Executing Justice
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[title]Executing Justice [title]
[subtitle] Vermont Law School Professor Gives Death Row Inmate New Lease on Life [subtitle]
[Image of Michael Mello]
[Caption] Michael Mello sits in his home office in Wilder surrounded by paperwork he has prepared in the case of Florida inmate Joseph Spaziano and mementos from his life as a death-penalty lawyer and professor. [Caption]
They call his client "Crazy Joe" Spaziano. Vermont Law School Professor Michael Mello calls him a friend. He also calls him innocent.
For more than a dozen years, ever since he began arguing Spaziano's case as a fledgling public defender, Mello has fought to bring those claims of innocence to light.
[Images of Spaziano and Mello]
[Caption] Spaziano is shown in a family snapshot (left) before his imprisonment. A later photo (right) shows an older Spaziano in a Florida prison. Spaziano, an artist and longtime member of a motorcycle gang, gave this oil painting to Mello (below) about a decade ago. [Caption]
The case went before 26 different judges and was played out in at least 17 different court hearings. "Not a single judge in a single court ever took a look at the issue of evidence," Mello said.
Until this fall.
Now, the case Mello calls "too bizarre to work as fiction" may finally be drawing toward an end. Spaziano was recently granted a new trial after nearly two decades on Florida's death row.
Sitting on a couch in his Wilder home, clad in a black jersey and jeans, Mello chain-smoked his way through a handful of Camel cigarettes as he told Spaziano's story. The narration rolled his tongue with easy familiarity as he pulled through a carved cigarette holder.
Joseph Spaziano, now 50, was born into a working-class Italian family in upstate New York. His "crazy" behavior came, in part, from permanent brain damage he suffered after being hit by a truck at the age of 19. Originally a member of the Hell's Angels, Spaziano joined and ultimately became president of a different gang, called the Outlaws, after moving to Florida as a young man. It was there, in 1973, that an 18-year-old Orlando hospital clerk named Laura Lynn Harberts disappeared. Her decomposed body was found several weeks later in a Seminole County dump.
Two years after Harberts' death, police turned their sights on Spaziano, who had a string of criminal convictions on his record- including a recent rape. Spaziano was indicted in September 1975, and convicted at trial in early 1976. No physical evidence ever linked Spaziano to the crime. The key witness, Tony DiLisio, was a teenager who had to be put under hypnosis repeatedly before recalling, in increasing detail, incriminating statements Spaziano allegedly made about the killing. Jurors did not hear about the hypnosis, but reportedly were still concerned about DiLisio's reliability and hence recommended a life sentence. The judge, noting the rape conviction on Spaziano's record, overrode the jury's wishes and gave Spaziano death.
Later, the Florida Supreme Court would decide hypnosis was not a reliable way to produce evidence in a case. The ruling came too late for Spaziano.
It also was revealed after trial that prosecutors knew of other evidence pointing suspicion away from Spaziano, including a witness who tied a different suspect to the scene of the murder- a man who had failed several lie-detector tests during the investigation.
Despite that and more, Florida has five times tried to send Spaziano to the electric chair. If not for Mello, he would probably already be dead.
Choosing A Path
Mello, now 38, grew up in Virginia, where he saw the play "Inherit the Wind" in high school and was inspired toward a career as either a journalist or a lawyer. Fearing his writing skills would not support the former, Mello said, he pursued a law degree, graduating from the University of Virginia in 1982.
His first job turned out to be the one that piqued his interest in capital punishment. Serving as one of the three law clerks for Judge Robert Vance of the U.S. Circuit Court of Appeals in Alabama, Mello found himself assigned to review the judge's capital punishment cases.
Mello said he was "a little disappointed" in the assignment "for about the first 20 minutes." Then, he said, he read into the pile and discovered that many death-penalty appeals raise constitutional issues. "By the end of that afternoon I was delighted I was going to be Vance's 'death clerk'," he said.
One case in particular from that time period haunts him, Mello said. Ivan Ray Stanley was a retarded man on death row in Georgia of being the right-hand man in "a fairly hideous crime," Mello said. Stanley's co-defendant also appealed but had a better lawyer. When the scales of justice weighed out, Stanley went to his death. His co-defendant remained on death row.
"I finished my clerkship with a good deal of liberal guilt not only for my role in the Stanley case but for death penalty cases in general," Mello said.
Although he had a lucrative job offer from a private firm, Mello remained interested in trying his hand at death penalty cases in general," Mello said.
Although he had a lucrative job offer from a private firm, Mello remained interested in trying his hand at death penalty cases in general," Mello said.
Although he had a lucrative jon offer firm a private firm, Mello remained interested in trying his hand at death penalty work. He took a detour from his intended career path and signed on as a public defender in West Palm Beach, Fla., handling death-row appeals for that region.
Mello's first death penalty filing was a 1983 legal brief to the U.S. Supreme Court asking it to decide whether it was right for the judge to override the jury's recommended sentence in Spaziano's case. The brief does not bear Mello's name because he had not yet passed the bar examination.
The Supreme Court ruled against Spaziano on the issue, but Mello then began to dig into the case in earnest, meeting with Spaziano's lawyers, speaking with DiLisio and reviewing the evidence presented at trial. At that point, he and his client had not met face-to-face. They first did so in the summer of 1984. In preparation, Mello read the Hunter S. Thompson book "Hell's Angels" to prepare for what he might find. He jokingly described the pair's first
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could avoid the June death warrant."
In the face of the new evidence, Chiles stayed the execution for two weeks and ordered an internal law enforcement investigation of DiLisio's claims,
The investigation, which the governor then sealed, concluded that DiLisio's change of heart was not reliable. The delay, however, had lasted until the start of the state Supreme Court's summer break, staving off a new execution order until fall.
It also gave the Miami Herald time to dig further into the case. “Then they started coming up with all sorts of stuff," Mello said.
"Watching a major, big-city newspaper with the resources to investigate the case the way I always wished I had the resources to investigate was a pleasure for me to watch," he said.
Media interest in the case snowballed. It was featured, among other places, in newspapers throughout Florida, became the topic of syndicated columns, reports in The Nation, The New Republic, The Economist and a segment of the ABC nightly news.
When the Florida Supreme Court returned from summer break in late August, Spaziano's fifth death warrant came out.
Mello filed for a new stay of execution. The Supreme Court gave Spaziano a stay on his 50th birthday-Sept. 12. It also ordered a hearing in the case.
Mello balked, however, at the fact that he had only days to prepare. He also had just maxed out his last credit card- part of an estimated $15,000 in out-of-pocket expenses he said he had spent on the case.
In a brash letter to the court, he refused to go forward. "There was no way on earth I could be ready."
The court took his refusal as his resignation from the case. Mello enlisted a private firm to defend Spaziano, who in turn signed on an experienced criminal defense lawyer. The new defense team was allowed more time to prepare for the hearing.
After six days of testimony in January, Spaziano won his new trial- a decision Mello had felt was "virtually impossible" so late in the game.
Circuit Judge O. H. Eaton Jr. wrote in his opinion that he found DiLisio's recantation credible, and added that without DiLisio's original testimony, "there simply is no corroborating evidence in the trail record that is sufficient to sustain the verdict."
The judge ordered a new trial to begin in late March.
That date, however, has been postponed while prosecutors appeal the new trail order, Mello said. They contend DiLisio has nothing to lose by changing his story now and is simply seeking publicity.
Meanwhile, Spaziano has been moved off of death row and back into the general prison population for the first time since his sentencing.
He is no longer confined to a cell most of the day, can place telephone calls more easily and has more ready access to art supplies for cartooning, his hobby and talent.
What Spaziano most wanted Mello to know, however, when he first called, was that he was surrounded as they spoke by seven members of the Outlaws who would protect him in prison.
Mello said Spaziano's ties to the biker group had provided a continuity that had "kept him going."
"He loves those people... and the ones I've gotten to know love him too." In fact, Spaziano had won permission to wear the club's T-shirt if his execution was carried out in the fall.
Spaziano has seen 21 people on Florida's death row killed since executions resumed in 1977. "Two or three" of those were friends, according to Mello.
He has a 23-year-old daughter and three grandchildren who can't remember when he was not in jail.
Question the System
Meanwhile, the Vermont lawyer who said Spaziano "is fond of saying that he and I grew up together" has reached a milestone in his own career.
He has decided that Spaziano's case will not only be his first death penalty appeal but also his last.
"To function efficiently as a defense lawyer in capital punishment as a legal system you need to have more faith and more trust in the judiciary and the prosecution and the others in the legal system than I have after working on the Joe Spaziano case," Mello said.
"The system would have killed Spaziano in a heartbeat. ...If that's how the system treats people who are innocent, then that isn't a system I can continue to participate in good faith."
"Lots of people have said to me, "The system finally worked,' and that is so wrong, because the system didn't work-the legal system was forced, kicking and screaming every minute of the way, into doing right in this case," Mello said.
Mello said he planned to engage in what he called "conscientious abstention." He will continue to write and speak about death penalty issues, as well as teach a death penalty seminar as part of his course load at the law school. Students in his fall 1995 seminar helped prepare U.S. Supreme Court appeals in Spaziano's case.
His book on the capital punishment dissents of U.S. Supreme Court Justices Thurgood Marshall and William Brennan is due out soon. Two other manuscripts are in the works, and he is toying with writing a book about Spaziano's case.
"It's a hell of a story," he said.
The next step for Spaziano, Mello said, is an appeal of his prior rape conviction- which he contends was also falsely pinned on his client. The same Florida lawyer who handled the January hearing has agreed to take the lead in the rape case as well.
If that succeeds along with the murder appeal, Spaziano could be released from prison.
Mello said he was considering what would happen to Spaziano then, and had come up with an answer.
He gestures with his glasses toward the staircase behind him.
"The guest room upstairs," is his answer.
A visitor might be inclined to think he's kidding, but he's not.
"We've got to get him out of Florida, where every law enforcement officer and every prosecutor will be salivating to nail him again."
He said he had no concerns about making such an offer to "Crazy Joe."
"I would trust Joe with my life, as he trusted me with his."
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