Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on July 17, 2009, by way of video teleconference with sites in Miami and in Tallahassee, Florida.
For Petitioner: Robert L. Barrar, Esquire
Law Offices of Ellis Rubin & Robert I. Barrar
6619 South Dixie Highway, No. 311
Raul C. De La Heria, Esquire 2100 Coral Way, Suite 500
The issue presented is whether Petitioner James Joseph Richardson has met his burden of proving actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act.
Petitioner James Joseph Richardson filed with the Circuit Court of the Twelfth Judicial Circuit in and for Desoto County, Florida, a Petition alleging that he is eligible for compensation under the Victims of Wrongful Incarceration Compensation Act, Chapter 961, Florida Statutes. The Petition is still pending in that Court as Case No. 1967 CF 3302.
As required by Section 961.04, Florida Statutes, Circuit Judge Robert B. Bennett, Jr., determined that Petitioner is eligible for compensation because he is not ineligible due to other felonies. Because Respondent State of Florida contests the nature, significance or effect of the evidence of Petitioner's actual innocence or the facts related to the Petitioner's alleged wrongful incarceration, the Circuit Judge granted on March 30, 2009, Petitioner's Motion to Transfer Petition to Division of Administrative Hearings.
Petitioner's attorney filed a copy of that Order with the Division on May 18, 2009. Thus, the July 17, 2009, hearing was conducted, as required by Section 961.03(6)(a), Florida
Statutes, within 120 days after the Order Transferring Petition to Division of Administrative Hearings was filed with the Division and within 120 days after the petition would have been transferred by the Court if such had occurred.
Petitioner's Petition filed with the Circuit Court has never been filed with the Division; however, the process to be followed by this forum is set forth in the Order and in Chapter 961, Florida Statutes. Further, although the Petition is required to state that verifiable and substantial evidence of actual innocence exists and state with particularity the nature and significance of the verifiable and substantial evidence of actual innocence, Petitioner must actually prove in the evidentiary hearing the existence of such verifiable and substantial evidence. The failure to file a copy of the Petition with the Division, therefore, did not impair the presentation of evidence by either party or the entry of findings of fact and a recommended determination by the undersigned.
Sections 961.02(4) and 961.03(5) and (7), Florida Statutes, require the undersigned to determine if Petitioner has established by clear and convincing evidence that he committed neither the act nor the offense that served as the basis for the conviction and incarceration and that he did not aid, abet, or act as an accomplice to a person who committed the act or
offense. Section 961.03(6)(c), Florida Statutes, requires this Recommended Order setting forth findings of fact and a recommended determination to be entered within 45 days after adjournment of the hearing and filed with the Circuit Court.
This cause was initially styled by the Division of Administrative Hearings with the State of Florida as Petitioner and James Joseph Richardson as Respondent in order to more closely track the style of the case pending before the Circuit Court and the style of the case in the Circuit Court Order granting the motion to transfer this case to the Division.
However, that style has created some confusion. Accordingly, the style of this case has been amended as is reflected above to correspond with the statutory scheme under which Richardson filed the Petition which initiated the underlying and, therefore, this proceeding and bears the burden of proof.
Petitioner testified on his own behalf and presented the testimony of Don Horn. Gertrude M. Novicki testified on behalf of the State of Florida.
A description of the documents admitted as exhibits in this proceeding may be helpful in understanding the quality of the documentary evidence in this proceeding. Joint Exhibit numbered
1 is a composite of six Executive Orders signed by former Governors Bob Martinez and Lawton Chiles. Petitioner's Exhibit numbered 1 is a March 27, 1988, affidavit of Belinda Romeo. His
Exhibit numbered 2 is a transcript of a December 28, 1988, interview of Doris Harris, and his Exhibit numbered 3 is a December 3, 1988, affidavit of Richard H. Barnard. The State's Exhibit numbered 1 is a Nolle Prosse Memorandum dated May 5, 1989, and the State's Exhibit numbered 2 is an undated Response of the State Attorney of the Eleventh Judicial Circuit issued in either 1992 or 1993. The transcript of Petitioner's trial was not offered in evidence.
Ignoring the "factual allegations" that only appeared during argument offered by Petitioner's attorneys, the undersigned makes the following findings of fact. The undersigned is mindful that many, if not most, of these facts have come from exhibits which constituted hearsay or from testimony which constituted hearsay, but they are included either as background information and/or as necessary to evaluate Petitioner's claim of actual innocence.
On October 25, 1967, Petitioner's wife prepared a breakfast of grits for their seven children. In a separate pot she prepared the children's lunch of beans, gravy, rice, and hogs head meat. She also fried some fresh chicken which she used to make sandwiches for her and Petitioner's lunch. She and Petitioner then left to get a ride to the grove where they worked picking fruit.
It was their routine for Petitioner's wife to cook the food. The eldest child, eleven-year-old Betty Jean Bryant, would later serve it to all the children after the Richardsons left for work. It is not clear whether the children actually ate their breakfast grits that day.
The school-age children went to school while the younger children remained at home. It was the routine for Petitioner's neighbor Betsy Reese to look after them.
Petitioner's family and Betsy Reese and her children lived in the same structure, assumedly similar to a duplex. There was a common porch across the front. There was also a shed in the back yard.
The school-age children returned to the home at lunchtime. Reese divided the food in the second pot into seven equal portions, and the children ate lunch.
Right after the children returned to school after lunch, they began exhibiting terrible symptoms, such as leaking from their orifices, twitching, and rigidity. Teachers began grabbing the Richardson children and rushing them to the hospital.
One of the teachers, knowing there were younger children at home, drove to the Richardson home. Those children were on the shared porch, displaying the same symptoms. Reese
was sitting on the porch, holding one of the children. The teacher took them to the hospital.
Petitioner and his wife were summoned to the hospital.
Six of the children died that same day, and the seventh child died early the next morning.
At the hospital, medical personnel did not know what substance was causing the illness and deaths. Sheriff Frank Cline went to the Richardson home and conducted several searches of the home and the shed attempting to find what had poisoned the children. When Petitioner and his wife arrived at the hospital, Cline obtained from Petitioner the key to the refrigerator and searched again.
The next morning Reese and Charlie Smith, who was described as the town drunk, found a bag of parathion, a highly- toxic insecticide, in the shed behind the house. Cline and his deputies had searched the shed approximately four times during the day the children became sick and Cline had searched the shed by himself late that night, and no bag of parathion had been seen by them.
It was determined that parathion was present in the pot the grits were cooked in, the pot the lunch was cooked in, the frying pan the chicken may have been cooked in, flour, corn meal, sugar, and other substances found in the refrigerator. It was also determined that parathion is what killed the children.
Petitioner had a key to the refrigerator as did his wife. Indications are that a third key was left on the refrigerator for the babysitter's use.
Petitioner was tried for the first degree murder of the eldest child Betty Jean Bryant and was convicted. The jury did not recommend mercy, and he was sentenced to death. His conviction was reviewed by the Supreme Court of Florida. Richardson v. State, 247 So. 2d 296 (Fla. 1971). Petitioner's death sentence was commuted to life when Florida's death penalty was held to be unconstitutional the following year.
In October 1988, 21 years after the seven children were murdered, the official file, which had been stolen ten years earlier from the office of the assistant state attorney who had prosecuted Petitioner, appeared in the office of the Governor of the State of Florida. Governor Bob Martinez ordered the Florida Department of Law Enforcement (FDLE) to investigate the disappearance and re-appearance of the file and accompanying information. That investigation resulted in new information and admissions surrounding the circumstances leading to the arrest and conviction of Petitioner.
The Governor entered an Executive Order on July 31, 1989, appointing Janet Reno, State Attorney for the Eleventh Judicial Circuit of Florida, to provide prosecutorial assistance to FDLE. That Executive Order further directed FDLE to continue
its investigation into all statements and evidence concerning Petitioner's arrest and conviction and to also investigate any violations of the criminal laws or misconduct by public officials relative to the events surrounding the deaths of the children and the arrest and conviction of Petitioner.
On February 13, 1989, another Executive Order, amending the first, was signed by the Governor assigning State Attorney Reno to the Twelfth and Twentieth Judicial Circuits to discharge the duties of the State Attorneys in those Circuits relating to the investigation and prosecution of Petitioner's case.
On March 31, 1989, a third Executive Order was signed.
It amended the first two and recited that Reno and FDLE had reported their findings to the Governor and that Reno had also advised the Governor that Petitioner had filed a motion for post-conviction relief in the Circuit Court for the Twelfth Judicial Circuit. The Executive Order directed Reno to assume and discharge the duties of the State Attorney relating to any post-conviction proceedings involving Petitioner.
A fourth Executive Order was then entered amending the first three by adding to Reno's duties consideration of any further prosecution of Petitioner.
As a result of the extensive investigations conducted by Reno and FDLE, Reno joined in Petitioner's pending motion for
post-conviction relief. Petitioner's request that his conviction and sentence be vacated was granted, and Petitioner was released from prison. Reno also made the decision that Petitioner would not be re-tried for the murder of Betty Jean Bryant and would not be prosecuted for the murders of the six other children.
On May 5, 1989, Reno issued a 35-page Nolle Prosse Memorandum explaining in detail the evidence she had reviewed, the conflicting evidence she had considered, the apparent- perjured testimony that had been given at Petitioner's trial, and the conflicting witness statements which the State had before trial but had not disclosed to Petitioner's attorneys despite a court order to do so. The Memorandum discussed additional problems she had encountered because the physical evidence from the trial 21 years earlier had been misplaced or destroyed, a witness had later recanted his trial testimony, and key witnesses had died since the trial had taken place.
Further, as a result of the publicity surrounding her investigation a number of persons had come forward claiming to have evidence, but they had never come forward during the initial investigation.
Reno and the two Assistant State Attorneys who worked with her on her investigation determined that in evaluating whether Petitioner should be given post-conviction relief and
whether Petitioner should be re-tried, they would only consider the files, records, and evidence that existed at the time that Petitioner was tried. They considered the evidence that had not been disclosed to anyone for 21 years to be unreliable. Some of it was also conflicting. She signed the Nolle Prosse Memorandum as did the two Assistant State Attorneys Don L. Horn and Richard
L. Shiffrin.
At the final hearing in this cause Don Horn testified extensively as to the contents of the Memorandum. Although he, Shiffrin, and Reno had discussed the misconduct they discovered on the part of the Sheriff and the prosecuting attorneys, they knew that the statute of limitations prevented taking action against those public officials, so the Memorandum did not discuss any action to be taken against them. It only considered the evidence against Petitioner.
The Memorandum concluded that a "totally inadequate and incomplete investigation" into the deaths of the seven children had been conducted. Obvious leads had not been pursued, inconsistencies were not resolved, and standard investigative procedures had not been followed. The Memorandum further opined that at the time that Petitioner was charged with murder, the State did not have sufficient evidence to prove his guilt beyond and to the exclusion of a reasonable doubt. The
Memorandum concluded that Petitioner "was probably wrongfully accused" based upon the evidence that existed at the time.
Three years later a 260-page Memorandum Opinion prepared by United States Attorney Robert Merkle and indicating a need for further investigation into the 1968 prosecution of Petitioner was presented to the Treasurer of Florida. The Opinion, which was not admitted in evidence, was described as a "scathing indictment" of Reno's investigation. As a result, Governor Lawton Chiles issued a confidential Executive Order on October 16, 1992, appointing State Attorney Reno to further investigate all matters pertaining to or arising from the issues raised in the Opinion involving Petitioner's prosecution. On October 30, 1992, the Governor issued a second Executive Order deleting the provisions of his prior Order requiring that it be sealed and confidential.
Assistant State Attorney Richard L. Shiffrin, who participated in Reno's first investigation, and Gertrude M. Novicki, Reno's Chief Assistant for Special Prosecutions, were assigned to conduct this investigation. Both of those Assistant State Attorneys signed the Response of the State Attorney of the Eleventh Judicial Circuit. The Response is not dated but a
word-processing notation suggests it may have been issued on or about April 30, 1993.
At the final hearing, Novicki testified regarding her Response. Rather than responding to or explaining each of the details set forth in Merkle's Memorandum Opinion, Novicki and Shiffrin re-examined the propriety of both the vacating of the original judgment of guilty and the decision to enter a nolle prosse. In doing so, they reviewed the original prosecution in light of the evidence at trial and of the law as it existed in 1968 and also reviewed the ability to re-prosecute Petitioner in light of the evidence currently available and admissible. The Response concluded that the Order granting Petitioner's motion to vacate his conviction and sentence was supported by the facts and the law and that the decision to enter a nolle prosse
reached in 1989 was proper.
The Response's summary states that the physical evidence against Petitioner did not establish guilt beyond a reasonable doubt, the testimonial evidence as to Petitioner's admissions of culpability were of dubious admissibility and value, the evidence of motive was equivocal at best, and the decision to enter a nolle prosse was unquestionably correct. The summary ends as follows: "Whether or not [Petitioner] is guilty of this horrible crime is uncertain. What is certain is that proof beyond a reasonable doubt of guilt is lacking."
The prior proceedings involving Petitioner and the prior reviews of those proceedings have focused on the criminal
law standard of guilty beyond a reasonable doubt. That standard, however, is not applicable to this proceeding. In this proceeding wherein Petitioner is seeking monetary compensation for his wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that he committed neither the act nor the offense that served as the basis for the conviction and incarceration and that he did not aid, abet, or act as an accomplice to a person who committed the act or offense.
Further, he must prove his actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person.
Petitioner testified that he did not poison his children, that he did not kill his children, and that he never told anyone that he did. He also testified that he did not aid or assist anyone in poisoning or killing his children. In order to provide verifiable and substantial evidence in support of his testimony that he is innocent, Petitioner has taken two approaches. The first is by relying on the investigation detailed in the 1989 Nolle Prosse Memorandum and the testimony of Don Horn, one of the authors. (In its defense, the State offered the 1993 Response and the testimony of Gertrude Novicki, one of its authors.)
In so doing, Petitioner has offered clear and convincing evidence that the investigation leading up to Petitioner’s prosecution and conviction was incomplete. The investigation revealed conflicting evidence about whether Petitioner had obtained life insurance policies on his children the night before they were murdered, which he had not, and whether Petitioner believed that he had. The investigation did not determine how the parathion got into the pots and skillet and various food products in the refrigerator or when. The investigation appeared to focus only on Petitioner as a suspect and not also on others whose involvement was suspicious.
Toward the end of the investigation and prior to Petitioner’s criminal trial, the prosecutors wrote memos expressing concern about the weakness of their case and their possible inability to present even a prima facie case. After those memos were written, the Sheriff produced three jailhouse informants to testify that Petitioner admitted to them his crimes. They also gave statements that Petitioner said he thought that Reese did it and gave details of different motives she might have had. Rather than resolving the conflicting statements, the prosecution withheld the conflicting statements from the defense. The Nolle Prosse Memorandum discusses these statements and informants and finds that one of the jailhouse informants recanted his testimony after Petitioner’s trial and
one was drunk when he testified. The third one, whose statements were given under circumstances that made them highly doubtful, died before the trial, and his testimony given at the preliminary hearing was given to the jury in the form of five witnesses who testified as to their recollections of his testimony. The informants were not the only ones to provide perjured testimony at Petitioner’s trial; the Sheriff also appears to have done so.
A review of the Nolle Prosse Memorandum and the detailed evidence it discusses makes it clear that Petitioner was wrongfully accused based upon the evidence and lack of evidence the prosecution had gathered. It is further clear that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. It is further clear that re-trying Petitioner would be fruitless because the evidence available 21 years after the murders was insufficient: the physical evidence was missing or destroyed, many of the key witnesses were dead, and the evidence that might have been admissible for a re-trial was conflicting. However, the inability of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of committing the murders or aiding in the commission.
Petitioner’s second approach to providing verifiable and substantial evidence of his actual innocence is attempting
to show that Reese, not the Petitioner, murdered the children. The 1989 investigation showed that, at the time the Richardson children were poisoned, Reese was on parole for killing her second husband with a gun. Although there was also a rumor that she had poisoned her first husband, no evidence was found to support that rumor. Parenthetically, there was also a rumor that Petitioner killed his three other children in Jacksonville, but that was also untrue. Similarly, there was a rumor that Sheriff Cline fathered Reese’s granddaughter and that was why he steered the investigation away from her. The blood tests of all concerned done as part of the 1989 investigation proved that rumor also untrue.
Petitioner relies also upon the facts that Reese was the last person in the Richardson home on the day in question, the person who served the children the poisoned lunch, and the person who found the parathion in the shed. Her unconcerned behavior while the Richardson toddlers were exhibiting horrible symptoms on her porch and her lack of concern about whether her children who were playing there might be at risk from whatever was making the Richardson children so sick are suggested to be evidence that she knew why the Richardson children were sick and why her children would not be. It was also suggested that she must have been the murderer since her third husband had gone to
Jacksonville with Petitioner and his wife but they had returned without Reese’s husband who never did return to her.
Petitioner relies heavily on evidence which he suggests constitutes admissions of her guilt by Reese. The 1988 investigation considered an affidavit by one certified nursing assistant and a taped interview of another, both of whom worked at a nursing home where Reese became a patient in 1986. The affidavit by Belinda Romeo asserts that Romeo asked Reese on more than 100 separate occasions if she killed the seven Richardson children, that Reese replied that she did, and that Reese was competent at the times Romeo asked that question.
On the other hand, the transcript of a taped interview of Doris Harris, who was present several times when Romeo questioned Reese, is clearly contrary to that affidavit. Harris states that by the time Reese was admitted to the nursing home, she was incontinent, unable to walk, unable to feed herself, only “half way aware,” unable to say what day or year it was, "back to a child's state," and suffering from Alzheimer’s. When Romeo would ask if she killed the children, she would say that she killed them, say the name Charlie, and then lapse into incoherent mumbling. Harris believed that Reese was saying she killed them because she was the one who fed them the poisoned food, and not because she was the one who put the poison in the
food. Reese’s “admissions” are, therefore, ambiguous and not trustworthy.
Petitioner also introduced into evidence a 1988 affidavit of Richard H. Barnard, the Chief of Police who began an investigation into the children’s deaths. After he got Reese to admit she was in the Richardson home that day and served the children their lunch, he was removed from the investigation by the “Governor’s office” in a phone call which he believes Sheriff Cline instigated. His affidavit undermines the statements of the jailhouse informants, expresses his concern that Sheriff Cline may have tampered with the jury, and states his opinion that Sheriff Cline framed Petitioner. He concludes with his opinion that Petitioner was innocent and Reese was guilty.
The hearsay evidence and suggestions that Reese was guilty of the murders do not constitute verifiable and substantial evidence of Petitioner’s innocence. Opinion testimony does not constitute verifiable and substantial evidence of Petitioner's innocence. The Nolle Prosse Memorandum and the Response do not constitute verifiable and substantial evidence of Petitioner’s innocence. The testimony of Horn and Novicki as to what they considered during their investigations does not constitute verifiable and substantial evidence of Petitioner’s innocence. Lastly, Petitioner’s own testimony
denying his guilt is not verifiable and substantial evidence of his innocence. Simply put, the evidence in this proceeding does not establish Petitioner’s actual innocence.
Since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” Petitioner argues that the definition should be that based upon the evidence it is more likely than not that no reasonable juror would have convicted him. That definition is found in Supreme Court of the United States and Supreme Court of Florida cases. Bousley v. United States, 523 U.S. 614 (1998); Schlup v. Delo, 513 U.S. 298 (1995); Tompkins v. State, 994 So. 2d 1072 (Fla. 2008); Mills v. State, 786 So. 2d 547 (Fla. 2001).
Petitioner’s argument is not persuasive. All of those cases involved motions for post-conviction relief, not claims for money damages. That definition of actual innocence was likely utilized when Petitioner was granted post-conviction relief by having his conviction and sentence vacated and being released from prison, which is the relief which results from meeting that definition. That definition of actual innocence tests the legal sufficiency of evidence.
The Statute regulating this proceeding does not consider legal sufficiency; rather, it considers factual sufficiency by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable
and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning.
A review of the two investigations of Petitioner’s prosecution clearly shows an absence of evidence proving Petitioner guilty beyond a reasonable doubt. However, a review of the two investigations does not show that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that he is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act.
Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing his Petition.
DONE AND ENTERED this 21st day of August, 2009, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2009.
Robert I. Barrar, Esquire Law Offices of Ellis Rubin &
Robert I. Barrar
6619 South Dixie Highway, No. 311
Raul C. De La Heria, Esquire 2100 Coral Way, Suite 500
