Jurisprudence

DNA Evidence Freed Him From Prison. Florida Is Retrying Him Anyway.

Paul Hildwin.
Paul Hildwin.
Photo illustration by Slate. Photos by designer491/iStock/Getty Images Plus and Florida Department of Corrections/Handout via Reuters.

The first time Florida prosecutors tried Paul Hildwin for murder, in 1986, they got a conviction and a death sentence following an epically flawed trial. But, like many dubious convictions tainted by claims of poor defense work and prosecutorial misconduct, it didn’t stick. In 1995, the Florida Supreme Court tossed Hildwin’s death sentence after finding that his trial lawyer inadequately represented him during the penalty phase of the case. And in 2014, the Florida Supreme Court overturned Hildwin’s capital conviction itself based on the discovery of DNA evidence that linked key physical evidence from the crime scene to another person.

At that point, prosecutors should have allowed Hildwin, now 59 and a three-time cancer survivor, to spend the rest of his life in peace. Prosecutors could have exercised their vast discretion in this way even though it is clear from his own testimony that Hildwin had some connection to the victim in the case, Vronzettie Cox, a 42-year-old woman found slain in Hernando County in 1985. Hildwin testified at his chaotic trial that he had been picked up by Cox and her boyfriend, William Haverty, while he was hitchhiking and that he had stolen her radio and her checkbook when Cox and Haverty started violently arguing.

Soon after, Cox turned up dead in the trunk of a car. Haverty told the police at the time that he and Cox frequently argued and were planning to split up. Police and prosecutors turned their gaze toward Hildwin. They did so even after they talked to Cox’s nephew, who reportedly told them that he and his aunt were out drinking together in a bar 12 hours after the police said Hildwin had raped and murdered her. That’s why prosecutors in 1986 relied so heavily on an FBI forensic expert who testified that it was Hildwin’s blood typing found in semen and saliva on Cox’s washcloth and underwear.

Hildwin’s jurors heard nothing about the nephew’s statement to the police. And they could not have known—as the state learned when it tested the forensic evidence decades later—that it was actually Haverty’s DNA on those items. In the ensuing years, meanwhile, Haverty served nearly two decades in prison after later being convicted of serious sexual offenses, including attempted sexual battery of a child. What jurors heard instead of the truth about that DNA was a series of hazy stories incriminating Hildwin from police and other witnesses who were not fulsomely questioned by Hildwin’s attorney.

You would think that someone with charging authority in Hernando County would evaluate the evidence against Hildwin as it stands today, the way the story of that 1985 crime has been transformed by subsequent developments, and conclude that justice cannot be achieved by pressing forward with the case against Hildwin.

Yet here we are on the eve of another capital trial. State attorneys plan to retry Hildwin beginning on Monday even though many of the key witnesses from the first trial are dead or unavailable. They plan to retry him even though Hildwin’s new attorneys cannot use some of the exculpatory testimony that was improperly suppressed from the first trial because the people who would have testified about it are gone. And prosecutors plan to accomplish all this largely by rereading into the new record the old, outdated, and now inaccurate testimony from the first trial.

There is no reason to rely today on the accuracy and reliability of that old testimony and no other way for prosecutors to resuscitate their case in a way that honors the defendant’s constitutional rights. Hildwin’s lawyers have filed a motion with Hernando County Circuit Judge Stephen Toner seeking to dismiss the indictment against their client, and state attorneys have opposed that motion. The state attorneys say that Hildwin has already made and lost in his previous trial many of the same arguments about the evidence that he is making now. It’s a poor argument and Toner should reject it. There should be no second trial.

It’s worth reviewing some of the ways in which Hildwin’s first trial was tainted from its inception. Let’s start with a trial judge who failed in 1985 and 1986 to ensure that the capital defendant received adequate legal representation. Hildwin’s first public defender eventually resigned and so the trial judge appointed a young attorney, in private practice, with about four years of experience, who had never tried a murder case before. It’s hard not to view his handling of the case—from the questioning of witnesses and to the other phases of pretrial discovery—as having been significantly affected by his inexperience. He at least saw fit to argue that he wasn’t getting from prosecutors all the material he was required to get under the so-called Brady rule.

The first trial judge, however, consistently rejected these discovery challenges. One instructive example involved the surprise introduction at trial of blood evidence prosecutors told jurors during opening statements would link Hildwin to the crime. When Hildwin’s lawyer said, at a sidebar conference with the judge, that he had never before heard of that evidence, prosecutors blamed him for not doing his job in finding out about it. The judge allowed the evidence to be introduced. And it was that evidence that we now know was false based on the subsequent DNA testing that overturned Hildwin’s conviction.

On and on this pattern unfolded during Hildwin’s trial and on appeal. For Hildwin it amounted to a perfect storm that has kept him imprisoned for more than a third of a century. His attorneys would complain about the prosecutorial misconduct that infected his trial and prosecutors would quickly respond by blaming the trial attorney for failing to “discover” the information in the first place. The defense would complain about incomplete or false testimony, and prosecutors would respond by blaming the trial attorney for not asking the right questions at or before trial.

The reviewing courts in Florida, for years, looked at this paradox—heads I win, tails you lose—and consistently concluded there was enough evidence of Hildwin’s guilt that he should not be granted relief. None of the case’s problems mattered. Not the mistakes his trial lawyer made. Not the way prosecutors appeared to take advantage of the young attorney. Not the way key questions were never asked or answered. Not the way the initial trial judge inaptly handled the evidentiary issues. Even when the state Supreme Court struck down Hildwin’s death penalty in 1995, it diminished the legal significance of these other problems in deciding not to free him.

But everything about this case has changed since the new testing of that DNA evidence. This renders the state’s technical arguments weaker than usual in these retrial scenarios. No one can reasonably say the state’s evidence against Hildwin is so strong that it would be OK to allow a new generation of capital jurors to hear the flawed testimony from the first trial. No one can reasonably argue, as the state now does, that Hildwin’s current claims have been litigated in the context of his new DNA finding.

If Toner accepts the premise of all these old appellate decisions, he will be incorporating into a second trial all of the constitutional flaws and failings of the first trial. And he will be ignoring all of the facts and evidence we have learned about the crime since that first trial. The easy out here for the judge would be to allow the case to go to trial and then blame or credit the result on jurors. But no jury should ever be allowed to hear a capital case so disabled as this one has become over time. The right call here for Toner, even if it is the difficult call, is to dismiss the indictment and bring an end to this sorry story once and for all.