PUBLISHER'S NOTE: "What do police informants have to do with forensic science? (I'm glad you asked). Investigative Colloff give us a clue when she writes - at the link below - "I’ve wanted to write about jailhouse informants for a long time because they often appear in troubled cases in which the other evidence is weak." That's my experience as will as a criminal lawyer and an observer of criminal justice. Given the reality that jurors - thanks to the CSI effect - are becoming more and more insistent on the need for there to be forensic evidence, it is becoming more and more common for police to rely on shady tactics such as use of police snitches, staging lineups, coercing, inducing, or creating false confessions out of thin air, procuring false eyewitness testimony or concealing exculpatory evidence."
Harold Levy: Publisher: The Charles Smith Blog.
BACKGROUND: "(James) Dailey is a veteran who has spent 34 years on death row. His conviction was based almost entirely on the testimony of prolific jailhouse informants, one of whom was a known crooked cop facing over 20 counts of fraud and larceny. For his testimony, which also sent three other men to death row and many others to prison, the informant received leniency in his own sentencing. Over the years, numerous other informants have come forward to allege that a man named Jack Pearcy is solely responsible for the crime in question, the murder of a young woman, and, in fact, it was Pearcy that prosecutors initially went after for the crime, but, when a jury failed to hand down a death sentence for him, the prosecutors turned their focus and energy toward Dailey. Pearcy has repeatedly confessed to being the sole perpetrator in the homicide, even going so far as to sign a sworn affidavit at one point. Dailey has also been excluded as a source for the existing forensic evidence in the case, a hair found in the victim’s hand. But none of this really seems to matter in Florida, a state that leads the country in exonerations from death row, with 29, and that has carried the highest number of executions since reinstatement, a whopping 99. Despite all of these factors, Dailey has been unsuccessful at obtaining a new trial and still stands to be executed in the near future."
BACKGROUND: "(James) Dailey is a veteran who has spent 34 years on death row. His conviction was based almost entirely on the testimony of prolific jailhouse informants, one of whom was a known crooked cop facing over 20 counts of fraud and larceny. For his testimony, which also sent three other men to death row and many others to prison, the informant received leniency in his own sentencing. Over the years, numerous other informants have come forward to allege that a man named Jack Pearcy is solely responsible for the crime in question, the murder of a young woman, and, in fact, it was Pearcy that prosecutors initially went after for the crime, but, when a jury failed to hand down a death sentence for him, the prosecutors turned their focus and energy toward Dailey. Pearcy has repeatedly confessed to being the sole perpetrator in the homicide, even going so far as to sign a sworn affidavit at one point. Dailey has also been excluded as a source for the existing forensic evidence in the case, a hair found in the victim’s hand. But none of this really seems to matter in Florida, a state that leads the country in exonerations from death row, with 29, and that has carried the highest number of executions since reinstatement, a whopping 99. Despite all of these factors, Dailey has been unsuccessful at obtaining a new trial and still stands to be executed in the near future."
Hannah Cox: National Manager of Conservatives Concerned About the Death Penalty
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PASSAGE ONE OF THE DAY: "Across Florida, newspaper editorial boards and columnists have cited the reporting by ProPublica and the Times Magazine on Skalnik in expressing their concern about Dailey’s possible execution. Tampa Bay Times columnist Daniel Ruth wrote that there would be “blood on DeSantis’ hands” if he allowed Dailey to be put to death. The Orlando Sentinel warned: “Gov. DeSantis Must Not Be Conned into Executing James Dailey.” Miami Herald opinion columnist Carl Hiaasen cautioned that “sending a man to his grave on the worthless word of Paul Skalnik wouldn’t be justice. It would be a shameful travesty.” “It seems clear that the state never had enough real evidence to convict Dailey, so it turned to lies — lies that have come undone,” wrote The Daytona Beach News-Journal’s editorial board. DeSantis has indicated that he is waiting for the case to play out in the courts. But over the past several months, the courts have not looked favorably on Dailey’s attempts to have his case reconsidered. Dailey’s case highlights a strange fact of the criminal justice system: Because the standard for proving actual innocence is incredibly high, judges are often reluctant to overturn convictions even when evidence emerges that casts the original facts of the case into doubt or reveals once-incriminating testimony to be far more ambiguous."
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PASSAGE TWO OF THE DAY: "An unlikely coalition of groups has filed amicus curiae briefs. These “friend of the court” filings — submitted by the United States Conference of Catholic Bishops, eight former and current prosecutors and Conservatives Concerned About The Death Penalty — ask the nation’s highest court to review Dailey’s case. “Generally, the weaker the prosecution’s case, the stronger the likelihood that prosecutors will resort to using jailhouse informant testimony,” the prosecutors wrote. “Because informant testimony is inherently unreliable, prosecutors have an obligation to present an accurate and complete picture of the benefits received so that jurors can consider in context the credibility to which the testimony is entitled. The evidence unveiled after Mr. Dailey’s trial about the jailhouse informants and their motives to testify stands in stark contrast to that presented during trial, thus undermining any confidence in the jury’s verdict.” As the courts sort out what will happen next, Dailey remains on “death watch,” steps away from the execution chamber."
SUB-HEADING: "A federal judge says key testimony used to
convict James Dailey of murder was likely false. Dailey’s co-defendant
has asserted — again — that Dailey had no involvement in the crime. So
far, that hasn’t made a difference in the courts."
GIST: "Two months after ProPublica and The New York Times Magazine published a joint investigation
that cast doubt on key testimony in a Florida death penalty case, the
fate of James Dailey remains uncertain. Dailey was scheduled to be
executed on Nov. 7, 2019, but he was granted a stay of execution last
fall. That stay expired on Dec. 30. Ever since, as Dailey’s attorneys
have sought to have his claims of innocence evaluated in state and
federal courts, one question has loomed over his case: What will Florida
Gov. Ron DeSantis do? Dailey
remains under an active death warrant — an order that authorizes his
execution should the governor set a new date — in a cell that is just 30
feet from Florida’s execution chamber. Dailey
and his co-defendant, Jack Pearcy, were convicted of the 1985 murder of
14-year-old Shelly Boggio. Pearcy received a life sentence. Dailey,
whose conviction rested largely on the testimony of con
man-turned-jailhouse informant Paul Skalnik, was condemned to death. The ProPublica-Times Magazine
investigation found that Skalnik was one of the most prolific, and most
effective, jailhouse informants in American history. In the 1980s, he
testified or supplied information in at least 37 cases in Pinellas
County, Florida, alone. Florida prosecutors put Skalnik on the stand
again and again, even though he was notoriously unreliable, and in
exchange for his damning testimony, they granted him leniency. Just five
days after Dailey was sentenced to death in 1987, Skalnik was released
from jail. Skalnik has always maintained that his testimony in Dailey’s
trial was truthful and that he did not receive any benefits in return.
DeSantis
can set a new execution date until March 23, when Dailey’s death
warrant expires. After that, the governor would have to sign a new
warrant before he could set an execution date.
Across
Florida, newspaper editorial boards and columnists have cited the
reporting by ProPublica and the Times Magazine on Skalnik in expressing
their concern about Dailey’s possible execution. Tampa Bay Times columnist Daniel Ruth wrote that there would be “blood on DeSantis’ hands” if he allowed Dailey to be put to death. The Orlando Sentinel warned: “Gov. DeSantis Must Not Be Conned into Executing James Dailey.” Miami Herald
opinion columnist Carl Hiaasen cautioned that “sending a man to his
grave on the worthless word of Paul Skalnik wouldn’t be justice. It
would be a shameful travesty.” “It
seems clear that the state never had enough real evidence to convict
Dailey, so it turned to lies — lies that have come undone,” wrote The Daytona Beach News-Journal’s editorial board. DeSantis has indicated that he is waiting for the case to play out in the courts.
But over the past several months, the courts have not looked favorably
on Dailey’s attempts to have his case reconsidered. Dailey’s case
highlights a strange fact of the criminal justice system: Because the
standard for proving actual innocence is incredibly high, judges are
often reluctant to overturn convictions even when evidence emerges that
casts the original facts of the case into doubt or reveals
once-incriminating testimony to be far more ambiguous. In
December, U.S. District Judge William F. Jung rejected a request from
Dailey’s federal attorneys for an indefinite stay of execution so that
they could pursue his innocence claims. “A thorough review shows the
state’s trial case against James Dailey was not strong, but it was
sufficient,” Jung wrote. After
Jung’s decision, Dailey’s federal attorneys requested permission from
the U.S. Court of Appeals for the 11th Circuit to file an additional
federal habeas petition in which they asked that his claims of innocence be considered. But they were rebuffed in a ruling on Jan. 30. Paul Skalnik has a decadeslong
criminal record and may be one of the most prolific jailhouse informants
in U.S. history. The state of Florida is planning to execute a man
based largely on his word. In a remarkable footnote to the ruling, Chief Judge Ed Carnes acknowledged
that Skalnik’s testimony at Dailey’s trial was likely false. “The
layout of the jail where Dailey was housed and the procedures in place
for prisoners in protective custody, like Skalnik, establish that Dailey
could not have confessed to Skalnik in the way Skalnik said he did,”
Carnes wrote. “And other evidence indicates Skalnik lied about other
matters during the trial.”
But
neither Skalnik’s lies, nor other evidence Dailey’s lawyers presented
to the 11th Circuit, ultimately mattered. “Dailey’s new evidence, at
most, casts some degree of doubt on some of the testimony the State
presented at trial,” Carnes wrote. “But we are not jurors deciding in
the first instance whether the State has proved its case beyond a
reasonable doubt. We are a court of appeals deciding more than 30 years
after a murder whether the inmate who was convicted of it, and whose
conviction has been upheld at every turn for three decades, has shown a
reasonable likelihood of meeting the ‘extraordinarily high’ burden of
making a ‘truly persuasive demonstration’ that he is actually innocent.
Dailey has not done that.” Carnes, a former Alabama assistant attorney general, has long been assailed as overzealous in his pursuit of the death penalty — even in cases tainted by racial discrimination that were decided by all-white juries. An Alabama legal journal dubbed him “Mr. Death Penalty.” Dailey’s
lead federal attorney, Carol Wright, condemned the ruling. “The court
today says that proof of innocence is not enough,” she wrote in a statement to The Tampa Bay Times.
“The court today says even if the state’s theory of the conviction is
disproved, if the court can imagine any scenario of guilt however
implausible an innocent man can be executed. The system is broken.” Though
Dailey’s appeals have not made headway in the federal courts, his case
is also currently before the 6th Judicial Circuit Court in Clearwater,
Florida, and it is there, as the possibility of his execution looms,
that his legal team is fighting to have the courts examine his claims of
innocence. One
of the most compelling issues before the court is an extraordinary new
admission from Pearcy. In December, in a meeting with one of Dailey’s
attorneys, Pearcy signed an affidavit
that stated: “James Dailey had nothing to do with the murder of Shelly
Boggio. I committed the crime alone. James Dailey was back at the house
when I drove Shelly Boggio to the place where I ultimately killed her.” Pearcy
has now repeatedly confessed to being solely responsible for the crime
for which he was sentenced to life in prison and for which Dailey was
sentenced to death. In
2017, he signed a sworn affidavit in which he asserted that Dailey was
not present when Boggio was killed. But when he was called to the stand
the following year to attest to this under oath, he invoked his Fifth
Amendment right against self-incrimination. Over the years, Pearcy has given numerous different accounts of the crime — at times blaming Dailey and other times inculpating himself. On
Feb. 20, Circuit Judge Pat Siracusa will consider whether to grant the
defense’s request for an evidentiary hearing at which Pearcy could be
called to testify. Another issue before the judge concerns what
prosecutors knew about Skalnik’s criminal history when they called him
to testify at Dailey’s trial. As
the ProPublica-Times Magazine investigation revealed, Skalnik was
arrested in 1982 and charged — but never prosecuted — with “lewd and
lascivious conduct on a child under 14,” after a 12-year-old girl said
he assaulted her. The state attorney’s office ultimately dropped the
charge against him and continued to use him as a jailhouse informant.
Once the charge was dropped, Skalnik was able to portray himself to
jurors as a far more innocuous figure than he actually was. This
was true at Dailey’s trial, as well. When Skalnik was cross-examined in
that trial, one of Dailey’s attorneys pressed him about his criminal
history, asking, “How bad were your charges?” Skalnik
was quick to reply: “They were grand theft, counselor, not murder, not
rape, no physical violence in my life.” He never mentioned his arrest
for the molestation charge. Prosecutors
did not object to this characterization. In fact, they doubled down on
the idea that Skalnik was morally superior to the man who sat at the
defense table. “There is a hierarchy over in that jail, just like in
life,” prosecutor Beverly Andrews said in closing arguments, drawing a
distinction between Skalnik’s theft charges and the murder charge that
Dailey faced. “Some crimes,” she added, “are worse than others.” Did
the prosecutors who tried Dailey — Andrews and Robert Heyman — know
about Skalnik’s molestation charge, but not disclose it to jurors? Both
have strenuously denied any wrongdoing. Last month, Dailey’s attorneys filed a motion
with the 6th Judicial Circuit Court alleging that Heyman “was aware of
the sexual assault charges previously faced by Skalnik and dismissed by
his office.” They pointed to handwritten notes the state attorney’s
office turned over in a separate capital case in which Skalnik
testified. The notes appeared to be from Dailey’s trial and referenced
the testimony of a Pinellas County sheriff’s detective, John Halliday,
about Skalnik. Next to Skalnik’s name, the words “sex assault” had been
crossed out. Dailey’s
attorneys had suspected that the notes belonged to Heyman, who
questioned the detective during Dailey’s trial. According to the motion
they filed, Heyman said the notes were his in a January interview with
ABC News that has not yet aired. “Mr.
Heyman was apparently prepared to ask Halliday about Skalnik’s prior
sexual assault charge, but, after Skalnik’s false testimony regarding
his criminal history, Mr. Heyman did not,” Dailey’s attorneys assert in
the motion. “The State permitted Skalnik’s false testimony about his
criminal history to stand uncorrected.” (The state has not filed a
response thus far.) Dailey’s
attorneys have previously argued that jurors could not fairly assess
Skalnik’s credibility as a witness without knowing his full criminal
history. Heyman’s admission allowed them to make a powerful new
argument: that the prosecution not only knew Skalnik had misrepresented
his history, but then let that mischaracterization stand and bolstered
his testimony with representations that he was merely a thief. In doing
so, Dailey’s attorneys allege, Heyman “perpetrated a fraud on the
court.” In light of that, they argue, the 6th Judicial Circuit Court
should vacate Dailey’s conviction and death sentence. If Siracusa grants the defense’s request for an evidentiary hearing, Heyman could be called to testify. Dailey’s attorneys have also filed a petition for writ of certiorari
with the U.S. Supreme Court, asking its justices to review the Florida
Supreme Court’s refusal to consider Pearcy’s 2017 sworn affidavit. An
unlikely coalition of groups has filed amicus curiae briefs. These
“friend of the court” filings — submitted by the United States Conference of Catholic Bishops, eight former and current prosecutors and Conservatives Concerned About The Death Penalty — ask the nation’s highest court to review Dailey’s case. “Generally,
the weaker the prosecution’s case, the stronger the likelihood that
prosecutors will resort to using jailhouse informant testimony,” the
prosecutors wrote. “Because informant testimony is inherently
unreliable, prosecutors have an obligation to present an accurate and
complete picture of the benefits received so that jurors can consider in
context the credibility to which the testimony is entitled. The
evidence unveiled after Mr. Dailey’s trial about the jailhouse
informants and their motives to testify stands in stark contrast to that
presented during trial, thus undermining any confidence in the jury’s
verdict.” As the courts sort out what will happen next, Dailey remains on “death watch,” steps away from the execution chamber."
The entire story can be read at:
https://www.propublica.org/article/a-liars-testimony-convinced-a-jury-to-convict-a-man-of-murder-will-florida-execute-him-anyway?utm_source=pardot&utm_medium=email&utm_campaign=dailynewsletter
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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