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Two months after ProPublica and The New York Times Magazine published a joint investigation that cast doubt on key testimony in a Florida death penalty case, the fate of James Dailey remains uncertain. Dailey 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. Ever since, as Dailey’s attorneys have sought to have his claims of innocence evaluated in state and federal courts, one question has loomed over his case: What will Florida Gov. Ron DeSantis do?
Dailey remains under an active death warrant — an order that authorizes his execution should the governor set a new date — in a cell that is just 30 feet from Florida’s execution chamber.
Dailey and his co-defendant, Jack Pearcy, were convicted of the 1985 murder of 14-year-old Shelly Boggio. Pearcy received a life sentence. Dailey, whose conviction rested largely on the testimony of con man-turned-jailhouse informant Paul Skalnik, was condemned to death.
The ProPublica-Times Magazine investigation found that Skalnik was one of the most prolific, and most effective, jailhouse informants in American history. In the 1980s, he testified or supplied information in at least 37 cases in Pinellas County, Florida, alone. Florida prosecutors put Skalnik on the stand again and again, even though he was notoriously unreliable, and in exchange for his damning testimony, they granted him leniency. Just five days after Dailey was sentenced to death in 1987, Skalnik was released from jail. Skalnik has always maintained that his testimony in Dailey’s trial was truthful and that he did not receive any benefits in return.
DeSantis can set a new execution date until March 23, when Dailey’s death warrant expires. After that, the governor would have to sign a new warrant before he could set an execution date.
Across Florida, newspaper editorial boards and columnists have cited the reporting by ProPublica and the Times Magazine on Skalnik in expressing their concern about Dailey’s possible execution. Tampa Bay Times columnist Daniel Ruth wrote that there would be “blood on DeSantis’ hands” if he allowed Dailey to be put to death. The Orlando Sentinel warned: “Gov. DeSantis Must Not Be Conned into Executing James Dailey.” Miami Herald opinion columnist Carl Hiaasen cautioned that “sending a man to his grave on the worthless word of Paul Skalnik wouldn’t be justice. It would be a shameful travesty.”
“It seems clear that the state never had enough real evidence to convict Dailey, so it turned to lies — lies that have come undone,” wrote The Daytona Beach News-Journal’s editorial board.
DeSantis has indicated that he is waiting for the case to play out in the courts. But over the past several months, the courts have not looked favorably on Dailey’s attempts to have his case reconsidered. Dailey’s case highlights a strange fact of the criminal justice system: Because the standard for proving actual innocence is incredibly high, judges are often reluctant to overturn convictions even when evidence emerges that casts the original facts of the case into doubt or reveals once-incriminating testimony to be far more ambiguous.
In December, U.S. District Judge William F. Jung rejected a request from Dailey’s federal attorneys for an indefinite stay of execution so that they could pursue his innocence claims. “A thorough review shows the state’s trial case against James Dailey was not strong, but it was sufficient,” Jung wrote.
After Jung’s decision, Dailey’s federal attorneys requested permission from the U.S. Court of Appeals for the 11th Circuit to file an additional federal habeas petition in which they asked that his claims of innocence be considered. But they were rebuffed in a ruling on Jan. 30.
In a remarkable footnote to the ruling, Chief Judge Ed Carnes acknowledged that Skalnik’s testimony at Dailey’s trial was likely false. “The layout of the jail where Dailey was housed and the procedures in place for prisoners in protective custody, like Skalnik, establish that Dailey could not have confessed to Skalnik in the way Skalnik said he did,” Carnes wrote. “And other evidence indicates Skalnik lied about other matters during the trial.”
But neither Skalnik’s lies, nor other evidence Dailey’s lawyers presented to the 11th Circuit, ultimately mattered. “Dailey’s new evidence, at most, casts some degree of doubt on some of the testimony the State presented at trial,” Carnes wrote. “But we are not jurors deciding in the first instance whether the State has proved its case beyond a reasonable doubt. We are a court of appeals deciding more than 30 years after a murder whether the inmate who was convicted of it, and whose conviction has been upheld at every turn for three decades, has shown a reasonable likelihood of meeting the ‘extraordinarily high’ burden of making a ‘truly persuasive demonstration’ that he is actually innocent. Dailey has not done that.”
Carnes, a former Alabama assistant attorney general, has long been assailed as overzealous in his pursuit of the death penalty — even in cases tainted by racial discrimination that were decided by all-white juries. An Alabama legal journal dubbed him “Mr. Death Penalty.”
Dailey’s lead federal attorney, Carol Wright, condemned the ruling. “The court today says that proof of innocence is not enough,” she wrote in a statement to The Tampa Bay Times. “The court today says even if the state’s theory of the conviction is disproved, if the court can imagine any scenario of guilt however implausible an innocent man can be executed. The system is broken.”
Though Dailey’s appeals have not made headway in the federal courts, his case is also currently before the 6th Judicial Circuit Court in Clearwater, Florida, and it is there, as the possibility of his execution looms, that his legal team is fighting to have the courts examine his claims of innocence.
One of the most compelling issues before the court is an extraordinary new admission from Pearcy. In December, in a meeting with one of Dailey’s attorneys, Pearcy signed an affidavit that stated: “James Dailey had nothing to do with the murder of Shelly Boggio. 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.”
Pearcy has now repeatedly confessed to being solely responsible for the crime for which he was sentenced to life in prison and for which Dailey was sentenced to death.
In 2017, he signed a sworn affidavit in which he asserted that Dailey was not present when Boggio was killed. But when he was called to the stand the following year to attest to this under oath, he invoked his Fifth Amendment right against self-incrimination. Over the years, Pearcy has given numerous different accounts of the crime — at times blaming Dailey and other times inculpating himself.
On Feb. 20, Circuit Judge Pat Siracusa will consider whether to grant the defense’s request for an evidentiary hearing at which Pearcy could be called to testify. Another issue before the judge concerns what prosecutors knew about Skalnik’s criminal history when they called him to testify at Dailey’s trial.
As the ProPublica-Times Magazine investigation revealed, Skalnik was arrested in 1982 and charged — but never prosecuted — with “lewd and lascivious conduct on a child under 14,” after a 12-year-old girl said he assaulted her. The state attorney’s office ultimately dropped the charge against him and continued to use him as a jailhouse informant. Once the charge was dropped, Skalnik was able to portray himself to jurors as a far more innocuous figure than he actually was.
This was true at Dailey’s trial, as well. When Skalnik was cross-examined in that trial, one of Dailey’s attorneys pressed him about his criminal history, asking, “How bad were your charges?”
Skalnik was quick to reply: “They were grand theft, counselor, not murder, not rape, no physical violence in my life.” He never mentioned his arrest for the molestation charge.
Prosecutors did not object to this characterization. In fact, they doubled down on the idea that Skalnik was morally superior to the man who sat at the defense table. “There is a hierarchy over in that jail, just like in life,” prosecutor Beverly Andrews said in closing arguments, drawing a distinction between Skalnik’s theft charges and the murder charge that Dailey faced. “Some crimes,” she added, “are worse than others.”
Did the prosecutors who tried Dailey — Andrews and Robert Heyman — know about Skalnik’s molestation charge, but not disclose it to jurors? Both have strenuously denied any wrongdoing.
Last month, Dailey’s attorneys filed a motion with the 6th Judicial Circuit Court alleging that Heyman “was aware of the sexual assault charges previously faced by Skalnik and dismissed by his office.” They pointed to handwritten notes the state attorney’s office turned over in a separate capital case in which Skalnik testified. The notes appeared to be from Dailey’s trial and referenced the testimony of a Pinellas County sheriff’s detective, John Halliday, about Skalnik. Next to Skalnik’s name, the words “sex assault” had been crossed out.
Dailey’s attorneys had suspected that the notes belonged to Heyman, who questioned the detective during Dailey’s trial. According to the motion they filed, Heyman said the notes were his in a January interview with ABC News that has not yet aired.
“Mr. Heyman was apparently prepared to ask Halliday about Skalnik’s prior sexual assault charge, but, after Skalnik’s false testimony regarding his criminal history, Mr. Heyman did not,” Dailey’s attorneys assert in the motion. “The State permitted Skalnik’s false testimony about his criminal history to stand uncorrected.” (The state has not filed a response thus far.)
Dailey’s attorneys have previously argued that jurors could not fairly assess Skalnik’s credibility as a witness without knowing his full criminal history. Heyman’s admission allowed them to make a powerful new argument: that the prosecution not only knew Skalnik had misrepresented his history, but then let that mischaracterization stand and bolstered his testimony with representations that he was merely a thief. In doing so, Dailey’s attorneys allege, Heyman “perpetrated a fraud on the court.” In light of that, they argue, the 6th Judicial Circuit Court should vacate Dailey’s conviction and death sentence.
If Siracusa grants the defense’s request for an evidentiary hearing, Heyman could be called to testify.
Dailey’s attorneys have also filed a petition for writ of certiorari with the U.S. Supreme Court, asking its justices to review the Florida Supreme Court’s refusal to consider Pearcy’s 2017 sworn affidavit. An unlikely coalition of groups has filed amicus curiae briefs. These “friend of the court” filings — submitted by the United States Conference of Catholic Bishops, eight former and current prosecutors and Conservatives Concerned About The Death Penalty — ask the nation’s highest court to review Dailey’s case.
“Generally, the weaker the prosecution’s case, the stronger the likelihood that prosecutors will resort to using jailhouse informant testimony,” the prosecutors wrote. “Because informant testimony is inherently unreliable, prosecutors have an obligation to present an accurate and complete picture of the benefits received so that jurors can consider in context the credibility to which the testimony is entitled. The evidence unveiled after Mr. Dailey’s trial about the jailhouse informants and their motives to testify stands in stark contrast to that presented during trial, thus undermining any confidence in the jury’s verdict.”
As the courts sort out what will happen next, Dailey remains on “death watch,” steps away from the execution chamber.