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A Summary of U.S. District Court Decision in Response to Zeiglers Request For Relief: Order Denying Relief With Prejudice, issued July 10, 2001, by U.S. District Judge Harvey E. Schlessinger in the case of Supplemental and Amended Petition for Writ of Habeas Corpus, Zeigler v. Singletary, et al., Case Nos. 82-1034-Civ-J-20 and 86-333-Civ-J-20, USDC Mid Dist FL.[1]
In short, the Court has completely incorporated the arguments of the State, including the misleading and distorted basis for rejecting DNA testing. Furthermore, every claim has been denied almost exclusively on the basis of procedural default. [Procedural default means the Court does not even look at the merits of the claim but holds against Zeigler because its just been too long since the trial.] Finally, the Court denies any certificate of appealability, thereby precluding any further judicial appeal on Zeiglers behalf unless the 11th Circuit of the US Court of Appeals grants one or Governor Jeb Bush allows DNA testing.
In result, the decision attempts to foreclose any investigation into the alleged official corruption behind this drama (including the alleged illegal involvement by Judge Maurice Paul, who is now a Senior member of the Federal Bench in the Northern District of Florida, in a closed door meeting with the Prosecutor where it was agreed that Paul would sentence Zeigler to death). Judge Schlessinger has protected his cohort by slamming the door shut on DNA testing, on taking evidence from additional witnesses who have surfaced and who the State has tried to keep out of the record, and on taking evidence from jurors about the improprieties in the jury deliberations, including the administration of Valium [at Judge Pauls direction] to the juror who was holding out against a guilty verdict). As noted below, most of the well-reasoned arguments used by the Court to justify its denials for relief are stretched. This should be obvious to anyone who is outside the system, anyone who is not concerned about whitewashing corruption and the persecution of a white man who stood up against the local white power structures abuse of and illegal predatory practices against the local and migrant black community.
Summarized in a sentence, this 170-page opinion says: Kill Thomas Zeigler quickly before the lack of integrity in Orange County, Floridas justice system and the State of Floridas criminal justice system are exposed to the world.
Issue: Miscarriage of Justice: First, the Court states: The fundamental miscarriage of justice exception [to procedural default] is only available in extraordinary cases upon a showing of actual innocence. [ODR at 41] Then, it looks at certain specific evidence that Zeigler asks the Court to hear.
The Jellison Tape: In April of 1987, Zeiglers lawyers made a Florida Public Records Act request for the files of the State Attorney in Orlando. In the files they discovered a tape-recorded telephone interview of John Jellison. The interview had been conducted on April 30, 1976 by a state investigator named Jack Bachman. The tape had been hidden by the State Attorneys Office which failed to disclose anything about it before trial or even in answering requests for disclosure in conjunction with Zeiglers appeals. [SAP at 18]
John Jellison, his parents and his sister were staying at a motel next to and behind the Zeigler furniture store on Christmas Eve 1975 and witnessed some of the happenings outside the store. Mr. Jellison told the investigator that at about 9:00 p.m. he and the rest of his family had seen a police car at the back of the store, a police officer aiming his gun toward the store over the top of the car, and had then heard shots as they were watching, and that other police cars had arrived on the scene thereafter.
The States investigator made plain his disappointment with Jellisons recollection: [A]s long as you heard the gunshots after, you know, you saw the police car, that wouldnt help us a bit.
When Jellison asked if Bachman wanted to interview his mother, Bachman replied: Not unless, you know, you all get together and decide you heard those gunshots before you saw the police car. In that case, wed give you a free trip back to Florida.
The Court dispenses with this tape and the prejudicial affect of the States suppression of this tape by saying that if it had been introduced in evidence, the tape would have substantiated the States case. [ODR at 45] That must be quite a surprise to Mr. Bachman, the State investigator, who said Jellisons statement wouldnt help the States case at all. It must be quite a surprise to the staff at the Orange County State Attorneys office who hid the tape until after the time period for new evidence in the case had passed.
The Roach Testimony: Next, the Court deals with the testimony of the Roaches. The States entire case hinges on the conclusion that Zeigler killed all four victims by firing all 28 shots with 7 guns–even though there was no gunshot residue on Zeiglers pants. [TT at 1636] Ken and Linda Roach, witnesses who heard the shooting, stated they heard rapid firing at different loudness levels, in two firecracker like bursts. suggesting more than one person firing shots. Their testimony was never heard at trial.
The Roaches gave an affidavit in 1979, claiming Ken Roach had called the Orange County Sheriffs Office (OCSO) after Zeiglers indictment, had given this information to a woman there and that she told him his statement wasnt needed and refused to give him defense counsels name. [FF at 268][2] It seems highly unlikely that Zeigler could have fired 28 shots from 7 guns in different parts of the store in two firecracker like bursts.
How does Judge Schlessinger deal with this critical problem? The Court concludes that the Roachs testimony would have been beneficial to the State. [ODR at 47]
Prior Inconsistent Statements of Felton Thomas and Edward Williams: Next the Court deals with the fact that the State suppressed prior inconsistent statements by its
two key witnesses, statements known to the State and recorded in the notes of the States key investigator, Donald Frye. [ODR at 47-49] The States case against Zeigler is entirely circumstantial except for the testimony of these two witnesses; the prior inconsistent statements evidence a fine-tuning of their testimony to hold the States case together. No matter. Judge Schlessinger holds: The Court finds that this evidence would not have induced any reasonable juror to reach a different result in [this] case. [ODR at 49]
Request for DNA Testing: Based on the condition of Perry Edwards body, the person who killed him should have been drenched with Perry Edwards blood. The problem is that Perry Edwards and Charlie Mays both had Type A blood. The State only analyzed blood splatters. It deliberately did not analyze blood subtypes. Consequently, the States expert blood splatter testimony about the blood on Zeiglers clothing was all based upon an assumption that the blood was from Perry Edwards. The same pattern could have existed from the fight alleged by Zeigler between him and Mays when Mays jumped Zeigler in the back of the store. For years Zeigler has requested DNA testing of that blood to establish that he did not kill Perry Edwards and, therefore, is not the one who killed Eunice and her mother.
How does Judge Schlessinger deal with this? His words have become Lawson Lamars sound bites in the media war against DNA testing for Zeigler: Denied because DNA testing could not prove that Zeigler was not at the crime scenes or that he was not involved in the murder.
This is an outrageous and incredible statement! The reality is that if Tommy Zeigler s shirt is not soaked with the blood of Perry Edwards, Tommy Zeigler could not have killed Perry Edwards. DNA testing will determine with absolute certainty if Tommy Zeigler killed Perry Edwards. [In fact, the DNA testing now completed EXCLUDES Perry Edwards as the source of the blood on Zeigler’s t-shirt. This means someone other than Tommy killed Edwards.]
Based on those four conclusions, The Court holds that Zeigler cannot overcome procedural default. It is difficult to think of any description for such logic by a federal court other than rote regurgitation of the State Attorneys whitewash, wholesale and undigested.
The result is: Kill him, and do it quick before any truth comes to light.
Then, in the name of justice, the Court quickly dispenses with all the tracks left behind in a fundamental miscarriage of justice.
Zeiglers Claimed Grounds for Relief:
I. Repeated Suppression and Destruction of Material Exculpatory Evidence by the Prosecution, Including:
A. Suppression Of The Jellison Tape: Clearly, the prosecution should have disclosed this information pursuant to [Zeiglers] discovery requests; however, this information was ascertainable prior to 1987 through the exercise of due diligence. [ODR at 58] In other words, Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 57]
B. Suppression Of Roach Testimony: Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 59]
C. State Withheld The Trousers Of Edward Williams Until It Was Too Late To Make Use Of Them At Trial, Thus Depriving [Zeigler] Of Material Exculpatory Evidence.[3] Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 63]
D. State Concealed Its Experts Shoeprint Tests And Manipulated The Order And Availability Of Witnesses To Gain An Unfair Advantage At Trial:[4] Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 65]
E. State Destroyed Material Exculpatory Fingerprint Evidence.[5] Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 67]
F. State Did Not Permit Zeigler To Obtain Material Exculpatory Evidence (Blood Samples From The Crime Scene) And Prevented Access To The Evidence Until After It Was Too Late To Perform Blood Subtyping Tests On The Samples:[6] Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 68]
G. State Destroyed Material Exculpatory Evidence By Improperly Handling Bullets Removed From The Crime Scene: Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 70]
H. State Destroyed Or Lost Material Exculpatory Evidence (A Tooth Found At The Crime Scene Did Not Belong To Anyone Known To Be At The Store That Evening): Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 71]
I. State Failed To Disclose Prior Inconsistent Statements Of Key Prosecution Witnesses: Although the prosecution should have disclosed this information pursuant to [Zeiglers] discovery requests, this Court agrees that this information was ascertainable prior to 1987 through the exercise of due diligence. [ODR at 73] In other words, Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 73]
J. An Officer Of The Orange County Sheriffs Department Fabricated evidence Against Zeigler:[7] The Trial Court did not abuse its discretion in holding that the consistent testimony of two ex-inmates could not be trusted. Also, Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 71]
K. The Cumulative Effect Of Items A-J Above Violated Zeiglers Right To Due Process: Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 78]
II. Possible Exculpatory Evidence Was Lost Or Destroyed Because The State Illegally Seized Zeiglers Store For Two Weeks: Held: Claim Cannot Be Heard Because it is Procedurally Barred. [ODR at 84-85]
III. The States Failure To Permit DNA Testing Of The Blood Upon Which Zeiglers Conviction Is Based: Claim Cannot Be Heard Because it is Procedurally Barred. [ODR at 88]
IV. Juror Misconduct:[8]
A. Juror Brickells Request To Speak With The Trial Court During The Jurys Deliberations: The trial court record of the discussion is insufficient to establish a constitutional claim. Held: [The benefit of the doubt goes to the system] The exchange between
Judge Paul and Juror Brickell was not significant to the outcome of the case. [ODR at 95]
B. Judge Paul Contacted Juror Brickells Physician To Obtain Valium For Her: Even though Judge Paul imposed a gag order prohibiting Zeiglers attorneys from ever talking to the jurors, the Court finds the lack of factual foundation extremely crucial to the resolution [of this issue.] Zeiglers attorneys could and should have done something sooner. Held: [The benefit of the doubt goes to the system] Claim Denied. [ODR at 103]
C-D-E. Juror Bias and Prejudice, Juror Coercion and Juror Alcohol Consumption: Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 105]
F. Outside Influences Impaired The Jury From Performing Its Constitutional Functions:
1. Jurors Minister Laying On of Hands To Relieve Juror Of Any Personal Responsibility For The Verdict: Court says that such conduct would clearly invalidate the verdict. [ODR at 106] But, Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 106]
2. Other Outside Contact With Newspapers And News Program: Held: Harmless. Claim denied. [ODR at 107]
V. Jury Verdict Was The Result Of An Improper Compromise Resulting From Residual Doubt About Zeiglers Guilt: Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 113]
X. Zeigler Claim Ineffective Assistance Of Counsel: The Court says some of the grounds for ineffective assistance of counsel are procedurally barred and the others are without merit. [ODR at 117-124]
It is phenomenal that even though the Court has denied almost all of the foregoing claims for relief based on procedural default because Zeiglers attorneys could and should have done something sooner, when Zeigler asserts those same grounds as ineffective assistance of counsel, the Court denied the validity of the claim.
XI. Judge Paul Was Biased Against And Hostile Toward Zeigler:
A. Judge Paul and Zeigler Were Character Witnesses On Opposite Sides Of A Case Just Six Months Before The Crime And One Year Before The Trial: Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 132]
B. Judge Paul Was Hostile Toward Zeigler:
1. And Ruled Against Him In The Case: Court says: While the record does reflect adverse rulings against [Zeigler], no basis exists for the conclusion that Judge Paul exhibited hostility toward or prejudice against Zeigler. [ODR at 137]
2. Jurors Perceived Judge Paul To Be Against Zeigler: Zeiglers attorneys could and should have done something sooner. Held: Claim Cannot Be Heard Because of Procedural Default. [ODR at 137]
C. Leigh McEachern (former Chief Deputy Sheriff of Orange County) Gave An Affidavit Alleging Judicial Bias:[9] Held: [The benefit of the doubt goes to the system] This Court is of the opinion that the meeting did not take place and the alleged statement was never made.
[1] References to Order Denying Relief With Prejudice are ODR. References to the Supplemental and Amended Petition for Writ of Habeas Corpus, Zeigler v. Singletary, et al. are SAP. References to the Trial Transcript are TT. References to Fatal Flaw: A True Story of Malice and Murder in a Small Southern Town (ISBN 0-679-40861-4), by Phillip Finch (Villard Books, New York N.Y. 10022; 1992) are FF. back to [1]
[2] In the Unsolved Mysteries episode that aired about this case on February 7, 1997, Assistant State Attorney, Jeff Ashton, dismissed the Roachs claim that they were rebuffed by the OCSO as lacking credibility because police investigating a crime will take all the evidence proffered. Ashton didnt explain how he reaches that conclusion in this case in light of the Jellison tape. back to [2]
[3] Williams said he put the gun that Zeigler gave him (the gun which killed Zeiglers in-laws Perry and Virginia Edwards) into his pocket. [TT at 1252] In fact, there was no evidence of gun residue on the pants Williams claims to have been wearing the night of the murders. When Williams presented himself and the murder weapon to the OCSO several hours after the murders, his shoes were brand new and still had a price tag on the sole. [TT at 2584] The shoes he was wearing when he presented himself and the gun to the OCSO are inconsistent with having been worn during the activities Williams testified he engaged in that night. The clean clothes and new shoes are consistent with Williams having to dispose of bloody clothes and bloody shoes. back to [3]
[4] A key issue in the prosecution case was their explanation of the bloody footprints. Frye, and the criminologist he consulted, both asserted that they must have been left by the murderer. Tom Delaney, the FBI specialist who examined the prints, stated that they could not have been left by Zeigler’s shoes. Delaney testified to this effect in court – a valuable defense witness. Due to a tight schedule he was only available for a very short period of time and had to leave as soon as he had vacated the witness stand. Zeiglers defense attorneys allowed him to leave because the prosecution had not disclosed tests made by their witness to rebut the FBI testimony. Otherwise they would have kept Delaney for rebuttal of the prosecutions tests. Once Delaney left and was no longer available to testify, the prosecution surprised the defense with introduction of undisclosed tests. One of the very next witnesses the prosecution called was Frye’s consultant criminologist, Herbert MacDonell who proceeded to rebut all that had been stated by Tom Delaney, who was no longer available to defend his findings. Zeigler’s defense attorneys were, not surprisingly, insufficiently knowledgeable of this branch of forensic science to mount a counter-defense without the FBI expert. Zeiglers attorneys objected to this unfair tactic but, true to form, Judge Paul ruled for the prosecution. back to [4]
[5] The FBI specialist responsible for testing the evidence before the trial could not find any match that positively identified Zeigler as the murderer. She destroyed the fingerprints without first offering them to the defense for analysis. It is a fact of forensic science that even if a fingerprint cannot positively identify a person, it could still be of use in establishing that he or she could not have left the mark – but this option was never open to Zeiglers defense. From a 1981 FBI Handbook for police departments submitting material to the FBI Lab: All original evidence will be returne
d to the contributing agency unless directed to make some other disposition by the contributing agency. The implication is that either the FBI Lab violated its own procedures or the OCSO instructed them to destroy any prints that failed to identify Zeigler. back to [5]
[6] At the time of the crime, subtyping could only be performed within 14 days. Now, DNA testing can establish the subtypes on the original crime scene blood. back to [6]
[7] Felton Thomas claimed that, immediately before the murders, the white man (who he alleged was Zeigler) drove him and Mays out Route 50 to an orange grove and had them fire three guns into the ground. He claimed that the white man himself never touched the guns. Early in January, Felton Thomas showed Frye the remote orange grove where he claimed Zeigler had driven him and Mays to shoot the revolvers. The OCSO brought in a crew of trusties from the Orange County jail and began to dig the earth for bullets. On January 12, after two days of sifting dirt and sand, a deputy, James Lee Bryan, reported that they had recovered a .38 slug. The FBI could not match the slug to any of the guns although it did have the general rifling characteristics of a Securities .38, one of the murder weapons. [FF at 70] Even so, the Florida Supreme Court sustained the use of the grove bullet at trial. [FF at 254]
In 1988, the Christmas Eve murders were the subject of a syndicated TV documentary, A Matter of Life and Death which aired May 1, 1989. The show prompted John Bulled to come forward. Bulled was one of the prison trusties on the work crew that supposedly dug up the grove bullet. According to Bulled, crews searched the grove for two days and found nothing. On the afternoon of the second day, Bulled said, a sheriffs deputy told the crew supervisor, Well just have to produce one anyway. Bulled said he believed that the evidence had been fabricated, because inmates were told to say that they had found a slug, when actually they had found none. [FF at 273-274] back to [7]
[8] The jury consisted of six blacks and six whites, three men and nine women. The jury deliberations were unusually tumultuous and riddled with transgressions. After an initial vote in which the jurors split evenly, with six voting in favor of conviction and six voting in favor of acquittal, the jury deliberated for two and one-half days. On the 3rd day of deliberations, one juror who continued to believe in [Zeiglers] innocence, Irma Brickel, appears to have suffered a nervous breakdown leading to several fainting spells. The trial judge then telephoned Ms. Brickels personal physician and persuaded him to authorize a prescription of Valium for her over the telephone .Shortly after taking the medication, at 5:00 p.m. on July 2, 1976 Ms. Brickel abandoned her position and the jury voted to convict . [SAP at 8-9]
Subsequent to the case, another juror, Ms. Dollinger, disclosed that: [SAP at 85]
¨ The atmosphere during the jury deliberations was one of open hostility. In addition, there was a great amount of intimidation I suppose it could even have come to actual violence. It was a very frightening situation.
¨ Many times when juror Brickel would try to talk, juror Roberts would come up behind her and click one of the pistols behind her head. (This is a reference to one of the many guns that were in evidence which, apparently, were in the jury room).
Subsequently, Ms. Brickel related that: [SAP at 86]
¨ Immediately after the foreman was elected, he made a statement to the effect that he had made up his mind 2 weeks before.
¨ When she suggested getting a mannequin to examine the bloodstains on Eunice Zeiglers clothing she was told that since she was approximately the same size she could put them on and get a feel for the situation; and that this statement was made in an extremely abusive manner.
¨ She had requested help from the Court and could not understand why nothing was done.
¨ Her illness during the jury deliberations was a direct result of the pressure she was being put under to change her vote.
¨ That when she was interviewed by the Judge she felt that he was extremely angry with her for causing trouble and did not really want her to talk.
The Atlanta Constitution reported that Lee Williams, one of the jurors and now a lawyer, said there were problems during the jurys deliberations and that there were some things that should not have happened in the jury room. [SAP at 88]
In fact, even though the jurors have been interviewed by the press concerning their deliberations in this case and news stories have appeared in various publications, including a front-page series in the Atlanta Constitution, Zeiglers attorneys have been and still are prohibited from talking to the jurors by Judge Pauls injunctionwhich the Courts have continued in effect. [SAP at 89] back to [8]
[9] In 1981, former OCSO Chief Deputy Sheriff, Leigh McEachern claimed that he was present at a pretrial conference at which Judge Paul discussed the evidence in Zeiglers case with State Attorney Robert Eagan, Inspector Frye and a third party. McEachern had been the chief deputy to Sheriff Colman in 1976. He made this charge from a prison camp in northern Florida where he was serving a sentence after being convicted of embezzling from his departments investigative funds. According to McEachern, the illegal meeting took place in a conference room of the offices of the state attorney. He said that Eagan outlined for Paul the major points in the States case, including the expected testimony of the States expert Professor MacDonell. McEachern claimed that as the meeting broke up, Paul told Eagan, Bob, get me one first-degree [conviction] and Ill fry the son of a bitch. McEachern said that he later mentioned the meeting to Colman, but did nothing else. He said that he decided to come forward after the Florida Supreme Court affirmed Zeiglers conviction and sentence.
Such a conference would have been completely improper. Eagan, Frye and Paul all denied that the meeting had taken place. There was a hearing on this in August 1984. Zeiglers attorneys tried to establish a judicial conspiracy against him based on ill will from the Andrew James matter. Circuit Judge James Stroker ruled that the Zeiglers claim was without substance, although he admitted that he could find no obvious motive for McEachern to have lied. back to [9]
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