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A hanging offense

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The 1983 slaying of 50-year-old Del Baker was destined to be a witch-hunt. During an apparent robbery of Baker's Auburndale beauty school, an assailant slashed his throat and shot him in the head. Police had few leads except the questionable testimony of several low-level criminals trying to save themselves.

Police initially arrested John Berrier, a Lakeland city employee, but he told them he was only the driver, not the killer. Berrier fingered another suspect, Juan Melendez, a Puerto Rican migrant worker, who was arrested six months later.

At trial, four witnesses, including Berrier's brother, George, testified that Melendez wasn't at the crime scene. (George Berrier was allegedly the third accomplice to the murder, though he was never arrested in connection with the crime.) Regardless, Melendez was convicted of first-degree murder and sentenced to die in Florida's electric chair.

His conviction rested on the testimony of John Berrier and on that of a small-time thug named David Luna Falcon. Falcon, a police informant, supposedly held a grudge against Melendez over a spat with Falcon's parents. He testified that Melendez admitted to murdering Baker after an unknown "black guy" slit the victim's throat. Falcon also told jurors that Baker threw his own blood at his assailants, and before he died offered them $1 million to take him to the hospital. Instead, according to Falcon, Melendez killed him with a .38 muffled with a pillow.

Damning testimony indeed. The trouble is it didn't match statements Falcon made during an earlier interview with an assistant state attorney.

In that interview with prosecutor Hardy Pickard four months before Melendez's September 1984 trial, Falcon never mentioned the thrown blood or the $1 million offer. (He was able to identify the unknown "black guy" as John Berrier.) All together there were 10 discrepancies between Falcon's testimony in court and the prior interview conducted by Pickard, according to an appeals review by Hillsborough County Circuit Judge Barbara Fleischer.

But Melendez's jury never heard those discrepancies before they sentenced him to death. They also never heard that another low-level criminal, Vernon James (who was murdered in 1986), confessed to an investigator that he was in Baker's beauty shop when "two homos" committed the murder (Baker was thought to be gay); or that Falcon, who died of AIDS in 1986, had illegally entered and shot up the home of a Bartow couple, supposedly while working as an informant. The incident could have damaged Falcon's credibility, but it was never introduced.

Pickard knew all of the above because he had handwritten notes in his files. And he also knew such details could be damaging to his case. So he didn't turn them over to defense attorneys as required by state law. It's that fact that eventually set Melendez free in January after 18 years on death row.

"God only knows the damage done to me," says Melendez, who is on a statewide tour against capital punishment. "I'm OK. But I still get nightmares, and I still think about the ones left behind."

Hardy Owen Pickard III, on the other hand, has risen steadily through the ranks of the 10th Judicial Circuit, which covers Polk, Highlands and Hardee counties, south and west of Orlando.

Pickard, who has never married, started his career as a $14,000 novice prosecutor in June 1973. Today he is the $90,000-a-year supervisor of the circuit's felony division. Since becoming the supervisor in the early 1990s, the 55-year-old Pickard no longer handles capital cases. But for a dozen years of his career he did take on the cases. Court officials from the 10th Circuit can't say how many inmates he's put on death row.

His personnel file shows that Pickard is an idealistic prosecutor with a nose for legal matters. "Even some other legal scholars in the office beat a path to Hardy's door," a 1990 evaluation reads. A more recent evaluation, however, points to an unyielding personality. "He needs to be more pragmatic and less idealistic in resolving cases," a supervisor wrote.

Pickard declined Orlando Weekly's request to be interviewed for this story. But his boss, Jerry Hill, a one-time 10th Circuit public defender who worked with former Orlando Mayor Bill Frederick's law firm in 1973, defended Pickard as a victim of an erroneous ruling, saying Judge Fleischer set loose a known killer.

"Hardy is not a saint," Hill says. "He's not able to walk on water. But I've never heard it suggested that Hardy's actions have been anything other than perfectly honorable. He's always been willing to say `to defense attorneys`, Ã?Here's my file. This is everything I have.'"

Perhaps Pickard could be forgiven for breaking the rules once, though few of us would want to be in Melendez's shoes when it happened.

Yet Melendez isn't the only death-row case where Pickard's actions have been singled out. Last month, semiretired federal judge Norman Roettger ruled that inmate Billy Kelley, also sent to death row in 1984, deserved a retrial because of the way Pickard handled his case.

Kelley's case was another in which witnesses with marginal reputations testified against an alleged murderer. It started when John Sweet and Irene Maxcy took out a contract on millionaire rancher Von Maxcy, Irene's husband.

Von Maxcy was stabbed and shot in his bed on Oct. 3, 1966, begging for his life and offering money. Irene Maxcy received immunity when, two years later, she rolled over on Sweet, her lover, who was wanted in Massachusetts on a number of warrants. Sweet, in turn, was granted immunity in Florida and Massachusetts for testifying against the two killers, hired through a Boston bookie.

The two hit men -- who signed into a Daytona Beach motel room paid for by the now-deceased Sweet a week before the murder -- were identified as Andrew Von Etter and Billy Kelley. At trial, the motel clerk described Kelley as 40 years old, not more than 6 feet 2 inches tall, with a medium build and dark hair. But at the time of the crime, Kelley was 23, stood 6 feet 6 inches tall, had straight blond hair and was very thin.

The killer fitting the clerk's description was likely the now-deceased Steven Busias. His family members testified that Busias was in a "criminal syndicate," was friends with Von Etter and had come into a lot of money about the time of the murder.

A verbal slip by Pickard doomed Kelley. Pickard told jurors: "John Sweet did not have to give the police Kelley to get immunity." It was an important statement. The jury's one question to the judge during deliberations was whether or not Sweet got immunity for his testimony. All they had to go on was Pickard's comment, so they incorrectly believed the answer was no.

In July, Pickard took the stand to defend himself 18 years after the misstatement about Sweet. "It was never my intention to lie," Pickard told Judge Roettger. "But maybe the way the words came out is not how they should have come out."

That confession shouldn't surprise anyone who has followed death-penalty cases. According to Richard Dieter, director of the Death Penalty Information Center, prosecutors are under extreme pressure to win cases, even if it means bending the rules.

"Death-penalty cases are very high-profile, media-intensive cases," Dieter says. "There is a lot of pressure on police to convict and get a death sentence."

If Kelley comes off death row he'll be the 25th person released. That's almost twice as many as the state with the next highest number of freed death-row inmates, Illinois. Yet unlike Illinois, Jeb Bush doesn't plan a moratorium on executions to study why so many innocent people end up on death row.

One of Kelley's lawyers has a theory on that.

"In cases involving multiple defendants, it's usually the stupidest, most inexperienced person who gets the death penalty," says Jimmy Lohman. "The other defendants are smart enough to testify against a dupe. In return they receive lesser sentences, from life to sometimes walking away scot-free. This is a very common way for defendants to receive the death penalty."


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