'Mello's responsible for Spaziano's life'

'Mello's responsible for Spaziano's life'

Spaziano, Joe

Mello, Michael

Michael Mello successfully argued for Joe Spaziano to receive a fair trial by refusing to show up to a hearing for which he had been given a week to prepare and highlighting that Spaziano was being denied effective assistance of counsel, he shamed the court into granting a stay of execution and time to prepare properly. Though Mello himself was thrown off of the case, this action allowed for Spaziano to have a new trial.

Parloff, Roger

Roger Parloff, The New York Times, 1996. Reprint, The American Laywer, April 1996.

HIST 298, University of Mary Washington

1996-04

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English

Florida

[title] ‘Mello’s responsible for Spaziano’s life’
[subtitle] Roger Parloff is a senior writer at The American Lawyer. This article is reprinted, with permission, from the April 1996 issue.
“If this court intends to kill this innocent man by depriving him of the effective assistance of counsel,” pro bono counsel Michael Mello wrote the Florida Supreme Court last Sept. 8, “then it will do so without my complicity. I will not participate in a sham evidentiary hearing.”
To stop the machinery of death from claiming his client, Mello threw himself in the gears. By refusing to show up to a hearing for which he had been given a week to prepare and highlighting that, in his opinion, his client was being denied effective assistance of counsel, he shamed the court into granting a stay of execution and time to prepare properly.
For years the eccentric Mello, now a professor at Vermont Law School, had written in pleadings, law review articles, and newspaper editorials that his Death Row client, Joseph “Crazy Joe” Spaziano, was innocent. Mello’s writings were always passionate, always verbose, occasionally offensive, and never successful.
Spaziano, a member of an Orlando motorcycle gang, was convicted in January 1976 of brutally murdering Laura Harberts, an 18-year-old hospital clerk, who disappeared on Aug. 5, 1973, and whose skeletal remains were discovered in a garbage dump 16 days later.
While the case raised numerous perplexing legal issues, the most disturbing was that -- unbeknownst to the jury -- the testimony of the key prosecution witness, a troubled teen drug addict named Anthony DiLisio, consisted almost entirely of hypnotically recovered memories. Although the state Supreme Court later decided that hypnotically induced testimony was so unreliable as to be inadmissible per se, both that court and the federal courts refused to upset Spaziano’s conviction, since his trial lawyer had never objected to DeLisio’s testimony on those grounds. Indeed, his trial lawyer chose not to let the jury know that DeLisio’s testimony was hypnotically induced, fearing that the jury might give it undue credence if it knew.
While Spaziano’s fourth execution warrant was pending in June 1995, DeLisio, now a born-again Christian, recanted his testimony, Gov. Lawton Chiles briefly stayed Spaziano’s execution to investigate the recantation, but in late August he issued a fifth warrant, claiming that a report by state investigators -- which Chiles refused to make public -- established the recantation was false. Spaziano was to die Sept. 21.
On Sept. 8 Mello went to the Supreme Court seeking a stay of execution and an evidentiary hearing concerning the recantation.
The court granted the hearing but refused to order a stay of execution. Instead, by a 4-to-3 vote, the court ordered Mello, an appellate lawyer with very little trial experience, no associates, and no investigator, to handle an evidentiary hearing one week later, on Sept. 15. The court also ordered the state’s Office of Capital Collateral Representative -- a public defender’s office devoted to capital post-conviction appeals -- to assist Mello.
Mello refused to comply.
“We would have thrown a hearing together,” he says, “put on enough evidence so that (the justices could say), ‘Yeah, you had your hearing,’ we would have lost, the [trial-level] judge would have made killer fact-finding against us, and . . . Joe would have been dead on time and as scheduled.”
In a handwritten fax sent from his motel to the Supreme Court on the night of Sept. 8, Mello just said No. He wrote, among other things, that he and CCR could not provide competent assistance with just six days’ preparation. Mello also pledged that he would not surrender his 25 boxes of case files to CCR or to any other attorney in time for the hearing. “If you are going to kill an innocent man without a lawyer,” he wrote, “you will do so in such a way that the whole world will see what you are doing. . . . I will not be your mask.”
The high court blinked. On Sept. 12 it threw Mello off the case but granted Spaziano a stay. Then, in January, after new pro bono attorneys at 470-lawyer Holland & Knight took over the case -- and the Supreme Court allowed them almost three months to prepare -- Circuit Judge O.H. Eaton Jr., of Sanford, overturned Spaziano’s conviction and granted a new trial.
“Mike Mello’s responsible for Joe Spaziano’s life,” says H&K partner Gregg Thomas, who handled the hearing with his partner Stephen Hanlon and Orlando-based criminal specialist James Russ. Holland & Knight donated about $400,000 in lawyer time and $70,000 in costs to handle the hearing, Thomas estimates, not counting Russ’s time.
The state has appealed Judge Eaton’s ruling to the Florida Supreme Court.
Meanwhile, Spaziano is still serving life for the 1971 rape and battery of a 16-year-old girl. Mello believes Spaziano is innocent of that charge as well. But as Mello says, “that’s another story.”

[Break of text] Judge Eaton overturned Spaziano’s conviction and granted a new trial.

Newspaper

Kurtz, Logan

Dickinson, Terra