Very dubious trial in Florida suggests slowing Old Sparky

National Catholic Reporter, Sept 1, 1995 by Colman McCarty

Since 1978, 34 men convicted of homicide have been killed in Florida's electric chair, a.k.a. "Old Sparky." The 35th was to have been Joseph Spaziano, on death row for 19 years for the 1973 murder of Laura Harbets, a young hospital worker whose body was found in a Seminole County dump.

In the 1975 trial, the jury, which was twice deadlocked but ordered to push on, recommended a life sentence for the former president of the Orlando Outlaws Motorcycle Brotherhood. Florida is among the states allowing judges, in their robed wisdom and knowing they must run for reelection, to override sentencing juries. This judge ordered death.

In late May, Gov. Lawton Chiles issued a death warrant for Spaziano's execution on June 27. On June 16, and following an unprecedented outflow of editorials in the state's major newspapers calling for clemency or a new trial based on the flimsiness of the state's case, Chiles granted a temporary stay of execution.

Like previous chief executives of Florida -- the state is second to Texas in the number of executions -- Chiles does not hesitate to sign death warrants. He is not alone in his beliefs. Congress, the Supreme Court and Bill Clinton are now a united chorus for quickening the pace of executions. The president, calling appellate delays "ridiculous and interminable," agrees with Republican death-penalty champions that one appeal is plenty.

The Spaziano case starkly counters this voguish faith in hurried justice. Twenty years were needed for doubts about Spaziano's guilt to filter up to a governor and persuade him to pause to consider the defendant's persistent claim of innocence.

Among the glaring dubieties, the major one involves the fingering testimony of the state's key witness, Tony Dilisio, a 16-year-old LSD and pot user when the crime occurred. When first questioned, he offered only vague and uncorroborated accounts of what Spaziano allegedly said in general about murdering people. To joggle the youth's memory -- no physical evidence was found to connect Spaziano to the crime -- police interrogators called upon a hypnotist. So entranced, Dilisio now "remembered" that Spaziano had taken him to the dump to show him the victim's body and brag of killing her.

The jury was not told by Spaziano's lawyer that the recollection of the dumpsite visit was induced by hypnosis. Florida now thinks better of allowing this sort of quackery into courtrooms. It was outlawed -- although not retroactively -- in 1985.

Dilisio, now 37, agrees. Located by Miami Herald investigative reporters last month, he stated: "Surely they're not going to let Spaziano go to the chair, to have his blood shed, on what a confused and scared kid said." Dilisio added that he "could very well have been brain-washed. ... With hypnosis, they plant things in your head."

The case turned on that planting. The prosecutor told the court, "If we can't get in the testimony of Tony Dilisio, we'd have absolutely no case whatsoever."

It was a lawyer of relentless energy who argued for Spaziano's innocence. Michael Mello, a professor at Vermont Law School, an author of two dozen law review articles on capital punishment and one of a handful of specialists in post-conviction homicide law, is a former Florida public defender who has represented some 70 condemned men.

Mello has practiced long enough to know that review courts, including the Supreme Court, trade in questions of procedure and rarely on evidentiary issues of guilt and innocence. They are part of an increasingly busy assembly line, with death rows packed with nearly 3,000 people.

Mello is an experienced professional, skilled in unearthing evidence that persuades skeptics. This case, so riddled with questionable tactics and based on one person's sketchy testimony, prompts him to say, "I'm convinced Spaziano is innocent. I have never encountered a murder conviction that smells so rotten at its core."

Of his role in gaining the governor's attention, Mello, who has worked pro bono on the case, is modest: "The execution was stayed because of the Miami Herald's old-fashioned gumshoe reporting. It tracked down Dilisio and for the first time in 20 years he talked. It was not any defense lawyer or judge who stopped this execution. The Herald saved the legal system from itself."

True, so far. Spaziano could still get the chair. His hope for freedom is to be decided this month by the Florida Board of Executive Clemency, comprised of the governor and his cabinet. One of its seven members is the attorney general, whose office is hell-bent to see Spaziano killed. In a July 27 motion, it smeared Michael Mello as "unethical" for having successfully publicized the case: He "lathered up the media to accomplish exactly what he wanted."

That's quite a claim. It's about as credible as the original -- and now disavowed -- testimony of the hypnotized teenage druggie.