MIAMI HERALD

DEATH ROW INMATE'S APPEAL CHAMPIONED BY LEGAL GIANT
The petition to save Florida Death Row inmate Billy Kelley has been submitted to the U.S. Supreme Court, familiar territory for powerhouse attorney Laurence Tribe.
Miami Herald By Meg Laughlin
March 5, 2005


In the wee hours of the morning, a third-year Harvard law student of professor Laurence Tribe's sat staring at his laptop on his grandmother's 1930 dining-room table in a drafty Victorian house. He wore the same green flannel pajamas he had put on two days before, and had not slept since. At 2:30 a.m. Thursday, he clicked the ''send'' icon on his screen.

With this gesture, he began the last step in an adversarial process that is the bedrock of the American justice system: the right of the criminally convicted to overturn grave error.

And, so, a petition was on its way to the U.S. Supreme Court.

At stake: The life of Billy Kelley on Florida's Death Row. Twenty-one years ago, a jury convicted him for the murder of Sebring citrus grower and cattleman Charles Von Maxcy -- which occurred 39 years ago.

From Cambridge, Mass., Tribe's 40-page plea went by e-mail to a Boston print shop, which made 40 copies and sent them overnight to Washington, D.C., for a Friday arrival at the high court.

LEGAL TWISTS, TURNS

In 2002, Broward U.S. District Judge Norman C. Roettger, who died in 2003, granted Kelley a new trial. State prosecutors said they could not retry Kelley, clearing the way for his release from prison.

Roettger, known as a champion of the death penalty, said he believed Kelley was innocent. He also named the likely killer (now dead) in court documents, and signed an order saying Kelley could leave Florida's Death Row and go live with his brother in Tewksbury, Mass.

''Billy had his toothbrush packed,'' said Texan Jimmy Lohman, one of Kelley's appellate lawyers.

But a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta overturned Roettger's decision and reinstated Kelley's conviction. Chief Justice Gerald Tjoflat wrote the opinion.

Now the only thing standing between Kelley, 62, and a lethal shot of potassium chloride is the petition to the U.S. Supreme Court by Tribe -- a legal giant who represented Al Gore in the recount battle after the 2000 election.

Charles Von Maxcy was stabbed to death in the bedroom of his Sebring ranch house in October 1966. In 1967, a jury convicted Boston mobster John Sweet, the secret lover of Maxcy's wife, Irene, for the murder after Irene testified against him.

But Sweet was released from prison a year later after Irene admitted having an affair with the lead homicide detective in the case. By 1981, Sweet, who died in 1989, was facing a hefty prison sentence for running theft and fraud rings in Massachusetts. To save himself, he offered to name the hitmen in the Von Maxcy murder in exchange for immunity. One was dead; the other, he said, was Kelley, a small-time Boston crook.

`NOTHING TO GAIN'

At Kelley's second murder trial in Sebring -- the first ended in a mistrial -- the only evidence against him was Sweet's testimony. No witnesses, no blood samples, no hair, no fingerprints connected Kelley to the murder. After closing arguments, the jury was so confused about Kelley's possible role in the murder that the foreman sent a note to the judge questioning Sweet's motives for implicating Kelley and asking the prosecutor if Sweet had anything to gain by his testimony.

The prosecutor, Hardy Pickard, now a prosecutor in Polk County, responded that ``Sweet had nothing to gain by his testimony.''

In 2002, after Kelley had been on Death Row for 18 years, Roettger ruled that Kelley should be given a new trial because Pickard ''misled the jury'' about the immunity deal and was guilty of ''prosecutorial misconduct'' for ``withholding evidence.''

But a year later, the 11th U.S. Circuit Court of Appeals reinstated the conviction.

The primary reason: The appellate panel did not think the jury needed Pickard's clarification on the immunity deal to consider Sweet a ''sullied witness'' because of information already revealed by cross-examination about Sweet's dishonesty.

In the petition ''for writ of certiorari'' that Tribe filed to the Supreme Court, he argued that in a capital case no evidence should be overlooked because ``withholding even a single item of exonerating evidence might well tip the scales against the accused . . .''

To further entice the court, Tribe wrote that the Kelley ''case is a fitting vehicle'' for the high court ''to address [a] circuit split'' -- a difference of opinion in federal appellate courts across the country -- about whether additional impugning evidence should be introduced.

''If Billy's case had been heard in Washington, D.C., or the Ninth Circuit [which consists of nine western states], he would have been set free. A life shouldn't depend on geography,'' Tribe said.

A FIRST FOR TRIBE

Although Tribe has argued 36 cases before the U.S. Supreme Court -- 22 of them successfully -- he has never involved himself with a capital case before Kelley's.

His main reason for this involvement, he said, is to answer this question: ``How much should prosecutors be permitted to suppress key evidence and get away with it, especially when they deceive the defense, the judge and the jury?''

Tribe does not lack backup legal firepower. He sought the advice of top experts on the death penalty, including Anthony Amsterdam, who directed the legal challenge that invalidated the death penalty in 1972.

For the high court's previous term -- October 2003 through June 2004 -- the justices received 8,883 petitions from Death Row inmates. They heard only 91.

Said Kelley from Death Row: ``If I lose, I'll just appeal to the Big Guy.''


Death Penalty Issues
Innocent Imprisoned

Truth in Justice