Published Saturday, July 24, 2004

Sentence Reinstated In 1966 Murder Case

Billy Kelley, 61, to return to death row; his appeals are nearly exhausted.

By Jeff Scullin
The Ledger
jeff.scullin@theledger.com

BARTOW -- Billy Kelley may yet live long enough to be executed for murdering a wealthy Sebring citrus grower nearly 40 years ago.

Friday, a federal appellate court reinstated Kelley's firstdegree murder conviction and death sentence for Charles von Maxcy's 1966 murder and cleared a Polk County prosecutor of misconduct in Kelley's 1984 trial.

The citrus grower, whose family is still prominent in Frostproof, was fatally shot and stabbed Oct. 3, 1966, at his Sebring home.

The 11th U.S. Circuit Court of Appeals overturned decisions by U.S. District Judge Norman Roettger that granted Kelley, 61, a new trial. The appellate court decision, rendered by a three-judge panel, means Kelley has all but exhausted his appeals.

At this stage, Kelley's appeals are limited to asking the same three-judge panel to revisit his case, asking the entire 11th Circuit Court to review his case or requesting a review from the U.S. Supreme Court.

Reached en route to a death penalty conference in Virginia, one of Kelley's lawyers, James Lohman of Austin, Texas, blasted Friday's ruling.

"They're searching for reasons to justify a bankrupt system," Lohman said. "The court is splitting hairs because they can't bear the notion of another innocent man walking off of Florida's death row, and they would rather have him executed than admit the failure of the system."

At Kelley's trial, prosecutors argued that John Sweet, the first man charged in Maxcy's death, hired Kelley and another man to kill Maxcy. At the time of Maxcy's murder, Sweet was having an affair with Maxcy's wife, Irene.

Sweet was convicted of the murder but later released after his conviction was overturned on a technicality. He again ran afoul of the law after moving to Massachusetts and agreed to testify against Kelley in exchange for immunity on the criminal charges he was facing there. Sweet's testimony was a central part of prosecutors' case against Kelley.

In 2002, Roettger ruled that Assistant State Attorney Hardy Pickard had lied about an immunity deal made with Sweet and withheld key pieces of evidence from Kelley's lawyers that might have led to an acquittal.

The Fort Lauderdale federal judge also ruled that Kelley's trial lawyers -- Jack Edmund of Bartow and nationally renowned defense lawyer William Kunstler, both of whom have since died -provided Kelley with deficient legal representation.

Roettger concluded the defense had not conducted an adequate pretrial investigation, relying on the services of a disbarred lawyer, Harvey Brower, whom the judge characterized as "lazy to a fault."

But in the 109-page ruling released Friday, the 11th Circuit Court disagreed with Roettger, finding that Pickard had not, in fact, lied and that Kelley's trial lawyers had provided him with competent representation.

"The record at hand leads inexorably to the fact that Pickard told the truth," said Judge Gerald Bard Tjoflat, writing for the appeals court.

Pickard failed to turn over to defense lawyers details of an immunity deal made with Sweet, a transcript of Sweet's testimony from Kelley's first trial, which ended in a hung jury, a police report about an eyewitness' description of the murder suspect, seemingly pointing to someone older than Kelley, and a fingerprint report.

Though lacking those documents, the 11th Circuit Court noted that defense lawyers either already had the information -Edmund cross-examined Sweet about his immunity deal, for example -- or that it would not have helped Kelley.

"The important thing is not the document. The important thing is the facts," said Chip Thullbery, spokesman for the State Attorney's Office. "(The defense) knew of these facts, and I think the court of appeals made it clear that they knew of all the matters which could have made a difference to the defense."

The appellate court ruled that Kelley was not entitled to a federal review of the claims he raised regarding Brower's investigation because he never raised those arguments in state court.

Notwithstanding, the appellate court ruled Brower's shortcomings did not justify Kelley's claims he received ineffective legal representation.

The defense only employed Brower for Kelley's first trial and had months before his second trial to conduct further investigations and track down witnesses.

The 11th Circuit Court concluded the decision not to put on a case seemed to have been a trial strategy, allowing defense lawyers to make two closing arguments at Kelley's 1984 trial.

"We cannot agree that Brower's inadequate investigation prejudiced Kelley's defense," the appellate court held.

Lohman rejected the court's reasoning.

"The courts have said that doing nothing is not a reasonable strategy," the defense lawyer said. "It's not a reasonable strategy to neglect to put on evidence of a man's innocence that they didn't even look for."

Nationwide, death penalty opponents have cited Kelley's case as a prime example of Florida's flawed system of capital punishment.

Friday, Thullbery accused Lohman and his co-counsel, Harvard law professor Laurence Tribe, of having ulterior motives in the Kelley case.

"(They) have an agenda other than the defense of Mr. Kelly -that being the destruction of Florida's death penalty system," Thullbery said.

Jeff Scullin can be reached at jeff.scullin@theledger.com or 863533-9079.

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