[Deathpenalty]death penalty news----FLA., USA
rhalperi at mail.smu.edu
Thu Jul 8 15:54:47 CDT 2004
Killer's 9th appeal goes to state high court----New DNA evidence shows
physical evidence that was presented at his trial did not link Paul
Hildwin to the woman who was strangled.
The Florida Supreme Court will decide the significance of new DNA evidence
and whether convicted murderer Paul Hildwin deserves a new trial.
Hildwin, 44, was sentenced to death in 1986 for strangling Vronzettie Cox
during a rape attempt and robbery. The jury took less than an hour to
decide his fate.
Recent DNA evidence shows that semen and saliva samples collected from the
crime scene and considered during the 1986 murder trial do not belong to
In April, Hernando Circuit Judge Richard Tombrink denied Hildwin's request
for a hearing to consider the DNA evidence.
Tombrink wrote that even without considering the semen and saliva samples,
"numerous conflicting and inconsistent statements, and outright lies
admitted to by the defendant, which, along with the evidence and testimony
presented, were sufficient for the jury to return a unanimous verdict of
guilty at trial."
Hildwin's attorneys appealed that decision to the Florida Supreme Court in
June. So far, the court has not scheduled a briefing on the case.
"It's gone from our hands; we've lost jurisdiction," said Assistant State
Attorney Rock Hooker. "There's nothing for us to do now except wait."
This would be Hildwin's 9th appeal to the state Supreme Court.
Although Hildwin could still appeal the Supreme Court's decision on the
DNA issue in federal court and before the U.S. Supreme Court, there are no
other appeals pending in his case - meaning this could be his last chance
to escape death.
The new DNA evidence appears to complicate Hildwin's case, which dates to
Sept. 9, 1985, when Cox, 42, gave Hildwin a ride after he ran out of gas
along U.S. 19 in Hernando County.
Police found her naked body 4 days later in the trunk of her car in some
woods not far from Hildwin's home off Knuckey Road in northwest Hernando
She had been strangled with a T-shirt that was found tied around her neck.
Evidence, including a torn bra, indicated that she may have been raped.
During the original 1986 trial, one of the more damaging pieces of
evidence came from semen taken from Cox's panties and saliva taken from a
washcloth. Both were found in a laundry bag in the back seat of the
In 1986, prosecutors presented an FBI analysis that said Hildwin's blood
type matched 11 percent of the population that could have raped and
murdered Cox. It was the only physical evidence presented at the trial
that linked Hildwin to her murder and possible rape.
The new DNA tests show that neither the semen nor saliva sample came from
Hildwin. But other evidence linked Hildwin to the murder.
Hildwin cashed a forged, $75 check from Cox's checkbook. A witness
testified that Hildwin was driving Cox's car when he cashed the check.
Police found Cox's radio and a ring in Hildwin's home. A piece of
Hildwin's hair was found in the front seat of Cox's car.
Prosecutors have said that the washcloth and panties are irrelevant to the
Judge Tombrink appeared to agree. He wouldn't even consider results from
mock trials that supported Hildwin's claim that the new DNA evidence could
result in an acquittal in a new trial.
A Tampa trial research company hired mock jurors from Hernando County to
consider the new DNA evidence in a re-created, although shortened, version
of the 1986 trial. The would-be jurors acquitted Hildwin in trial
Tombrink called the mock trial results "unscientific" and said they "do
not provide an accurate or reliable basis on which to determine that a
different result would have occurred at trial."
(source: St. Petersburg Times)
Looking Back at The Past Supreme Court Term: The Rehnquist Revolution
Comes to a Standstill, For Now
In early July, at the end of every Supreme Court term, it is customary to
look back and attempt some meaningful judgments about the opinions issued
over the previous 9 months.
This is in many respects an artificial enterprise. Trends at the Court do
not organize themselves neatly into the Court's yearly calendar. They run
over the course of many terms and, especially in the absence of any
turnover of Justices on the Court, they do not start or stop abruptly.
That said, the end of this term does seem an appropriate moment to venture
one very broad generalization: The Rehnquist Revolution - a decisive shift
in constitutional law that has progressed for 17 years - is now in a state
of equilibrium. That is, it is neither advancing nor retreating in any
great measure. And this is likely to remain the state of affairs until new
blood comes to the Court - ending the current, remarkable nine years of
The Rehnquist Agenda: Partially Realized, But Currently Stalled
When William Rehnquist assumed the Chief Justiceship in 1986, the
conservative judicial agenda was fairly well set. In broad terms, the
conservatives wanted to undo both the substance and the analytic
methodology of the Warren era.
In application, this meant targeting liberal precedents in a host of
fields. The conservative wish list looked roughly like this:
Rollback or overturn Roe v. Wade.
Rollback or declare unconstitutional affirmative action.
Undercut or overturn Miranda.
Relax other constitutional limitations on police investigations.
Lower the wall separating Church and State.
Increase states' rights while cutting back on federal power.
Relax judicial oversight of the death penalty.
Cut back on the scope of civil rights laws.
Revitalize the "takings" clause as a way of protecting private property.
Sharply limit the use of Due Process to discover "new" constitutional
As is evident just from reading this list, the Rehnquist Court has made
substantial progress towards achieving all these objectives.
But, if the last few terms are any indication, the Rehnquist Revolution
has finally exhausted itself - at least while the current set of justices
Moderate Justices O'Connor and Kennedy Are Unlikely to Go Further Than
Simply put, the Rehnquist Revolution has become a victim of its own
success and of the relative moderation of the 2 swing vote justices,
Sandra Day O'Connor and Anthony Kennedy, whose votes are necessary to
achieve any major shift in the law.
If this term and the several preceding are any indication, O'Connor and
Kennedy have gone as far as they will go - and, thus, we are likely to see
fewer and fewer major innovations until new appointments eventually change
the Court's internal political dynamic.
Indeed, the engine of the Rehnquist Revolution has been sputtering for
some time now. As far back as 1992, it became clear that the conservatives
would not fully achieve their most important objective: the overturning of
Roe v. Wade. Although Rehnquist and his fellow conservatives opened the
door to substantially increased state regulation of a woman's
constitutional right to have an abortion, in Planned Parenthood v. Casey,
O'Connor and Kennedy made clear that there would be no fifth vote on the
current Court to move from cutting back on Roe to doing away with that
Over the intervening twelve years, in field after field, the Rehnquist
Revolution has followed a similar pattern. On every front, conservatives
have made very substantial progress towards their jurisprudential goals.
But in the end, the moderating instincts of either O'Connor or Kennedy
have kept their more revolutionary brethren from capturing the field
Take the field of criminal procedure. Over the past 15 years, the Court
carved large holes in the Miranda doctrine. As a general rule, Miranda
prohibits prosecutors from using evidence obtained through interrogations,
when police have not given suspects the famous warning about the right to
remain silent and to consult with a lawyer. Over time, however, the Court
created a host of exceptions to this general rule - so many, in fact, that
many observers considered it just a matter of time before the
conservatives succeeded in doing away with Miranda completely.
But, here, as with Roe v. Wade, O'Connor and Kennedy disappointed more
ardent conservatives. They balked at actually overturning Miranda and, 2
terms ago, the Court ended up actually reaffirming Miranda, albeit in its
already diminished form.
Affirmative action survived, albeit in similar minimalist fashion. In case
after case, the conservatives whittled away at the permissible scope of
racial preferences. For example, they succeeded in changing the standard
of review applied to affirmative action programs from "intermediate
scrutiny" (a modestly rigorous test) to "strict scrutiny" (an extremely
In the end, however, as reflected in the 2003 rulings in the University of
Michigan cases, O'Connor and Kennedy stopped short of totally outlawing
such racial preferences. And so they remain, narrow and shallow, a token
remedy for slavery's lasting legacy.
The Term That Just Ended: Also a Story of the Victory of Moderation
In the term just completed, the same basic story line played out in
several other areas of law.
For fifteen years, the conservatives have made significant progress in
lowering the metaphoric wall separating church and state. In particular,
the Court has done away with many of the traditional limitations that -
based on the First Amendment's ban on the "establishment" of religion -
had precluded the government from providing funding to sectarian
This term, however, in Locke v. Davey, the watering down of the
establishment clause reached its limit within this Court. In previous
cases, including a school voucher decision that Rehnquist wrote two years
ago, the Court had given states the okay to fund religious institutions if
that funding fit naturally within the scope of a more general funding
program. In other words, notwithstanding past precedents to the contrary,
the Court had ruled that the establishment clause does not force states to
exclude religious institutions that would otherwise be eligible for
government subsidies, simply because the institutions are sectarian in
The issue in Locke v. Davey was whether it was not merely permissible to
fund sectarian institutions that were otherwise eligible for a general
funding program (such as school vouchers), but actually constitutionally
Put another way, the case asked this question: Can states choose to make
religious institutions ineligible for broadly available public funding
programs? Or is such a choice an impermissible form of discrimination
Actually requiring government to fund religious institutions would have
been a huge new step for the Court. And, once again, O'Connor and Kennedy
balked. In Locke, the Court ruled that no religious subsidy was required.
This term also saw the reaching of a limit in the Court's federalism
jurisprudence, where the Rehnquist Court has dramatically increased
states' rights and often at the expense of federal governmental power.
In a series of recent decisions, for example, the conservatives on the
Court had repeatedly rejected congressional efforts to overcome the
states' constitutional immunity from lawsuits. This term, however, in
Tennessee v. Lane, O'Connor switched sides and provided a fifth vote for
the ruling that states could be sued under the Americans With Disabilities
Act for failing to make their courthouses accessible to the disabled.
When Tennessee v. Lane is taken together with a few other cases in which
the Court declined invitations to expand states' rights, it would seem
that the run of new federalism landmarks may well be at or near an end.
Much the same story can be told about the death penalty. Ever since
Rehnquist took over as Chief, the Court has dramatically cut back on
judicial oversight of the death penalty. But then, starting a few terms
ago, the pendulum began to swing back. The Court, led by O'Connor,
declared unconstitutional the execution of retarded persons, and also
began to re-assert its supervision over other aspects of capital
This term solidified this recent trend. Specifically, in two cases (Banks
v. Dretke and Tennard v. Dretke), the Court sharply rebuked the U.S. Court
of Appeals for the Fifth Circuit -- arguably the most conservative federal
appellate bench in the country -- for failing to give habeas corpus relief
to 2 death row inmates whose prosecutions were patently flawed.
The Real Reason for the Court's Current Caution With Respect to Many Cases
Looking at the decisions, a leading constitutional law commentator,
University of Chicago Professor Cass Sunstein, has noted a decided trend
towards "minimalist" decision-making. That is, Sunstein notes a
proliferation of very narrow, case specific rulings, rather than sweeping
pronouncements by the Court.
As a descriptive matter, there is surely some truth to Sunstein's
observation. Last term, the court ducked a lot of big and difficult issues
-- ranging from the constitutionality of the Pledge of Allegiance, to the
actual procedures to which "enemy combatants" are entitled. The Justices
sent a lot of cases back to the lower courts for further analysis rather
doing the analysis themselves.
But I have my doubts that this cautious approach really reflects an
aversion to large judicial statements. The Court showed it is still fully
capable of these - as in Blakely v. Washington, where it cast doubt on the
way most states and the federal government handle criminal sentencing.
Instead, I believe that the narrow, "small-ball" style of decisionmaking
reflects a political truth inside the Court. That truth is this: As a
political matter, in most areas of law, the Court has already moved into
the very conservative, but not radically conservative, posture that the
controlling justices, O'Connor and Kennedy, favor.
No wonder, then, that the Court's decisions increasingly amount to
treading water. It is not because the Court does not know how to swim. It
is because O'Connor and Kennedy like the water they're in just fine, and
no other group of justices has the power to change the Court's location.
And that leads me towards that very dangerous ground of prediction. I
believe next term is going to look a lot like this term: Again, the Court
will vacillate, in most areas of law, within a narrow range.
After that, everything will depend on who retires from the Court, and
whether it is Bush or Kerry who is appointing the replacements. For that,
(source: FindLaw (Edward Lazarus, a FindLaw columnist, writes about,
practices, and teaches law in Los Angeles. A former federal prosecutor, he
is the author of 2 books - most recently, Closed Chambers: The Rise, Fall,
and Future of the Modern Supreme Court)
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