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PART TWO
The Innocence Defense
photo
[Times photo: John Pendygraft]
Jan. 25, 2003: The morning after his release, Holton is still adjusting to light and open spaces. His daughter, Sontrivette Holton-Daniels, took him to the mall. He shopped for a Bucs jersey.

Unraveling Rudolph Holton's death sentence proved to be nowhere near as simple as convicting him. Five months after a young woman was found strangled in an abandoned crack house, he was tried, convicted and, the same afternoon, sentenced to die. His case sat for 10 years - until a lawyer just out of law school, who didn't know any better, got involved.

By DAVID KARP, Times Staff Writer
© St. Petersburg Times
published February 10, 2003


TAMPA -- It had turned cold, the days had gotten shorter, and still they had not found Flemmie Birkins.

On and off for three months, the private investigators drove around Tampa looking for him. Fourteen years earlier, Birkins' testimony had put Rudolph Holton on death row. He said Holton admitted strangling a 17-year-old.

photo
[Times photo: John Pendygraft]
Attorney Linda McDermott says the first time she read Holton’s case, she thought, “How did they convict this person?” Getting him out took six years -- and led her to discover the depths of her outrage.

Holton's attorney, Linda McDermott, had not heard Birkins testify, she had never met him. But from the first time she read his words in type she was convinced his story didn't make sense. She told her investigators:

"You have to find Flemmie. You have to get him to admit that he's a big, fat liar, and you have to get him to testify. There is no alternative, and there is no other thing that can happen."

Investigators Jeff Walsh and David Mack would start at sunrise; if Birkins was a drug addict, they wanted to talk to him early in the day, when he likely would be most coherent. They trolled street corners and hung out nights at the open-air Laundromat on Armenia Avenue. They knocked on doors up and down Walnut Street in West Tampa.

They looked throughout the fall and into the winter of 2000. Around the turn of the year, they made their way into the circle around a bonfire at North Boulevard Homes, a public housing project. They said they were trying to save a man on death row.

"Be here at 9," someone said.

The next morning, they say, Birkins came riding down the sidewalk, carrying a plastic bag. Mack stepped in front of his bike. "Yo, Flemmie."

Related links
Changing stories
After Rudolph Holton was convicted of strangling Katrina Graddy in 1986, some witnesses changed their stories.

Part two: Photo gallery [2/10/03]

Part one:
The Innocence Defense [2/09/03]

Previous coverage
Delays in death row case irk governor
Bush may order a review of the case because of a long-delayed police report and recantations by two witnesses that led to a release. [1/28/03]

Freed after years on death row
A man convicted of a 1986 murder is released; the state says it lacks enough evidence to retry him. [1/25/03]

They needed to know about Holton.

"I need to talk with my lawyer," Birkins said.

Walsh laughed to himself. "Who's your lawyer?" They said they would go with him.

No, Birkins said, he needed two hours to deliver his bag; meet him at the "blue store," the Sav-Mor Market on Rome Avenue. He pedaled off.

* * *

The investigators killed the next two hours at a fast food restaurant, reporting to McDermott that they had found Birkins, and worrying they had just lost him. They waited at the blue store.

Right on time, Birkins rode up and leaned his bike against a Dumpster. He said he had consulted his lawyer. His lawyer was God.

So what was the truth about Rudolph Holton?

"I set him up."

Birkins had been facing a long prison term. He said he made up Holton's confession to save himself.

He started to sob and leaned against the hood of the investigators' car. Walsh told him he needed to tell his story to a judge.

"I am never going to court saying that. You don't understand how Tampa police work."

If he admitted lying under oath, they would arrest him on the spot, Birkins was sure of it. If it got out that he was a snitch, people would hurt him, he was sure of that, too.

He had a long, hard cry, collected himself and gave Walsh a phone number. He said he would testify.

* * *

McDermott had staked her career on Holton's case. Disgusted with how politics hurt her clients, she had resigned in 1999 from the Tampa office of the Capital Collateral Regional Counsel, the agency that represents death row inmates. Unable to handle Holton's case on her own, she had gone back to the agency's Tallahassee office.

She had two months to prepare for a key hearing. For the umpteenth time, she reviewed her file on David Pearson, the man known as Pine. In 1986, when Holton was convicted of strangling Katrina Graddy, the judge had not given his lawyer time to find Pine.

McDermott's file included a police report dated June 13, 1986, 10 days before Graddy's murder. The report said Pearson had been questioned about a sexual battery, case #86-54078.

A sexual battery?

McDermott searched her boxes but couldn't find anything about it. She asked Tampa police for the report.

Less than an hour later, her fax machine delivered a bombshell: evidence favorable to the defense, evidence the state had been obliged to disclose -- but had not.

Using an alias, Graddy had accused Pearson of raping her, anally, after they smoked crack at the Park Motel on Florida Avenue. Ten days later she was murdered, raped anally.

Had the defense been given this police report, as the law required, Holton could have made the case that Pearson was the killer. Pearson had a motive: Graddy had smoked his crack cocaine and then accused him of rape.

Though the report was in their files, police did not make the connection between Graddy and Pearson. They never questioned him.

* * *

More than 14 years after Holton was sentenced to death, the day had come: He could put on evidence to prove he should get a new trial.

Walsh came early to meet Birkins and drive him to court. Birkins was waiting. He had showered and put on a clean white shirt.

"You didn't think I would be here," he said.

He paced like a nervous wreck. Out of prison eight years, he could not deal with going back.

"I'm not going to do it. I can't do it."

They drove to the Hillsborough County Courthouse Annex.

Waiting outside, a police officer came up and shook his hand: "Flemmie Birkins, we haven't seen you in some time."

"Well, you know," Birkins stammered.

The officer walked on.

"See," Birkins said. "Everyone knows me."

* * *

Inside, in Judge Daniel Perry's courtroom, Donald Lamar Smith testified in the blue prison garb of Wakulla Correctional Institution, where he was doing two years for possession of cocaine.

In 1986, Smith cut hair on the street in Central Park Village. Pearson was a regular, they were friends.

The morning Graddy's body was found, Smith came to the crime scene, where Detective Kevin Durkin was working. They spoke, but the lengthy report Durkin wrote later included no mention of this conversation.

Now McDermott asked Smith what he told the detective that morning.

He said Graddy had come looking for him, on his porch, about a week before. She wanted him to beat up Pearson because he had raped her.

"She had a lot of bruises around her neck. She told me he had choked her neck."

Smith and Graddy ran into Pearson that afternoon. Graddy screamed at him, and Pearson yelled back, "I'm going to kill your ass!"

Prosecutor Wayne Chalu was incredulous.

"So you knew that based on what you just testified to here that they had the wrong man in jail for this murder, right?"

"Well, I told the police who did it," Smith said. "If they would just find me. I was in the projects. So that was their job to do that."

"So if you're aware if somebody is innocent of a murder, and you know who the guilty party is, you're not going to volunteer it, right, sir?"

"Not in the projects. I'm just not like that."

* * *

The defense called Elease Moore, who lived next door to Graddy and her mother. She was 64, had lived in Central Park all her life and knew just about everyone.

She used to spend afternoons on the porch with "Big Carrie" Nelson, who died six years after the murder. It was Nelson who first put detectives onto Holton, saying she recognized him because he had broken into her home four times. Still, she had told the jury, "I don't hate him or nothing."

Years later, Moore said Nelson told her she really had not seen Holton that night.

"She was going to get even with him," Moore testified. "Her groceries were gone, and she believed Rudolph had stolen them."

Why hadn't Moore come forward sooner? "It wasn't important to me, sir," she said.

She had more.

The night of Graddy's murder, Moore said she was drinking gin and Bull and having sex with a man known as Georgia Boy. They fell asleep about 9.

That contradicted what Georgia Boy testified to at Holton's trial. He said he had seen Holton and Graddy together about 11.

Now Georgia Boy -- Johnny Lee Newsome -- took the stand and recanted as well. He had not seen Holton that night. He had seen him, near the house, three days before the murder.

"So you lied at his trial?" McDermott said.

"Yes."

There was Carl Schenck, the man police found sleeping in his car outside the condemned house. Schenck had picked up a hitchhiker and taken him to Central Park for drugs. He was never certain the hitchhiker was Holton; at trial he said it could have been him.

Now, the defense showed Schenck a photograph of David Pearson.

That looks a lot like the man too, he said. Police officers told him Holton was the killer.

"They told me that he was a burglar and he had like a two or a three hundred a day habit of cocaine, and they were pretty sure that was their man."

* * *

Flemmie Birkins took the stand and swore to tell the truth.

"When you testified against Rudolph Holton did you tell the truth?" McDermott asked.

"No."

"Did Rudolph Holton ever discuss the case with you?"

"No. The man never said anything to me about his trial or case or anything."

He heard about Holton's arrest on the news, and "I used it to my benefit."

Birkins said he made up Holton's confession because he was facing years in prison, as much as life. The prosecutor at trial said Birkins was facing just three years, and testified without a deal.

Now prosecutor Wayne Chalu pressed Birkins about whether Detective Sandy Noblitt offered him anything for his testimony.

"He knew what I wanted at the time."

"Well what's your answer? Did he promise you anything or not, and if so, what did he promise you?"

"I wouldn't do no time."

"So he promised you that, or is that what you asked for?"

"That he would help me, he could."

"He didn't offer you anything, did he, sir?"

"Not, not in writing, not that way."

Chalu showed him copies of his statement to police, his deposition and his trial testimony. He walked him through each document to show that Birkins had consistently told the same story and to suggest his new version was a lie.

"Now you were under oath, sir, when you made this statement?" Chalu said.

"Yes."

"Remember the court reporter swearing you in, and you swearing to the tell the truth, correct?"

"Yes."

"So three times, sir, the statement to Detective Noblitt, the sworn deposition, and the trial, you stated the same thing, didn't you, sir?"

"Right."

Birkins said he never told anybody he lied at trial until 14 years later, when McDermott's investigators found him. Chalu found it hard to believe that he shared such an intimate secret with a stranger.

"So you were talking to him after five or ten minutes, (and) the conversation (was) that you had committed perjury under oath in a murder trial; is that what you're telling us?"

"Yeah."

* * *

All along there had been a reason to question Birkins' story. McDermott didn't spot it until about the eighth time she went through Noblitt's and Durkin's report, a month or so before the hearing.

The police report documented the second time detectives took Holton from jail to police headquarters. It said they talked to him on June 26, starting at 5:10 p.m.

In the trial transcript, Birkins said Holton confessed to him in the jail clinic on June 26, between 5 and 5:30 p.m.

How could Holton have confessed in the jail clinic when he was at the police station?

The inconsistency could be as insignificant as someone getting a time wrong, or it could be a little piece of a big lie.

* * *

Seven months later, the morning of Nov. 2, 2001, Holton was on death row as Judge Perry ran through the calendar in his courtroom in Tampa. Holton's hearing lasted only moments, a clerk distributed the judge's 21-page written order.

The state's mistakes were inadvertent, Perry ruled, but the failure to turn over information favorable to the defense meant Holton's conviction could not stand. He was entitled to a new trial -- one the state probably could not win.

They called the next case. Lawyers, defendants and families went about the business of court, few of them aware of what had just happened. Quietly, a mountain had moved.

* * *

For another 13 months, Holton stayed on death row, waiting for the Florida Supreme Court to hear the state's appeal.

The morning State of Florida vs. Rudolph Holton was on the calendar, McDermott had cases back to back. For the first, she took her usual place, at the appellant's table: Her clients were always the ones asking that their convictions be overturned.

When Holton's case was called, she gathered her belongings to change tables; prosecutors were appealing this time. Stephen Ake, representing the state, offered that she was fine where she was. No, McDermott said. She wanted to move.

Ake went first. Shortly after he began, Justice Barbara J. Pariente jumped in.

"Can we get an overall review of this case, because it troubles me," she said. "It comes close to one of the closest cases to potential for actual innocence that I have seen. . . . Doesn't the state feel that under all the circumstances, that a new trial would serve the interests of justice?"

"No, your honor," Ake said.

The justices asked Ake and McDermott questions for 40 minutes. The court typically takes months to rule; this time it acted in six days.

The unanimous order, issued Dec. 18, 2002, said "competent, substantial evidence" merited a new trial.

* * *

The morning the news broke, a network of death penalty opponents connected across continents sprang to life. European abolitionists sent an e-mail blitz demanding Holton's release. Floridians for Alternatives to the Death Penalty had Holton's picture on its Web site with a link: Rudolph Holton, Innocent!

The group's 1,200 members started calling the State Attorney's Office at 8:36 a.m. By 10 a.m., secretaries were hanging up on them. The group also was organizing a vigil outside the Hillsborough County Courthouse.

McDermott called them off, worried that protests would only make prosecutors dig in. "In some ways, I don't want to be too pushy."

Many of the top staff of Hillsborough State Attorney Mark Ober were on vacation. Christmas passed. Then New Year's.

* * *

Ober vaguely remembered Graddy's murder, one of 123 in Hillsborough in 1986. Back then, he was part of a select group of prosecutors that handled only homicides.

He left to do criminal defense for 13 years and came back in 2000 as the elected state attorney. Now he had to decide: Take Holton to trial again or let him go.

He took the trial transcript home. It brought back memories; he had worked with prosecutor Joe Episcopo and tried murder cases in front of Judge Harry Lee Coe III.

Early in January, Ober convened the committee of his top staff that decides what to do in homicide cases. Detective Durkin, who had interviewed Holton, watched his demeanor and heard him change his story, told the committee he was certain Holton was the right man.

But in 16 years, the evidence had unraveled.

The hair that a prosecutor told the jury had to be Holton's wasn't his.

The informant who said Holton confessed now said he made it up.

An alternate suspect, whom police had not interviewed in 1986, had been found, along with a rape report linking him to Graddy.

Still, Ober did his homework.

Episcopo had told the jury that the cut on Holton's left hand could be evidence Graddy scratched him as she fought him off. Ober wanted to see if there was a medical basis for that argument. He sent the police photo of the cut to the medical examiner, who said it was old, it had nothing to do with the murder.

Ober's investigators found Birkins, working at the Salvation Army. He was missing his front teeth. He said somebody beat him up after he testified about being a snitch.

Birkins didn't want to talk again, but he came to the courthouse. Ober videotaped the interview.

He won't show the video but says Birkins changed his story again and said his 1986 version was the truth. He was recanting what he had recanted.

The committee met again and watched the video. Some in the room found Birkins' account credible; how could investigators have gotten him to admit to perjury so easily? They did not trust Holton's lawyers and investigators, who worked at the agency some called the "anti-Christ." They were zealots, willing to do anything for the anti-death penalty cause.

The room was divided over which Flemmie Birkins to believe, but there was little division about his value as a witness. They had no case.

* * *

McDermott didn't know what prosecutors were thinking. They had stopped returning her calls because they had nothing to tell her. She took it as a breach of professional courtesy.

She had reined in the death penalty activists, and how had prosecutors reciprocated? They let the holiday season slip by.

"I have worked weekends, holidays and New Year's -- and they should too," she said. "I'm sorry that they can't deal with the fact that we litigated the case -- and we won."

Her voice rose. It was "incompetent" for Ober to wait so long to analyze things, he should have studied the facts a year ago. After 16 years, the state was prolonging the inevitable, how dare they hold Holton one day more. "It's outrageous."

From her home computer, she drafted a motion demanding a speedy trial. If prosecutors wanted to try Holton again, they had 60 days; they were up to day 34.

* * *

That week, Tampa was consumed by the Bucs' trip to the Super Bowl. The Friday morning before the game, Ober sat down with Graddy's older brother, Winford Moore, to inform him he could not prosecute Holton. The witnesses were not reliable.

Moore understood. He knew Georgia Boy. "I wouldn't trust him no further than I can see him," he said.

Ober called Holton's defense team with the news just before 11 a.m.

Forty-five minutes later, the intercom rang in McDermott's office. It was Holton, breathing hard.

McDermott acted like it was any old day. "Hey, Rudy. What's going on?"

Holton choked up. The guards said he was going home.

Still playing: "You're going home?" Then, turning serious: "Yeah, you are going home."

"Oh man. This caught me by surprise."

"This caught you by surprise?"

We've been working on this for six years, she said. You knew it was coming.

"Thank you, Linda." he said, heaving. "I owe you."

"Don't worry about it."

The phone would not stop. The Los Angeles Times was on the line; CNN wanted her Monday night.

A camera crew showed up and interviewed Martin McClain, the nationally known lawyer who had assisted McDermott. They asked him about Gov. Bush's death penalty policies. McClain, who doesn't work for the state, answered. McDermott's boss, appointed by the governor, told the TV crew not to put such questions to her.

If they ask, Michael Reiter told McDermott, "I don't want you answering."

Later, with Reiter gone, the TV reporter asked the question McDermott was supposed to duck. What did she think of Bush's proposal to eliminate the CCRC and pay private attorneys to do the work?

"I think it's important to understand that these cases take a lot of time," McDermott said. Attorneys requested records in Holton's case in 1992 but did not get them until March 2001. "It takes a lot of time and resources to do these cases. It takes a lot of institutional history."

She left a message for her mother in Chicago.

"Hey, Mom, just wanted you to know that Rudolph is getting off. Love you."

She did not call her father. He wouldn't understand why getting someone off death row was good news.

McDermott and her team arrived at Union Correctional Institution after 5 p.m.

Across the road, reporters were waiting. Holton had scrawled out a statement. "I just want to say I'm sitting on top of the world, enjoying the moment of the victory of the freedom that I've been fighting for for many years. ... I forgive everybody."

A pickup truck drove by and circled back twice. The passenger screamed: "They deserve to die! They deserve to die! Burn in hell!"

* * *

His first night of freedom, Holton visited the Westminster Oaks Retirement Village in Tallahassee.

He wanted to meet 72-year-old Mary Hardison, a death penalty opponent who had written Holton every month for 14 years. He called her "mom" and her late husband "dad." She telephoned her children as soon as she heard the news: "Your brother is out of prison!"

He sat in her house, with its recliner, soft carpet and tea cups, overlooking woods. She was overjoyed to have him there.

At the hotel later, he was reunited with his 31-year-old daughter, Sontrivette, and his 28-year-old son, Rudolph Jr. They never really knew him as their father, and had not seen him in years. Now they would have to work through how much to let him into their lives.

Holton had a Big Mac and got a fitful night's sleep at the Homewood Suites. He woke Saturday and neatly made his bed.

"Daddy, you don't have to do that," Sontrivette said.

That afternoon Holton stopped by McDermott's office. After years working to get him out, it was weird to have him there. He passed the file cabinets with his name on them and lingered in the law library, where they worked his case.

"I was his attorney and now, I still feel like he needs me," McDermott said. But she couldn't be there for him much longer, not like before. He would need family and friends.

Before she got involved, the case barely moved in 10 years. Lawyers were waiting for public records, and because no governor signed a death warrant, the case wasn't a priority. It took McDermott six more years of pushing to get him out.

She couldn't believe John Moser, her first boss at the agency, hadn't fired her. She deserved it. She saw now that she behaved unreasonably; it had been irresponsible to quit and argue she could handle Holton's case alone.

"I was an idiot. I was a foolish, young, idealistic lawyer who made bad choices. I wish it hadn't come to the point where we were in a courtroom and the client was saying he wanted me. I didn't really have anything to offer."

"I don't regret it," she said. "But I wouldn't do it again."

Holton came into her office. On the wall was his photo, the one he sent her six Easters years ago. She also had framed one of his paintings.

He was surprised to see them.

"Of course, I have your picture," she said. "You sent it to me. I put it up."

There was one more snapshot she wanted. Before he left town, she wanted him to sit at her desk, she wanted a photo of him in her chair.

-- Times researcher John Martin contributed to both days of this series.

Postscript

photo
Joe Episcopo

Joe Episcopo, the prosecutor, was fired two months after Holton's trial for falsifying records to make his conviction rate look better than it was. He said the charges were untrue and the firing political. He ran for state attorney, lost and joined the defense bar. He has appeared on Larry King Live, Court TV and MSNBC to talk about Tampa cases, including the controversial "stop sign case." He said Holton should be free. "I am sorry it happened. At the time I believed what I was doing."


photo
Mina Morgan
Mina Morgan, paid $8,264 to defend Holton at trial, handles appeals now for the Hillsborough public defender. After Holton was sentenced, she said she went on a three-day vodka diet. She stopped accepting death case appointments. "I have been haunted by this case for 16 years." During Holton's appeal, when Morgan had to testify about how she prepared his defense, she wept on the stand. His family sent her flowers. Holton told her not to blame herself; had he been on the streets, he said, he might be dead of a drug overdose.
photo
Harry Lee Coe III
Harry Lee Coe III, the judge, was elected state attorney in 1992. In that office, he opposed Holton's efforts to win a new trial and get DNA testing on hair evidence. Coe committed suicide in 2000 as investigators closed in with questions about gambling debts and destruction of public records.

photo
John Moser
John Moser left CCRC in 2001. An Army lieutenant colonel, he is in military intelligence at Special Operations Command, MacDill Air Force Base. He credits the agency's Tallahassee office for rescuing McDermott when she tried to defend Holton on her own."Who is to say what would have happened if she retained it singlely? I can't say on her own, she would not have prevailed. (But) I would like to say that I am right."
photo
David Pearson, aka Pine
David Pearson, aka Pine, is on probation for possession of cocaine and has been arrested more than 20 times since 1986. After McDermott's team suggested he killed Katrina Graddy, Pearson looked up her mother, Eva Lee, and told her he didn't do it.
Pearson met with prosecutors and volunteered a saliva sample, though there is nothing to compare it to in Graddy's case. State Attorney Mark Ober said the case is open, and he considers Pearson a suspect.

photoLinda McDermott
Linda McDermott has won new trials for two others on Death Row. One is free and living in Puerto Rico; the other is expected to be tried again. She has worked at CCRC six years. Now 33, she was contemplating a change even before Bush said he wants to eliminate the agency where she works. Unhappy with living in rural North Florida, she may take the Georgia Bar and move to Atlanta.

photo
[Times photo: John Pendygraft]
Eva Lee still lives in Central Park Village, where she works as a security guard. She doesn't know who killed her youngest daughter, only that she should not have been taken. "I don't feel like she had to die like that." Katrina Graddy's brother, Winford Moore, wonders why police cannot put the right person on trial. He has a lot of questions: Why didn't they bring his sister's friend, Pamela Woods, to court? Why didn't they listen to Donald Lamar Smith? Why didn't they talk to Pearson? "If it had been someone in Hollywood, they would," he said. "If it had been someone of importance, then it would be different."
 

Rudolph Holton was given $100 when he was released. He has spent his first two weeks in Tallahassee, living with an elderly couple active in an anti-death penalty coalition and working part time on a construction site. He says he wants to enroll in a drug treatment program so he won't relapse. He may move to Lakeland with his daughter, but he's not sure. Her house already is crowded with four children.


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