Dead Man Waiting

Billy Elledge brutally raped and murdered a woman in Hollywood 25 years ago. He has sat in prison since then, evidence that Florida's death penalty isn't working.

When the United States Supreme Court, in a 1972 case called Furman v. Georgia, tossed out all death penalty laws as unconstitutional, Florida was the first state to draw up a new statute and delve back into the business of death. Former Miami Herald reporter David Von Drehle recounts what took place in his 1995 book about the modern death penalty in Florida, Among the Lowest of the Dead. "The lawmakers were so eager they held a special session for just that purpose; the session was a three-day whirlwind resulting in a complicated legal contraption for weighing shades of evil. Florida's new law provided for several layers of review in each capital case and promised certainty in place of the old caprice."

One of the hallmarks of the statute drawn up in 1972 is automatic review of every death sentence by the Florida Supreme Court. Another is that a judge and jury are to weigh a list of "aggravating" and "mitigating" factors when deciding on a sentence. For example, if the defendant has a prior history of committing violent felonies, that is considered an aggravating circumstance. If, on the other hand, he has no significant criminal history, that is counted as a mitigating factor. Based in large part on how these factors stack up, the jury submits an "advisory" sentence to the judge recommending either life in prison or death. The judge then makes the ultimate decision. The new Florida death penalty statute was upheld by the United States Supreme Court in 1976. In Elledge's case, however, as with many other death penalty trials, the statute has proven to be burdensome, inefficient, and difficult to enforce consistently.

On March 7, 1977, just two months after the execution of Gary Gilmore in Utah by firing squad initiated the post-Furman death penalty, the Florida Supreme Court vacated Elledge's first death sentence. The court ruled that testimony relating to the murder of Gaffney, the second person Elledge killed, should not have been admitted during the sentencing trial. The reason: Elledge had not yet been convicted of that crime at the time he was sentenced to death.

A second jury then advised Judge M. Daniel Futch, Jr., to send Elledge back to the electric chair. He concurred. This time the sentence cleared the state supreme court and Elledge came perilously close to a rendezvous with the electric chair. On February 15, 1983, a death warrant was signed for Elledge by then-Gov. Bob Graham, and an execution date was set for one month later. Elledge was granted a stay by a federal judge five days before the scheduled execution. The judge believed that the courts needed additional time to look at issues that Elledge had raised on appeal.

Four years after that, the United States Court of Appeals for the Eleventh Circuit again threw out Elledge's death sentence and ordered a new hearing. The court ruled that because Elledge was held in leg irons during the second sentencing hearing, the jury had been unfairly prejudiced against him. Elledge had been held in restraints at the prosecution's bequest after a report surfaced that, while living in a six-by-nine cell, he had somehow mastered martial arts and planned to attack the bailiff.

Third sentencing, same result. Elledge is again given the electric chair. The Florida Supreme Court once more vacates the sentence, this time for numerous judicial fouls committed by Judge Futch and the prosecution, led by Michael Satz, the Broward County State Attorney who has worked on this case since its inception. Among the somewhat arcane mistakes made: Pictures of Gaffney's corpse were improperly allowed into evidence, and the prosecution withheld evidence from the defense regarding Elledge's 19 disciplinary reports while incarcerated. The court also erred, according to the Florida Supreme Court, in allowing the rape of Strack to be counted against Elledge as a prior violent felony despite the fact that it occurred at the same time as the murder.

Judge Futch has by now retired. Margaret Anne Strack has been dead for almost 20 years. But the facts of the case apparently remain the same to the judge and jury during the fourth hearing: Elledge is again sentenced to die in the electric chair in 1994.

William Laswell, Elledge's attorney during the fourth sentencing hearing, now argues, somewhat paradoxically, that the very delay in Elledge's execution has now made it impossible for him to get a fair hearing. Laswell notes that many of the witnesses whom he might have used for mitigating purposes to show why Elledge should live, were now either dead or had not been in touch with the prisoner for decades.

"Satz had three whacks at him, and with various judges sitting on the bench, either Satz or the judge overreached," says Laswell, a veteran of the capital crimes division of the public defender's office. "Well, during the time that they're giving the court and the state a chance to try again, and try again, and try again, what's happening to the defendant? Twenty-three hours a day in a cell by himself. No contact with any one.... His chances are going down, down, down, and they get to go to bat over, and over, and over."

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