TWO PAPERS, TWO VERDICTS

The Wrong Man: A True Story of
Innocence on Death Row
By Michael Mello
University of Minnesota Press
586 pp. $29.95

REVIEWED BY STEVE WEINBERG

 

Stories about innocent individuals convicted of crimes while the actual perpetrators remain at large are becoming increasingly common in U.S. newspapers, magazines, and broadcast outlets. Occasionally the accounts are interesting and complicated enough to fill an entire book. I have read about a hundred such books. But never have I read one about the phenomenon as impassioned, intemperate -- or as controversial concerning the role of journalists -- as the lawyer Michael Mello's account of the Joseph Spaziano case in Florida. Mello began representing Spaziano as a post-conviction public defender in 1983, seven years after Spaziano's placement on Florida's death row for the murder of a young woman. The more Mello learned about the case, the more certain he became that Spaziano had nothing to do with the murder -- or with a rape in which the same unreliable witness provided the most damning testimony at trial.

So Mello began filing appeals grounded in claims of actual innocence. For journalists who have never covered such claims, a warning: the way most actual-innocence appeals are handled by the criminal justice system defies common sense. It is difficult for inmates or their lawyers to find a judge who will seriously consider new evidence, since the primary goal of the criminal justice system frequently seems to be finality. In other words, the thinking goes, "Mr. Inmate, you have been convicted by a jury; a judge or maybe several judges have upheld your conviction, so the case is closed in our minds. Why are you bothering us with this new evidence? How come you failed to present that evidence at trial?"

The answer is usually simple: the defense did not know about the evidence during the trial. Why not? Maybe because the police or the prosecutors withheld it. Or the state's forensic experts lied about what laboratory tests showed. Or an eyewitness, a hearsay witness, maybe the victim admits to making a mistake. Or DNA material that could not be tested at the time of the crime has been preserved, and exonerates the defendant. Or a jailhouse snitch who cut a deal with the prosecutor recanted.

Spaziano's murder conviction, and his earlier rape conviction in a separate case, turned almost entirely on the testimony of an emotionally troubled juvenile with a criminal record. The jury had no idea that the juvenile, Tony DiLisio, had been taken by the police to a pro-prosecution hypnotist before the trial in an effort to strengthen their case. Nor did it know that DiLisio's stepmother had slept with Spaziano, giving DiLisio's father motive to influence his son in making the accusation.

Given the lack of physical evidence in the rape and murder cases, the absence of witnesses other than DiLisio, and Spaziano's steadfast, persuasive statements of innocence, Mello found his client's presence on death row inexplicable. The frustration increased when Mello found a juror who swore that she and her colleagues had voted for life imprisonment rather than death because they felt uncertain about Spaziano's guilt. The judge, however, taking the prior rape conviction into account, had imposed a death sentence anyway.

That same judge would determine whether Spaziano received a hearing based on new evidence. Mello believed no hearing before that judge would be unbiased. So, in 1995, after Spaziano had spent nineteen years under a death sentence, Mello decided to go outside the legal system and gamble on the Fourth Estate.
Mello harbored a visceral hatred of The Miami Herald because of its pro-death penalty editorial position. If the Herald agreed to examine the Spaziano case but concluded he was guilty, all hope would be gone. On the other hand, if the Herald agreed that Spaziano had been railroaded, its investigation would carry extra credibility.

So Mello contacted a Herald editor, Gene Miller. Miller was an obvious choice -- his reporting in two separate cases years earlier had freed innocent men from prison. But still the lawyer hesitated. "After his book was published in 1975," Miller wrote of Invitation to a Lynching, about the wrongful convictions of Freddie Pitts and Wilbert Lee, Miller "was contacted by countless prisoners who attempted to enlist his aid in their causes. Miller stated at the time that he would never again become involved in a capital case. He did not want to become the arbiter of all death row claims of innocence."

Nonetheless, Miller accepted Mello's telephone call. He was polite but firm about what he was willing -- and not willing -- to read. "I want the trial transcripts, the police reports, the transcripts of the hypnosis sessions of the state's star witness, the audiotapes of those hypnosis sessions, and nothing more. I don't want briefs. I don't want legal memoranda. I don't want anything else written by any of Spaziano's defense lawyers -- especially not anything written by you."

Mello complied. Then he waited. The waiting became excruciating a few days later, when Gov. Lawton Chiles signed a death warrant -- Spaziano would be executed June 27, 1995, only four weeks hence. Mello called Miller. "He told me I hadn't given the Herald nearly enough lead time; had I come to him a year ago, maybe the Herald could have been ready for the warrant. But twenty-eight days from today? No. I had waited too long."

Still, Miller let his curiosity drive him forward. He asked Warren Holmes, a police officer turned polygraph operator, to read the material from Mello. Miller and Holmes had worked together before; Miller trusted Holmes's judgment. Holmes started reading the material unenthusiastically, but perked up when he noticed that the police hypnotist who had put DiLisio under was the same man who hypnotized a witness involved in the wrongful convictions of Pitts and Lee. Mello could barely contain his feelings when Holmes said that of 1,200 cases he had reviewed as a policeman and as a private investigator, he had believed in the innocence of only three: Pitts, Lee, and now Spaziano.

With Miller and Holmes on board, the Herald was now committed to the story. Because the Spaziano case fell outside Dade County, Miller turned to the Herald's state editor, John Pancake. Pancake assigned reporter Lori Rozsa to investigate.

Thirteen days before Spaziano's scheduled execution, Rozsa found DiLisio; he would not talk to her. For two days, Rozsa knocked on DiLisio's door until he let her in. She said a man was about to die based on DiLisio's hypnosis-induced testimony nineteen years earlier. At that point, DiLisio recanted. Rozsa had a front-page story. The power of the press triumphed -- Gov. Chiles issued a stay of execution. Eventually, Spaziano left death row under a plea agreement on the murder charge, but remained in prison because of the earlier rape conviction despite DeLisio's recanted testimony in that case as well.

Actual-innocence stories are never simple. While some readers concluded that Spaziano should be released from prison -- or at least granted a new trial -- other readers continued to believe in his guilt. Maybe DiLisio told the truth two decades ago and is lying now. Who knows? the doubters asked.

One of the doubters was Mike Griffin, a reporter for the Orlando Sentinel, on whose turf the crime had occurred. A couple of weeks after the withdrawal of the death warrant, Griffin in a front-page story not only reported that Spaziano was the leading suspect in two additional murders and five rapes, but also cast doubt on DiLisio's recantation.

The contrast between the Herald and the Sentinel caught the attention of David Barstow, a reporter at the St. Petersburg Times. Barstow started collecting evidence for a journalism-review kind of story aimed at a daily newspaper audience. Part of his analysis is quoted in Mello's book. The passage below is taken from Barstow's original story in the Times:

"In eight months of competing coverage, as execution dates came and went, the two newspapers arrived at separate truths about Crazy Joe's case, truths as incompatible as life and death," Barstow wrote. "The Herald found in Spaziano a pathetic victim of injustice. The Sentinel found a 'dead-eyed' rapist-killer. The Herald found shabby evidence, shaky witnesses, and a lead detective who drove around the countryside in a squad car with a psychic holding a skull in her lap. The Sentinel described incriminating evidence, unshakable witnesses" and a fellow biker "who said Spaziano bragged that sex was best after a killing."

These dramatically different reports were the result of distinctly different journalistic approaches. For example, the Herald's reporting began with the question, "Did Spaziano receive a fair trial?" and concluded that he had not. The Herald found that the major component of the unfairness -- DiLisio's false testimony -- was so prejudicial that it affected the verdict. On the other hand, the Sentinel's reporting began with the question, "Is Tony DiLisio telling the truth in his recantation?" It concluded -- using reasoning that eludes me but apparently satisfied the editors -- that DiLisio's recantation was bogus, and that although he was a compulsive liar, he had been telling the truth at the first trial.
Further, the coverage reflected opposite views of proper professional action. The Herald's Miller believes that in addition to telling the truth, a journalist must sometimes persuade public officials to tell the truth; if an apparently innocent prisoner is about to be executed, a journalist might need to lobby the governor, or find legal help for the condemned. On the other hand, John Haile, the Sentinel's editor in chief, was not at all convinced that even the most skilled journalist could reach definitive conclusions about guilt or innocence based on reporting done twenty years after a trial.

In Mello's view -- and in mine -- the most likely reason for the disparities in the papers' coverage was the Sentinel reporters' inexperience with actual-innocence claims. The Spaziano convictions carry many of the warning signs -- no physical evidence against him, plausible alternative suspects, an unstable accuser who eventually recanted, potentially exculpatory withheld evidence, to name several. When studying criminal case records, it takes a while to figure out what to look for. Until that experience level is achieved (I'm getting there after three decades of on-again, off-again examinations of actual-innocence claims), it is easy to fall prey to the notion that if a prosecutor, police investigators, grand jurors, trial jurors, and judge say a defendant is guilty, it must be so.
 
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Steve Weinberg is a longtime contributing editor for cjr. He is leading a team at the Center for Public Integrity in Washington, D.C., that is investigating prosecutorial misconduct nationwide.