Did Florida Almost Execute an Innocent Man?

By Tena Jamison Lee

Maybe it was his unfortunate nickname, or maybe it was a community's bloodlust for revenge, but whatever it was, "Crazy" Joe Spaziano has spent the past 20 years in prison, possibly an innocent man.

Convicted of the 1973 murder of 18-year-old Laura Lynn Harberts, Spaziano has come within inches of being executed by a system that seemed to repeatedly and almost blatantly overlook one crucial point. Save for the testimony of a 16-year-old who held a grudge and "remembered" key facts under hypnosis, the state of Florida had no credible evidence against Spaziano.

"Regardless of what people think about the death penalty in the abstract, it does in fact send innocent people to death row and will, in fact, execute an innocent person," stressed Michael Mello, University of Vermont law professor and former public defender.

Believing "in the very marrow of my bones" that Spaziano is innocent, Mello says this case is a perfect example of a legal system gone awry. He's been involved in the case since the fall of 1983. Working with him to right this possible wrong is Stephen Hanlon, a partner at Holland & Knight, and co-chair of the IR&R Section's Committee on Civil Rights and Equal Opportunity.

Mello and Hanlon are quick to share credit, not only with the dogged determination of defense attorneys and judges, but to the involvement and down-right advocacy of The Miami Herald, which appears to have shamed the court system for now into preventing the execution.

"Joe Spaziano would not be alive today if not for The Miami Herald," said Hanlon. "This was not allowed to take place in the dead of the night as so many executions do."

The fact that this former death row inmate owes his life to a Florida newspaper is just one of many disturbing aspects of a case that spans 20 years.

On Aug. 21, 1973, the badly decomposed bodies of two women were spotted by a pool digger in a Seminole County trash dump. Some reports said the bodies were badly mutilated. One body was identified as Harberts, a hospital clerk who had a penchant for hitchhiking. The other body has never been identified.

Most of the initial investigation centered around one suspect, Lynwood Tate, who had been arrested by police in his hometown of Athens, Ga., after he was accused of rape by an Orlando woman. Bank receipts showed that he opened a bank account in Orlando around the time of the Harberts disappearance. He also applied for a job at the hospital Harberts had worked at.

Tate was interrogated, underwent a polygraph test and was hypnotized. He failed a lie detector test and the investigator concluded in a report that everything, "indicated strongly that Lynwood Tate did commit the murder of Laura Lynn Harberts and the other unidentified female." Tate was never charged but remained a suspect until 1974.

In 1974, investigators began talking to Tony DiLisio, a 16-year-old drug user who admired Joe Spaziano's status as a chapter president of the Outlaws, an infamous motorcycle gang. They believed Spaziano may have been having a tumultuous affair with DiLisio's stepmother. She had once told a reporter that she was raped by Spaziano, but didn't press charges.

When first interrogated by police, Dilisio wasn't much help, saying he didn't know about the murders. Investigators apparently weren't convinced and decided to have him hypnotized by Joseph McCawley, a local fellow whose work has been questioned in the past.

After being hypnotized twice, DiLisio said he remembered Spaziano showing him two dead bodies. The induced testimony was just what prosecutors were waiting for. They proceeded with their case.

At the trial in January of 1976, DiLisio "remembered" that Spaziano had taken him to the dump to show him the two mutilated bodies and bragged of killing them. The jury was not told that these "recollections" were induced by hypnosis.

Most of DiLisio's testimony was inconsistent and went unchallenged by defense attorney Ed Kirkland. Initially, DiLisio said he was taking the drug LSD when he saw the bodies. At the trial, he said he didn't use any LSD until after he saw the bodies. He also gave testimony that conflicted with what he previously recounted about what he saw at the dump site.

Noting that their case hinged on his testimony, the prosecutor told the court, "if we can't get in the testimony of Tony DiLisio, we'd have absolutely no case whatsoever." They offered no physical evidence linking Spaziano to the murder.

After a lengthy deliberation, the jury returned with a guilty verdict. They recommended life in prison, a sentence that could indicate they didn't believe firmly in Spaziano's guilt: if they thought he committed this brutal crime, they probably would have sentenced him to death.

Mello has a juror affidavit stating that the jury recommended life imprisonment rather than death because they weren't so certain that Spaziano was guilty at all. The jury's only choices at the guilt/innocence stage were acquittal or conviction of first degree murder.

At trial, Spaziano's Outlaw biker colleagues sported full biker regalia, tattoos and all. Jurors weren't so sure they wanted to let Spaziano back on the streets. They opted to put him in prison for life.

Judge Robert McGregor overrode their recommendation and sentenced Spaziano to the death penalty.

Mello was assigned to Spaziano's case in the fall of 1983 while at the Office of the Capital Collateral Representative.

"I thought that the trial was a joke--as screwed up as any I'd read about," says Mello who is one of a handful of specialists in post-conviction homicide law and has represented some 70 condemned men, including confessed serial murderer Ted Bundy.

"When I first get involved in a case, guilt and innocence are irrelevant to me." After meeting his client a year later, Mello was convinced of his innocence. "He had this straightforward way about him."

Three key issues jumped out at Mello when reviewing the case, and still trouble him today:

• It violated the federal constitution to permit judges to override a jury recommendation of life imprisonment.

  Mello raised the issue in a certiorari petition to the U.S. Supreme Court, which granted cert in the spring of 1984. Since the jury usually represents a cross section of the community, they are perhaps more sympathetic, her argued. He pointed to a study that found when judges are elected, they tend to be more death penalty prone, especially in high profile cases.

  Furthermore, he maintained, the death decision is a moral judgment, not a legal judgment.

  He lost his argument. The U.S. Supreme Court upheld the conviction 6-3 with Justices Brennan, Marshall and Stevens dissenting. The dissenting judges reasoned that it is cruel and unusual punishment for a judge to overrule a jury and impose a death sentence on his own.

  Florida is one of four states including Indiana, Alabama and Delaware, that allows a judge to override a jury's sentence. Since the responsibility of sentencing was divided between the judge and the jury, neither had responsibility for Spaziano's life.

  It didn't help that Spaziano was feared and loathed by the community, and the Orlando Sentinel clamored for his death.

  A judge can override a jury when "no reasonable juror could have ever come to that conclusion." Based on the available evidence, Hanlon is surprised the judge came to the death penalty conclusion.

  "We have a horrendous problem here in Florida," agrees Hanlon. "Jury overrides are routinely upheld in Florida...and it has worked the opposite of what the law intended."

• The key witness in the Spaziano trial revealed information only under hypnosis.

  In the 1985 case, Bundy v. State of Florida, the Florida Supreme Court ruled that hypnosis-induced evidence is unreliable and inadmissible. The Florida Supreme Court refused to apply its 1985 decision to Spaziano's case.

• The jury was never told that DiLisio's memory was "enhanced" by hypnosis.

Prosecutors introduced into evidence that Harberts' roommate heard her speaking to a "Joe" on the phone the night she disappeared.

What police and prosecutors knew, but didn't disclose, was that Harberts was talking to a coworker and known sex offender, Joe Suarez, not Joe Spaziano. Mello also learned after Spaziano's first trial that Suarez denied to the police that he had been with Harberts on August 5, 1973, just weeks before her body was found.

More importantly, in an undisclosed documented interview, police were able to conclude that Suarez was with Harbert on the night of her disappearance.

Mello failed to persuade the state trial judge, the justices of the Florida Supreme Court, a federal district judge, three judges on the Eleventh Circuit Court of Appeals, and the justices of the U.S. Supreme Court to look at any of this new evidence. In 1994, he filed another certiorari petition with the U.S. Supreme Court, to no avail.

"It is a court rule that if the defense attorney did not make proper objections during the trial, then the error cannot be raised on appeal. Also, federal courts must defer to state procedural rules. Because of this, no court has ever ruled on the merits of the evidence demonstrating Mr. Spaziano's innocence," wrote Mello in the 1995 Fall Vermont Law Review.

On May 24, 1995, Florida Gov. Chiles signed another death warrant for Spaziano. His execution date was set for 7 a.m., June 27, 1995.

Feeling defeated by the courts, Mello decided to do something he swore he would never do. He took his case to the media.

He had admired the Pulitzer Prize-winning book, Invitation to a Lynching, by Miami Herald senior editor Gene Miller, which traces the story of Freddie Pitts and Wilbert Lee, who were innocent of their crimes.

Mello pleaded with Miller, who finally agreed to review the case. Miller combed through trial transcripts, police reports, transcripts of the hypnosis sessions of the state's star witness, and audio tapes of those hypnosis sessions. He then passed the information over to Warren Holmes, who had been his chief investigator in the Pitts and Lee case.

Both Miller and Holmes came to believe that Spaziano was innocent.

With only a month left before the execution date, the newspaper assigned a bevy of reporters to attack the story from all angles. They began with tracking down Tony DiLisio.

In 1985, Mello sent his own investigator to a small Californian town where DiLisio lived, but DiLisio wouldn't talk. Ten years later, in March of 1995, an investigator from the Capital Collateral Representative office (where Mello worked) found DiLisio in Pensacola, Florida. He still wouldn't talk.

Mello finally gave the Pensacola address to Miami Herald reporter Lori Rozsa, whose first encounter with DiLisio ended with a curt slamming of his door in her face. She tried two more times, but couldn't get him to talk.

Finally, on her fourth visit to his door, DiLisio opened up, inviting Rozsa into his kitchen and confessing to her that the police had pressured him to finger Spaziano 20 years earlier.

He told of being offered his freedom from a juvenile facility in exchange for testifying against Spaziano. He told of his father's hatred toward Spaziano for having an affair with DiLisio's stepmother. He told of his willingness to do anything to please his abusive father. He told of finding God and wanting to clear his conscience. It was just the story the Herald (and Spaziano) needed.

Rozsa wrote of the recantation and subsequent stories championing Spaziano's innocence. Other media began to pick up the story and champion Spaziano's cause of being falsely accused. The Orlando Sentinel, however, fought tooth and nail for Spaziano's execution.

Pressured by media reports, Governor Chiles stayed the June 27 execution and ordered a state investigation by the Florida Department of Law Enforcement into DiLisio's recantation. The report, which was sealed, nevertheless challenged whether DiLisio's recantation was credible.

Chiles signed a new death warrant on August 24, 1995, Spaziano's fifth.

On September 8, Mello approached the Florida Supreme Court requesting a stay of execution and an evidentiary hearing. The stay was denied, but the hearing was granted.

The court ordered Mello, an appellate lawyer with very little trial experience, no associates and no investigator, to handle an evidentiary hearing one week later. The court also ordered the Capital Collateral Representative office to assist. Mello argued that a week was not enough time.

On September 12, 1995, the court threw Mello off the case and granted Spaziano another stay. An evidentiary hearing to explore DiLisio's recanted testimony was scheduled for the second week of January, 1996.

Enter Hanlon and Holland and Knight, Florida's largest law firm with 475 lawyers strong. Lead by Gregg Thomas, a partner of the firm's Tampa office, along with Jim Russ, a prominent Orlando criminal defense lawyer, the team quickly assembled to explore the single issue of DiLisio's recantation. The Thanksgiving and Christmas holidays flashed by them, unnoticed.

"We worked day and night on this case," admitted Hanlon. "An enormous effort is involved in a death penalty case. All circumstances surrounding his testimony needed to be investigated."

Two expert witnesses on repressed memory were called, as well as DiLisio himself who stood by his recantation. The firm donated about $400,000 in lawyer time as well as $400,000 in costs to handle the hearing. The time and money apparently paid off.

One day before the 20th anniversary of the murder conviction that sent Spaziano to death row, Florida circuit court judge O.H. Eaton, Jr., ordered a new murder trial for Spaziano.

"In the United States of America every person, no matter how unsavory, is entitled to due process of law and a fair trial. The defendant received neither," Eaton wrote in an eight-page ruling. "The validity of the verdict in this case rests upon the testimony of an admitted perjurer who had every reason to fabricate a story which he hoped would be believed."

The state has decided to appeal the decision to the Florida Supreme Court and recently filed an initial brief in the case.

As both sides gear up for another round, Spaziano waits in prison, although now off of death row. He is serving time for a rape conviction that also hinges on the testimony of Tony DiLisio.

If his persistent attorneys and supporters have their way, Spaziano may some day become a free man.

Sidebar: The Media's Role in Spaziano's Case

Tena Jamison Lee is a legal affairs writer in Little Rock, Arkansas.