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A Liar Put Him on Death Row. His Co-Defendant Could Help Set Him Free. Why Won’t He?

Reversing course, a key witness who could help James Dailey stays silent in a Florida case that was built on dubious jailhouse informant testimony. Dailey could face execution.

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For more than three decades, Florida death row inmate James Dailey has maintained his innocence, claiming that he played no part in the 1985 murder of 14-year-old Shelly Boggio. On Thursday, the one person whose word could spare his life — his co-defendant, Jack Pearcy — took the stand in a Clearwater courtroom. But when the time came for Pearcy to speak, he sat in the witness box, stone-faced and silent.

The subject at hand was an affidavit Pearcy signed in December, in which he cleared Dailey of any involvement in the killing. “James Dailey had nothing to do with the murder of Shelly Boggio,” it stated. “I committed the crime alone. James Dailey was back at the house when I drove Shelly Boggio to the place where I ultimately killed her.”

No physical or forensic evidence ties Dailey to the gruesome killing, nor has there ever been a credible motive. At his 1987 trial, prosecutors secured his conviction by relying on the dubious testimony of three jailhouse informants. One of them — a prolific con-man-turned-jailhouse-informant named Paul Skalnik — was the subject of a joint ProPublica-New York Times Magazine investigation. He was released from jail five days after Dailey was sentenced to death. (Skalnik has always maintained that his testimony in Dailey’s trial was truthful and that he did not receive any benefits in return.)

The affidavit from Pearcy had helped persuade 6th Judicial Circuit Judge Pat Siracusa to grant Thursday’s evidentiary hearing. Dailey, who had been transported nearly 200 miles from the Florida State Prison in Raiford for the proceedings, watched Pearcy intently, studying his co-defendant from behind his thick-framed, prison-issued glasses.

The stakes for Dailey, who is under an active death warrant, could not be any higher. The 73-year-old was scheduled to be executed on Nov. 7, 2019, but he was granted a stay of execution last fall. That stay expired on Dec. 30. Though Gov. Ron DeSantis has indicated that he will hold off on setting an execution date until the case has played out in the courts, Dailey is running out of options. For Pearcy, the stakes are far lower; though prosecutors argued in a 1986 sentencing memo that he deserved death because he was “the main actor” in Boggio’s murder, he received a life sentence.

Until Pearcy took the stand this week, a question had hovered over the hearing: Would he actually say in open court that he committed the crime alone? Pearcy had previously shown himself to be anything but a dependable witness. Despite proclaiming Dailey’s innocence several different times over the years — most notably in a sworn affidavit he signed in 2017 — Pearcy had never managed to make such a declaration before a judge; when he was called to testify about the 2017 affidavit the following year, he invoked his Fifth Amendment right against self-incrimination.

In a near replay of that hearing, Pearcy remained mute on Thursday as Josh Dubin, a member of Dailey’s defense team, asked him a series of straightforward questions. Each was met with silence.

“It’s déjà vu all over again,” groused Assistant State Attorney Sara Macks.

Before Pearcy was called to the stand that day, Siracusa had solicited ideas from prosecutors, the defense team and even Pearcy’s mother about how to ensure that Pearcy actually testified. In a freewheeling exchange that took place in the courtroom before a phalanx of TV cameras, Siracusa brainstormed from the bench. “There are 7 seconds to go, and this is a Hail Mary, and we need to put him in the end zone,” he said. Acknowledging how little leverage even a judge has with a man who knows he will be spending the rest of his life in prison, Siracusa added, “I’m sorry to mix my metaphors, but switching from football to poker: I’ve got a pair of twos and he knows he has a straight.”

The judge ultimately decided not to threaten Pearcy with contempt of court, concluding that doing so would be ineffectual. Instead, he tried to reason with Pearcy. “Today is the day to set the record straight,” the judge informed the weathered, heavily tattooed 64-year-old. “You’ve made many sworn statements over the years, many of which contradict each other.”

“Testifying is not going to change my situation in any way whatsoever,” he told the judge.

Pearcy’s refusal to testify was not an accident, Dailey’s attorneys argued, suggesting that he had buckled under pressure from his family not to take the blame for the murder. They pointed to a series of phone calls that Pearcy’s mother, Sally Simon, made to him in prison after she learned of the affidavit he signed in December. “I was upset and I absolutely admit that,” Simon told the judge of one such call, adding that she had always urged her son to tell the truth. In February — after Pearcy had received a slew of calls from his family, according to prison phone logs — he gave a deposition in which he recanted his affidavit.

But Siracusa tried again and again to persuade him to testify. “You’ve told two different stories,” the judge said, referring to Pearcy’s numerous accounts of the murder over the years. (One narrative implicated Dailey, Siracusa observed, while the other exonerated him.) “You understand that in the future, we’re not going to be doing that anymore,” the judge said. He added that Pearcy would have no more opportunities to testify: “Today’s your last day.”

Pearcy nodded, unmoved.

“Nothing I can do or say to change your mind?” Siracusa asked.

Pearcy shook his head.

Finally, the judge relented. “OK, Mr. Pearcy can go,” he said. The courtroom fell silent as Pearcy was escorted out in handcuffs; with him seemed to go any hope of bolstering Dailey’s claims of innocence.

But Dailey’s attorneys had one last argument to make. Pointing to statements Pearcy made in his recent deposition, in which he conceded to being alone with Boggio during a critical window in the early morning hours of May 6, 1985, Dubin identified “new evidence that places Pearcy alone with the victim at the time the state said the crime occurred.” Had jurors heard this evidence, Dubin argued, they would likely have reached a different verdict.

Siracusa asked the prosecution and defense to present written arguments on this point, and he said he would issue a ruling on May 1. If he sides with the defense, then he will grant a lengthier hearing that could span a week or more, at which Dailey’s attorneys can present all his claims of innocence — including testimony about how questionable jailhouse informant testimony helped secure his conviction.

As the hearing drew to a close, Kalli Boggio, a sister of the victim, approached the judge. She and other family members had sat together throughout the hearing, quietly observing the proceedings. “Our family has been through enough,” she said, her voice breaking. “It will be 35 years this May. It needs to come to an end. We’re tired of hurting. We’re done.

Please,” she implored him. “Get this to an end.”

Seated nearby, unnoticed by the scrum of TV cameramen, was Florida death row exoneree Clemente Aguirre-Jarquin. He had been Dailey’s neighbor on death row for nearly two years. They first met in 2009, he said, and during their time behind bars, they frequently talked about their cases — principally, how they had each been wrongly convicted of crimes they did not commit. Aguirre-Jarquin had thought of Dailey many times since being freed from death row. He had come to the hearing to show Dailey that he believed in his innocence.

“I support him 100%,” Aguirre-Jarquin said. “His story has never changed.”

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Pamela Colloff

Pamela Colloff is a senior reporter at ProPublica and a writer-at-large at The New York Times Magazine.

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