Blood and Truth: Chapter four of six
Science offers scrutiny
Tommy Zeigler sat on his cot on death row in November 1987, reading a story from the Orlando Sentinel about a warehouse supervisor who had been convicted of rape.
The case — prosecuted by a young attorney in Orlando named Jeff Ashton — marked the first time in American history that someone had been convicted with a DNA test, and the implications were profound.
Ashton had pursued DNA analysis after reading an ad for paternity tests in the Florida Bar Journal. The science had originated in the lab of a British geneticist, and the process had been used to arrest a murderer and rapist in England.
Zeigler read with interest as a scientist explained that DNA molecules lived in every cell of the body. They resembled long, spiral ladders that could be broken into pieces with enzymes. When the pieces were placed in jelly and underwent a process called electrophoresis, the ladders settled into distinct bands that could be compared. These “genetic fingerprints” could be extracted from blood, semen, hair roots and skin.
“It’s a wonderful, wonderful thing for prosecutors and for defense attorneys,” Ashton said at the time to a reporter. “It’s a truth-finding tool.”
Zeigler, then 42, leaned back against the concrete block wall of his cell and read the story again. He read it a third time.
Twelve years had passed since his 1976 conviction for murdering his wife, in-laws and a customer at his Winter Garden furniture store.
He recalled the prosecutor showing the jury how Zeigler had held his father-in-law in a headlock while hitting him with a metal crank. If that were true, wouldn’t the man’s blood have to be on the shirt Zeigler wore that night? If Ashton, the 30-year-old prosecutor, could use DNA to convict the warehouse supervisor, it could be used to clear Zeigler.
He wrote to his New York attorneys, suggesting the evidence in his case be tested for DNA.
Maybe the truth of what happened that night was written in blood.
Two years later, in an Orlando courtroom, Ashton projected pictures of the four victims in Zeigler’s case on a screen, one after another. He wanted the images to make an impression on the judge now tasked with reconsidering Zeigler’s death sentence. Ashton had inherited the case from State Attorney Robert Eagan, who had retired at the end of 1988.
“This kind and gentle man whose heart bleeds for every kitten he owns put a gun to the back of his wife’s head and coldly shot her,” Ashton told Circuit Judge Gary L. Formet. “This man is a quadruple murderer. To let this man someday walk the streets would be a horrible injustice.”
Zeigler sat next to a team of appeals lawyers from New York, who were representing him for free. They had not yet filed a request for DNA testing.
Zeigler was back in court due to an error by Circuit Judge Maurice Paul in the original trial.
The U.S. Supreme Court two years before said Paul made a mistake in another capital case by limiting character witnesses in the penalty phase. That ruling had led dozens of Florida death row inmates, including Zeigler, to seek new sentencings.
One of Zeigler’s friends, a physical therapist at the local hospital, now testified that Zeigler was “one of the most ambitious, kindest men he knew.” Zeigler had paid one family’s gas bill and bought groceries for several elderly residents of his family’s apartment buildings.
“I never heard him boasting about any of it,” said a friend of the family at the hearing. “He just did it.”
Zeigler’s record on death row showed he’d been disciplined for having an illegal coil to heat coffee, for possessing a tiny screwdriver to fix his glasses and for flooding the floor of his cell with tap water.
But Ashton called another death row inmate, Eddie Odom, to testify against Zeigler. Odom said that he and Zeigler had discussed a plan a decade earlier to pay a third inmate up to $20,000 to confess to the furniture store murders.
Ashton also produced notes written by Zeigler to Odom, providing details of the crime. But the money exchange had never taken place, and Florida had executed the other inmate in 1986.
Under cross-examination, Zeigler admitted he’d discussed a plan with Odom out of desperation. The exchange with the prosecutor got so heated that the judge asked Ashton not to approach Zeigler “in an aggravating manner” and to “keep it calm.”
Zeigler said he was not guilty of the murders, and he felt as if the state “had ramrodded this thing down my throat.”
“I felt like I had no other hope. That’s not a very good answer, but it’s the truth.”
The U.S. Supreme Court had overturned the death penalty in 1972, three years before the furniture store murders. One justice said it represented “cruel and unusual punishment.”
The justices cited racial prejudice, executions of the innocent, inexperienced defense lawyers and a system of justice too arbitrary to pass constitutional muster. The death sentences of more than 600 inmates were overturned.
Florida was the first state to revise its capital punishment law, providing tiers of scrutiny and a narrowed definition of who should receive the death penalty, the goal being to create a fairer system. It also became one of three states to give the trial judge — rather than a jury — the final say.
On July 2, 1976, the U.S. Supreme Court restored the death penalty across the country. The decision came the same day Zeigler’s jury convicted him.
Since that day, 1,486 people have been executed in the United States, 1,213 of them in the South. Texas has executed the most, 556. Florida, fourth on the list, has executed 96 by lethal injection or the electric chair.
But the problems once cited by the high court persist. In Florida, 28 people have been exonerated from death row, more than any other state, according to the Death Penalty Information Center. Most of those men were minorities, and combined, they spent 201 years incarcerated for crimes they didn’t commit.
That includes Robert Hayes, a horse groomer, absolved of raping and murdering a co-worker. Prosecution experts at his 1991 Broward County trial had testified that the hairs found clutched in the victim’s hand belonged to Hayes, a black man. They actually belonged to a white man.
And Juan Melendez, a 33-year-old migrant fruit picker with a ninth-grade education who was convicted of killing a beauty school owner in Auburndale. No evidence connected Melendez. His conviction was mostly based on the testimony of someone with a grudge. After 18 years on death row, Melendez’ conviction was overturned in 2001. A judge agreed that prosecutors withheld evidence.
And Frank Lee Smith, who spent 14 years on death row.
Smith had grown up in south Georgia, the abused son of a sharecropper. He’d killed twice, once when he was 13 years old in self-defense, and had spent 15 years in prison, winning parole in 1981.
In 1985, he was accused of raping and murdering an 8-year-old girl in her Fort Lauderdale bedroom.
Smith told officers that he’d been home at the time of the murder. He did not have a droopy eye or a silver ring, as a witness described the killer, and he wore thick glasses. Under pressure from police, a woman identified Smith even though she would later say she knew it wasn’t him. Smith’s defense attorney did not pursue hair or blood analysis and kept his client from testifying to prevent jurors from finding out about his prior convictions.
Tommy Zeigler remembers Smith telling him in the yard one day: “I’ve been guilty of other things but not this one.”
Three-and-a-half years after his conviction, Smith’s appeal was turned down. Gov. Bob Martinez, who had pledged if elected that Florida’s “electric bill would go up,” signed his death warrant.
But then a defense investigator turned up evidence that the killer was Eddie Lee Mosley, a frequent mental patient and cousin of the dead child’s mother.
In December 2000, the state prosecutor’s office performed the DNA test that exonerated Smith and pointed to Mosley. All 28 Death Row inmates from Broward eventually had the evidence in their cases reviewed for potential DNA testing. Pinellas County did the same thing.
In Broward, DNA tests connected Mosley to another case. Jerry Frank Townsend, a carnival worker, had confessed to six murders and a rape. His attorneys said he had the mental capacity of an 8-year-old and wanted to please police.
In June 2001, Townsend walked out of prison after 22 years. Smith never left. He died of cancer at age 52 — 10 months before the DNA tests proved him innocent.
Dennis Tracey was an associate at a 20-person Manhattan commercial law firm, five years out of New York University law school, when he first heard Zeigler’s name.
Tracey’s mentor, a partner in the firm, had volunteered his legal services to the NAACP. The group, which objects to capital punishment, asked him to help Zeigler, who was days away from a death warrant.
Tracey and his mentor reviewed all the files and were dumbstruck. The evidence was inconclusive and inconsistent. An FBI specialist had destroyed photos of a batch of partial fingerprints from a gun; a loose tooth observed in a crime scene photo had been lost; an FBI analysis of the blood had somehow neglected subtyping. At the time, blood typing had to be performed within the first two weeks or the information was lost forever.
This meant that no one really knew what blood belonged to which person, because Zeigler and one of the victims had Type O, and three victims had Type A.
The lawyers filed a public records request with the state attorney’s office and found multiple police reports never turned over to Zeigler’s original defense attorneys, as required by law. That included a tape-recorded interview with a Minnesota tourist who had stayed with his family on Christmas Eve 1975 at the Winter Garden Inn, next door to Zeigler’s furniture store.
The man told an Orange County investigator that he saw a police officer go to the back of the store, holding a gun, and then heard shots just after 9 p.m. That contradicted the prosecution’s theory and timeline.
"As long as you heard the gunshots after you saw the police car, that wouldn't help us a bit,” the investigator says on the recording.
When the man asked if police want to talk to his mother, who had also witnessed the scene, the investigator replied: "Not unless you all get together and decide you heard those gunshots before you saw the police car. In that case, we'd give you a free trip back to Florida."
All of this and other arguments went into Zeigler’s next appeal, which was denied. The courts said lawyers should have filed the records request earlier.
In 1994, a year before the O.J. Simpson case thrust DNA testing into the national spotlight, Zeigler’s lawyers petitioned for it, hoping the blood analysis might get him a new trial.
The technology was still in its infancy, and few courts had even considered its use. But in Zeigler’s case, the courts ruled that he was too late filing, since he could have asked for DNA testing as early as 1988.
“Nobody seemed to want to know the truth,” Tracey said.
Sen. J. Alex Villalobos, a Republican from Miami, was watching TV one night in 2001 when he saw a national news program about a man exonerated after taking advantage of another state’s DNA testing statute.
The next day, Villalobos, a former prosecutor, called to ask how Florida handled post-conviction DNA testing. The answer was that Florida did not. So later that year, Villalobos introduced a bill to help longer-serving death row inmates obtain DNA testing.
He thought everyone would think it was a good idea. Who wouldn’t want to make sure a death row inmate was guilty?
But several people asked him not to pursue it. He was told it would make victims relive the crime and flood the courts with unwanted appeals.
Villalobos’ response was always the same. Justice was the pursuit of the truth.
His legislation passed in a compromise between the House and Senate later that year. Rule 3.853 required the inmate to show how the test would exonerate or change a sentence, and there had to be a question about the person’s identity that DNA could solve. Initially, the law provided a two-year time limit to file the request, but that was later eliminated.
Ellyn Setnor Bogdanoff, a senator from Fort Lauderdale, championed that change, to provide more time for appeals. She, too, ran into opposition from fellow Republicans bent on being tough on crime.
She said she explained then to the House speaker: “As Republicans, we are the ones who are supposed to keep government in check. And when we allow government to prosecute people and put them in jail for the rest of their lives and they’re innocent, that’s not keeping government in check.”
In 2002, lawyers removed the clothes Zeigler wore the night of the murders from the evidence locker in Orlando. A newly assigned judge had granted Zeigler’s second request to conduct DNA testing.
The petition sought to test four one-inch squares on Zeigler’s undershirt and corduroy shirt, pants pocket and back knee — places recommended by a forensic scientist who said those tests would reveal if Zeigler was the killer
The results came a few months later. Zeigler’s lawyer went to tell his mother, now 90 years old and in a nursing home.
There was good news, he told her.
Not a drop of blood on the squares from Zeigler’s shirts or pants matched his father-in-law, Perry Edwards Sr. Zeigler could not have shot Edwards four times, held him in a headlock and struck him with a metal crank, as the prosecutor suggested at his 1976 trial, without getting any blood on his shirt. Surely, everyone would see that.
The tests also revealed that Charlie Mays, whom Zeigler accused of being his attacker, had Edwards’ blood on his pants.
When Beulah Zeigler died a few months later, she had hope her son might go free.
Times multimedia journalist Cherie Diez and senior researcher Caryn Baird contributed to this report.
Contact Leonora LaPeter Anton at [email protected] or @WriterLeonora.
Comment