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WASHINGTON — Nearly 39 years ago, a wealthy Florida citrus grower named Charles Von Maxcy was stabbed and shot to death, gangland style, at his home in Sebring. The bizarre story of the murder, and of Florida’s on-and-off campaign to find and convict the killer, is now before the Supreme Court, which will review the case at its May 12 conference and decide whether to put it on its docket. It comes to the court in the form of an appeal by William Kelley, who has been on Florida’s death row for 20 years for killing Von Maxcy. His lawyers say that Kelley may well be innocent. But the narrative of Kelley’s appeal, which reads like a crime thriller, complete with love triangles and alleged misconduct by prosecutors and defense lawyers alike, is not the only thing about the case of Kelley v. Crosby that is likely to catch the justices’ eyes. Among the lawyers arrayed on Kelley’s side, and against Florida, are Harvard Law School professor Laurence Tribe and former Independent Counsel Kenneth Starr — political opposites, to say the least. Tribe, who filed Kelley’s petition with the court, says he has worked on the case for free and mostly behind the scenes for a dozen years. It is the first capital case he has brought to the Supreme Court, among the scores of high court cases he has handled, and Tribe says he had to overcome his usual reluctance to take on death row cases. “I couldn’t not take Billy Kelley’s case,” says Tribe. “What I never imagined is that it would all now hinge on one conference of the Supreme Court.” Illicit Love Affair As the Eleventh Circuit U.S. Court of Appeals put it in its 138-page ruling last year rejecting Kelley’s appeal, “This sordid tale begins with an illicit love affair between John Sweet, a real estate broker with shadowy ties to Boston’s criminal underworld, and Irene Maxcy, who was married to Charles Von Maxcy.” According to briefs in the case, the two conspired to get rid of the husband so they could live together on Maxcy’s large estate. Through connections he had in Boston, Sweet arranged for hit men to kill Von Maxcy for a fee of $20,000. After the murder, Sweet threatened the widow and demanded money, which led her to tell police about the murder-for-hire scheme. Sweet was indicted for the murder, and after one mistrial he was convicted at a second trial. But, as the appeals ruling relates, a problem arose: On appeal, Sweet alleged that the lead police investigator in the case, Roma Trulock, was having an affair with Irene Maxcy, so he had reason to tilt the evidence against Sweet. Irene Maxcy acknowledged the affair, the conviction was reversed and Sweet was set free. But Sweet got into trouble again in Massachusetts, finding himself investigated in connection with narcotics, arson and bribery allegations. “With authorities closing in on him, Sweet went to them first,” the district court ruling states. He offered to name Von Maxcy’s actual killers; two were dead, but the third, Sweet said, was William Kelley. The day after he gave police the information about Kelley, Sweet was given immunity from prosecution for his Massachusetts activities. Seventeen years after the murder, Kelley was arrested and indicted for his alleged role in it. After firing his first lawyers, Kelley then brought in famed civil liberties lawyer William Kunstler, now deceased. Kunstler hired assistants, including one disbarred attorney, and put on no evidence at either Sweet’s first or second trial, apparently believing that the state’s case was so weak that no rebuttal was needed. Kelley’s first trial resulted in a hung jury, but he was found guilty at the second trial. Sweet’s immunity deal was revealed at Kelley’s trial, and in her brief to the Supreme Court, Senior Assistant Florida Attorney General Carol Dittmar acknowledges that at trial Sweet admitted that “he had lied, many times, repeatedly” at the earlier proceedings. But in his closing statement to jurors, prosecutor Hardy Pickard assured jurors that granting Sweet immunity “had nothing to do with the Maxcy case. . . . He didn’t have to give them Kelley to get immunity.” In later stages of Kelley’s mostly unsuccessful post-conviction appeals, new lawyers for Kelley invoked Florida’s open records laws and obtained documents undermining some of the state’s evidence and revealing a more direct tie between Sweet’s immunity deal and the Von Maxcy case. “The timing was no coincidence,” says an amicus curiae brief filed on Kelley’s behalf by retired judges, as well as the Florida Innocence Initiative and the Center on Wrongful Convictions. “Sweet’s immunity in Massachusetts was directly related to his cooperation with Florida officials.” Starr, now of counsel at Kirkland & Ellis, participated in the amicus brief. Counsel of record on the brief was Amy Howe of D.C.’s Goldstein & Howe. Based on that new evidence, Kelley’s lawyers asserted a so-called Brady violation — a violation of the 1963 court precedent Brady v. Maryland , which bars prosecutors from withholding exculpatory evidence from defendants at trial. Kelley’s appeal asserted that the newly available evidence, if prosecutors had made it available before the trial, would have impeached the credibility of Sweet, the prosecution’s most important witness. Kelley’s first federal post-conviction appeal languished for eight years, but finally in 2002, after holding hearings in Massachusetts and Florida, U.S. District Judge Norman Roettger ruled in Kelley’s favor based on the Brady claim and on an allegation of ineffective assistance of counsel. Underlining the unusual nature of the case, Roettger wrote, “The undersigned judge is not a foe of capital punishment and has granted only three (petitions for habeas relief) in thirty-plus years on the district court bench.” But the Eleventh Circuit was unimpressed. In a lengthy July 2004 ruling written by Judge Gerald Tjoflat, the appeals court reversed Roettger. The appeals panel determined that Sweet’s credibility had already been impeached at trial even without the documents that emerged later. As a result, the new documents constituted “at best, cumulative evidence” that would not have added significantly to impeaching Sweet’s already sullied credibility, and would not have changed the outcome of the trial. Tjoflat concluded that withholding the evidence in the first place did not taint the trial and did not violate Brady v. Maryland . In his appeal to the high court, Tribe says the Eleventh Circuit’s approach of rejecting a Brady claim because a witness’s credibility was already somewhat impeached, weakens Brady and undermines public confidence in trials. Noting that the First, Second, Fifth and Seventh circuits have adopted a similar approach to Brady claims, while the Ninth and D.C. circuits have rejected it, Tribe argues that the split should be resolved by the Supreme Court. Florida’s Dittmar counters that none of the courts that have ruled on this issue have laid down bright-line rules, and “there is no conflict among the circuit courts.” She also says in her brief that the jury “already knew all necessary information” when it found Kelley guilty. Tribe argues that the Eleventh Circuit and the other circuits that agree with it “have become desensitized to the way in which withholding even a single item of exonerating evidence might well tip the scales against the accused when the state is already only barely carrying its burden.” The amicus brief notes that the withholding of evidence has been a major factor in many of the nation’s recent death penalty reversals, and adds that the Eleventh Circuit ruling “gives prosecutors a perverse incentive to withhold the very evidence that would be most likely to make a difference in a close case–evidence that may result in a jury’s discrediting a key witness’s testimony entirely and therefore acquitting the defendant.” Other Cases Up for Review May 12 Conference SFPP v. Federal Energy Regulatory Commission , 04-900 and 04-903. Damages in oil pipeline rate cases. Mobil Oil Exploration& Producing Southeast v. United States, 04-923. Waiver of sovereign immunity in cases involving breach of oil and gas leases. Arbaugh v. Y&04-944. Provision of Title VII of the Civil Rights Act that limits coverage of the law to employers with 15 or more employees. Merck& Co. v. Epps-Malloy, 04-995. Judicial deference to fiduciary’s decisions on disability claims under ERISA. Rapanos v. United States , 04-1034. Whether Congress exceeded its commerce clause authority by extending coverage of the law to intrastate waters without hydrological connection to navigable waters. Baltimore City Department of Social Services v. Teresa B., 04-1054. Whether Fifth Amendment privilege against self-incrimination allows parent of missing child to refuse to disclose child’s last known location. Ayotte v. Planned Parenthood of Northern New England , 04-1144. Standard of review for facial challenge to New Hampshire abortion law requiring parental notification. Kansas v. Marsh , 04-1170. The standard for sufficiency of evidence in capital sentencing cases. St. Jude Medical, Inc., et al. v. Cardiac Pacemakers Inc., et al., 04-1171. Whether district court has discretionary authority to order a new trial as sanction for fraud perpetrated by witness and counsel. Alexander v. Oklahoma , 04-1198. Whether civil rights claims filed by survivors of 1921 Tulsa race riots are barred by statute of limitations. Uzan v. Motorola , 04-1255. Choice of law issues in appeal from order denying arbitration under Federal Arbitration Act. May 19 Conference McKenzie v. Benton , 04-1057. Burden of proof in cases under Americans With Disabilities Act that involve whether a job applicant with disabilities poses a “direct threat” to herself or others. Sequim, Washington v. Johnson , 04-1114. Qualified immunity for police officials in litigation under 42 U.S.C. �1983. Odom v. Yang , 04-1157. Statutes of limitation and class actions. Hsu v. Clark County, Nevada,04-1282. Whether airport’s use of airspace, thereby limiting nearby development, amounts to a taking requiring compensation under the Fifth Amendment. Finch v. Galaway , 04-1283. Effect of divorce in designation of beneficiary under ERISA. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. Goldstein & Howe represents the petitioner in Kelley v. Crosby , 04-1198. Goldstein did not otherwise participate in the preparation of this column. Tony Mauro is the U.S. Supreme Court correspondent forLegal Times, aRecorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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