The lead prosecutor discounts
Green's alibi witnesses and
testimony that there were
three assailants, not one.
Wilkinson testified that by the time he arrived, the rescue people and first police officers already had contaminated the crime scene. He said he didn't empty the dumpster because he didn't think the killer had time to hide a gun. He said he didn't take fingerprints because it was moist outside and there would be none.

"I'm not an expert investigator," Wilkinson said.

In the hours after the shooting, Reno and Wilkinson made a quick assumption based on Judy's dying words: There was only one killer.

That assumption seems somewhat dubious, however. John Goolsby, a motorist stopped at a traffic light, had told police he heard the gunshot and saw the bare outlines of two people struggling. Without his glasses and in the darkness, he couldn't make out their clothes, their race or even their sex.

But the police never talked to another, potentially better witness. A woman near the scene had told them about Katrina Kintner, who was sitting in her car across the street when the crime occurred. Kintner said later she saw three black men surround a white woman near the pay phone. Although she didn't see the shooting itself, she said, she saw two black men dart away behind the dumpster.

About 1,500 black people live in Starke, and many more pass through. Police had a lead about a skinny black man -- a well-known Starke troublemaker -- whose bicycle was spotted after the shooting 15 feet from where Judy fell. He was nowhere in sight, and they never pursued him. They also didn't seriously pursue a tip about another black man, who a witness said was wearing an Army jacket and "acting suspiciously."

From the start, in fact, the investigation focused on one man: Joseph Green.

Green was known to some in Starke as "Green from Miami." And almost from the moment he hit town a few months before, they thought he was headed for trouble.

He smoked cigars. He wore flashy suits and gold chains. He had a glib way of talking. Two members of his family in Starke had been in trouble with the law. His nephew, Danwell, had been picked up for robbery two months earlier. Green's brother, Reginald, was a preacher who faced trial on a rape charge.

Within three hours of the shooting, Officer Brown confirmed that Green was living in Room 2 of the Starke Motor Court, next to the convenience store. He was three days behind on his rent and faced possible eviction.

When detectives ran Green's criminal history, he looked like an even better suspect. His record showed 20 arrests over 17 years, including a three-year sentence for second-degree murder and a stint for battering a corrections officer.

To Reno and Wilkinson, it seemed as though Joseph Green not only had a motive and an opportunity but also was the kind of man to commit this kind of crime. All they needed was some evidence.

* * *

Minutes after the shooting, a 33-year-old handyman named Lonnie Thompson was seen standing at the counter of the convenience store. When police Officer Jeff Johnson asked if he had seen or heard anything, Thompson didn't answer. He rode away on his bicycle.

Johnson thought that was odd, so he sought out Thompson for further questioning.

This time, Thompson said, yes, he had seen the shooting. The killer was a white man: blond, skinny, about 6 foot 7. He drove a light-colored, older-model Chevy with a dent on the left rear side. Thompson said the killer struggled with Judy over a purse.

Besides the obvious discrepancy about the suspect's race, there was another problem with Thompson's story: If the gunman grabbed for Judy's purse, whose purse was inside her truck after the shooting? Did she have two purses? Or after the white man shot her, did he put her purse back in the truck?

Wilkinson acknowledged later that the story was illogical on its face. Still, Joseph Green remained the police's prime suspect and Lonnie Thompson their best witness.

About three hours after the shooting, Bradford County sheriff's deputy Raymond Shuford talked to Thompson again and heard yet another story. It was wildly inconsistent with his previous account. This time, Thompson fingered a man he had seen around town and knew as "Rev. Green's brother."

Thompson told Shuford he had gone to another convenience store, across U.S. 301, to buy a beer when he witnessed the murder. Thompson said the killer held Judy's purse in one hand and her wrist with his other hand as he struggled with her. After he fired, she fell by the telephone, Thompson said.

This story, like the one about the white gunman, contained information that might have given the police pause. Did he shoot her by the phone, as Thompson indicated? Or did he shoot her nearer the dumpster, as other witnesses and the location of the bullet casing suggested?

And how did Thompson, who would testify to drinking several 16-ounce cans of beer before the shooting, see so clearly across a busy, five-lane highway in the dark, 86 yards (nearly a football field) away?

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JIMMY EPPS
Starke police chief
The chief defends his department,
and says he will go to his
grave believing that Green committed
the murder.


Officer Johnson said later he was "very curious" why Thompson, whom he'd known for years, would say the gunman was white. Thompson gave this explanation: He lied because Johnson intimidated him and he wanted to get the cocky white cop off his back.

Today, as Thompson sits outside the 301 Quik-Stop and fidgets with a cigarette butt, he puts it this way: "They were trying to confuse me."

Thompson, who had attended special-education classes, says he can read "a little." Seven hours after the shooting, he signed a 13-line sworn statement, typed by Shuford, that said the black man who "shot the woman is from down south around Miami." Eighty minutes later, Thompson added details when Wilkinson tape-recorded a conversation.

"How can you tell they were arguing over a purse?" Wilkinson asked.

"Because she -- she had her purse in her -- in her -- in her hand," Thompson said.

"Do you know if he had the purse with him when he ran?"

"I was just getting the hell out of there," Thompson replied.

"They were standing in front of the pickup truck?"

"Correct."

"And looking all the distance you can still swear that that man was the same man you know?" Wilkinson asked.

"I know it's the same man," said Thompson.

"How was he dressed? . . . His pants?"

"Something like my shirt -- this jacket here -- you know -- light dress coat."

"Okay. Your jacket's brown. Were (his) pants brown?" Wilkinson asked.

"Yeah, they were brown," Thompson said. "Well, I can't remember exactly what he had on. But I know him when I see him."

* * *

At 7:58 a.m. Wednesday, less than 10 hours after the shooting, Maj. Reno made the first of several trips to Joseph Green's motel room in search of brown pants and a gun.

Green had left for work. His girlfriend, Gwendolyn Coleman, answered the door in her nightgown.

When Reno asked what Green wore the night before, Coleman pointed to a black pinstriped suit and a trench coat draped across a chair.

Within days, Lonnie Thompson's hazy memory would come into sharp focus on the subject of what Joseph Green was wearing that night: Black pinstripes. Thompson would remember seeing the suit -- and a hip holster for a gun -- underneath Green's buttoned overcoat.

About 5 p.m., Green was at work when Wilkinson asked him to come to the police station to answer some questions. Green was frightened, but he didn't resist.

A onetime Army malcontent and former crack user, Green had been trying to straighten out his life. His girlfriend had been keeping him out of trouble, and he always showed up for work on time. He made $328 a week, plus overtime, welding and painting at Darcon Inc., a subcontractor for E.I. du Pont Co. His boss called Green one of his most reliable workers.

At the police station, Green talked freely without a lawyer, insisting he knew nothing about the murder. He recounted what he had done the day before, starting at 5:30 p.m., when he got off work.

He said he inquired at a store about a possible job for his girlfriend, then had dinner with his brother, Reggie. When Reggie took him back to the motel about 7, he said, the motel manager called and threatened to evict him if he didn't pay $39.80 of his overdue rent by 11 the next morning.

About 8, Green said, he rode his bicycle to see his brother, Lenny, and try to borrow rent money. Then he bicycled to the Orangewood Apartments and talked to a friend's wife before returning to his motel room and going to bed.

"And you did not go back out again?" Maj. Reno asked.

"No, sir."

"You stayed in the house?"

"Yes, sir," Green said. "I became unconscious and I dozed off to sleep."

Reno was dubious. The police already had talked to the motel owners and one of Green's brothers, who seemed to give a different time sequence. "There was a bunch of inconsistencies," Reno testified later in a deposition.

When the police pressed Green, he seemed to change his story. He remembered taking a walk with his girlfriend. They had stopped at a bar and tried to bum cigarettes from members of a band called Bittersweet, then walked a few blocks to a Pizza Hut. There, they saw two white men fixing a broken muffler. Green said he offered to help. He said he went to the house of a friend, Ron Farrell, to borrow a saw, then walked back to the Pizza Hut to fix the muffler.

"What did you do with the saw that you borrowed from Ron?" Wilkinson asked.

"I took it on back to the house -- to the house."

Now the police were sure Green was lying. "He went to this place and he went to that place; he was in these clothes, he was in these different clothes," Reno said. "It was impossible for these things to be fitting into the realm that he was giving me, you know."

The police never checked Green's story about being at the Pizza Hut. They didn't test his hands for gunpowder residue or ask him to take a polygraph test. They didn't have one piece of physical evidence -- a gun, a fingerprint, a fiber of clothing -- connecting Green to the crime.

But they did have Lonnie Thompson. About 9 p.m., they summoned him again.

Police generally conduct lineups or show eyewitnesses photo mug books or montages with at least five or six similar-looking subjects. Having a one-person lineup -- or suggesting that a man is the suspect -- is generally regarded as unfair influence that might lead an impressionable witness to error.

But the Starke police told Thompson they wanted him to identify the perpetrator, and they led him to a small room where Joseph Green was seated alone. Thompson looked through a one-way mirror.

Yes, he agreed, that's the man.

Green was handcuffed on the spot.

"I never seen daylight again," he said.

* * *

Starke reacted to Judy's murder with shock. Reciting Green's criminal history, angry residents phoned the police and demanded action. Preachers dedicated their Sunday sermons to Judy, and there were community meetings to discuss a rash of drug-related shootings and random attacks in the county.

At the Telegraph, Judy's colleagues spent that Wednesday, usually a noisy production day, in silence. They wrote Judy's story and put a banner headline on it, but "we did it all with tears in our eyes," staff writer Marcia Goodge recalled later.

Rod Smith, the state attorney for Bradford and five other counties, called the murder every citizen's worst nightmare. He was emphatic: He would seek the death penalty against Joseph Green and set a precedent with the prosecution of Judy's killer.

"People are not going to feel safe in a community where that kind of activity is not aggressively stamped out," Smith declared.

A flamboyant lawyer who put serial student killer Danny Rolling on death row, Smith says now he can't recall some of the details of the Green investigation but stands by his office's decision to seek the death penalty. Politics, he said, had nothing to do with it.

At the time, Smith's tough words were well received in Bradford, where residents worried that undesirables or ex-cons released from the nearby prisons were at least partly responsible for the recent crime wave. A week after Green was taken into custody, a skinny black man with a shiny pistol attacked someone at another convenience store pay phone in Starke. Between 1991 and 1993, the town would experience seven murders in addition to Judy's.

Green was too poor to hire a lawyer, so he was appointed one: Jeffrey M. Leukel, 34, a former public defender from nearby Keystone Heights. He had never handled a death penalty trial, and the murder of an admired local resident was hardly the kind of case that could boost his career.

"Why are you defending that dirtbag?" Leukel's friends asked him.

Up against two experienced prosecutors, Leukel hired F. Reed Replogle, a death-penalty lawyer from Gainesville, and Donald C. Johnson, a private eye who packed a .45 and was known as D.C.

Green acknowledged that he was no model citizen, but he insisted he didn't kill Judy. "I'm totally innocent," he said. "I was in the wrong place. I'm being used as a scapegoat."

Johnson, a firm believer in the death penalty, had spent much of his career putting criminals behind bars as an Alachua County sheriff's officer. At first, he was unsympathetic toward Green. But after methodically tracing Green's itinerary of that evening, Johnson became convinced his client had a near-perfect alibi. "Joseph Green might have killed 15 people that night," the private eye concluded. "But he didn't kill Judy Miscally."

Twenty-nine days after the murder, Johnson led Leukel to a key witness in Lantana, a town in south Florida. Donald Lavery, 20, was one of two white men Green had mentioned to police.

Lavery said he had muffler problems at the Pizza Hut in Starke the night of the murder. A skinny black man showed up shortly after 10 p.m. and helped him, Lavery said.

Other witnesses corroborated Green's muffler story, though they couldn't be sure of times. And in Green's motel room, Johnson found the saw that Green said he borrowed to fix Lavery's muffler. (The police had seen the saw, too, but they never impounded it.)

When Smith's chief assistant, William Cervone, learned of the new witnesses, he still dismissed Green's alibi. He had plenty of time, Cervone said, to kill Judy before fixing the muffler.

Cervone also discounted the testimony of Katrina Kintner, the woman who said she saw three black men, not one. And he downplayed potentially explosive information about the state's star eyewitness, Lonnie Thompson.

Thompson, one of 14 children, was a fixture around Starke. He did yard work for a local judge and all the cops knew him.

Leukel learned that Thompson had an IQ of 67 and suffered memory problems after being knocked out several times. (Among other things, he had been beaten with a broomstick and hit in the right eye with a piece of steel.) Thompson also had an arrest record and a history of alcohol and drug abuse.

Leukel thought the state's willingness to overlook Thompson's contradictory statements was odd. Odder still was its handling of Thompson's latest arrest. Several months before the murder, he had been arrested for stealing 239 pounds of aluminum from a local store.

He faced two felonies, but with Green's trial approaching, prosecutors let Thompson avoid jail and plead no contest to a misdemeanor.

Thompson's lawyer said the deal had nothing to do with his testimony against Green. And Cervone denied that Thompson received favors. Still, Leukel and Johnson were convinced: Joseph was the wrong suspect, and the state of Florida wanted to kill him for a murder he did not commit.

"A legal lynching by Bradford County," Leukel called it.

The testimony of a lone witness is notoriously unreliable. A 1967 U.S. Supreme Court opinion points out the dangers in eyewitness testimony, saying "the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice . . . than all other factors combined."

Corroborating physical evidence is considered crucial. Here, none was ever produced. No gun. No fingerprints. No transfer of hairs or fibers between Judy's clothes and Green's clothes.

One of the only items that excited the prosecutors was a lab report saying a "Negroid hair fragment" had been found on Judy's sweat shirt. Another report suggested that a kernel of gunpowder was located on Green's pants.

But that kernel did not match -- in size, shape or color -- gun particles found on the bullet hole of Judy's light blue sweat shirt. And experts never proved the hair belonged to Green or anyone else.

Even if they had, hair is a type of evidence that has proved so unreliable that its use is now restricted and even barred in some jurisdictions. Police never asked Green to provide a blood sample to test the hair for DNA.

As the trial approached, Leukel worried that most Bradford residents -- especially whites -- had made up their minds Green was guilty. Citing the state attorney's "highly prejudicial comments" and "a wave of public passion" against Green, the lawyer appealed to Circuit Judge Robert Cates for a change of venue.

Starke prided itself on good race relations; civic boosters had worked hard for years to rid the town of its "redneck village" image.

Cates, a respected Vietnam War hero who had dispensed justice in Bradford for six years, denied the motion for a change of venue. He made other key rulings against the defense.

Cates said he would allow Thompson's identification of Green, rejecting arguments that police had improperly coached the witness. And the judge said he would let the jury see Green's clothes, even though they had been seized with a questionable warrant.

Leukel had uncovered what he thought was skullduggery in the way the police took Green's clothes from the motel room. When they prepared an affidavit to get the search warrant, they didn't describe the clothes. The affidavit said simply that a witness (Thompson) had described Green's clothing on the night of the murder. It also said the witness' description matched the clothes that Green's girlfriend had pointed out in the motel room.

What it didn't say was that Thompson had originally said Green's clothes were light-colored or brown. (In a later statement, Thompson said, "I don't remember all them clothes").

The affidavit also omitted that Thompson's refreshed recollection about Green's pinstriped suit came after the police visited Green's motel room twice without warrants.

And they glossed over the fact that Thompson's description of a pinstriped suit came after Green's girlfriend told them what he wore that night. The suggestion -- vehemently denied by the police -- was that they fed the correct clothing description to their malleable witness, whose testimony was then used to persuade a judge to grant the warrant.

Green was doomed, Johnson thought. "He's black; she's white. He's a bad dude from Miami; she's a pillar of the community. All that press -- hell, she works for the press. It's a done deal."

* * *

On Sept. 27, 1993, the lawyers began questioning potential jurors. Bradford County is a small, rural county where many people are related. Corrections officers, welders, teachers, retirees -- some were Judy's friends and some were people who knew her friends. Almost all knew about her murder.

When the panel of 12 was selected, all of them said they were willing to impose the death penalty. Two were black, one was Hispanic and nine were white; six were women, six were men.

To Joseph Green, none looked especially sympathetic. "They looked like a lynching party," he said.

The trial took seven days. The courtroom was filled with Judy's friends, there to show solidarity with her.

Tears in his eyes, Russ Miscally relived the moments before his wife's murder. Dwayne Hardee repeated Judy's dying words. And Lonnie Thompson looked at the man in the burgandy suit and striped tie sitting in the courtroom.

"He shot Miscally," Thompson said of Green.

Thompson had no trouble identifying Green's pinstriped suit. But under cross-examination by defense attorney Reed Replogle, Thompson acknowledged he had lied when he first said the gunman was white. He said he may have had more than four beers and that prosecutors helped him remember things. He even said he might have received leniency in his own theft case for his testimony against Green.

Replogle and Leukel had decided to keep Green off the stand because of his criminal past. The defense had five alibi witnesses, and they tried to show the bungling Starke police had teased a story out of Thompson to fit their theory that Green was the killer.

"He's a thoroughly programmed witness," Leukel told the jury, "trapped to testify the way he's been programmed." It was a "travesty" that a death-penalty case could be built on such shoddy evidence.

But in their closing arguments, prosecutors Cervone and Margaret Stack countered that Green was on trial, not the police. They said you always get witnesses who get details wrong. You always get inconsistencies. They said Green's witnesses didn't give him an alibi, and they urged the jury not to believe his girlfriend or the woman who saw three assailants. They defended Thompson and denied giving him a deal for his testimony.

"Lonnie Thompson does not have the intellectual ability, the education, the guile to come in here and try to lie," Cervone said. "He is nigh unto a child in a lot of ways."

Insisting that Green shot Judy out of desperation and greed, Stack slammed a quarter on the rail of the jury box. She died "for that," the prosecutor said.

The jurors were out less than five hours before finding Green guilty of first-degree murder.

Leukel had been keeping track of north Florida murder cases. He said that if the victim was white and the murderer black, the sentence was almost nearly always death. But if the victim and killer were black (or if the victim was black and the murderer was white), the death penalty was rarely imposed.

In the weeks between verdict and sentence, Leukel tried to convince Judge Cates that the State Attorney's Office discriminated with the death penalty. The lawyer also pleaded with the judge to tell the jury about a polygraph test Green had passed.

But the prosecutors vehemently objected, and the punishment phase got under way on Oct. 25. This time, Green took the stand and professed his innocence.

His half-sister, Brenda Diane Burgess, pleaded with jurors to be merciful. She tried to explain that, despite his convictions, including the one for second-degree murder, her younger brother wasn't nearly the monster the state made him out to be.

A quiet, middle child with seven sisters and brothers, Joseph, known as JR, grew up in a poor part of Opa-locka. He never knew his father and his stepfather beat him, Burgess said, adding that her brother "was always striving to come above where he came from." She testified that her brother had never intended to kill a 28-year-old man in a drug-infested Miami neighborhood in 1983. A robber took a swing at him, so Green grabbed the man's revolver and fired two rounds, she said. Green surrendered right away, pleaded guilty and served three years.

"Joseph Green didn't go looking to kill that man," Leukel explained in his closing statement. "That man came looking for trouble and he got it."

But Cervone, citing Green's history of violence, said he did not deserve leniency. "This man has killed before," the prosecutor told the jury. "He killed in 1983. . . . He killed again in 1992. . . . Your vote should be for death."

The jury returned with a 9-to-3 vote recommending the death penalty, and the judge agreed: death by electrocution.

That night, Green wept in his holding cell. "It's gonna be okay," his lawyer told him. "We're gonna get a court to listen. This case is gonna come back and haunt Bradford County."

* * *

Numb and bitter, Green was eventually shipped to Florida State Prison on SR 16, a two-lane blacktop where the low-slung prison complexes disappear into flat, brown cow pastures.

"This is the D/R (death row inmate) for Judy!" announced one guard when Green arrived.

From the moment he reached death row, Green says now, he knew he was in for trouble. Because his crime was local, some of the officers who had known Judy were sure to want retribution.

What's more, Green had a rap sheet for attacking guards. During a previous prison stint, Green had fractured his hand by punching an officer in the eye. They retaliated by "kicking me to sleep."

"I was more afraid of them," Green says now, "than the electric chair."

Retaliation came in the form of shakedowns and house tossings -- guards dumping his personal belongings on the floor and tearing up his cell.

Green said he saw two death row inmates hang themselves under the pressure. Others suffered strokes or were dragged to the clinic, beaten and bloodied by officers. "You could hear fists hitting flesh," he said. Eight of Green's friends were executed in the chair.

But Green said he held back thoughts of dying. "I was the kind to fight unto death," he said, adding: "I used to get so mad I'd pace the cell with my hands balled up."

Pacing was one way to keep sane. Green also did hundreds of push-ups a day. And he educated himself in the law, sifting through cases for any ruling that might save his life.

Wearing headphones to drown out the noise that pumped out of the cells, he studied Black's Law Dictionary. At night, he read by the light of his 13-inch black and white TV. Or he stared at the ceiling, or listened to himself toss in bed. After a while, he told his visitors to stop coming because they always left crying.

"I can't imagine what it was like for him," said his defense attorney, Leukel. "For three months after Joseph was sentenced to the electric chair, I was a dead man walking myself."

Obsessed with proving Green's innocence, Leukel read and reread the trial transcript, underlining discrepancies in yellow highlighter.

"Tell me I'm not gonna die here," Green wrote to him in February 1994. "Jeff, don't let them kill me."

As they worked on an appellate brief with Tallahassee public defender David Davis, Leukel started drinking heavily. His wife left him. People in Starke refused to forgive him for defending Green, and his law practice suffered.

Prosecutor Cervone expressed disdain toward Leukel in an October 1994 letter, which accused the defense lawyer of bullying a witness in another case. "If you want to conduct your practice in this fashion, maybe you should consider relocating to Miami where I understand the lawyers behave like this all the time."

A year later, Green's lawyers filed their appeal to the Florida Supreme Court. It attacked the conviction by raising 12 legal points of error, putting Bradford County justice on trial.

One night in November 1996, Leukel and a friend were sipping beer in Leukel's office. "If the Florida Supreme Court doesn't help Joseph, I'm gonna have to break him out of there," Leukel said.

He didn't have to. The next day, Green was doing push-ups when he heard the news on the radio: The Florida Supreme Court had struck down the guilty verdict.

The justices ruled the trial judge made two mistakes: He shouldn't have allowed Green's clothes to be introduced, because the search warrant used to seize them was illegal. And he shouldn't have let prosecutors interrogate Katrina Kintner, the defense's eyewitness, about a prior drinking problem. (She had led an AA meeting the night of the slaying and there was no evidence she had been drinking.)

Clearly, though, the testimony of Lonnie Thompson most troubled the court, which noted that the guilty verdict hinged "delicately and entirely" on his "often inconsistent and contradictory" statements.

The evidence was so weak, Justice Gerald Kogan said in a separate opinion, that Green should be acquitted.

The other justices didn't go that far, but they never even considered the 10 other points in the defense appeal. In a highly unusual move, they ordered a new trial in Gainesville, 30 minutes from Starke, where Judy wasn't so well-known and Green wasn't marked as a cold-blooded criminal from Miami.

The decision stunned Starke. Residents carped about slick defense lawyers and judges who meddled with jury verdicts and let guilty defendants go free on technicalities.

People were especially galled by the decision to move the trial to Gainesville, a liberal university town. Although the court had said nothing specifically about the role of race, many Bradford residents took the move as an insult.

On death row, a jubilant Green figured he would be free in weeks. But despite the appellate ruling, State Attorney Smith vowed to fight on. There was no way, Smith said, he would let a vicious murderer go free.

Green says a few corrections officers wanted revenge because he had made Bradford County look bad. He says they harassed him with racial slurs and shakedowns, and he finally decided he wasn't going to take it anymore.

When Green refused to submit to a urine test, he prepared for a fight with what he called the "goon squad" by greasing down the floor of his cell with shampoo and shaving lotion. Stomping and screaming, he was buried in an avalanche of brown uniforms.

He landed in solitary confinement, locked in a cell with nothing except bedding and a steel toilet. "A rubber room," he calls it.

In March 1997, Green filed a handwritten court petition demanding he be let off death row. He said it was illegal to keep him locked in a 9-by-6 cell 23 1/2 hours a day, given that he was no longer convicted but "merely an accused person awaiting trial."

The next month, officers came to his cell and told him to pack up. Judge Cates had ordered Green to the Bradford County jail to await his second trial.

* * *

Prosecutors knew it would be tougher to get a conviction, especially on weak evidence, in Gainesville. Still, they were determined to fulfill State Attorney Smith's promise after Judy's murder. They tried to get Green to take a plea: They would keep him out of the electric chair if he admitted guilt.

"I ain't pleading guilty 'cause I ain't guilty," Green told his attorney. "You tell those sons of b---, the answer is not only "No,' but it's "Hell, no!' "

Leukel couldn't understand how anyone could seriously argue that Green did it. "Why won't they just let go?" the lawyer thought.

Finally, Cates ended the stalemate by granting a defense motion for psychiatrists to examine Lonnie Thompson, the state's star witness.

What emerged at his psychiatric evaluations was a picture of a witness more troubled than some people realized.

In an exam on Nov. 13, 1997, Thompson recounted to Dr. George Barnard how he had been threatened by wild ghosts. He told the doctor his mind "comes and goes," that the president lives in the White House in Jacksonville and that 1 + 4 = 4.

Thompson thought the man who shot Judy was 5 foot 1 (Green is 5-11). At first, he told Barnard that the crime occurred on a Friday or Saturday in the summer (it was a Tuesday in the winter).

And Thompson disclosed that, on the afternoon and night of the murder, he drank two or three quarts of beer, smoked cocaine with Green's girlfriend, swigged a shot of gin from a bootlegger and smoked marijuana. That's a stretch from the state's assertion at trial that Thompson, though he may have had a few beers, wasn't intoxicated.

Barnard is a University of Florida forensic psychiatrist who has testified in hundreds of criminal proceedings, mostly for the prosecution. He concluded that Thompson was totally confused or lying, or both.

Barnard's opinion was supported by clinical psychologist Michael J. Herkov, who evaluated Thompson a month later. The psychologist was baffled as Thompson dipped snuff and spat tobacco on the examining room carpet. Herkov found that Thompson was mildly retarded and had eroded cognitive abilities because of chronic drug and alcohol abuse and head injuries. As Herkov put it, Thompson didn't have the "hard drive" to recall what he said he saw.

Then, a third expert, Dr. Daniel Sprehe of Tampa, examined Thompson at the request of prosecutors. But at a competency hearing on May 4, 1998, even Sprehe helped the defense.

Unlike the other experts, Sprehe concluded that Thompson was competent to testify. But Sprehe also acknowledged that Thompson was the type of person to tailor his testimony to please the police.

Judge Cates was still smarting over the Florida Supreme Court's decision to reverse him in the Green case. Cates had presided over several other death cases and was never overturned. He had heard enough.

On June 23, 1998, the judge ruled that Thompson was not a reliable witness and was incompetent to testify at Green's retrial.

Cates' decision left the state's case in shambles. With no eyewitness, no gun, no fingerprints, no search warrant and a flawed investigation, State Attorney Smith could have cut his losses and dropped the charges.

Instead, he prepared to go to trial again, even though a murder case couldn't have looked much worse than this. While Green languished in the county jail, investigators poked around for a jailhouse snitch to testify against him. They couldn't find one. They tried to get his former girlfriend to reconsider her alibi testimony. She wouldn't. They filed an appeal to let Thompson testify. They lost.

Smith says he was always motivated by justice, not by winning at any cost. "Every prosecutor's worst nightmare is to lock up the wrong person," he says. "I believed Joseph Green was the killer and I still do."

But in the United States, you can't keep a person locked up indefinitely on suspicion, and when no new evidence turned up, Cates ordered Green released.

Last July 7, after six years and seven months in prison, including 3 1/2 years on death row, Green walked down a hallway and listened to the heavy metallic clanging of jail locks for a last time. Then he walked into a heavy rainstorm. Leukel and D.C. Johnson were waiting for him, and one jailer shook Green's hand. "They did you wrong," Johnson says the jailer told him.

photo
ROBERT CATES
Circuit judge

After the Florida Supreme overturned
the verdict, the trial judge threw out
the testimony of the state's star
witness.
Green left in prison blues, sneakers, a watch with a dead battery, a fake gold chain and $265 from his prison account. He climbed into Johnson's silver Lincoln, his eyes puffy, his bushy Afro looking like something out of the 1970s. He combed down his hair, and the private eye and lawyer whisked Green off to Goodwill. There, Leukel bought him a blue pinstriped suit, gray slacks and a few button-down shirts.

Then they adjourned to Leukel's office for a T-bone steak and champagne celebration. "Words can't say what it feels like being a free man," Green said.

For the next few weeks, Green says, he decompressed, drifting from his lawyer's office to his brother's house to a dim Starke motel room. Sometimes, he sat alone deep in thought about how much free time he had. Sometimes, he cried because he was free. And when he heard voices outside, he worried that someone would break in and attack him.

"I was scared to go out," Green says now. "I thought I might be a target."

Meanwhile, Smith's office worked behind the scenes to close the case without saying the state of Florida had put the wrong man on death row.

They got Green's attorney to agree to an unusual scenario: Leukel and prosecutor Cervone would jointly give Cates a copy of the transcript from the first trial -- deleting Lonnie Thompson's testimony, Green's illegally seized clothes and the prosecution's too-zealous questioning of the defense eyewitness.

The judge, in turn, would read the transcript and decide if Green was guilty.

But without Thompson's testimony, there was nothing except Judy's dying words: that a skinny black man came out of the shadows and shot her.

"Without Lonnie's testimony," Cervone says now, "there's nothing conclusive against Joseph."

That's the closest the state of Florida has come to apologizing to Green.

* * *

Today, seven years later, Starke is still haunted by Judy Miscally's murder.

For Russ Miscally, who is remarried and still living in the area, the best thing he can say about his ordeal is that it's over.

"It tore us all apart," he said. "We'd just like to let it lay."

The lesson, he added, is "don't ever try to put someone on death row. They got appeal, appeal, appeal."

A year after the murder, Miscally sued the MAPCO company for failing to maintain proper security at the convenience store. He settled for $450,000, a court document shows.

The store is now a Starvin' Marvin. The management removed the pay phone, installed security cameras and put in florescent lights with a sign on the side of the building: NO LOITERING.

Sylvia Wheeler, who keeps a photograph of her best friend in her office, said she still can't go inside that store. She still can't look at the wall where the phone was mounted and she weeps sometimes at the mention of Judy's name. "The Boss is gone," she said, "and there's no justice."

For some in Starke, the case simply reinforced a belief that criminals hold the upper hand, that the justice system can't even put away killers who shoot people in public.

Others disagree. Judge Cates, for one, says the system worked because a careful appellate review stopped a potentially fatal miscarriage of justice.

Some jurors who convicted Green and recommended his execution say they are bothered by the way the investigation was handled. Accountant E. Marie Polk said she still thinks Green is guilty but admits to doubts. She always wondered why the police zeroed in on Green so quickly.

"I don't think we'll ever know for sure who killed Judy because the evidence is gone," she said. "Whoever's guilty knows they're guilty and God will pay them back."

Like others touched by Judy's death, Lonnie Thompson is still trying to get his life "unstuck."

"They done tried to screw me up," he said. "The way they said it, I'm crazy."

Thompson, now 40, unloads oranges and chews tobacco at the 301 Quik-Stop on U.S. 301. To this day, he insists he "seen the whole thing. I did. I seen them tusslin' over 50 cents."

Jeff Leukel, Green's attorney, has stopped drinking but his practice still struggles. He feels shunned in Starke and thinks about moving his business to Flagler County.

"He's not one of our favorite citizens," Police Chief Epps says. "He's not really a local."

Just about the only people who have rebounded are the politicians like Epps. Since Judy's murder, the chief has faced re-election three times and won three times. And State Attorney Smith has been mentioned as a possible candidate for Florida attorney general. Smith is frequently in the news these days for investigating corrections officers suspected of beating to death Frank Valdes, a death row inmate.

In Starke, everyone has a theory about who murdered Judy. The black community especially is full of gossip, and some people there say it's definitely not Joseph Green.

But if Green is innocent, catching the real killer -- or killers -- seems less and less likely. Leads are stale, memories have faded and witnesses are gone or behind bars.

One rumor around town is that a convicted robber has confessed. Supposedly, he told another man that he shot Judy and tossed the gun in a nearby woods. According to the rumor, that man also admitted to the convenience store pay-phone robbery a week after Green was in custody. In the second pay-phone attack, the 28-year-old victim told police his assailant -- a skinny black man with a shiny pistol -- grabbed cash and fled.

Prosecutor Cervone says he checked out that lead but won't comment further. The police don't seem especially interested in the new information, or any other tips for that matter. As far as they're concerned, their investigation ended the day after the crime, when Green was arrested on Judy's dying words.

Epps says he can't find a single mistake in his department's investigation. Like prosecutors Smith and Cervone, the chief said he'll go to his grave believing Green killed Judy and got away with it.

"They don't want to admit they made a mistake," Leukel said. "So they don't want to know the truth."

photo
[Times photo: Pam Royal]
$50 a day changing tires at the D&E Tire Co. in Pompano Beach. 
The state attorney's office is not moving quickly to officially clear Green. Prosecutor Cervone, who had promised to review the trial transcript by Thanksgiving, said he has been too busy to get around to it.

Shortly after Green was released, Leukel bought him a bus ticket to Miami, where he married a shy, gentle nurse named Margie Leverson. He got his driver's license on the third try and found a job for $50 a day changing tires at the D&E Tire Co. in Pompano Beach.

As Green waits for his acquittal papers, his life settles into a routine: He gets up before sunrise, puffs on Newports and lounges around Margie's pink, frame house until his friend comes to drive him to work. At the tire shop, he changes about 50 tires a day, sometimes wolfing down Kentucky Fried Chicken at lunch. He wears dark glasses; after so many years inside, sunlight hurts his eyes.

Green, who turns 44 next month, said he avoids going places alone. Loud noises bother him, and whenever he hears an air conditioner humming, he thinks about electricity in the death chamber.

Like others in the small but growing club of death row survivors, Green complains that the state gives him no counseling, no job training, no medical care. He thinks he deserves compensation, but big money is unlikely because of his troubled past.

"How do I vent the rage?" he asked on a recent Sunday as Margie's six grandchildren streamed in and out of the house in a working-class neighborhood.

"There are two victims in this case. There's the Miscallys and there's me. . . . They literally railroaded me. The killer's still out there."

Times researchers Kitty Bennett and Cathy Wos contributed to this report.

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