Blood and Truth: Chapter six of six
Epilogue
One day this past February, Ray McEachern rode down the sidewalk of a historic railroad town on a shiny electric scooter, the front of it obscured by a large, framed announcement:
$25,000 reward
Weekday tourists and locals heading to lunch in Winter Garden glanced curiously at the 79-year-old as he stopped at First Baptist Church, the museum, the liquor store, the police department, the city’s oldest hotel, City Hall.
McEachern had driven two hours to get here, on a mission to shake loose information from these red-brick streets.
Circuit Judge Reginald Whitehead had once again ruled against Tommy Zeigler’s request for DNA testing. McEachern had purchased a flier in the Orlando Sentinel that day offering the reward in exchange for testimony that might exonerate Zeigler. To pay the reward, McEachern had taken out a line of credit on his Port Richey home. That was how strongly he believed in the man’s innocence.
But the town where Zeigler grew up and ran his family’s furniture store is now a tourist attraction, with a quaint, leafy downtown and a clock tower surrounded by hanging baskets of white petunias. The train that once chugged through the middle of Winter Garden is long gone. There’s a boba tea bar and a bright yellow caboose in front of the old Atlantic Coastline Railroad Depot, which is now the Winter Garden Heritage Museum. It sells delicate wooden ornaments carved with the town catchphrase: A Charming Little City with a Juicy Past. They’re referring to the oranges.
In this old Southern town of 44,000, few wanted to recall the gory memories or talk about Zeigler.
“I believe in the system,” said a man at the museum. “He’s convicted, and he’s on death row. He ought to be executed.”
McEachern continued on, unfazed.
“He was convicted, but he’s innocent,” McEachern said to a gray-haired man in skin-tight shorts outside the bike shop.
“He’s been in the pen for 40 years,” the man hissed back, turning away. “That’s where he oughta stay.”
At the liquor store, the owner stared at McEachern blankly as the retiree talked.
“The only thing that can help him is if people in this town write the governor and say test the DNA,” McEachern said, handing him a reward flyer. “Why wouldn’t any governor be willing to do that?”
J. Alex Villalobos, the former Republican senator who helped write Florida’s DNA statute almost two decades ago, was disturbed to learn earlier this year that Zeigler and others were being denied testing.
The whole point of the law, he said, was to remove doubts where possible.
“If you really did it, you’re not going to ask for the test,” Villalobos said.
Former State Sen. Ellyn Bogdanoff said lawmakers should correct the problem.
“This is not rocket science, OK?” said Bogdanoff, also a Republican. “If you put one innocent man in jail ... are we truly the democracy that we think we are?”
Today, every state has a DNA testing law. But inmates across the country struggle for access to the technology, even though it can bring scientific certainty to old cases, especially those muddled by inept investigations or junk science.
“If we’re interested in the truth and interested in avoiding executing the innocent, we need to be allowing this kind of testing,” says Robert Dunham, executive director of the Death Penalty Information Center in Washington D.C.
The U.S. Supreme Court, in 2009, decided that inmates do not have a constitutional right to access state evidence, allowing the states to determine how and when they permit DNA testing. In a dissent, Justice John Paul Stevens wrote that there is no reason to deny access and many reasons to provide it, “not least of which is a fundamental concern in ensuring that justice has been done.”
Death row inmates aren’t the only ones struggling to obtain DNA testing. Those facing lesser sentences, including life, also are often rejected.
African Americans are disproportionately affected by wrongful convictions. Of the 480 people exonerated with the help of DNA, including 18 in Florida, almost 60 percent are African American, according to the National Registry of Exonerations. Combined, they served 7,418 years in prison.
“In 2018, it is just as hard to get post-conviction DNA testing as it was before we had a post-conviction DNA testing law,” said Seth Miller, executive director of the Innocence Project of Florida, “and that’s completely upside down.”
Miller suggested the statute could be amended to favor DNA testing, placing the burden on the state “to demonstrate by some high standard why this person is not deserving of the testing.”
Florida, he said, also should remove barriers to private, accredited testing paid for by the defendant or his lawyers.
In 2006, the American Bar Association — concerned about fairness and accuracy in Florida’s death penalty — investigated.
The Florida Death Penalty Assessment Team found geographic and racial disparities in sentencing, too many inmates on death row with severe mental disabilities and a DNA statute that gave judges a lot of leeway in turning down requests. The group recommended that the state create a commission on wrongful convictions and that a panel of judges review claims of innocence. Florida’s deep history of failing innocent death row inmates demanded it.
Florida did neither.
Last spring, at his office in Casselberry, O.H. Eaton Jr. dropped a stack of appeals from Zeigler’s case that he’d read on his desk. He’d counted 27 of them.
Eaton, 75, is a retired circuit judge and nationally recognized expert on the death penalty.
He is not involved in Zeigler’s case, but he spent 26 years on the bench and taught other judges how to try death penalty cases.
He said he understands how an innocent man can be put to death in Florida. He suspects it’s happened more than we know.
He once served on a statewide death penalty task force and thought that he could help rewrite the law to prevent injustices. He grew to realize it was impossible.
Among the major challenges: Those attempting to prove innocence years down the line will find a system weighted toward the initial verdict. It becomes an incontrovertible fact.
“Attacking the results of the jury trial, you’ve got to climb a mountain,” Eaton said.
When Zeigler filed motions accusing prosecutors of misconduct, he had to prove not only that prosecutors withheld witnesses or evidence. He had to prove that it would have changed the result of the trial. The courts ruled that it wouldn’t.
The same arguments have been applied to testing the blood evidence.
Eaton referred to a ruling by Supreme Court Justice Antonin Scalia that acknowledged that the judicial system doesn’t always get it right. But court resources are limited.
“If I fiddle around hearing a case over and over and over by Joe, then that means I can’t handle Sam’s case,” Eaton said. “Every court has to say that there’s a time that it’s over. We’ve done all we can do for you.”
Retired Florida Supreme Court Justice James E.C. Perry spent almost eight years on the bench laboring over the death penalty. He said he devoted 60 percent of his time to people facing execution. He retired in 2017 at age 73.
Perry, the first and only African-American circuit judge in Seminole and Brevard counties, believes the death penalty is applied in a biased and discriminatory fashion.
Two years ago, the Florida Supreme Court ruled that only juries should impose the death penalty, not the trial judge. That came 14 years after the U.S. Supreme Court reached the same conclusion in an Arizona case.
But the Florida decision gave relief only to those sentenced after 2002. Inmates like Zeigler who have been on death row the longest — for 30 or 40 years — have little recourse.
In an interview at his home in Longwood this past summer, Perry said the decision to grant review only to those sentenced after 2002 was a compromise.
Perry, in his dissenting opinion, wrote that the arbitrary date meant that some fates depended on little more than a “roll of the dice.”
With regard to DNA evidence, he said, there should be no doubt left when someone is facing execution.
“We shouldn’t hide behind these procedural safeguards to keep somebody from exonerating themselves.”
How could dozens of police officers, prosecutors and judges all see a path to Tommy Zeigler’s guilt if he was an innocent man? How could so many others look at the same evidence and be convinced that he was wrongly convicted? Were people on either side only seeing what they wanted to see?
Circuit Judge Maurice Paul, who sent Zeigler to death row and later became a U.S. District Court judge, spoke little about his role in the case before his death in 2016 at age 84.
One of Zeigler’s lawyers once asked at a hearing why he decided to give Zeigler death after the jury recommended mercy.
“I did it to fulfill a promise that I made to uphold the law,” he said, “and the law and the evidence requires that sentence in this case.”
Detective Don Frye died in 2017 at age 80. He never wavered in his belief that Zeigler was the killer and always defended his police work. In a TV documentary a few years ago, he said he knew about an attempted robbery of a gas station and an averted armed robbery at a five and dime across from Zeigler’s furniture store on the night of the murders but had decided they were unrelated.
The blood spatter expert whose testimony was so pivotal in Zeigler’s case went on to testify for the defense at the O.J. Simpson trial. Herb MacDonell was later charged with second-degree sexual abuse and forcible touching of two girls at his home in Corning, N.Y.. He pleaded guilty in 2013 to second-degree harassment, a misdemeanor, and was given probation.
His work also has been discredited.
Blood spatter analysis is speculation, not science, according to a ProPublica investigation earlier this year. That report highlighted MacDonell’s role in spreading subjective analysis across the country. He influenced thousands of cases.
MacDonell, now 90, could not be reached for this story.
Handyman Edward Williams, the strongest witness against Zeigler, died at age 89 in 2007. The test results on the clothes he turned over to police contradicted his testimony but arrived days after Zeigler’s trial was over.
There was no gunshot residue in his pants pocket, where he said he put one of the murder weapons after Zeigler gave it to him. The black boots he gave to officers also had new tags on the bottom and no scuff marks, raising suspicions that he’d changed clothes after running from the store.
Felton Thomas, who said he was with Charlie Mays and Zeigler earlier on the night of the crime, later told private investigator Lynn-Marie Carty that he had never been shown a lineup or a photograph to identify Zeigler before seeing him in court.
“How were you sure you identified the correct white man?” Carty asked him, in a recorded interview.
“Because they told me that they had the man,” Thomas replied.
Leigh McEachern, who helped arrest Zeigler, once accused State Attorney Robert Eagan, the prosecutor, and Judge Paul of meeting privately before the trial, a meeting prohibited by court rules. He said he heard Paul say to Eagan: “Get me one conviction, and I’ll fry the son of a b----.”
Eagan and Paul both denied the meeting ever took place, and the claim was dismissed by a judge.
McEachern later had his own troubles and spent three years in prison after being arrested in 1976 for stealing from the investigative fund, something he always denied.
The first two officers at the furniture store on the night of the murders later said that some evidence looked different in crime scene photos. For example, Mays’ pants weren’t pulled down when they arrived.
Terry Hadley, who represented Zeigler at the original trial and believed he was innocent, said the death sentence traumatized him. He never took another criminal case.
Zeigler’s supporters — Carty, Ray McEachern, death row chaplain Dale Recinella and others — continue to lobby on his behalf.
Earlier this year, Recinella — who has witnessed 17 executions — spoke about Zeigler and the death penalty at a conference at Florida State University law school. He explained the state’s argument against DNA testing.
The logic, he said: “Too much time has passed. It has been too long. These cases need closure. We should just kill him and get it over with.”
Perry Edwards Jr., Zeigler’s brother-in-law and the man who inherited his family’s property in Florida, died in 2013, soon after Carty started considering his involvement in the crime. She later learned he had been the source for homosexual rumors about Zeigler.
Edwards’ wife, Sandra, who once accused her husband of violence in a divorce filing, refused to talk to the Tampa Bay Times about the case outside her home in Moultrie, Ga., one day last summer.
“Perry’s mother, daddy and sister were outstanding people,” she said. “Best anybody could have.”
Mays’ wife, Mattie, and her sons could not be reached for this story. She always maintained that Mays went to the furniture store that Christmas Eve to pick up a TV, not to rob Zeigler.
But one of Mays’ sons, Ernie, told his store manager, who was also a police officer, that he saw his father put a pistol in his pocket before leaving that Christmas Eve and that Charlie Mays kept saying there “would be plenty of money for Christmas.” The officer provided defense attorneys with an affidavit in 1982.
Eagan, the state attorney, is dismissive of the evidence produced since the trial, and he denies he did anything wrong. No one has ever been disciplined for not turning over records to Zeigler’s defense attorneys.
He doesn’t think DNA tests would prove anything.
“Could it show that Edward Williams is lying? Could it? I don’t think so. Could it show that somebody else shot (Zeigler)? I don’t think so.”
Zeigler’s attorneys contend that it could do that and more.
“To prevent us from even doing the testing, from even looking at the physical evidence to see what it shows … is like discovering that you have a video of the crime and yet you won’t even play it,” said David Michaeli, one of Zeigler’s lawyers.
Zeigler’s appeals have all but run out. His lawyers have reached out to Orange-Osceola State Attorney Aramis Ayala, hoping that she’ll allow DNA testing. Ayala defeated former prosecutor Jeff Ashton two years ago. She would not agree to an interview with the Times.
Irma Brickel, the juror who felt intimidated and voted to convict after being given a Valium, died in 2016.
The Florida Supreme Court ruled in 1993 that the Valium didn’t matter since her doctor prescribed it. “Rather than judicial misconduct,” the court wrote, “this allegation simply reflects judicial concern for the well-being of one of the jurors who had fainted earlier in the trial.”
Holly Cason, now Cleveland, 68, a retired bank executive who also served on the jury and was convinced of Zeigler’s guilt, still lives in Jacksonville. Before this year, she hadn’t been interviewed about what happened in the jury room and whether she’s had any regret about her decision.
She listened recently as a reporter explained how Zeigler had been unable to get full DNA testing.
She thinks the evidence should be tested, that’s only fair, she said.
She still believes he’s guilty, but she wonders.
“Now,” she said, “I have doubt.”
In Winter Garden, as Ray McEachern discovered, anger and sadness punctuate any conversation about that Christmas Eve.
The building where the Zeiglers once sold couches, curtains and hanging lamps is now the Edgewood Children’s Ranch Thrift Store. An employee looked up recently and said to a visitor, “You here about 1975?” He pointed to a bullet hole still in the glass at the front of the store.
An older woman standing close by couldn’t resist speaking up.
“I wish they’d fry him right now,” she said of Zeigler. “I’d be the first to help.”
Tommy Zeigler accepts that he’ll likely die on death row, one way or another. He has gotten used to this life, knows how to fit in and is respected thanks to his seniority and quiet demeanor. If he is guilty, he is an incredible actor.
Ashton, the former prosecutor who was recently elected circuit judge, has said as much.
Zeigler, Ashton said, has the ability to look you in the eye and appear like he is telling the truth.
Zeigler says he is telling the truth.
He wasn’t a gay man living a double life, and he didn’t need the insurance money, he said. He said he loved his wife.
“I didn’t commit these murders,” Zeigler said, “and there’s no way any scientific evidence will say I did.”
Zeigler said he never understood why Ashton, the man who first used DNA to convict someone in the United States, wouldn’t let Zeigler test the DNA at his own expense. Just thinking about it triggers a rare outburst.
“Is that justice?” he said angrily. “Are they looking for justice? Are they looking for truth or veracity or integrity?”
He answered his own questions: No.
Times photographer Cherie Diez and senior researcher Caryn Baird contributed to this report.
Contact Leonora LaPeter Anton at [email protected] or @WriterLeonora.
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